The so-called "War on Terror" has had many "collateral victims"; human dignity and fundamental freedoms are high among them. The toll has been particularly high in Australia, where, unlike in the United Kingdom with its Human Rights Act, Europe with its European Convention on Human Rights, or even the United States with its Bill of Rights, human rights enjoy very limited constitutional or legislative protection.

The lack of domestic protection makes the use of international human rights frameworks and mechanisms particularly important in Australia. The Special Procedures of the UN Human Rights Council are one such mechanism.

Special Procedures (sometimes referred to as "Special Rapporteurs") are independent human rights experts appointed by resolution of the UN Human Rights Council to examine, monitor, research, report and advise on human rights issues within their mandate. Key responsibilities of the Special Procedures include "urgent actions" or "urgent appeals", which involve the Special Procedure communicating with a country to take action to investigate and address a human rights issue of concern, and "country visits", which involve the Special Procedure visiting a country to examine, report on and make recommendations regarding the human rights situation on the ground.

There are a number of Special Procedures with mandates of significant relevance to the promotion and protection of human rights in the "War on Terror"'. Foremost, perhaps, is the Special Rapporteur on Human Rights and Counter Terrorism, Professor Martin Scheinin of Finland, whose mandate specifically includes making "concrete recommendations on the promotion and protection of human rights and fundamental freedoms while countering terrorism". In late 2006, Professor Scheinin published his report on the situation of human rights and counter-terrorism in Australia, following an official visit earlier in that year. The report urges the Australian government to urgently reconsider key aspects of its counter-terrorism laws to bring them into conformity with international human rights standards. Key concerns of the Rapporteur include:
* the overly broad definition of "terrorist act", which carries serious consequences for rights and freedom of individuals;
* the lack of safeguards in relation to enhanced powers of search and seizure of Australian Federal Police;
* ASIO powers of questioning and intelligence-gathering; and
* the regimes for preventive detention and control orders.

The Rapporteur considered that these laws have serious implications for individuals' right to a fair trial, due process, and liberty and security of the person, and was critical of the haste and lack of public consultation with which the legislation was passed in Australia. "Because of the potentially profound impact of counter-terrorism legislation on human rights and fundamental freedoms", wrote Prof. Scheinin, "it is particularly important that governments seek to secure the broadest possible political and popular support for such legislation". He goes on to warn that it is "essential" to establish means of dealing with any potential abuses of counter-terrorism laws, and urges Australia to enact federal legislation to protect fundamental human rights and freedoms.

The Working Group on Arbitrary Detention is another Special Procedure that has expressed significant concern with the situation of human rights and counter-terrorism in Australia. At the Working Group's 48th Session in May 2007, attention was focused on the detention of 13 Australian men accused of terrorist-related offences (the Barwon 13).

The matter came before the Working Group pursuant to an urgent communication transmitted by the Human Rights Law Resource Centre in August 2006. That communication raised concerns as to the type, length, conditions and effects of the detention. In the Centre's submission, aspects of the detention were inconsistent with provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the UN Standard Minimum Rules on the Treatment of Prisoners. The Working Group's mandate constrained its consideration to whether the conditions of detention were of such severity and duration as to impede the right to the preparation of an adequate defence and a fair trial. The Working Group concluded that "the material before it does not disclose such a lack of observance of international norms relating to a fair trial which would confer on the detention an arbitrary character". Notwithstanding this conclusion, the Working Group's legal "opinion" on the matter expressed four significant concerns about the case.

First, the Working Group considered that the "conditions of detention, as described by the source and not contested by the government, are particularly severe, especially taking into account that they have been imposed upon persons who have not yet been declared guilty and who must, accordingly, be presumed innocent".

Second, the Working Group expressed concern that correspondence between the defendants and their lawyers is scanned by prison officers and that legal professional visits are videotaped.

Third, the Working Group stated that they "remain concerned that the law appears to make the detention under extraordinarily restrictive conditions the rule for any person charged with a terrorist offence, without sufficient room for consideration of the specific charges against the detainees and their individual circumstances or dangerousness".

Fourth, the Working Group went on to say that the submissions from both the Centre and the government "suggest that the judges deciding on bail applications might not have sufficient discretion to consider these matters either, at least in the absence of 'exceptional circumstances'".

The impact of the conditions of detention of the Barwon 13 on their ability to prepare an adequate defence was also considered by the Special Rapporteur on the Independence of Lawyers and Judges in a report tabled before the UN Human Rights Council on June 11, 2007.

Writing in the Human Rights Law Resource Centre Bulletin, Andrew Hudson of Human Rights First in New York said that the Special Procedures are valuable and important not only internationally but also domestically for six key reasons:
"First, unlike many international mechanisms, they are flexible and able to respond to urgent situations rapidly. Second, they have a global reach and can respond to violations occurring anywhere in the world. Third, they are independent, objective and impartial. Fourth, as experts in their field, they can provide practical advice to governments and can contribute to the development of human rights law. Fifth, they bring human rights violations, including emerging crises, to the attention of the international community thereby helping to prevent even more severe human rights crises. Sixth, they provide support and protection for local human rights defenders who often work at considerable risk."

Further information about the Special Procedures, including NGO engagement with the Special Procedures is available at <www.ohchr.org/english/bodies/chr/special/index.htm> or in chapter 6 of the Centre's Human Rights Law Resource Manual, available for free download at <www.hrlrc.org.au>.

Philip Lynch is Director of the Human Rights Law Resource Centre.