RIGHTS OF THE ACCUSED UNDER THE AUSTRALIAN ANTI-TERRORISM LAWS

Introduction and Delimitation

As a part of human rights, every accused person has protected rights under international law and under Australian laws.

The rights of the accused rest on the wider concept of human rights which is recognized by the different religions throughout history and developed through protracted struggle and strife culminating in their contemporary manifestation in universal declarations and international instruments of human rights as well as in national constitutions of states.

Derived from the nature of things and natural state of affairs, the presumption of innocence, in connection with human behaviour, permeates and directs the principle of legality of all criminal legislation, substantive or procedural. According to the principle of legality, all human actions are originally permissible until prohibited at a later point of time. Accordingly, criminalization can have no retrospective effect, i.e., it applies only from the time of its promulgation onwards. This applies to, or is probably derived from, religious prohibitions, which clearly state that there is no punishment before warning.

The principle of legality, thus, supplements and supports fundamental civil liberties spelt out by international instruments and liberal constitutions. Presuming pre-existence of a criminal code, however, a person may be subjected to the whole process of criminal law if he is accused of violating the law, yet he will be presumed and remain innocent until his guilt is proven in a fair trial before a court of law. The very existence of a court of law, therefore, represents the first grand guaranty of all rights of an accused before, during, and after trial including his right of access to court and to the trial itself. A person may be subjected to the formal process of criminal law if he is merely suspected or formally accused of committing an offense, but the entire criminal proceedings so applied must rest upon this presumption of innocence.

Closely linked with and based upon the "presumption of innocence" is the "burden of proof". The burden of proof is on the state to prove its case, not on the accused to prove his innocence and certainly not for the accused to prove his guilt. Given a prima facie case against him, that does not prove his guilt but only justify moving the legal process against him. Mere application of this process of criminal law, however, does not constitute an infringement on the 'rights' of the accused for two apparent reasons: First, such rights will arise only on initiation of and during this process. Second, such process is a necessary and legitimate means for striking the balance between the individual freedoms, i.e., the rights of the accused as an individual vis-à-vis the rights of individual victims, the society or state.

So to define the term 'accused', at least for the purpose of this monograph, it is taken to mean any person formally subjected to the process of criminal law, whether he is designated as a suspect or an accused, and continues to carry this status until the final proof of his guilt or innocence by judgment of a partial court of law. Accordingly, this study will classify and deal with the rights of the accused (whether or not his alleged offence is indictable, or he is actually indicted or not) at stages before and during trial and will be set out in the plan of this proposal.

Though initiation of criminal proceedings against the accused is, in my view, an appropriate and a legitimate yardstick for balancing between the conflicting concerns for the individual and the public security or safety, which is in the end a benefit for both, some would say such individual rights are pure human rights and cannot be balanced by any other considerations: public or individual rights of victims. At any rate, this study is not about the legitimacy of the criminal procedure codes, given the existence and enforcement of such machinery; instead this study will investigate the rights of individuals so placed under its gearwheels. At any rate, the balance achieved by this process has worked and has been kept satisfactorily in democratic systems of rule at normal times. The balance is usually tilted against the accused at all times in totalitarian systems and the likes, which unfortunately might be the case with democratic systems particularly in the wake of the recent ongoing global war against terrorism launched after September 11, 2001. Since then, great concerns for human rights have been voiced as the balance of normal criminal law application has been appallingly twisted.

New anti-terrorism and security laws have been introduced. Wide scale amendments to penal and other laws have been made. Introduction of anti-terrorism legislations as the result of launching this war will definitely and necessarily impact the protection of human rights generally and particularly the rights of those accused of terrorism.

From the perspective of this subtle balancing between currently augmented concerns for human rights and rights of the accused on one hand, and concerns for public security and safety on the other, the author will tackle the subject of this thesis. In so doing, the researcher acknowledges that states must address serious and genuine security concerns including terrorism, but with a clear vision to strike a fair balance between legitimate national security concerns and the protection of fundamental freedoms.

This is going to be a case study focusing on a sample exemplifying democratic systems that claim a special regard to individual and public freedoms, thereby excluding totalitarian and dictatorial ones that show no such respect to individual or fundamental freedoms at normal times or at times of emergency apart from the security of the state or regime.

