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New Zealand Human Rights Commission Submissions |
Last Updated: 26 March 2015
Human Rights Commission
Submission on the
Review of the
Terrorism Suppression Act 2002
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Foreign
Affairs, Defence and Trade Select Committee
11 April 2005
The Commission wishes to make an oral submission
Contact person:
Diana Pickard
Legal and Policy
Analyst
CONTENTS PAGE
1. INTRODUCTION 3
Scope
of this submission 4
3. THE HUMAN RIGHTS ISSUES ARISING
FROM THE TSA 8
basis for interim designations; 10
Protections for classified security information; 12
- Ways forward with the right to a fair trial and the
use of classified security information? 14
Process for examining and renewing designations; 15
- Suggested improvements to the UN designation
and review system? 17
measures in terms of race, nationality or ethnicity; 21
review of the
TSA. 23
4. SUMMARY OF COMMISSION
RECOMMENDATIONS 24
1. INTRODUCTION
1.1 The Human Rights Commission welcomes this
opportunity to contribute to the Foreign Affairs, Defence and Trade
Committee’s
Review of the Terrorism Suppression Act 2002 (TSA).
1.2 The Commission stands four square behind the 2004 Seoul Declaration
by the world’s national human rights institutions that
“terrorism
has a devastating impact on the full range of human rights, most directly the
right to life and personal
security”.[1] The Commission is
on record that terrorism and any violence against civilians are abhorrent abuses
of human rights.
1.3 We affirm the State’s role to protect its
citizens and all those within its borders from such violence. In this, the
government
and this Committee face the challenging task, as do others around the
world, of putting in place measures that both protect the security
and human
rights of the people of New Zealand, and provide processes acknowledging the
human rights of those perceived or identified
to be a threat to security and to
the rights of others. Internationally as well as nationally the development of
effective measures
and processes against terrorism is a work in progress. While
there are no single or simple answers:
Terrorist impulses ferment in poverty, oppression and ignorance. The
elimination of these conditions and the active promotion of a
universal respect
for human rights must become a
priority.[2]
It is a significant fact that all the world’s national-security challenges come from regimes which are also human rights violators.[3]
1.4 Speaking with regard to United Kingdom’s anti-terrorism
legislation, the House of Lords stated:
The real threat to the life of the nation, in the sense of a people living in
accordance with its traditional laws and political values,
comes not from
terrorism but from laws such as these [which breach human rights]. That is the
true measure of what terrorism may
achieve. It is for Parliament to decide
whether to give the terrorists such a
victory.[4]
Scope
of this submission
1.5 The Commission’s submission focuses on
the human rights issues arising from the Review of the TSA. The issue of
designations
was the focus of the Commission’s March 2005 submissions,
both written and oral, to this Committee on the Terrorism Suppression
Amendment
(No 2) Bill. That issue, albeit more briefly, is also included in this
submission for the sake of completeness with regard
to the TSA.
1.6 In
the time available to the Commission to develop this submission, and with the
resources to hand, we have endeavoured to provide
the Committee with either
specific recommended amendments to the TSA, or sufficient information and
references to enable the Committee
(and supporting officials) to identify best
practice and thereby the necessary amendments in due course.
1.7 We note
that section 70 of the TSA requires the Committee to address the parts of the
Act which implement Security Council Resolution
1373, and to consider:
1.8 The
Commission is aware that “most of the procedural and substantive
provisions of the Terrorism Suppression Act can be
seen to play a role in
implementing Resolution 1373 in New Zealand law. ...Effectively then, there will
be little that is excluded
from the ambit of the Select Committee
Review.”[5] The Commission has
therefore considered the human rights issues arising across the TSA.
1.9 The Commission’s submission covers:
A. Broad impacts on human rights: Terrorism related definitions;
2. WHY THE REVIEW SHOULD ADDRESS HUMAN RIGHTS
MATTERS
2.1 The Commission supports the continuing wealth of
directives, since the enactment of the TSA in 2002, on the importance of States
observing human rights whilst combating terrorism. In August last year the UN
High Commissioner for Human Rights stated that over
the long term “a
commitment to uphold respect for human rights and rule of law will be one of the
keys to success in countering
terrorism – not an impediment blocking our
way”.[6] The Security Council
in 2003, in addition to urging States to take action to prevent and suppress
support for terrorism,[7] required in
Resolution 1456 that:
States must ensure that any measures taken to combat terrorism comply with
all their obligations under international law, and should
adopt such measures in
accordance with international law, in particular international human rights,
refugee, and humanitarian
law.[8]
2.2 In the same
context, the Security Council emphasised “continuing international efforts
to enhance dialogue and broaden the
understanding among civilizations, in an
effort to prevent the indiscriminate targeting of different religions and
cultures”.[9]
2.3 The
Inter-American Commission on Human Rights, in its October 2002 Report on
Terrorism and Human Rights stated:
Even in respect of rights that may be the subject of limitation or derogation, states must comply strictly with the conditions regulating the permissibility of such limitations or derogations, which in turn are
based upon the fundamental principles of necessity, proportionality and
non-discrimination.[10]
2.4 The
Advisory Council of Jurists (ACJ) - to the Asia Pacific Forum of National Human
Rights Institutions - in its Final Report on the Reference on the Rule
of Law in Combating Terrorism stated that:
International human rights standards should not simply be ‘kept in
view’ in enacting, implementing and administering anti-terrorist
legislation, but they must be guaranteed and incorporated into national laws and
practices. [11]
2.5 In
relation to New Zealand, the ACJ cautioned that:
Incorporating into the general law provisions that give the Police and other
agencies wider powers, which were introduced and designed
to deal with
terrorism, can have the effect of eroding the rights of those who are not
terrorists.
