Discussion of the ALRC’s Report on Encroachment on Rights and Freedoms in Australia – Alexis Hedger

On 2 March 2016, the Australian Law Reform Commission (ALRC) tabled its latest report. The report, entitled ‘Traditional Rights and Freedoms-Encroachments by Commonwealth Laws’ (‘Freedoms Inquiry’), responds to the terms of reference of the Commonwealth Attorney-General, which ask the ALRC to identify and critically examine Commonwealth laws that encroach upon traditional rights, freedoms and privileges – namely those recognised by the common law.

For the purposes of the inquiry, laws that encroach upon traditional rights, freedoms or privileges are understood to be laws that, inter alia, ‘reverse or shift the burden of proof’, ‘deny procedural fairness to persons affected by the exercise of public power’, ‘interfere with freedom of speech, religion, vested property rights or freedom of movement’ or ‘retrospectively change legal rights and obligations’ (Freedoms Inquiry, pg. 5).

The ALRC, in addressing the mandate, considered the source and rationale of each right, and the protections afforded through it, under both Australian and international law. The Report observed that the Australian Constitution ‘expressly protects a handful of rights’, and has been found to imply certain others, such as freedom of political communication (Freedoms Inquiry, para. 1.8). Internationally, many of the relevant rights have been enshrined in human rights treaties, to which Australia is a signatory, affording limited protection under international law.

 The International Covenant on Civil and Political Rights (ICCPR) is perhaps the most well-known and influential human rights treaty. Under Article 4, the ICCPR provides for the derogation of certain rights, where governments can temporarily suspend the operation of certain rights in times of ‘public emergency’. However, Article 4(2) makes clear that no derogation is permitted from a number of articles, including inter alia the right to life (Article 6), freedom from torture or cruel, inhuman or degrading treatment (Article 7) and freedom from the operation of retroactive criminal law (Article 15).

According to the Australian government, this same suite of non-derogable rights can be further classified into ‘absolute’ or ‘non-absolute’ rights. Absolute rights are those which ‘no circumstance justifies a qualification or limitation upon them’, and are identified by the government as freedom from torture and other cruel, inhuman or degrading treatment or punishment, freedom from slavery or servitude, freedom from imprisonment for inability to fulfil a contractual obligation, a prohibition against the retrospective operation of criminal laws and right to recognition before the law. Whilst under the ICCPR, the right to life enshrined in Article 6 is non-derogable, the Australian government classifies it as a non-derogable non-absolute right, where limitations can be applied. According to the government, the right to life is expressed as a freedom from ‘arbitrary’ deprivation of life, indicating that certain circumstances may ‘justify the taking of life, where necessary, reasonable and proportionate’. Furthermore, Article 18 of the ICCPR, which provides for the non-derogable right to freedom of religion, is subject to a limitation in Article 18(3) which allows only such limitations as are ‘necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’.

Whilst international law can be an important common law influence, it does not create binding domestic law and, most importantly, does not ‘abrogate the power of the Commonwealth Parliament to make laws that limit rights’ (Freedoms Inquiry, para. 1.9). International law works in a number of other ways to protect rights, when those rights are not explicitly incorporated into our domestic law. For example, Australia has human rights reporting obligations, and the United Nations Human Rights Committee considers communications from individuals with complaints of human rights violations. There are a number of governmental processes that operate to scrutinise laws and their compatibility with our international human rights obligations. For example, the Parliamentary Joint Committee on Human Rights must examine all bills or legislative instruments that come before parliament for their compatibility with human rights. The ALRC itself is required by legislation to ‘aim to ensure its recommendations are consistent with Australia’s international obligations’ (Australian Law Reform Commission Act 1996 (Cth), s 24(1)). Nonetheless, international law itself cannot operate to ‘override clear and valid provisions of Australian national law’ (Minister for Immigration v. B).

The Freedoms Inquiry identifies an extensive number of Commonwealth laws that potentially limit common law freedoms. The Terms of Reference mandated the ALRC was then mandated to ‘critically examine’ the laws to determine whether the encroachments upon those rights and freedoms are appropriately justified. The ALRC identified proportionality as one of the major tools utilised in the determination of the justification of laws and drew upon it in its consideration of the justification for the laws (Freedoms Inquiry, para. 1.14).

Proportionality ‘involves considering whether a given law that limits rights has a legitimate objective and is suitable and necessary to meet that objective, and whether – on balance – the public interest pursued by the law outweighs the harm done to the individual right’ (Freedoms Inquiry, para 1.15). Proportionality has been adopted as a tool by Australian courts in determining the constitutionality of certain laws, often considered within the well-known test of whether a law is ‘reasonably appropriate and adapted to serve a legitimate end’ (Freedoms Inquiry para. 2. 66).

The ALRC highlighted laws which may be unjustified, and therefore warrant further review. It did not, however, come to specific conclusions about the justification for each law, ‘as further evidence and analysis would be necessary to support such specific conclusions’ (Freedoms Inquiry para. 1.18). Essentially, the scope of rights it considered, from freedom of speech to property rights, was too broad for the ALRC to put forth detailed recommendations for each substantive area.

Freedom of speech is one example of a right subject to limitations that potentially fall short of the common law proportionality test. Furthermore, the scope of the freedom itself in Australia is narrower than that enshrined in instruments such as the ICCPR. Whilst freedom of speech is considered one of the ‘fundamental values protected by the common law’ (Nationwide News v. Wills), in Australia it is essentially limited to political communications that are ‘necessary for the effective operation of that system of representative and responsible government provided for by the Constitution’ (Lange v. Australian Broadcasting Corporation). There are numerous precedents illustrating the freedom does not extend to non-political communication (Freedoms Inquiry, paras. 4. 25 – 4. 27). Australia is the only democratic country that does not protect freedom of speech in a national constitution or enforceable human rights legislation.

