This submission addresses a number of human rights concerns raised by the Bill. It does not, however, purport to be a comprehensive analysis of all the human rights implications of the proposed legislation. The Commission recommends that certain provisions of the Bill not be passed. In addition, the Commission makes a number of recommendations about ways the impact of the Bill on human rights could be ameliorated. Terrorism and Human Rights The Commission recognises the vital importance of ensuring that intelligence and law enforcement agencies have appropriate powers to protect Australia’s national security and to protect the community from terrorism. Indeed, such steps are consistent with Australia’s international obligations in international law, both under Security Council Resolutions, and to protect the right to life of persons under its jurisdiction. This right is itself a human right, enshrined in article 6 of the International Covenant on Civil and Political Rights (ICCPR). Human rights law provides significant scope for these agencies to have extensive powers, even where they impinge to some extent on individual rights and freedoms. Such limitations on rights must, however, be clearly expressed, unambiguous in their terms, and must be necessary and proportionate responses to potential harms. As the Office of the High Commissioner for Human Rights has observed, ‘the purpose of security measures is, fundamentally, to protect freedom and human rights.’ It is therefore essential that fundamental human rights are protected in the struggle against terrorism. Recommendations The Australian Human Rights Commission makes the following recommendations: Recommendation 1: The proposed amendments to the control order and preventative detention order regimes, including changes to the monitoring and surveillance powers in relation to those regimes (effected by schedules 2, 5, 8, 9, and 10 of the Bill), not be passed. Any amendments on these lines should be considered either after, or together with, a comprehensive review of the control order and preventative detention order regimes on the lines recommended by the Committee in its Advisory Report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014. Recommendation 2: An issuing court should be required to appoint a court appointed advocate prior to issuing a control order in relation to a person aged under 18.
Recommendation 3: An issuing court should explicitly be required to make the best interests of the child a primary consideration at all stages in proceedings relating to the potential issue of an interim or confirmed control order. Recommendation 4: A court appointed advocate should be entitled to participate in all proceedings related to a control order, including closed hearings, and be entitled to review all the materials put before the court, including material that is sensitive for national security reasons. Recommendation 5: A court appointed advocate should be required to possess relevant expertise in working with children and the development of the child Recommendation 6: in addition to the appointment of the appointed advocate, a child should be provided with security-cleared legal representation in all control order proceedings, and their lawyer should be entitled to attend and participate in all proceedings relating to the control order. Recommendation 7: it should be a requirement that whenever a control order is imposed in relation to a person under 18 years of age, any obligations, prohibitions and restrictions imposed should constitute the least interference with the child’s liberty, privacy or freedom of movement that is necessary in all the circumstances. Recommendation 8: The Commission recommends that the amendments to the preventative detention order regime contained in Schedule 5 of the Bill not be passed. Recommendation 9: Schedules 8, 9 and 10 of the Bill should not be passed. In the that this recommendation is not accepted, the Bill should be amended to ensure that: Monitoring warrants and control order warrants should only be granted where the relevant authority is satisfied that there are no less intrusive means of obtaining the information, and Monitoring warrants and control order warrants should only be available where a relevant authority is satisfied that there are reasonable grounds to suspect non-compliance with a control order. Recommendation 10: If Schedule 15 is passed, it should be amended so that: a legal representative with an appropriate security clearance may not be excluded from control order proceedings trial