[12]
2.6 Importantly, significant
resources have been developed from 2002 onwards to assist and guide States in
finding a proportionate
balance between countering terrorism and protecting
human rights. For example:
2.7 These
international frameworks provide invaluable assistance and guidance for States
seeking to observe human rights and counter
terrorism. They are particularly
useful to New Zealand in relation to the TSA, since to date New Zealand courts
have not considered
this legislation. No prosecutions have been brought under
the Act, and no legal challenges made to any terrorist designations.
Consequently, it is logical that experience from other jurisdictions and at the
international level forms a significant part of this
Review.
2.8 However the international framework does not provide a guarantee of
domestic human rights observance in counter terrorism measures.
The OHCHR has
stated that:
[T]he human rights treaty bodies examine somewhat over 100 reports per year. Cumulatively, the relevant special procedures consider up to some 60 country situations per year. In both instances, the attention of the treaty bodies and the special procedures ranges over a number of issues, leaving only partial space for an in-depth examination of the compatibility of national counter-terrorism measures with international human rights obligations.[15]
Overall there are significant gaps in the consideration of national
counter-terrorism measures by the United Nations human rights
system.[16]
2.9 Therefore
continued State monitoring for domestic human rights compliance, for example as
part of this Review, is vital.
Every time we advance the protection of human rights, we deal a blow to the
evil designs of terrorists, and we remove a sense of injustice
which can cause
the oppressed to channel their frustration into illegitimate violence. If we
compromise on human rights in seeking
to fight terrorism, we hand terrorists a
victory they cannot achieve on their own. If we build on these fundamentals, I
believe
we can develop a new vision of global security: a vision that respects
human rights while confronting the threats of our age –
including the
threat of
terrorism.[17]
Recommendation
I: The Commission recommends that the Committee’s report to the House on
the TSA includes specific reference
to the manner in which human rights were
taken into account in this Review.
3. THE HUMAN RIGHTS ISSUES
ARISING FROM THE TSA
3.1 The following are human rights issues
arising from the operation of the TSA since 2002, and in light of the fast paced
developments
with international jurisprudence in the context of ‘human
rights and anti-terrorism’ since that time. The following
material should
not necessarily be considered exhaustive of human rights issues arising.
3.2 Although some of these human rights issues were considered when the
(then) Terrorism (Bombing and Financing) Bill was before Select
Committee in
2001, given the fast paced jurisprudential developments in this area in the
intervening years, it is prudent to view
these human rights issues afresh.
A. Broad impact on human rights: Terrorism related definitions
3.3 For individuals or groups whose actions fall within any
terrorism related definition, there will be serious human rights ramifications.
They may then receive designations, and be charged with offences. For
individuals this can mean interference with the peaceful
enjoyment of
possessions, as assets are frozen, and may lead to deprivation of liberty and
thereby loss of freedom of movement.
For organisations that are legal entities,
it may mean interference with rights of freedom of association, assembly and
expression
and the peaceful enjoyment of possessions.
3.4 These
ramifications may be entirely appropriate for terrorist entities. However, it
does mean that the precise nature of the
terrorism related definitions is
crucial. OHCHR noted in 2003 that “twelve international conventions
related to terrorism
have been adopted within the UN context. One gap in these
conventions is the lack of a clear and commonly agreed definition of
terrorism.”[18]
3.5 The
Special Rapporteur on Terrorism and Human Rights stated that:
One of the major reasons for the failure to come to a generally accepted
definition of ‘terrorism’ is that different users
of a definition
concentrate almost entirely on behavioural descriptions (i.e. on certain conduct
or behaviour and its effects) and
do not spell out clearly who can use
terrorism. ... The same type of conduct or behaviour will or will not be viewed
as terrorism
by a particular observer according to the moral meaning or
justification ascribed to
it.[19]
3.6 This problem is,
of course, one person’s terrorist being another person’s freedom
fighter.[20] In May 2004 the ACJ,
in its Final Report on the Reference on the Rule of Law in Combating
Terrorism[21] recorded
that:
3.7 The
Commission notes that, with regard to terrorism related definitions, in December
2004 the UN High-level Panel on Threats,
Challenges and Change stated
that:
Nevertheless, we believe there is particular value in achieving a consensus
definition within the General Assembly, given its unique
legitimacy in normative
terms, and that it should rapidly complete negotiations on a comprehensive
convention on terrorism. That
definition of terrorism should include the
following elements:
(a) Recognition, in the preamble, that State use of force against civilians
is regulated by the Geneva Conventions and other instruments,
and, if of
sufficient scale, constitutes a war crime by the persons concerned or a crime
against humanity;
(b) Restatement that acts under the 12 preceding anti-terrorism conventions
are terrorism, and a declaration that they are a crime
under international law;
and restatement that terrorism in time of armed conflict is prohibited by the
Geneva Conventions and Protocols;
(c) Reference to the definitions contained in the 1999 International
Convention for the Suppression of the Financing of Terrorism
and Security
Council resolution 1566 (2004);
(d) Description of terrorism as “any action, in addition to actions
already specified by the existing conventions on aspects
of terrorism, the
Geneva Conventions and Security Council resolution 1566 (2004), that is intended
to cause death or serious bodily
harm to civilians or non-combatants, when the
purpose of such an act, by its nature or context, is to intimidate a population,
or
to compel a Government or an international organization to do or to abstain
from doing any
act”.[23]
3.8 The
Commission is aware that the definitions in the TSA were scrutinised in 2001,
and positive changes made to address widespread
concerns. However, in light of
subsequent developments, the definitions in the TSA (such as those in sections 4
and 5) warrant current,
2005, review.
Recommendation II: The
Commission recommends that the current terrorism-related definitions in the TSA
are reviewed by the Committee, in particular in light of developments
with the United Nation’s Draft Terrorism Convention.