Under the ICCPR, however, a much broader protection for freedom of speech is provided for. It includes protection of ‘political discourse, commentary on one’s own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching and religious discourse’. Nonetheless, the ICCPR and the related Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights still provide guidelines as to when rights, including freedom of speech may be subject to limitations. Generally, they may be restricted in order to pursue legitimate objectives such as the protection of reputation and public safety.

The modern offence of advocating terrorism under s 80.2C of the Criminal Code Act 1995 (Cth) (Criminal Code) was identified by the ALRC as one which may encroach upon this common law freedom. The Criminal Code makes it an offence if a person advocates the doing of a terrorist act or the commission of a terrorism offence, and is reckless as to whether another person engages in that conduct as a consequence. A person ‘advocates’ the doing of a terrorist act if the person ‘counsels, promotes, encourages or urges’ it. The offence was considered by the Parliamentary Joint Committee on Human Rights (‘Committee’), which concluded that the provision was ‘likely to be incompatible with the right to freedom of opinion and expression’ as enshrined in Article 19 of the ICCPR.

The concerns of the Committee, which is mandated to consider compatibility with international law, is that a number of provisions in the Criminal Code already operate to restrict speech that incites violence, and expressed concern that the advocating terrorism offence was ‘overly broad’ in its application, particularly as the offence only requires a person to be reckless as to the consequences of their words or conduct (Freedoms Inquiry, para. 4.80). The Committee acknowledged the Attorney-General’s response that such an intention requirement is necessary because often there is a lack of sufficient evidence to meet the threshold required by other incitement of violence offences, which is an intention for violence to occur as a result of a person’s conduct. Nonetheless, the Committee concluded that it would be ‘appropriate to further clarify the meaning of “advocate” to assist people in “prospectively knowing the scope of their potential criminal liability”’ (Freedoms Inquiry, para. 4.84). These concerns were not incorporated into the Bill. A number of submissions to the Freedoms Inquiry, incorporated directly into the report, further emphasised concerns with the limitations of the law, particularly in relation to its limitations on ‘the capacity for individuals to voice their views and opinion on terrorism and overseas conflicts’ (Freedoms Inquiry, para. 4.86), as well as the use of a recklessness standard.

The ALRC concludes that s 80.2C should be subject to further review to establish whether it, among with several other laws which encroach upon freedom of speech, unjustifiably limits the freedom.

The Freedom Inquiry is comprehensive in scope, and merits careful study by anyone interested in the relationship between statutory laws, common law rights and broader public interests. This report is a result of widespread community engagement and consultation and careful legal analysis, and provides a comprehensive and thorough response to the Attorney-General’s mandate.

Alexis Hedger is Assistant Editor of the ILA Reporter.


Racial discrimination in Australia: (lack of) protection for Muslims — Jennifer Tridgell


2015 brought an escalation of Islamophobia across the Western world. In the United States, Donald Trump called for creation of a Muslim register and restrictions upon Muslims entering the country. Worryingly, his inflammatory, and profoundly racist remarks resonated with many Americans, arguably by ‘merely indulging a [widespread] sentiment’ (Vox, 2015).

Meanwhile, Australian Muslims faced persistent abuse and discrimination, which intensified after the siege in Sydney’s Martin Place (AHRC, 2015). This is consistent with reports from the national Islamophobia Register. But 2015 also marked the 40th anniversary of the Racial Discrimination Act 1975 (Cth) (RDA).

In the words of Australian Race Discrimination Commissioner, Dr Tim Soutphommasane, this historic Act is not about punishing racism, but rather ‘protecting people against prejudice’. The RDA does not shelter Muslims, but only offers them ‘limited protection’, as a national consultation report by the Australian Human Rights Commission revealed. So why does an Act supposed to protect the most vulnerable groups in Australia from vilification, seem to fail?

A Matter of Definitions

For barrister Kate Eastman SC, the answer lies in delineating between the blurred definitions of race and religion. Whilst the RDA makes it unlawful to discriminate against a person on the basis of race, colour, descent, national origin or ethnic origin, it does not extend to religion (section 9). Yet since 1995, Jewish Australians have been comprehensively protected for sharing a common ‘ethnic origin’ (see for example the decision in Jones v Scully). This article calls for similar protection to be extended to Muslim Australians.

Uncertainty around scope of the term ‘ethnic origin’ creates difficulties for Australian courts, especially without clear definitions to guide statutory interpretation. Neither the RDA nor the treaty it incorporates, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), have defined the meaning of each ground for discrimination, such as ‘race’ or ‘ethnic origin’.

As Eastman notes, the ICERD Committee has argued that these terms are flexible and should be interpreted in light of contemporary circumstances. It asserted that religion is intertwined with issues of ethnic and racial discrimination, and expanded the scope of ICERD to encompass discrimination against Muslims, Jews and Sikhs, amongst others.

However, in Maloney v R the High Court of Australia rejected an approach to interpreting the RDA as a living or organic instrument. Rather than consider recent developments in international law, which could spark ‘informal modification’ (French CJ at [23]), the Court treated the RDA as an instrument of static meaning.

International Jurisprudence

Australia has largely followed two major cases for defining ethno-religious grounds of discrimination. First is the New Zealand decision of King-Ansell v Police, where the defendant was charged with vilification of Jewish people under New Zealand’s equivalent of the RDA. The Court treated ‘ethnic origin’ as a fluid concept, a ‘historically determined social identity’ (Richardson J at [543]) that stems from a common historical origin, and shared beliefs, customs and traditions.

