Under division 105 of the Criminal Code Act, an initial preventative detention order may be sought for up to 24 hours^[93] by a member of the Australian Federal Police (AFP) and made by a senior member of the AFP.^[94] If detaining someone in connection with an imminent attack — one that will take place within 14 days^[95] — the AFP has to be ‘satisfied’ that:

If detaining someone in connection with a recent attack — one that has taken place within the last 28 days^[97] — the AFP has to be ‘satisfied’ that:

The initial preventative detention order may be extended and further extended, so long as the total period of detention does not exceed 24 hours.^[99]

A continuing preventative detention order^[100] may then be issued by a Federal Judge or Magistrate, a State or Territory Supreme Court Judge, a retired Judge, or the President or Deputy President of the Administrative Appeals Tribunal (provided the latter two persons are lawyers)^[101] sitting in a personal capacity.^[102] The entire period of detention under the initial and continuing preventative detention order is a maximum of 48 hours.^[103]

The reason for the short period of time is that this is federal legislation and there is some concern that any longer period of detention could breach the constitutionally embedded separation of powers doctrine.^[104] Deprivation of liberty for the purposes of punishment is accepted as a core feature of judicial power and unduly long detention could transform the detention from non-punitive, preventative detention to impermissible punitive detention ordered by the executive. The States and Territories were to enact their own legislation to provide for detention for up to 14 days, effectively taking over from the Commonwealth if it is thought necessary to detain a person for longer than 48 hours.^[105]

Under the Commonwealth legislation, there is no court hearing and the proceedings are purposefully ex parte. Although the Act spells out that a remedy (which is not defined) may be sought from a federal court,^[106] it appears that in many cases there will be no basis upon which the court could order a remedy such as habeas corpus because the legislation authorises this sort of administrative detention. The jurisdiction of State and Territory supreme courts is specifically ousted with respect to a Commonwealth preventative detention order while that order is on foot.^[107] State and Territory supreme courts may, however, review the Commonwealth order on the same grounds on which review is provided for by the relevant legislation in relation to state orders,^[108] once a person has been detained under a state order. Also after the detention pursuant to a Commonwealth order is over, the Administrative Appeals Tribunal may determine that the decision to issue the preventative detention order is void and that compensation should be paid.^[109]

Quite apart from issues of jurisdiction, it may prove difficult for any detainee to bring proceedings given the problems in securing adequate reasons concerning the order. The detainee must be informed about ‘the fact that the preventative detention order has been made in relation to the person’,^[110] but this does not deal with the reasons for which the order was made. A summary of the grounds on which the order is made must also be supplied,^[111] but it is unclear how far this summary might go beyond, say, information that the order was imposed to prevent an imminent attack or to preserve evidence of a past attack. Moreover, some information may not be included if it is ‘likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth)).’^[112]

Having set out the scheme of preventative detention under the Commonwealth legislation, it is now possible to examine whether it is legal under international human rights law. Unlike the jurisprudence of the European Court of Human Rights (which may have led the UK formally to derogate from its obligations under the European Convention in November 2001, although it is notable that the UK has also derogated from its obligations under the ICCPR), preventative detention has received an ambiguous acceptance in the jurisprudence of the Human Rights Committee. In Lawless v Republic of Ireland, the European Court of Human Rights clearly stated that it was not permissible to detain a person without intending to bring the person before a court unless the State concerned was derogating from the right to liberty set out in Article 5 of the European Convention on Human Rights.^[113] The Human Rights Committee, which has not yet had to consider the precise issue of preventative detention occurring in the context of terrorism in an individual communication,^[114] has stated somewhat cryptically in General Comment Number 8 that if preventative detention is imposed, it must comply with the provisions set out in Article 9 of the ICCPR.^[115]

Under Article 9, three requirements must be met. First, the detention must not be arbitrary (art 9(1)). Second, arrested persons must be informed of the reasons for arrest (art 9(2)). Third, proceedings may be taken before a court in order that the court may decide ‘without delay’ on the lawfulness of the detention (art 9(4)) — lawfulness, according to the jurisprudence of the Committee, meaning that the courts may determine whether or not the detention is arbitrary as a matter of international law.^[116]