B.
Recognised standards of proof: Suspicion as a basis for interim designations
3.9 Section 20 of the TSA requires that before the Prime Minster
makes a 30-day interim designation of a group as a terrorist entity,
the PM has
“good cause to suspect” the entity (knowingly) carried out terrorist
acts.
3.10 The Commission raised concerns about decisions based on
suspicion, as opposed to recognised standards of proof (such as ‘a
reasonable cause to believe’ or ‘on the balance of
probabilities’), in its November 2001 submission on the (then)
Terrorism
(Bombing and Financing) Bill. The House of Lords has recently stated
that:
[S]uspicion of being a supporter is one thing and proof of wrongdoing is
another. Someone who has never committed any offence and
has no intention of
doing anything wrong may be reasonably suspected of being a supporter on the
basis of some heated remarks overheard
in a
pub.[24]
Suspicion is an even lower hurdle than belief: belief involves thinking that
something is true; suspicion involves thinking that something may be
true.[25]
3.11 Given the
potential human rights impacts as a result of the ‘suspicions’ held
by authorities under the TSA, the issue
of whether a different standard of proof
is appropriate and possible in relevant sections of the TSA warrants review. It
may be
of assistance to examine the information used in current practice under
the TSA when an interim designation is made (based on ‘a
good cause to
suspect’) compared to when a final designation is made (under section 22
and based on ‘a belief on reasonable
grounds’).
3.12 Overseas jurisprudence may also be instructive. For example, the
Commission notes that the Canadian Federal Court has considered
appropriate
standards of evidence in relation to the detention of a suspected terrorist /
threat to national security, a Mr Charkaoui.
The Court stated that:
[N]ational security is such an important interest that its protection
warrants the use of standards other than the preponderance of
evidence
standard.[26] Having said this, we
will see that the “reasonableness” and “reasonable grounds to
believe” standards [used
in the relevant Canadian legislation] comport
requirements that come close to the preponderance of evidence
standard.[27]
3.13 This
Court also notes that the "reasonable grounds" standard is similar to the
balance of probabilities.[28]
Recommendation III: The Commission recommends the Committee
consider, as part of this Review, whether a different, higher standard
of proof
is appropriate and possible in section 20 of the TSA.
C.
Right to a fair trial and procedural fairness: Protections for classified
security information
3.14 Section 32 of the TSA defines
‘classified security information’. Sections 38 to 40 include
provisions to protect
such information in a court. These potentially include
the absence in the court of the designated entity, its lawyers, and the public.
3.15 The Commission raised concerns about access to a fair trial, if an
accused is not provided with all (classified security) information
held about
them, in its November 2001 submission on the (then) Terrorism (Bombing and
Financing) Bill. The right to fair trial is
of significant importance, and the
right to know - in full - the allegations against you is a strong and abiding
element of the right
to a fair
trial.[29]
3.16 There is no
easy balance to be struck between the need to protect classified security
information (in case, as claimed, divulging
this information damages its
provision and/or source), and the need to protect the right to a fair trial.
This issue has received
considerable attention since the enactment of the TSA.
As recently as October 2004, a study by the UN High Commissioner for Human
Rights noted:
The new procedures for use in the ... prosecution of terrorism-related cases
... include, for example, measures ... based on information,
including
non-evidentiary information, withheld from the accused (so-called ‘secret
evidence’). ... However, the question
of the compatibility of many of
these procedures with international human rights obligations has not yet been
fully addressed by
the special procedures and treaty monitoring
bodies.[30]
3.17 The ACJ in
its 2004 Final Report stated that key safeguards in the right to a fair
trial include the right to be informed of the nature and cause of the
charge.[31] The ACJ went on to
state that it:
[R]ecognises that there may be particular concerns in terrorism trials with
issues of witness protection and the use of classified
information. In these
circumstances it is important that any measures to protect witnesses or
classified information be consistent
to the greatest extent possible with the
rights set out above, that they be authorised by the judicial authority trying
the case
and that they be imposed only to the extent strictly
necessary.[32]
3.18 Difficulties
of obtaining fair processes when an accused does not know the full information
held against them are acknowledged
in a recent House of Lords landmark decision
in the counter-terrorism context:
If the finger of suspicion has pointed and the suspect is detained, his
detention must be reviewed by the Special Immigration Appeals
Commission. They
can decide that there were no reasonable grounds for the Home Secretary’s
suspicion. But the suspect is not
entitled to be told the grounds upon which he
has been suspected. So he may not find it easy to explain that the suspicion is
groundless.[33]
3.19 In
cases involving terrorist suspects and classified security information, the
United Kingdom has adopted a process using special
advocates. However, the UK
Joint Committee on Human Rights has described this procedure as one of
“questionable
fairness”.[34] The House of
Lords identifies the ‘fair process’ problems as follows:
Their cases must be reviewed by the Special Immigration Appeals Commission (SIAC). SIAC can see all the material which was available to the Home Secretary. But much of this is ‘closed’ so that the detainee and his lawyers cannot see it. Instead there are ‘special advocates’ who can see it, cross-examine witnesses, and make representation to SIAC about it, and may even persuade SIAC that some of the material should be disclosed to the detainee.
But they cannot discuss it with or take instructions from the detainee, so
they do not know whether he might have an answer to it.
The detainee does not
know a good deal of the case against him. He is not even interviewed by the
authorities so that he can attempt
to give some account of himself, (although
that might be rather limited if they cannot tell him what they have against
him). SIAC
does know the case against him, but all it can do is decide whether
the Home Secretary’s belief and suspicion were in the circumstances
reasonable. SIAC does not decide whether the detainee actually is an
international terrorist as defined in the Act, merely whether
the Home Secretary
reasonably suspects that he
is.[35]
3.20 To date, the New
Zealand courts have not examined the processes under the TSA relating to
disclosure of classified security information
and the right of an accused to a
fair trial. However under similar provisions in the Immigration Act 1987, a Mr
Ahmed Zaoui (a refugee,
and suspected of being a threat to national security)
was denied full information being held about him as it was classified security
information. Instead, Mr Zaoui was provided with a summary of the information.