Secondly, in Mandla v Dowell Lee the House of Lords ruled that a school was guilty of discrimination by refusing entry to a Sikh boy, who insisted on wearing his turban and not cutting his hair in compliance with school uniform standards. The majority favoured two different approaches. Lord Templeman took an essentialist stance to define Sikhs as an ethno-religious group based on ‘common colour and a common physique’. On the other hand, Lord Fraser treated ‘ethnic origins’ as a contemporary concept and social construct that evolves over time. By contrast, Australia’s treatment of ethno-religious identity has been inconsistent.

A Domestic Perspective

In New South Wales, courts have taken a narrow reading of ‘ethno-religious origin’ under the Anti-Discrimination Act 1977 (NSW). In Khan v Commissioner, Department of Corrective Services, an Indian Muslim prisoner claimed that refusal to provide halal food was discrimination based on his ethno-religious origin. His case was rejected, despite the fact that his Jewish inmates could request kosher food. Moreover, the Attorney-General of NSW expressly stated that the Act must recognise the link between race and religion, thereby deliberately clarifying that ‘ethno-religious groups such as Jews, Muslims, and Sikhs have access to racial vilification and discrimination provisions’. Despite the shortcomings of this approach, this case has not been overturned and remains the leading decision on ethno-religious discrimination in NSW.

To address this, the RDA should be amended to ensure greater protection for Muslims. Currently in Australia, it is sufficient that a person’s ‘ethnic origin’ is one of the factors in discrimination (RDA, section 18B). Yet where it is the sole factor, the victim does not have protection available. Additionally, attempts to distinguish between an individual’s religion and ethnic origins are often arbitrary and confusing. By either amending the RDA or adopting a national multicultural Act, as Professor Andrew Jakubowicz proposes, we can offer more comprehensive protection for vulnerable groups from ethno-religious discrimination in Australia.

Regardless of which approach is favoured, our government should consult all members of the community, including Muslims, on how to strength legislative protection. Finally, implementation is most effective when law is widely known and respected. Community education programs can raise awareness of the RDA, whilst also shaping a culture where racial discrimination is widely denounced.


Upon the enactment of the RDA, Prime Minister Gough Whitlam declared that it was a historic Act, which would ‘entrench new attitudes of tolerance and understanding in the hearts and minds of the people’. Over 40 years later, these sentiments are just as important today, especially as Islamophobia continues to sweep the Western world. If Australia is truly a land of the ‘fair go’, then Muslims clearly should have statutory protection from racial discrimination and vilification.

Jennifer Tridgell is a final year law student at Macquarie University and Assistant Editor of the ILA Reporter. She has previously worked at the Australian Human Rights Commission in the Race Discrimination team. This article is written in her personal capacity.

ILA Event – Sydney – International Law and Sea Level Rise, 9 March 2016

On 9 March 2016, the Andrew & Renata Kaldor Centre for International Refugee Law, the International Law Association (Australian Branch) and the UNSW Environmental Law Group will co-convene an expert panel discussion on International Law and Sea Level Rise: Human Rights, Displacement, Maritime Zones and Biodiversity.

The panel of expert speakers include:

  • Associate Professor Stephen Humphreys, LSE: international human rights law;
  • Professor Jane McAdam, UNSW: international law and forced migration; and
  • Professor Rosemary Rayfuse, UNSW: international environmental law and law of the sea.

The event will be chaired by Christopher Ward SC, President of the Australian Branch of the International Law Association.

The event will start at 1 pm and finish at 2 pm and will be held at the Law Staff Common Room, Level 2, Law Building UNSW (please see reception on Level 2 for directions).

The event is free. To register pleaseclick here.

The Good Citizen of Australia: Human Rights and Citizenship in the Twenty-First Century – An Address by Hilary Charlesworth


On Thursday, 12 November 2015, Professor Hilary Charlesworth delivered the annual Nelson Mandela Lecture at the University of South Australia. The podcast can be accessed by clicking here.

Charlesworth’s lecture focused on proposals to amend the Australian Citizenship Act 2007 (Cth) to use the revocation of citizenship as a tool to deter terrorism. These proposals were first put before the House of Representatives in June 2015 in the form of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Bill), and were reintroduced in an amended form on 12 November 2015. This article canvasses Charlesworth’s examination of the amended Bill, with a particular focus on her discussion of the compatibility of the Bill with international human rights law.

Overview of the Proposals

Charlesworth commenced the lecture by highlighting that the Bill envisages two distinct bases for the revocation of citizenship of dual nationals, being persons who are citizens of Australia and one other country. Under the first basis, citizenship automatically ceases upon engagement in specified conduct, such as performing a terrorist act, assisting or financing terrorists (proposed s 33AA) and fighting for a ‘declared organisation’ (proposed s 35). Under these provisions, citizenship ceases immediately upon the person engaging in the specified conduct, and the Minister for Immigration and Border Protection (Minister) is simply required to give notice that the person’s citizenship has been revoked (ss 33AA(10), (11), 35(2)). However, immediately following the issuance of the notice, the Bill requires that the Minister consider whether to rescind the notice and exempt the person from the operation of the provision (ss 33A(15), 35(9)). In deciding whether to do this, the Minister is to have regard to factors including the severity of the matters that were the basis of the notice and the degree of threat posed by the person.

Under the second of the basis, the Minister may make a determination in writing that a person ceases to be an Australian citizen if they have been convicted of a specified offence. As with the first basis, the Minister is required to give notice of the revocation of citizenship (s 35A(5)).

However, under both bases for the revocation of citizenship, the Minister is not required to give notice of the revocation of citizenship if the Minister is satisfied that ‘giving notice could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations’ (ss 33A(13), 35(7), 35A(7)).

Compatibility with International Human Rights Law

Charlesworth highlighted that, while the amended Bill reflects a significant improvement to the initial proposals, particularly in relation to how the Bill safeguards the rights of children, substantial tensions remain between the terms of the Bill and international human rights law.

