National Security and Human Rights

This chapter examines the interaction between national security and human rights law in Australia. It introduces readers to important background knowledge by outlining the key international and domestic human rights instruments governing Australia’s human rights obligations and discusses a number of pieces of national security legislation which raise human rights issues. These include the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act), The Criminal Code 1995 (Cth), The Espionage and Foreign Interference Act 2018 (Cth) and the Public Interest Disclosure Act 2013 (Cth). In analysing this legislation, the chapter considers whether these laws achieve a balance between the protection of the public on the one hand, and individual’s human rights on the other. That is, whether Australia’s national security laws are necessary and proportionate. In particular, it focuses on a number of key, topical legal issues such as the use of control orders, criminal provisions governing the transmission of classified information and provisions relating to whistleblowers. Such actions raise important human rights provisions such as the protection against arbitrary detention of individuals, the right to privacy, and the rights to freedom of movement, expression, and association. This chapter will also focus on human rights oversight mechanisms such as the operation of the Parliamentary Joint Committee on Human Rights and the Independent National Security Legislation Monitor. Finally, it will discuss proposals for law reform in the national security and human rights landscape in Australia.