However the question of whether such summaries are
of any practical use is
highly contentious.
Ways forward with the right to a fair
trial and the use of classified security information?
3.21 A leading
United Kingdom human rights lawyer, Rabinder Singh QC, on a recent visit to New
Zealand[36], raised developments
with public interest immunity[37] in
the European Court of Human Rights as an example of a potential way forward. In
that instance, while classified security information
does not have to be made
available to the accused or their lawyer, if it is not made available then the
prosecution cannot rely on
it when making their case in court. The judge
is able to consider the security information, and decide whether the information
should
be made available to the accused. This provides a due process
check. If the judge decides the information should be made available
to
the accused, then the prosecution has the choice of either providing it, or
withdrawing it from the case. These developments
may warrant further
investigation by the Committee (and supporting officials) as part of the Review
of the TSA.
3.22 There have also been produced, since the enactment of
the TSA, several comprehensive reports on overseas jurisprudence and legislative
practice in relation to this issue, for example:
3.23 These
reports contain numerous recommendations on the handling of classified security
information in court.
Recommendation IV: The Commission
recommends the Committee review the TSA treatment of classified security
information in the court,
in light of developing best practice in this difficult
area, using the references provided by the Commission, in order to improve
the
protection of the right to a fair trial under the provisions of the
TSA.
D. Broad human rights impacts: Procedural fairness:
Process for examining and renewing designations
3.24 Sections 35 to
38 of the TSA provide for designations of terrorist entities to expire after 3
years, and set out the process
by which the High Court examines and can renew
those designations.
3.25 The Commission notes that the 2001 Select
Committee scrutiny of the (then) Terrorism (Bombing and Financing) Bill resulted
in
substantial and positive revision of the process for designating terrorist
entities - to include both a knowledge component and,
importantly, an earlier
expiration date, down from 5 to 3 years. The Commission’s submission from
November 2001 specifically
recommended the latter amendment.
3.26 It is
therefore of considerable concern to the Commission that the Terrorism
Suppression Amendment (No 2) Bill, currently before
this Committee, extends the
expiry of current designations until “2 years after the date on which...
the select committee ..
reports to the
House”.[40] In effect that
will make the duration of designations some 5 to 6 years before review is
possible. Given the human rights impacts
of designations, the concerns
expressed in 2001 resurface. The safeguards provided in 2001 are negated.
3.27 As the Committee will be aware, the Commission has made separate
written and oral submissions on this issue in the
Bill.[41] For the substantive
reasons set out in those submissions, the Commission specifically recommended
that the extension of the expiry
date for designations in the Bill be limited to
one year, until October 2006. It is not our intention to restate in full that
argument
here.
3.28 However, other recommendations made in that
submission are highly relevant to this Review. They arise from problems the
Commission
cited with the UN and domestic processes of designating individuals
and groups as terrorist entities. A particular problem is the
lack of reliable
and sustainable processes to review those designations, to de-list entities.
3.29 There is also the question of who should be held responsible for
designations made on an incorrect basis – designations,
with human rights
impacts, which might then be renewed without review. The Monitoring Group,
established by the Security Council
to monitor compliance with its
counter-terrorism resolutions, stated in June 2003 that “around 15%”
of states submitting
compliance updates face judicial challenges by designated
individuals.[42]
3.30 The
February 2005 Report of the UN’s Analytical Support and Sanctions
Monitoring Team states that:
The many legal challenges to the measures, in particular in Europe and the
United States, and the threat of more, pose a serious impediment
to the success
of the sanctions regime, not least by discouraging States to add names to the
List. Based on Member State reports
pursuant to resolution 1455 (2003) and
further enquiry by the Monitoring Team, it appears that individuals and entities
have filed
at least 13 lawsuits around the world directly related to the
sanctions. Litigants generally did not challenge the United Nations
directly,
but instead asserted that the State or regional body implementing the sanctions
failed to abide by, among other principles,
fundamental norms of due process,
right to property and freedom of association.
At least five cases challenging the implementation of the United Nations
sanctions are pending before the Court of First Instance
of the European Court
of Justice. The Team has been informed that there are other cases filed before
the European Court of Human
Rights and the courts of individual States such as
Italy, Pakistan, Turkey and the United
States.[43]
Consequently,
the Commission recommends:
Suggested improvements to the UN
designation and review system?
3.31 With regard to the last, above
recommendation, the Commission is aware of various suggestions for improvement
that warrant further
examination by the Committee (and supporting officials),
for example:
E. Right to freedom from torture: Explicit ban on
evidence obtained by torture
3.32 Since the enactment of the TSA,
there has been intense overseas debate on the use of evidence which has, or may
have been, obtained
by torture. The debate in relation to practices employed in
USA detention facilities in both Iraq and Cuba has been well canvassed
in the
media.
3.33 The UK Joint Committee on Human Rights has comprehensively
addressed this issue several times. The issue is well stated in its
March 2005
Report on the Prevention of Terrorism Bill, as follows:
Torture
evidence
18. In our Report on the Review of Counter-terrorism powers, we expressed our
concern about the Government’s position that,
where national security is
at stake, it is the Government’s duty to take all information into
account, regardless of whether
it was obtained by torture. Since then, the Court
of Appeal has ruled that such material can be relied upon by the Government,
including
to justify detention, provided the Government was not complicit in the
torture used to obtain it.[47] It
is a matter of public record that the UK authorities are working closely with
foreign intelligence and police agencies, including
particularly the US. The
extent of the alleged abuse of prisoners at certain US facilities, including in
particular Bagram and Guantanamo,
is now well known.