 Right to a Fair Trial

 The right to a fair trial is enshrined in Art 14 of the International Covenant on Civil and Political Rights (‘ICCPR’). This right requires that a person be informed of the case against them, have the opportunity to test the evidence against them and to testify. Under proposed ss 33AA and 35, renunciation of citizenship occurs without warning or any form of judicial scrutiny of the evidence of the conduct that is deemed to be inconsistent with the person’s allegiance to Australia. While the Minister is required to consider whether to exempt the person from the operation of the laws, in doing so, the Minister is not required to have regard to any submissions by the person whose citizenship has been revoked. Under proposed s 35A, the person whose citizenship is to be revoked similarly lacks any right to be heard in relation to the revocation. The intention to subvert the right to be heard is made explicit by provisions that state that the rules of natural justice do not apply to the Minister’s exercise of power under the provisions (ss 33AA(17), 35(11), 35A(11)).

Double Punishment

The right to protection against double punishment is provided for in Art 14(7) of the ICCPR. As discussed in the report by the Joint Parliamentary Committee on Human Rights, ‘An individual subjected to both the automatic loss of citizenship and a criminal conviction and punishment for the same conduct will effectively suffer double punishment’. Charlesworth said that this result would be in clear violation of Art 14(7).

Rights of Children

The initial version of the Bill was plainly inconsistent with Australia’s obligation under Art 3 of the Convention on the Rights of the Child to ensure that, in all actions concerning children, the best interests of the child is a primary consideration. Charlesworth acknowledged that many of these inconsistencies have been addressed in the amended Bill. For example, while the provisions in the initial proposals applied to persons of all ages, proposed ss 33A and 35 only apply to persons aged 14 or over, meaning that the citizenship of children under 14 years of age cannot be automatically revoked. Further, if the person is under the age of 18, the Minister is required to consider whether to exempt the person with regard to the best interests of the child as a primary consideration, being a factor that the Minister was not required to have regard to under the version of the Bill initially put before House of Representatives.  However, proposed s 35A applies to persons of all ages.

Does the Bill Satisfy Established Criteria?

 Charlesworth then moved on to explore whether the Bill satisfies the criteria proposed by former United Nations High Commissioner for Human Rights, Mary Robinson, to help build human rights into measures dealing with terrorism. These criteria include that the measures use precise terms, conform to the principles of proportionality and non-discrimination, be compatible with human rights treaties and be necessary in a democratic society. Charlesworth considered that the Bill ‘comes up short’ with regard to all of these criteria.

The Human Rights Compatibility Statement put before the House of Representatives states that ‘the Government considers that the measures in the Bill are appropriate and proportionate in light of the existing and emerged threats to national security’. However, Charlesworth deemed the analysis in the Statement to be ‘cursory and unsatisfactory’. Charlesworth highlighted that, as it currently stands, the Bill could capture religious charities training people with community skills, such as public speaking or accounting practices, that could later be put to use in support of terrorist activities, indicating that the Bill may not conform to the principle of proportionality. In addition, the Bill fails to conform to the principle of non-discrimination due to its application to dual nationals only, and contains ‘contested and vague terms’.  For example, the purpose of the Bill in s 4 suggests that commitment to the ‘shared values of the Australian community’ is a prerequisite for citizenship. Section 4 of the Bill provides that the Bill’s purpose is to provide for the revocation of Australian citizenship on grounds of conduct that is ‘incompatible with the shared values of the Australian community’.  Using value-based language, which could be deployed as an interpretive aid by a court, could have unintended consequences.


Professor Charlesworth concluded her lecture by reflecting on the true worth of laws such as the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, which are oppressive or appear discriminatory, in combating terrorism. According to Charlesworth, research reveals that alienation and humiliation play a large part in the decision to engage in terrorism, and ‘true security depends on broadening respect for human rights rather than treating human rights as dispensable when the going gets tough’.

The Act of Killing: Human Control of Weapon Systems and the Future of Warfare — Aneta Peretko

The future of warfare lies not in drones that are remotely controlled by a pilot, but in unmanned weapon systems that can independently acquire, track and engage targets.

In fact, this future has been a reality since at least the 1980s, in one respect or another. Weapon systems such as the Phalanx Close-In Weapon System, the Aegis Weapon System and the Iron Dome Weapon System detect incoming threats and react to them without requiring a human to pull the trigger.

But there is a difference between these types of mechanised responses and autonomous weapon systems that are able to select and analyse a target, and decide whether or not to attack it.

The latter are the subject of this article, which proceeds in three parts to explain what autonomous weapons are, what issues they raise at international law, and what they may mean for the future of war.

What are autonomous weapon systems?

In 2013, as part of a test mission, an Air Force B-1 bomber deployed a Long Range Anti-Ship Missile (LRASM) over Point Mugu, off the coast of California. Although pilots initially directed the LRASM, the weapon entered its autonomous mode half way through its voyage. Without any further human intervention, it analysed three possible ships before selecting one to attack.

Weapon systems with some level of autonomy are already being used, and may be considered for deployment by Australia by the mid-2020s (Defence White Paper at 2.81). Autonomy is a matter of degree, but the LRASM evidently displays a high level of it. It is different from the defensive systems described above, which react on the basis of pre-programmed rules to intercept incoming threats. We know precisely what the Iron Dome will do to an incoming missile. Autonomous weapon systems, on the other hand, behave in a way that is not exactly predictable.

What else we know about autonomous weapon systems is mostly hypothetical. Their use for lethal force is banned by the US Department of Defense up to 2022 (US Department of Defense, Directive Number 3000.09: Autonomy in Weapons Systems at [4.c.(3)] albeit with some exceptions [4.d.]). But we do know that they will not be silver screen, silver-boned killer robots from the future. A definition offered by the US (Directive Number 3000.09, Part II: Definitions) explains that these are systems that ‘once activated can select and engage targets without further intervention by a human operator [emphasis added].’ There is necessarily some human interference.