It may not be surprising that this apparent legal loophole has been exploited so assiduously, when we consider that Mr Philip Ruddock has until recently been Attorney-General. As Minister for Immigration, Mr Ruddock proved a past master at exploiting the many frustrating silences in the Refugee Convention. However, the Howard government may have misread the relevant international law and placed the bar too low. In relation to Commonwealth preventative detention orders, it appears that there is no meaningful court control as required by Article 9(4) of the ICCPR. Apparently, it is thought that the duration of the detention is so short that meaningful judicial control is not necessary, or that a (most probably) post hoc remedy for detention that is wrongful under Australian law is all that is required. After all, the rule of thumb for bringing an ordinary criminal suspect before a judge appears to be around 48 hours. In the context of pre-trial detention, the Human Rights Committee has suggested guidelines of a couple of days in relation to bringing someone ‘promptly’ before a court for the purposes of Article 9(3) (which is specific to criminal cases), while a few weeks has been suggested as a guideline for a ‘decision without delay’ by a court for the purposes of Article 9(4).^[117]

But, if this is what the Commonwealth seeks to rely on, then the Howard government took the outer limits of what is permissible (giving governments some leeway) and effectively made it impermissible, or at least virtually meaningless, for a person to complain within that period. Therefore, even if we view General Comment 8 as endorsing the idea of preventative detention, it may be that Parliament has failed to enact a scheme that would satisfy the requirements of Article 9 of the ICCPR because it has effectively created a parallel universe of detention — one that is almost entirely within executive control.

In any event, the idea that the presumption of liberty enshrined in Article 9(3) has been overturned when it is not contemplated that a full and fair trial will follow, on the basis there will be some remedy if, in fact, the executive got it wrong, should be at least mildly discomforting. An executive-controlled power to detain even for very short periods may be enough to terrorise those persons who experience it.

Australia’s legislation underscores the fundamentally problematic nature of preventative detention highlighted by the European Court of Human Rights in Lawless. In Lawless, the Court concluded that its interpretation — that detention could only be for the purposes of bringing someone before a judge, unless the state concerned was derogating from the right to liberty — had to be correct. It warned of the consequences of the alternative interpretation:

Moreover, while the Human Rights Committee’s general comment seems to permit preventative detention to some degree, the Committee has also said that it is not possible simply to escape the protections due in ordinary criminal and civil proceedings pursuant to Article 14 of the ICCPR. Article 14(1) states that:

The Committee’s ‘concluding observations’ in relation to India’s third periodic report under the ICCPR with respect to India’s use of preventative detention in connection with national security are instructive:^[119]

In the attempt to avoid judicial scrutiny, the detention regime in Australia shares some similarity with the black hole of Guantánamo Bay. One of the Constitutional heads of power upon which the Commonwealth has relied in order to defend the enactment of the legislation that introduced preventative detention orders is the defence power (s 51(vi) Australian Constitution). A majority of the High Court has accepted that characterisation in a case concerning a challenge to the provisions relating to control orders.^[121] Only Justice Kirby dissented on that point,^[122] expressing the view that,

However, it appears that the Australian government views preventative detention orders as consistent with the right to liberty protected by Article 9 ICCPR, and unlike the UK, it certainly has not sought to derogate from its obligations under Article 9. Perhaps, then, rather than being a black hole, a more appropriate comparison is that preventative detention in Australia is like a ‘worm hole’. A worm hole is a short cut through time and space. Just as a worm eats its way through the apple from one point to another, instead of wriggling across the apple’s surface, it is sometimes suggested that a worm hole may allow us to travel from one parallel universe to another. The Australian legislation is rather like a worm hole as it seeks to place detainees quickly and temporarily into a parallel universe of executive detention that is almost entirely free of judicial scrutiny. And, like the worm hole, legal preventative detention may not exist. At least, the detention may not be legal if there is no possibility of meaningful court control, even, perhaps, if this is for only a brief period of time as under the Commonwealth legislation.^[124]

The existence or adequacy of court control of the Commonwealth order is not the only point at which Australia may fail to comply with Article 9 of the ICCPR. The question of court control intersects with questions as to whether arbitrary detention could result in any particular case from the AFP being ‘satisfied’ that there are ‘reasonable grounds to suspect’ that the prerequisites for the detention are present. The thresholds for detention are low.^[125] I think it is arguable that detention pursuant to the provisions concerning preservation of evidence will almost by definition be arbitrary. And while some element of proportionality has been incorporated, there is no explicit consideration as to whether there are less restrictive measures that may be imposed.^[126] The existence of remedies against wrongful detention under Australian law is not an adequate safeguard from detention that is arbitrary as a matter of international law. It is also worth reiterating the point that the short duration of the detention does not assuage the concern that the presumption of liberty has been displaced and on so slim a basis.