The purpose of this thesis is to investigate whether later anti-terrorism legislations do or do not represent a drawback on earlier efforts of democratic systems to incorporate and implement international standards for the rights of an accused including his or her human rights within the respective national laws. Since Australia, like most western countries, has traditionally shown sufficient enthusiasm to both human rights and strong response to the so called war against terrorism, it furnishes, in my opinion, the best such example. Moreover, to delimit the outline of the thesis to its title, the rights of an accused will be treated within the context of anti-terrorism legislations only.

The study will also explore the anti-terrorism laws in Australia to determine whether they violate or conform with the international law standards in protecting an accused’s right to a fair trial, which includes the right: ­

to be informed of the charge with sufficient detail to answer it,

to have adequate time and facilities to prepare a defence,

to a public trial before an ordinary court.

to have their trial begin and conclude without unreasonable delay,

to be present when being tried,

to choose and be represented by a legal practitioner, and to be informed of this right promptly,

to have a legal practitioner assigned to the accused by the state and at the state’s expense if substantial injustice would otherwise result, and to be informed of this right promptly,

to be presumed innocent, to remain silent, and not to testify during the proceedings,

to adduce and challenge evidence,

not be compelled to give self-incriminating evidence,

to be tried in a language that the accused understands or if that is not practicable, to have the proceedings interpreted in that language,

not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted,

not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted,

to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing, and

to appeal to or review by a higher court.

Research Importance & Objectives

By exploring the anti-terrorism laws of Australia, the research aims at identifying satisfactory standards for national anti-terrorism legislations to harmonise with international standards, principles and guarantees regarding the rights of the accused both in text and in spirit. In other words, it aims to ensure that counter-terrorism laws contain adequate safeguards against abuses of such rights. It is important to add here that special heed in this treatment of Australia will be paid to the derogable and underogable rights on an international perspective, along with assessing actual fulfillment of the circumstances for such derogations (if any) in Australia.

Precise presentation and accurate evaluation of the Australian experiment, it is submitted, will help highlight points of weaknesses and strengths that could be useful for the restatement of the same or that of other regimes around the world, thereby contributing to the promotion of compliance with internationally acceptable values by restructuring national legislations around international law principles.

Research Questions

The research tries this thesis to answer the following key questions:

What international instruments proclaim rights and guarantees for the accused?

What rights of the accused are enshrined in such international instruments?

Is Australia committed to international standards, principles and laws regarding human rights and rights of the accused?

In what way is such commitment manifested? Has Australia acceded, ratified or otherwise declared such commitment to the core international treaties, conventions or protocols relevant to the rights of the accused?

If the answer is yes, to what extent is this commitment discharged through implementation of such rights within its national law including its constitution and criminal legislations?

What counter-terrorism laws have been introduced in Australia since September 11, 2001?

What changes to existing law have anti-terrorism legislations made regarding the status of persons arrested in connection with alleged terrorist charges?

Do such changes (if any) comply with or differ from international standards committed to by Australia?

What are the exact shortcomings (if any) in the Australian anti-terrorism legislations and what suggestions for remedy can be made in the light of international standards and its commitment thereto?

These questions and others will be posed and treated in their appropriate positions according to the research plan.

Methodology & Literature Review

The nature of this case study necessitates a descriptive and an analytical research methodology in order to explore and analyze the relevant international instruments and the Australian legislative provisions, and practice of law enforcers of counter-terrorism laws within the context of international law requirements. The literature will involve the exposition and analysis of current principal Australian federal legislations on the subject namely:

The Australian Constitution

Crimes Act 1914 (Cth)

Part 1AA, Division 3A: Power to stop, question and search persons in relation to terrorist acts.

Division 4B: Power to obtain information and documents in terrorism investigations.

Part 1AE: Video link evidence in proceedings for terrorism offences.

Section 15AA: Bail not to be given for terrorist offences.

Section 19AG: Non-parole periods for terrorist offenders.

Part 1 C, Division 2: Power of arrest for terrorist suspects.

Criminal Code Act 1995, (containing the main terrorism laws introduced after 11 September 2001).