19. The UN Committee Against Torture, in its recent Concluding Observations,
expressed its concern that UK law had been interpreted
to exclude the use of
evidence extracted by torture only where its officials were complicit, and
recommended that the Government
should give some formal effect to its expressed
intention not to rely on or present in any proceeding evidence where there is
knowledge
or belief that it has been obtained by torture.
20. We asked the Home Secretary if he could confirm that none of the material
which is relied upon in relation to the current detainees
has been obtained from
other sources abroad, including the United States, where there have been serious
allegations of torture and
prisoner
abuse.[48] The Home Secretary said
that the Government did consider whether it believed that torture had been used
in any particular case, and
that it did not believe that torture had been used
in the cases of the current detainees, but “we are in a serious difficulty
here in that proving a negative in this case is a difficult thing to do.”
When pressed on how precisely the Government establish
that torture has not been
used, the Home Secretary repeated that proving a negative is a difficult thing
to do.[49] When asked for an
assurance that he will apply an absolute rule that if there is any question that
evidence has been obtained by
torture it must not be used, the Home Secretary
said “I would need to be convinced that it had been used which ... I am
not
in this case.”
21. We remain concerned about the possible use of torture evidence by UK
authorities. Our concerns have not been allayed by the evidence
of the Home
Secretary. Indeed, we now have concerns about whether the Government has any
system in place for ascertaining whether
intelligence which reaches it in
relation to people allegedly involved in terrorism-related activity has been
obtained by torture.
The Bill is silent on this question, despite the obvious
concern that the material relied on by the Government to obtain control
orders
may well include material which has been obtained by torture. We recommend that
the Government takes the opportunity presented
by this Bill to implement the
UNCAT recommendation that it give some formal effect to its expressed intention
not to rely on or present
in any proceedings evidence which it knows or believes
to have been obtained by
torture.[50]
3.34 It is
entirely plausible that in New Zealand’s efforts to counter terrorism it
has relied, and will again, on security
information obtained from the USA or the
UK. Consequently the issue of the use of evidence obtained through torture is a
live issue
for New Zealand as well.
Recommendation X: The
Commission recommends that the Committee use this opportunity, while reviewing
the TSA, to add a provision
clarifying that no actor under the Act will rely on
or present in any proceedings evidence which they know or believe to have been
obtained by torture.
F. Access to justice: Judicial review of
designations
3.35 The reinstatement in the (then) Terrorism (Bombing
and Finance) Bill of access to judicial review for designation decisions remains
as a positive amendment. This provision now forms section 33 of the
TSA.
3.36 However, this safeguard may be problematic on two fronts.
First, any group or individual suspected of being a terrorist entity
will have
likely had their access to funds and financial institutions frozen. Therefore a
valid question exists about how they might
fund any action for judicial review.
This is, of course, in the period prior to the expiry of a designation.
3.37 This first concern is exacerbated by the second, namely, the
emerging and persuasive evidence that the 2001 increases in court
fees limit
access to the courts, and thereby limit access to justice. This is an issue
also noted by the Commission in its 2004
report Human Rights in New Zealand
Today. In February 2005 the Regulations Review Committee concluded
that:
[I]f court fees are set at a level that may discourage potential litigants,
and mechanisms such as legal aid, concession rates and
fee waivers are not
available to a large section of court users to ensure access to the courts,
there will be an undue trespass on
personal rights and
liberties.[51]
3.38 The
Commission also notes, for the sake of completeness, that any method to
challenge designations (prior to expiry) which involved
a reverse onus would
likely run contrary to human rights. Such reverse onuses, where the accused is
required to prove innocence
instead of that burden of proof resting on the
prosecution, breach the right to be presumed innocent until proven guilty
according
to the law. This presumption of innocence is often described as the
‘golden thread’ running through the law.
Recommendation XI: The Commission recommends that the Committee
examine, as part the Review, whether judicial review in the High
Court is an
accessible safeguard for those receiving designations under the TSA, and whether
other safeguards may be necessary (prior
to the expiry of
designations).
G. Right to freedom from discrimination:
Effects of measures in terms of race, nationality or
ethnicity
3.39 Counter terrorism measures have been noted as having
indirect, detrimental effects on persons because of their race, and/or national
or ethnic origins. This includes asylum seekers.
The UN Committee on the Elimination of Racial Discrimination and the Human
Rights Committee have both expressed concern over cases
of widespread harassment
of persons of particular backgrounds, as well as the use of racial
profiling.[52]
3.40 The Human
Rights Committee’s concluding observations on New Zealand, from 7 August
2002, state that:
The Committee recognizes that the security requirements relating to the events of 11 September 2001 have given rise to efforts by New Zealand to take legislative and other measures to implement Security Council resolution 1373 (2001). The Committee, however, expresses its concern that the impact of such measures or changes in policy on New Zealand's obligations under the Covenant may not have been fully considered.
The Committee is concerned about possible negative effects of the new
legislation and practices on asylum-seekers, including by "removing
the
immigration risk offshore" and in the absence of monitoring mechanisms with
regard to the expulsion of those suspected of terrorism
to their countries of
origin which, despite assurances that their human rights would be respected,
could pose risks to the personal
safety and lives of the persons expelled.
The State party is under an obligation to ensure that measures taken to
implement Security Council resolution 1373 (2001) are in full
conformity with
the Covenant. The State party is requested to ensure that the definition of
terrorism does not lead to abuse and
is in conformity with the Covenant. In
addition, the State party should maintain its practice of strictly observing the
principle
of non-refoulement.