What human interference does not do, however, is the legally significant act of selecting and engaging a target. Where that act is not subject to meaningful human control, including where there is an override function but the response happens so quickly that it would be impossible for a human operator to keep up, the weapon may be considered autonomous.

How to regulate autonomous weapons systems?

According to a report by the Special Rapporteur on Extrajudicial, Summary and Arbitrary Execution to the UN Human Rights Council, such weapons should meet international standards before even considering them for deployment (Christof Heyns, Report of the Special Rapporteur on Extrajudicial, Summary & Arbitrary Execution).  As yet, there are no specific treaties dealing with autonomous weapon systems, but per Article 2(b) of the Additional Protocol I to the Geneva Conventions (API), generally recognised principles and international humanitarian law (IHL) continue to apply.

Article 36 of the API requires states to determine whether new weapons are prohibited under international law. That determination requires consideration of two further API articles: article 35(2), which prohibits weapons causing unnecessary suffering or superfluous injury, and article 51(4)(b), which prohibits inherently indiscriminate weapons (for a more in-depth look at how these provisions affect autonomous weapons, see Kenneth Anderson & Matthew C. Waxman, ‘Law and Ethics for Autonomous Weapon Systems: Why A Ban Won’t Work and How the Laws of War Can’, Stanford University, The Hoover Institution (Jean Perkins Task Force on National Security and Law Essay Series), 2013). Autonomous weapon systems tend to offer a new method of delivering existing weaponry, including bombs and bullets, so they are unlikely to be the subject of a blanket ban in this regard. However, the use of such weapons may still contravene IHL if the weapons are incapable of exercising the principles of proportionality and distinction (International Committee of the Red Cross, Autonomous Weapon Systems: Technical, Military, Legal and Humanitarian Aspects 75).

Proportionality demands the balancing of military advantage against civilian injury. Assessment of a target’s worth is typically carried out on-scene by a commander who makes a judgment call. It does not adhere to a system of precedent, or a rigid ratio, so programming a weapon to make such an assessment may be difficult, particularly as that assessment may change from minute to minute based on new intelligence.

Distinction forbids the targeting of persons who are not directly taking part in the hostilities, and although autonomous weapon systems can be fitted with advanced sensors to process biometric data, they may not be able to account for the difficult and fluid line between civilians and combatants (Peter Asaro, ‘On Banning Autonomous Weapon Systems‘; the International Committee of the Red Cross has released an entire guide to interpreting what direct participation in hostilities means, see Nils Mezler, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law). Civilians can become legal targets if they take up arms, which sensory equipment may be able to process, but also if they perform acts to assist military operations without actually carrying a weapon. Likewise, combatants may or may not become illegal targets if they are hors de combat due to injury, but that depends on the severity of the injury.

Are automated weapon systems capable of following the law? In fact, some argue that a properly programmed weapon system will follow the law perfectly (Marco Sassoli, ‘Autonomous Weapons: Potential Advantages for the Respect of International Humanitarian Law’). It will not react in anger or panic, seek revenge or withhold information concerning its own conduct. Human soldiers do not always exercise complete compliance with IHL. Can machines do so perfectly? And if they cannot, and can only comply to the same imperfect level as humans, is that good enough?

And what if programming fails? Assigning liability is a challenge. A machine cannot be convicted of war crimes. The prosecution of developers and manufacturers is unlikely – as a preliminary bar, IHL only applies once hostilities have begun. Weapons developed in the lead up to war, or during peace, fall outside of the temporal coincidence required (Tim McFarland and Tim McCormack, ‘Mind the Gap: Can Developers of Autonomous Weapons Systems be Liable for War Crimes?’ 372). Those who procured the weapon may face the same challenge. Even if they did not, should they really hold legal responsibility? It would also be difficult under modes of liability to implicate a commander – if the weapon is autonomous to a degree that it selects and engages its own target, the commander may not have the requisite knowledge of pending criminal acts (Jack M. Beard, ‘Autonomous Weapons and Human Responsibilities’ (2014) 45 Georgetown Journal of International Law 647, 658). For command responsibility to apply, the principle would have to be modified. But is that level of culpability appropriate if the weapon behaved autonomously?

Why regulate autonomous weapons systems?

The real conceptual difficulty with autonomous weapon systems is not one for lawyers, but one for ethicists. Article 1(2) of the API, the so-called Martens Clause, states that in the absence of other agreements, we must be guided by the principles of humanity and public conscience. Does that humanity-guided decision-making involve moral and intuitive paths that are not algorithmic in nature?

Consider Mark Bowden’s widely read 2013 article in The Atlantic, ‘The Killing Machines’, which recounts the experience of a 19-year old drone operator. In 2013, when a truck began shooting at a patrol of marines in Afghanistan, he fired a Hellfire missile at the vehicle and destroyed it. Those marines were at war in Afghanistan. The drone operator was at an office building in the US. Months later, he was still bothered by delivering a ‘deathblow without having been in any danger’.

Of course, for militaries around the world, this is one of the most significant benefits of autonomous weapon systems. True, machines are faster than humans in collecting, processing and acting upon information. They are also more accurate in firing at their selected targets and thus reduce civilian casualties (Avery Plaw, Matthew S. Fricker & Brian Glyn Williams, ‘Practice Makes Perfect?: The Changing Civilian Toll of CIA Drone Strikes in Pakistan’), and are not subject to fatigue or emotional responses. These are military advantages. But there is also an ethical advantage. The machine assumes the risk of war (Ronald Arkin, ‘Lethal Autonomous Systems and the Plight of the Non-Combatant’, ASIB Quarterly, No. 137, 2013). For every unmanned weapon system deployed in a battlefield, at least one human soldier does not have to face that risk.