Anti-Terrorism Act (No.2) 2005, giving federal courts the power to make control orders under division 104 of the Criminal Code in response to a request from the Australian Federal Police (‘AFP’) – and introducing Preventative Detention Orders (‘PDOs’) under division 105 of the Criminal Code. Like control orders, PDOs represent a fundamental departure from the long-held principle that a person should not be detained without trial.

Crimes (Overseas) Act 1964,

Australian Security Intelligence Organisation Act 1979 (ASIO Act) as amended until 2003, repealing older Australian Security Intelligence Organisation Act 1956 and the Australian Security Intelligence Organisation Act 1976

Criminal Code Regulations 2002

Border Security Legislation Amendment Act 2002

National Security Information (Criminal and Civil Proceedings) Act 2004, with the object to prevent the disclosure of information in federal criminal proceedings and civil proceedings where the disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice.

Surveillance Devices Act 2004

Telecommunications Interception Legislation Amendment Act 2002, which amends the Telecommunications (Interception) Act 1979 to permit law enforcement agencies to seek telecommunications interception warrants in connection with the investigation of terrorism offences and other initiatives.

These and other Australian legislations and their various applications will be compared to and evaluated against international standards laid down by the following key legal instruments including core treaties with their optional protocols, as these become binding either through accession, ratification, declaration or otherwise becoming part of international customary law. Such valuation, it is submitted, obtains special validity in this case since Australia has acceded to the International Convention on Civil and Political Rights (ICCPR), 1966 and its terms are binding upon them. Australia has also ratified the Optional Protocol, which provides an international complaint mechanism for individuals, including the legislative measures which operate to infringe their rights under the ICCPR.

The Charter of the United Nations, 1945

Universal Declaration of Human Rights (UDHR),1948

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 1969.

International Bill of Human Rights, which is a reference to both the (ICCPR & ICESCR) below.

International Convention on Civil and Political Rights(ICCPR), 1966

International Convention on Economic, Social and Cultural Rights (ICESCR), 1966

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 1984

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW), 1990.

The main aim of reviewing the above literature will not be for defining human rights in as much as only identifying the specific human rights relevant to our subject. However, meaningful definition of the same will be attempted where necessary, while discussing individual infringement cases either in provisions or actions as will be detailed in the research plan.

Discussion of Australian legislative provisions and enforcement actions against international standards will be substantiated and supplemented by discussion of landmark judicial applications, local and foreign, such as the cases of:

Dr Mohamed Haneef, 2007, involving the issues of detention and questioning for 12 days without charge, and bail only in exceptional circumstances.

Joseph Thomas, [2006] VSCA 165, who was subject to the first control order on 28/8/06. High Court challenge to the control order: Thomas v. Mowbray & Ors, - confession not freely given- R v. Thomas

David Hicks 2002, Australian citizen taken to Guantanamo, right to fair trial, cruel and inhuman treatment.

R v. Abdul Nacer Benbrika, 2008, )long detention, cruel treatment)

Al Nashif v. Bulgaria, ECHR, 20 June 2002, paras. 94, 123-124. With reference to Article 9 of the ICCPR in relation to unlawful or arbitrary detention.

Izhar ul-Haque (2006), trial judge criticises conduct of ASIO officers on 5/11/07. IGIS report.

Other relevant cases.

Literature on the subject will include the following references and more readings and websites with the progress of the research:

Books

Boulten, P. (2007). Counter-terrorism laws in practice. Paper presented at NSW Public Defender’s Office Conference 2006.

Lynch, A., MacDonald, E., & Williams, G. (eds) (2007). Law and Liberty in the War on Terror. Sydney, Australia: Federation Press.

Lynch, A., & Williams, G. (2006). What Price Security? Taking Stock of Australia's Anti-terror Laws. Australia: University of New South Wales Press

Saul, B. (2006). Defining Terrorism in International Law. Oxford: Oxford University Press.

Sales, L. (2007). Detainee 002: the Case of David Hicks. Australia: Melbourne University Press.

Gani,M., and Mathew, P.,(eds) (2008). Fresh Perspectives on the War on Terror. Anu e-press

Other publications

Obote-Odora, A. (1999). Defining international terrorism . E Law - Murdoch University Electronic Journal of Law, 6(1).