3.41 The House of Lords decision in R v
Immigration Officer at Prague Airport and another ex parte European Roma Rights
Centre and others[53] is
instructive. The Law Lords considered whether actions of British immigration
officers were discriminatory in refusing six Roma
individuals at Prague Airport
leave to enter the UK. Baroness Hale, speaking for the Law Lords on this issue,
stated that:
A quite separate issue is whether the operation at Prague Airport was carried
out in an unlawfully discriminatory manner, in that
would-be travellers of Roma
origin were treated less favourably than non-Roma were. In particular, it is
alleged that they were subjected
to longer and more intrusive questioning, they
were required to provide proof of matters which were taken on trust from
non-Roma,
and far more of them were refused leave to enter than were non-Roma.
The appellants seek a declaration to that effect.
...
The person may be acting on belief or assumptions about members of the sex or
racial group involved which are often true and which
if true would provide a
good reason for the less favourable treatment in question. But ‘what may
be true of a group may not
be true of a significant number of individuals within
that group’ (see Hartmann J in Equal Opportunities Commission v
Director of Education [2001] 2 HKLRD 690, para 86, High Court of Hong Kong).
The object of the legislation is to ensure that each person is treated as an
individual and not
assumed to be like other members of the group.
...
It is worth remembering that good equal opportunities practice may not come
naturally. Many will think it contrary to common sense
to approach all
applicants with an equally open mind, irrespective of the very good reasons
there may be to suspect some of them
more than others. But that is what is
required by a law which tries to ensure that individuals are not disadvantaged
by the general
characteristics of the group to which they belong. In 2001, when
the operation with which we are concerned began, the race relations
legislation
had only just been extended to cover the activities of the immigration service.
It would scarcely be surprising if officers
acting under considerable pressure
of time found it difficult to conform in all respects to procedures and
expectations which employers
have been struggling to get right for more than
quarter of a century.
...
All the evidence before us, other than that of the intentions of those in
charge of the operation, which intentions were not conveyed
to the officers on
the ground, supports the inference that Roma were, simply because they were
Roma, routinely treated with more
suspicion and subjected to more intensive and
intrusive questioning than non-Roma. There is nothing surprising about this.
Indeed,
the Court of Appeal considered it ‘wholly inevitable’. This
may be going too far. But setting up an operation like this,
prompted by an
influx of asylum seekers who are overwhelmingly from one comparatively easily
identifiable racial or ethnic group,
requires enormous care if it is to be done
without discrimination. That did not happen. The inevitable conclusion is that
the operation
was inherently and systemically discriminatory and
unlawful.
In this respect it was not only unlawful in domestic law but also contrary to
our obligations under customary international law and
under international
treaties to which the United Kingdom is a
party.[54]
3.42 Baroness
Hale made the declaration to this effect.
Recommendation XII: The
Commission recommends the Committee seeks data on operational policies and
practices established under the
TSA (and other related counter-terrorism
measures). Specifically, the Committee might seek data which indicates whether
any patterns
are emerging that give cause for concern in relation to race,
nationality or ethnicity.
H. Human rights scrutiny: The
importance of further review of TSA
3.43 The Commission, in its
November 2001 submission on the (then) Terrorism (Bombing and Financing) Bill,
recommended the inclusion
of this review process in the legislation. In the
future, the TSA will remain important in New Zealand’s fight against
terrorism.
The TSA will also continue to have significant implications for the
human rights of persons or groups who fall within the TSA’s
designation
provisions. And, as this Committee rightly noted in 2001, provisions of this
legislation will require review in order
to “continue to meet the
requirements of the constantly changing international
environment”.[55]
3.44 Developments continue at a fast pace. New human rights issues and
resolutions in the counter terrorism context may be identified
and gain support
in the future in ways not currently envisaged.
Recommendation
XIII: Given these factors, the Commission recommends that section 70 of the TSA
be amended to provide for a further
review of the TSA by Select Committee,
reporting to the House of Representatives before 1 December 2009.
3.45 The Commission notes the important and essentially complex
human rights matters arising in the TSA. This suggests that further
future
review of the human rights impacts of the TSA is prudent.
Recommendation XIV: The Commission therefore recommends that
section 70 of the TSA be further amended, as set out below, to make
explicit
reference to monitoring compliance with New Zealand’s obligations under
Security Council Resolution 1456:
70 Review of operation of certain
provisions of this Act
(1) This section applies to the provisions of this Act that are to implement
New Zealand's obligations under the Anti-terrorism Resolution
(the
``provisions'') and to implement New Zealand’s obligations under
Resolution 1456 (2003) of the Security Council of the United
Nations.
4. SUMMARY OF COMMISSION
RECOMMENDATIONS
4.1 The Commission recommends:
70 Review
of operation of certain provisions of this Act
(1) This section applies to the provisions of this Act that are to implement
New Zealand's obligations under the Anti-terrorism Resolution
(the
``provisions'') [and to implement New Zealand’s obligations under
Resolution 1456 (2003) of the Security Council of the
United
Nations.]
Human Rights Commission
April 2005
[1] Seventh International
Conference for National Institutions for the Promotion and Protection of Human
Rights, Seoul, Republic of Korea,
14 to 17 September 2004, The Seoul
Declaration, at paragraph
1.
[2] Statement by Robin
Theurkauf, a lecturer in international law at Yale University, who lost her
husband Tom in the Twin Towers terrorist
attack, cited in The New Rulers of
the World (Verso, 2002) Introduction, at page
12.
[3] Michael Ignatieff
“Hard choices on human rights” The Economist, ‘The World in
2004’, 2004.
[4] A &
Ors v Secretary of State for the Home Department; X & Ors v Secretary
of State for the Home Department [2004] UKHL 56, 16 December 2004, Lord
Hoffmann, at paragraph 97.