Autonomous weapon systems will never be bothered by a lack of mutual risk. The use of highly autonomous systems may remove the culpability of the human in the act of killing, an act to which humans face a psychological barrier (see, eg, David Grossman, On Killing: The Psychological Cost of Learning to Kill in War and Society (Little, Brown & Co, Boston, 1995)). But does the decreased personal responsibility in this area make it easier to ethically disassociate from the costs of war?

Aneta Peretko is a solicitor and the Chair of the South Australian International Humanitarian Law Collective, a group of young people who share an interest in the law of armed conflict. The views expressed in this article are solely her own.

A conversation with Christof Heyns, United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions — Sophocles Kitharidis and Laura Baykara

On 8 October 2015, United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Professor Christof Heyns, gave a rare lecture to the International Law Association (Victorian Chapter) during his three-day visit in Australia. Having held this UN mandate for the last five years, Professor Heyns discussed the ways in which his mandate functions and its coverage of the scope and limitations of the right to life, and provided an overview of the central themes that addressed by the mandate, including:

  • the need for law reform on the use of force by law enforcement officials in most countries in the world;
  • the development of guiding principles on the management of demonstrations for the Human Rights Council;
  • the demise of the death penalty; and
  • the emergence of new technologies that affect the right to life, both in terms of weapons and technologies that can be used to protect life.

The Mandate

In 1982, the Commission on Human Rights put forward resolution CHR Res 1982/29 to the Economic and Social Council requesting the appointment of a special rapporteur with a focus on the practices concerning summary or arbitrary executions. The mandate was established under resolution ESC Res 1982/35.

Ten years later, resolution CHR Res 1992/72 widened the mandate to include ‘extrajudicial’ as well as ‘summary or arbitrary’ executions. The amendment indicated the importance placed by members of the Commission on Human Rights to include all violations of the right to life as guaranteed by the majority of international human rights instruments (further information available here).

Professor Heyns discussed the importance of the mandate covering all countries, irrespective of whether a state has ratified relevant international conventions. He noted his most recent country visits to Gambia, Papua New Guinea, and Ukraine.

In resolution HRC Res 26/12, the United Nations Human Rights Council underscored the importance of the UN’s chief investigator to carry out their mandate in the following way:

(a)       To continue to examine situations of extrajudicial, summary or arbitrary executions in all circumstances and for whatever reason, and to submit his or her findings on an annual basis, together with conclusions and recommendations, to the Human Rights Council and the General Assembly, and to draw the attention of the Council to serious situations of extrajudicial, summary or arbitrary executions that warrant immediate attention or where early action might prevent further deterioration;

(b)       To continue to draw the attention of the United Nations High Commissioner for Human Rights to serious situations of extrajudicial, summary or arbitrary executions that warrant immediate attention or where early action might prevent further deterioration;

(c)       To respond effectively to information which comes before him or her, in particular when an extrajudicial, summary or arbitrary execution is imminent or threatened or when such an execution has occurred;

(d)       To enhance further his or her dialogue with Governments, as well as to follow up on recommendations made in reports after visits to particular countries;

(e)       To continue to monitor the implementation of existing international standards on safeguards and restrictions relating to the imposition of capital punishment, bearing in mind the comments made by the Human Rights Committee in its interpretation of article 6 of the International Covenant on Civil and Political Rights, as well as the Second Optional Protocol thereto;

(f)        To apply a gender perspective in his or her work.

Professor Heyns articulated the importance of the operational duties of the Special Rapporteur as an advisor to the UN. He underscored the need for rapporteurs to secure invitations from member states where investigations are required and the challenges associated in obtaining approval for the country visits, such as governments not replying or delaying responses due to political pressure and sensitivities. One would also assume that further challenges would include the rapporteurs’ ability to maintain an independent and impartial position throughout their investigation.

Drones, weapons systems and the right to life

Professor Heyns explored the concepts of drones and autonomous weapons systems (AWS) and the complexities (both legally and morally) around how these systems have the ability to make an accurate decision concerning the use of force against human beings — both within and outside armed conflicts, such as those undertaken by law enforcement agencies. The concept of the ‘weapon becoming the warriorunderscores the legal and ethical quandaries around the new mechanisms for the use of force. Within the context of law enforcement, intervention (and not human intervention) can be used as a form of non-lethal action, but questions still exist around the ability of a machine making a judgement on when and how the intervention is to be used.

In examining the use of armed drones and AWS from a human rights approach, accountability comes to the forefront of the debate (where a violation of the right to life is evident). Otherwise, it can be classified as an empty normative system. Arguably, since the AWS will have the ability to make judgements with the ‘human’ element absent, it may be that human beings may not be held responsible for collateral damage or for circumstances where the armed drone or AWS fails its target or mission; this is due to the importance of meaningful responsibility depending on meaningful control (see also Professor Heyn’s comments earlier this year) (http://www.ohchr.org/Documents/Issues/Executions/CCWApril2015.doc).

Professor Heyns further examined an AWS’ ability to accurately target legitimate objects. The ability for a machine to make life and death decisions is a growing area of debate concerning the right to life and human dignity. Questions concerning the dignity of the targeted not being affected and the machine’s decision-making process arise as areas for further review. However, it is important to note that even though the machine is making the decision, a human element will also continue to exist within the chain — whether it be the individual who created the structure of the machine, designed the machine, programmed the machine or released the machine to undertake the attack.