Finally, there are the questions about the timing and quality of the reasons given to the detainee.^[127] The Human Rights Committee has specifically dealt with the situation where the only information given to the detainee was that a person was arrested ‘under prompt security measures without any indication of the substance’ and the Committee determined that Article 9(2) was violated.^[128] The Australian model appears to go beyond this, but it may be questionable how much information detainees receive. So there are many points at which a human rights lawyer should be critical of the legislation.

As in the US and the UK, there has been an attempt to shift thinking concerning human rights in Australia.^[129] The former Australian Attorney-General sought to justify all anti-terrorism legislation with the language of human security. In a speech delivered at the Australian National University, he said:

Essentially,^[131] the argument posits that in order to secure the right to life or human security for some, the right to liberty of others must be sacrificed. Although the legislation itself is facially neutral, in practice, these others will often be Muslims. The legislation ignores the fact that by creating a sense of insecurity for these Australian citizens and residents, a sense of grievance that provides fertile ground for extremism may well be created or maintained. This misunderstands the idea of human security — it is not a trade whereby a sense of security is created for some (and a false sense at that) by generating real insecurity for others.

That this insecurity is real is demonstrated by the case of Dr Haneef. Mohamed Haneef was arrested at Brisbane airport on 2 July 2007 on the basis of a suspicion that he was involved in the failed car bombings at Glasgow airport. Dr Haneef was not detained under a preventative detention order, but under a different provision allowing the police to hold a person without charge for an extended interrogation. Under s 23CA of the Crimes Act 1914 (Cth), a recently created provision for terrorist investigations, a person may generally be arrested for investigation for up to four hours.^[132] An extension of the period for another 20 hours may be sought under s 23DA of the Crimes Act. Dr Haneef was held for 12 days before being charged, as a result of provisions that stop the clock from running when, for example, the detainee is communicating with his or her lawyer or resting.^[133] His ‘crime’ was that he was a cousin of one of the bombers and had lived with this cousin, and he had also ‘recklessly’ given this cousin his mobile phone SIM card. Originally, it was reported that the card was found in the burnt out car at Glasgow airport, but events subsequently transpired to show that the SIM card was found hundreds of miles away in Liverpool, at the flat which Dr Haneef had shared with his cousin. Eventually charged with providing support for an organisation being reckless as to whether the organisation is a terrorist organisation,^[134] Dr Haneef was granted bail, only to have his visa cancelled by then Immigration Minister, Mr Kevin Andrews, on the grounds of ‘bad character’ pursuant to s 501 of the Migration Act 1958 (Cth). This permitted Dr Haneef to be placed in immigration detention. Ultimately, in a highly embarrassing series of events, the charges were dropped, and Dr Haneef was permitted to leave for India, which he had been trying to reach 24 days earlier, in order to meet his new-born baby girl.^[135] In addition, the Federal Court determined that the cancellation of Dr Haneef’s visa was invalid.^[136]

A little caution may be required when commenting on Dr Haneef’s case given that not all of the evidence known by the police is in the public domain. However, one may hope that the Kafka-esque nature of Dr Haneef’s ordeal may have alerted the Australian public to the false hierarchy established by the Australian government, in which human rights are actually traded away in the name of a false sense of security. On the other hand, perhaps the silent majority feels the same way as one member of the public who, after watching the tabloid-style television current affairs program ‘60 Minutes’, expressed sympathy with Dr Haneef but opined that it was the ‘price we have to pay’ if we want to combat terrorism successfully. It is perhaps unnecessary to point out that ‘we’ are not paying — only Dr Haneef has paid the immediate price — and that the long-term cost to Australians also needs to be considered.