[5]
Letter from the Ministries of Justice and Foreign Affairs and Trade, to the
Human Rights Commission, 4 February
2005.
[6] Louise Arbour, UN High
Commissioner for Human Rights, “Security Under the Rule of Law”
Address to the Biennial Conference
of the International Commission of Jurists,
Berlin, 27 August 2004.
[7]
Security Council Resolution 1456 (2003), adopted on 20 January 2003, at
paragraph 1.
[8] Security Council
Resolution 1456 (2003), adopted on 20 January 2003, at paragraph
6.
[9] Security Council Resolution
1456 (2003), adopted on 20 January 2003, at paragraph
10.
[10] Inter-American
Commission on Human Rights Report on Terrorism and Human Rights October
2002, at paragraph 350.
[11]
Advisory Council of Jurists, Asia Pacific Forum of National Human rights
Institutions Final Report on the Reference on the Rule of Law in
Combating Terrorism, May 2004, at page
20.
[12] Advisory Council of
Jurists, Asia Pacific Forum of National Human rights Institutions Final
Report on the Reference on the Rule of Law in Combating Terrorism,
May 2004, at page 118.
[13]
See also the report by the European Union Network of Independent Experts in
Fundamental Rights The Balance Between Freedom and Security in the Response
By the European Union and Its Member States to the Terrorist Threats, 31
March 2003.
[14] The OHCHR
Sub-Commission on the Promotion and Protection of Human Rights is to establish a
working group to develop detailed principles
and guidelines, based on this draft
from the Special Rapporteur, during its fifty-seventh session 25 July to 12
August 2005. In
addition, non-governmental organisations have also been active.
See, for example, Human Rights Watch’s Briefing Paper Hear No Evil, See
No Evil: The U.N. Security Council’s Approach to Human rights Violations
in the Global Counter-Terrorism Effort,
August 2004; the Anti-Terrorism
Legislation in the United Kingdom by Liberty, 2002; and Anti-terrorism
Measures, Security and Human Rights Report by the International Helsinki
Federation for Human Rights, April 2003.
[15] Report of the
Secretary-General Protecting human rights and fundamental freedoms while
countering terrorism Commission on Human Rights, Sixtieth session, 12 March
2004, E.CN.4/2004/91, at paragraph
25.
[16] Study of the United
Nations High Commissioner for Human Rights Protection of human rights and
fundamental freedoms while countering terrorism A/59/428, 8 October 2004, at
page 17.
[17] Kofi Annan, UN
Secretary-General, Protection of human rights and fundamental freedoms while
countering terrorism: Report of the Secretary-General A/58/266, 8 August
2003, at paragraph 56.
[18]
Office of the High Commissioner for Human Rights Digest of jurisprudence of
the UN and regional organisations on the protection of human rights while
countering terrorism (UN OHCHR, New York & Geneva, 2003), at page
1.
[19] Progress Report of the
United Nations Special Rapporteur on Terrorism and Human Rights, Ms Kalliopi K.
Koufa, E/CN.4/Sub.2/2001/31,
27 June 2001; cited in Peter J. van Krieken (Ed)
Terrorism and the International Legal Order (TMC Asser Press, The Hague,
2002) at pages 180 and 186.
[20]
For example, Nobel Peace Prize winners Nelson Mandela and Yassir Arafat were
once listed on the United States Federal Bureau of Investigation’s
website
list of terrorists (as cited in “Terror Meets Tyranny? The Interface
Between Counter Terrorism and Human Rights”
by Alex Conte, October 2002,
at page 2).
[21] This report can
be found at: http://www.asiapacificforum.net/jurists/terrorism/intro.htm
[22] Advisory Council of
Jurists, Asia Pacific Forum of National Human Rights Institutions Final
Report on the Reference on the Rule of Law in Combating Terrorism,
May 2004, Summary of Answers to Questions Posed by the Reference, at page
13.
[23] Report of the High-level
Panel on Threats, Challenges and Change A more secure world: Our shared
responsibility (Introduced by the Secretary-General) A/59/565, 2 December
2004, at paragraphs 163 and
164.
[24] A & Ors v
Secretary of State for the Home Department; X & Ors v Secretary of
State for the Home Department [2004] UKHL 56, 16 December 2004, Lord
Hoffman, at paragraph 87.
[25]
A & Ors v Secretary of State for the Home Department; X & Ors
v Secretary of State for the Home Department [2004] UKHL 56, 16 December
2004, Baroness Hale, at paragraph
223.
[26] The
‘preponderance of the evidence’ standard is defined as: the greater
weight of the evidence required in a civil lawsuit
for the judge or jury to
decide in favour of one side or the other. This preponderance is based on the
more convincing evidence and
its probable truth or accuracy, and not on the
amount of evidence. Thus, one clearly knowledgeable witness may provide a
preponderance
of evidence over a dozen witnesses with hazy testimony.
Preponderance of the evidence is required in a civil case, is akin to a
‘balance of probabilities’ and can be contrasted with "beyond a
reasonable doubt," which is the more severe test of evidence
required to convict
in a criminal trial.
[27]
Charkaoui (Re) (F.C.) [2003] FC 1419, at paragraph 126. NB: The case of
Mr Charkaoui is further discussed below under ‘C. The right to a fair
trial and procedural
fairness: Access of accused to classified security
information’.
[28]
Charkaoui (Re) (F.C.) [2005] FC 248, at paragraph 31. The Commission
also notes that in this 2005 review of Mr Charkaoui’s detention, the Court
(at paragraph
75) states that “[t]he danger to national security and the
safety of any person has decreased with the passage of time and
the interaction
of the group of circumstances mentioned above. I would even say that at the time
of this assessment, the danger has
been neutralized” and released Mr
Charkaoui on bail.