Professor Heyns discussed the right to life in the context of the use of force, political killings and the death penalty. The right to life is a precondition to other human rights — for example, political killings against journalists have a chilling effect on a number of other human rights. However, it cannot necessarily be assumed that the right to life is the supreme right vis-à-vis other rights, given the debate surrounding armed drones and AWS. Where the right to life is accepted as the supreme right, it is done on the condition that it is a right that is a prerequisite of all other existing rights. This can be seen in the example of armed drones and the use of force where the drones themselves are not illegal. However, when implementing them as a weapon of force, ‘they may be easily abused and lead to unlawful loss of life, if used inappropriately’ (as stated here by UN Special Rapporteur on counter terrorism, Ben Emmerson).

The presentation concluded with a number of questions from the audience. On behalf of the International Law Association (Victorian Chapter), we extend our greatest appreciation and thanks to Professor Christof Heyns for making this event possible.

This article is not intended to be a transcript of the presentation.

Laura Baykara holds a Bachelor of Laws (Hons) from Monash University and is a solicitor at Herbert Smith Freehills.

Sophocles Kitharidis is a public international law consultant to the International Affairs Division of the Thai Ministry of Justice. He is the former Vice President of the International Law Association (Victorian Chapter) and holds a Master of Laws in Public International Law from the University of Melbourne.

Fitness First? Assessing the Treatment of Fitness to Stand Trial in the Trial of Ieng Thirith – Esther Pearson


On 22 August 2015, former ‘first lady’ of the Khmer Rouge, Ieng Thirith, passed away at the age of 83. Ieng was the Minister of Social Action during the period of Democratic Kampuchea and had been indicted before the Extraordinary Chambers in the Courts of Cambodia (ECCC) on charges of genocide, crimes against humanity and grave breaches of the Geneva Conventions. However, in September 2012, proceedings against Ieng were stayed after she was found to be unfit to stand trial due to progressive dementia. Following Ieng’s death, residents of Phnom Penh expressed their frustration with the lack of prosecution (for example in the Khmer Times article Khmer Rouge ‘First Lady’ Dies). This post reflects on howthe ECCC’s approach to assessing Ieng’s fitness to stand trial — and the consequences its findings — tried to strike the delicate balance between the imperative to secure a prosecution and need for a fair trial.

Fitness to Stand Trial

In 2004, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) considered the concept of fitness to stand trial in a decision on a motion for the medical examination of the accused in Prosecutor v Pavle Strugar (Decision Re the Defence Motion to Terminate Proceedings). The Trial Chamber considered that for an accused to be fit to stand trial, he or she must:

  • have the capacity to plead;
  • understand the nature of the charges;
  • understand the course of proceedings;
  • understand the details of the evidence;
  • be able to instruct counsel;
  • understand the consequences of the proceedings; and
  • testify.

While the finding of fitness to stand trial is a legal determination made by the court, medical experts are typically employed to assess the condition of the accused and produce a report detailing their findings. Before relying on the expert’s report, the court must evaluate whether the report contains sufficient information as to the sources of the expert’s conclusions, and whether those conclusions were drawn impartially.

The ECCC Rules (rule 32) provide for the medical examination of an accused at the request of a party, in order to determine whether the accused is fit to stand trial. On 21 February 2011, Ieng’s defence team filed a request for an assessment of her fitness to stand trial. Between April and October 2011, an expert geriatrician and four psychiatric experts carried out assessments. They concurred that Ieng’s symptoms were consistent with a diagnosis of dementia and, as a result of her condition, her capacity to understand the course of the proceedings and to instruct counsel was significantly impaired. However, the experts explained that there was a possibility that Ieng’s condition would improve by using a medication for Alzheimer patients and through occupational therapy.

The Trial Chamber acknowledged the gravity of the crimes for which the accused was charged (Decision of Ieng Thirith’s Fitness to Stand Trial). However, it noted that properly qualified medical experts, upon assessment of the accused with credible testing methods, had found that Ieng was unable to meaningfully participate in her defence. Accordingly, the Trial Chamber, having weighed all relevant factors in the balance, found Ieng unfit to stand trial.

Consequences of Unfitness

After declaring Ieng to be unfit to stand trial, it fell upon the Trial Chamber to determine the consequences. Given the experts’ opinions that there was a slight possibility of Ieng’s condition improving through medication and occupational therapy, the national judges imposed orders for mandatory treatment, while the international judges ordered her immediate unconditional release. In this divided situation, the Trial Chamber found that it should adopt the outcome most favourable to the accused, ordering that she be released unconditionally.

Continued Detention with Mandatory Treatment

The decision of the Trial Chamber to release Ieng from detention without condition was promptly appealed by the Co-Prosecutors to the ECCC Supreme Court Chamber (Immediate Appeal against Trial Chamber Decision to Order the Released of Accused Ieng Thirith). The Supreme Court Chamber found that the Trial Chamber was obliged to exhaust all measures available to it to enable the accused to become fit to stand trial, including making orders that the accused undergo treatment while being detained in a hospital or comparable facility (Decision on Immediate Appeal Against the Trial Chamber’s Order to Release the Accused Ieng Thirith). The Supreme Court Chamber stated that the unconditional release of the accused would forego any effort in the direction of resuming proceedings against the accused, and ‘such an outcome is irreconcilable with the interests of justice from all points of view, including the accused, prosecution, civil parties, and Cambodian society as a whole’ (at [28]). There is a basis for such orders in international criminal law, with precedents in Prosecutor v Jovica Stanisic and Franko Simatovic (Decision on Defence Appeal of the Decision on Future Course of Proceedings) and Prosecutor v Vladimir Kovacevic (Decision on Appeal Against Decision on Referral Under Rule 11bis) before the ICTY. The Supreme Court Chamber ordered the Trial Chamber to institute the recommended treatment and to review Ieng’s condition in six months.