Hocking, J. (2004). Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy. Australia

Lynch, A., McGarrity, N., & Williams, G. (2009).The Proscription of terrorist organisations in Australia . 37(1) Federal Law Review 1

Syrota, G. (2008). Australia's counter-terrorism offences: a critical study . 34 UWALR 103

Report of the Clarke Inquiry into the case of Dr Mohamed Haneef

Report of inquiry into the actions taken by ASIO in 2003 in respect of Mr Izhar Ul-Haque and related matters (Inspector-General of Intelligence and Security)

A Human Rights Guide To Australia’s Counter-Terrorism Laws (Australian Human Rights Commission)

Practitioners' Guide to the National Security Information (Criminal and Civil Proceedings) Act 2004 (Attorney-General's Department)

Anti-terrorism control orders in Australia and the United Kingdom: a comparison (Parliamentary Library, 2008)

Anti-terror laws: ASIO, the police and you. 3rd ed. (Australian Muslim Civil Rights Advocacy Network (AMCRAN))

Anti-Terrorism Reform Project. A consolidation of the Law Council of Australia’s advocacy in relation to Australia’s anti-terrorism measures

2008 Anti-Terrorism Laws: A Guide for Community Lawyers (Federation of Community Legal Centres  (Victoria))

Counter-terrorism and Australian law ( J. Renwick, Security Challenges , vol 3, August 2007, pp. 67-77)

Australian counter-terrorism offences: necessity and clarity in federal criminal law reforms (G. Rose & D. Nestorovska, Criminal Law Journal, vol. 31, February 2007, pp. 20-55)

What do I do if ASIO or the AFP come to visit me? Australian Muslim Civil Rights Advocacy Network. Plain English guide to terrorism law. Does not take into account changes made in late 2005.

Human Rights 2003: the year in review. Session 1. The war on terror. Papers by Hilary Charlesworth (Is the war on terror compatible with human rights? : an international law perspective); Simon Bronitt (Australia's Legal Response to Terrorism: Neither Novel nor Extraordinary?) + Related papers. Organised by the Castan Centre for Human Rights Law, Monash University

Cowdery, N. (2003). Terrorism and the rule of law

Kerr, D. (2003). Australia's legislative response to terrorism

Shearer, I. (2003). Human rights in an age of terrorism

Michaelsen, C. (2003). International human rights on trial: the United Kingdom’s and Australia’s legal response to 9/11 (25 Sydney Law Review 275)

Hocking, J. (2003). Counter terrorism and the criminalisation of politics: Australia's new security powers of detention, proscription and control . Australian J. of Politics & History, v. 49(3).

Head, J. (2003). Counter-terrorism' laws: a threat to political freedom, civil liberties and constitutional rights (Melbourne University Law Review, v. 26(3), 2003) 

Carne, G. (2003). Terror and the ambit claim: Security Legislation Amendment (Terrorism) Act 2002 (Cth). Public Law Review, v. 14(1).

ASIO's new powers (Interview with the Attorney-General, 24/6/03)

Martyn, A. (2002). The right of self-defence under international law: responding to the terrorist attacks of 11 September.

Apocalyptic Visions and the Law: The Legacy of September 11

A professorial address by Andrew Byrnes at the ANU Law School for the Faculty's 'Inaugural and Valedictory Lecture Series', 30 May 2002.

THE RESEARCH PLAN

TITLE: Rights of the accused under the Australian Anti-Terrorism Laws from the international legal perspective.

PART ONE

CHAPTER I: Introduction

Proposal introduction & delimitation of research subject

Research importance & objectives, and research questions

Methodology and a brief description of the research plan.

CHAPTER II: Defining an accused person.

Defining the rights of the accused.

Sources of the rights of the accused. (Outline their international law, common law, and Australian statutory law sources).

Nature of the rights of the accused.(Discussing their relation with human rights and outlining derogable and underogable rights, the conditions and circumstances validating derogation)

CHAPTER III: Classification of the rights of the accused according to the stages of legal process: pretrial and trial stages

Pre-trial Stage

Trial Stage until final judgment

PART TWO

CHAPTER IV: Outline of Australian anti-terrorism laws and provisions thereof relevant to the rights of the accused.

CHAPTER V: Discuss relevant provisions and their judicial applications in connection with international standards.

CHAPTER VI: Conclusion

Findings

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