[29] As
provided by Article 14(1) of the International Covenant on Civil and Political
Rights and sections 25 and 27(1) of the New Zealand
Bill of Rights Act 1990.
[30] Study of the United Nations
High Commissioner for Human Rights Protection of human rights and fundamental
freedoms while countering terrorism A/59/428, 8 October 2004, at page
14.
[31] Advisory Council of
Jurists, Asia Pacific Forum of National Human Rights Institutions Final
Report on the Reference on the Rule of Law in Combating Terrorism,
May 2004, Summary of Answers to Questions Posed by the Reference, at page
16.
[32] Advisory Council of
Jurists, Asia Pacific Forum of National Human Rights Institutions Final
Report on the Reference on the Rule of Law in Combating Terrorism,
May 2004, Summary of Answers to Questions Posed by the Reference, at page
16.
[33] A & Ors v
Secretary of State for the Home Department; X & Ors v Secretary of
State for the Home Department [2004] UKHL 56, 16 December 2004, Lord
Hoffman, at paragraph 87.
[34]
Joint Committee on Human Rights Fifth report: Continuance in Force of
Sections 21 to 23 of the Anti-Terrorism, Crime and Security Act 2001 26
February 2003, at paragraph
44.
[35] A & Ors v
Secretary of State for the Home Department; X & Ors v Secretary of
State for the Home Department [2004] UKHL 56, 16 December 2004, Baroness
Hale, at paragraph 223.
[36]
Rabinder Singh QC, Matrix Chambers, London, meeting with the Human Rights
Commission, Wellington, 18 February 2005.
[37] Public interest immunity
throughout its development, has always had a single purpose which is to allow
the courts to reconcile any
potential conflict between the following two public
interests:
documents whose disclosure would be damaging.
In pursuit of the
first interest, there are rules governing the admissibility of evidence and the
disclosure of material in legal
proceedings. These vary according to the type of
proceedings in question; but in all cases they impose on at least one party to
litigation
a duty to disclose certain documents and information to the other
side. The second interest is served by attaching a conditional
immunity from
disclosure, known as "public interest immunity", to certain documents or
information whose disclosure or use in evidence
might be damaging to the public
interest, These documents can be government material. Public interest immunity
is only an immunity
from the general rules requiring disclosure; it does not
mean that the documents cannot or must not be disclosed. In place of automatic
disclosure, the law imposes special rules to ensure that the question of
disclosure or use is addressed only after proper consideration
of both of the
two interests described above, by the court. Extract from UK Treasury
Solicitor’s Office Paper on Public Interest Immunity 1996, at
paragraphs 1.3 to 1.6.
[38] The
report can be found at: http://www.austlii.edu.au/au/other/alrc/publications/reports/98/
[39]
The report can be found at: http://www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/jtrights.htm
[40] Clause 6(1) of the
Terrorism Suppression Amendment (No 2) Bill
refers.
[41] The
Commission’s full submission on the Terrorism Suppression Amendment (No 2)
Bill can be found at: http://www.hrc.co.nz/index.php?p=13682&wd0
[42] Report of the Monitoring
Group established pursuant to Security Council resolution 1363 (2001) and
extended by resolutions 1390 (2002)
and 145 (2003) S/2003/669, 16 June 2003,
at paragraph 146.
[43] Second
Report of the Analytical Support and Sanctions Monitoring Team appointed
pursuant to resolution 1526 (2004) concerning Al-Qaida
and the Taliban and
associated individuals and entities S/2005/83, 15 February 2005, at
paragraphs 50 and 51.
[44] Peter
Gutherie “Security Council Sanctions and the Protection of Individual
Rights” 60 N.Y.U. Annual Survey of American
Law 491 (2005), at pages 525
to 540. The article can be found at:
http://www.nyu.edu/pubs/annualsurvey/html/issue.php
Peter Gutherie also suggests, at footnote 147 on page 525, the possibility of
strengthening existing international judicial bodies
such as the International
Court of Justice and regional human rights bodies to play a role in review.
[45] Human Rights Watch Briefing
Paper Hear No Evil, See No Evil: The U.N. Security Council’s Approach
to Human Rights Violations in the Global Counter-Terrorism Effort
10 August
2004, at page 17. Security Council Resolution 1456 is outlined at paragraph 2.1
of this Commission
submission.
[46] Second Report
of the Analytical Support and Sanctions Monitoring Team appointed pursuant to
resolution 1526 (2004) concerning Al-Qaida
and the Taliban and associated
individuals and entities S/2005/83, 15 February 2005, at paragraphs 33 to 40
(Changes to the List) and at paragraphs 53 to 60
(De-listing).
[47] A v
Secretary of State for the Home Department [2004] EWCA
1123.
[48] Q
46.
[49] Q
47.
[50] Joint Committee on Human
Rights Tenth Report: Prevention of Terrorism Bill 4 March 2005, at
paragraphs 18 to 21.
[51] Report
of the Regulations Review Committee Investigation and complaint about civil
court fees regulations 2004 February 2005, at page 35. The Committee
recommends to the Government that it undertake a review of the regulations that
set civil
court fees, taking into account the concerns expressed in the
Report.
[52] Kofi Annan, UN
Secretary-General, Report Protection of human rights and fundamental freedoms
while countering terrorism A/58/266, 8 August 2003, at paragraph
47.
[53] R v Immigration
Officer at Prague Airport and another ex parte European Roma Rights Centre and
others [2004] UKHL 55, 9 December
2004.
[54] R v Immigration
Officer at Prague Airport and another ex parte European Roma Rights Centre and
others [2004] UKHL 55, 9 December 2004, Baroness Hale, at paragraphs 72, 82,
90, 97 and 98.
[55] Terrorism
Suppression Bill: As reported from the Foreign Affairs, Defence and Trade
Committee, Clause 24A.
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