Release from Detention with Judicial Supervision

On 13 September 2012, after experts had again reviewed Ieng’s condition, the Trial Chamber delivered its verdict that Ieng remained unfit to stand trial and ordered that she be released without conditions (Decision on Reassessment of Accused Ieng Thirith’s Fitness to Stand Trial Following Supreme Court Chamber Decision of 13 December 2011). Again, the Co-Prosecutors appealed to the Supreme Court Chamber, submitting that Ieng should be subject to six conditions for release:

  1. That she reside at a specified home address;
  2. That she make herself available for weekly safety checks by authorities or officials appointed by the Trial Chamber;
  3. That she surrender her passport and national identification;
  4. That she not directly or indirectly contact other co-accused (excluding her husband, Ieng Sary);
  5. That she not directly or indirectly contact any witness, expert or victim who is proposed to be heard before the Trial Chamber and not to interfere with the administration of justice; and
  6. That she undergo examination by medical practitioners appointed by the Trial Chamber every six months.

(Immediate Appeal Against Decision on Reassessment of Accused Ieng Thirith’s Fitness to Stand Trial Following the Supreme Court Chamber Decision of 13 December 2011, Case No 002/19-09-2007, 14 September 2012, at [10]).

Conditions that restrict the rights of freedom of movement and privacy, such as those proposed by the Co-Prosecutors, should only be imposed if the conditions are necessary to achieve a protective function, the least intrusive means of achieving that function, and proportionate to the function. In the Supreme Court Chamber’s judgment on the appeal (Decision on Immediate Appeal against the Trial Chamber’s Order to Unconditionally Release the Accused Ieng Thirith), it analysed whether each proposed condition met these criteria. It found that, in light of Ieng’s medical condition, it would be unnecessary and disproportionate to retain Ieng’s passport and identification card and to make orders prohibiting her from contacting the other co-accused, witnesses, experts or victims. The Supreme Court Chamber considered the other proposed conditions to be minimally intrusive and necessary to protect the legitimate interests of ensuring Ieng was available to the Court and to monitor her health. By undertaking such an analysis, the Supreme Court Chamber’s ultimate decision balanced the necessity to afford Ieng a fair trial and the interests of society in seeing the alleged perpetrators of the crimes committed in Democratic Kampuchea being brought to justice.

Esther Pearson is an Assistant Editor of the ILA Reporter.

ILA and National Centre for Indigenous Studies Event – Canberra – The International Law Context of Recent Developments in Indigenous Policy in Australia

The ILA and the National Centre for Indigenous Studies are holding a seminar that will consider Indigenous policy in Australia set against Australia’s international human rights obligations.

The event will be held from 5 – 7 pm on 30 October 2015 at the Hedley Bull Centre Lecture Theatre 1 at the Australian National University.

The speakers are Professor Mick Dodson, Mr Greg Marks and Dr Sean Kerins.

Please register via EventBrite.

Enquiries may be made to tamai.heaton@anu.edu.au.

The event flyer can be accessed here.

ILA Event – Sydney – Representing Australians Abroad: Practical Lessons from Egypt and Asia

Gilbert + Tobin and the Australian Branch of the ILA are pleased to bring together Professor Donald Rothwell of the ANU College of Law, Christopher Flynn, Partner at Gilbert + Tobin and Barrister Dr Christopher Ward to discuss issues that arise when representing Australians accused of offences committed overseas, including journalist Peter Greste and Andrew Chan and Myuran Sukumaran.

The Panel will discuss matters including the appropriate legal strategies, co-ordination with government and international law issues including trends in the application of the death penalty for drug trafficking crimes.

The event will be held at 6pm, 16 September 2015 at Gilbert + Tobin, Level 37, 2 Park Street, Sydney.

Please RSVP by 31 August 2015 to Kate Vosch (kvosch@gtlaw.com.au).

The event flyer can be accessed here.

Motion to ratify Optional Protocol to Torture Convention falls flat

On 11 August 2015, Senator Penny Wright of the Australian Greens put forward a formal motion in the Australian Senate moving that the Government be called on to ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Protocol).

The motion is available here on page 12.

Australia ratified the Convention Against Torture (Convention) in 1989 and the prohibitions contained in the Convention have been adopted in the Commonwealth Criminal Code. Whilst Australia signed the Protocol in 2009, it has not yet been ratified. Presently, 79 countries have ratified the Protocol, including the UK and New Zealand.

The Protocol would require Australia to allow visits by independent international and national bodies to places where people are deprived of their liberty in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.  In particular, Australia would be required to establish a National Preventative Mechanism (NPM) which would have, at minimum, the power to examine prisoners and detainees, make recommendations to national authorities and submit proposals with respect to Australian legislation.

Senator Wright’s motion provided at para (a)(iii) that:

 the establishment of an NPM:

  • had bipartisan support from the Joint Standing Committee on Treaties in 2009, and an implementation framework has been identified by the Australian Human Rights Commission,
  • would help address serious allegations of cruel, inhuman and degrading treatment occurring in some prison facilities in Australia and immigration detention facilities in Nauru, and provide the required transparency to allow health care practitioners and legal advisors to attend to good professional and ethical conduct for clients in detention, and
  • can also deliver improved workplace conditions for employees and efficiency dividends for the taxpayer.

The motion did not receive support from the Government or the Opposition.  Labor Senator, Claire Moore, stated:

…we did deny formality to this important motion, because it is our longstanding practice. Where we have an issue such as this which is complex and creates a number of complex situations and also determines significant discussions across all states and territories, we believe it is not appropriate to use the notice of motion process for that, and that is our standard practice.

As to the status of Australia’s implementation of the Protocol, the Australian Human Rights Commission states on its website that:

The Commission understands that a proposal for ratifying the [Protocol] is under consideration by the Australian Government, and consultations are continuing with the states and territories on necessary steps to implement the obligations under [the Protocol].