Tools for assessing human rights compatibility

The acceptance of any trade-off between security and human rights is criticised by some, such as Luban 21 and Thomas, 22 as being a false dichotomy. Firstly, there is a need to ensure that any argument advanced in favour of including sensitive characteristics is not overshadowed or tainted by manifestations of profiling where sensitive characteristics become the sole criteria in selecting individuals for enhanced investigation.

This means that any individual assessment of a manifestation of terrorist profiling needs to remain alive to these two risks as they may impact any conclusion drawn on any manifestation of terrorist profiling. These two limitations may be managed by drawing an analytical distinction between different manifestations of terrorist profiling to assess the justification question.

It was explained in the introductory chapter that a distinction should be drawn between different manifestations of terrorist profiling by reference to a profiling spectrum ranging from formal to informal manifestations of terrorist profiling. This profiling spectrum is presented in more detail in chapters four to six, but it is critical to note here that it represents an important means to assess the justification question.

Therefore, the ability to draw distinctions between different manifestations of terrorist profiling may allow for greater analysis on a case-by-case basis of each profiling manifestation as opposed to drawing pejorative views on all forms of profiling without a systematic means to assess each manifestation. The usefulness assessment is undertaken by questioning the effectiveness of profiling methods as the means to help law enforcement officers identify likely terrorist characteristics Terrorist Profiling and Law Enforcement: Detection, Prevention, Deterrence The Lawfulness of Including Sensitive Characteristics in Terrorist Profiling As noted in the introductory section of this chapter, the assessment on the compatibility of including sensitive characteristics ultimately requires a lawfulness assessment.

The first is called a fixed battery of tests. The aim is to reveal that which can be difficult to define or make tangible. By making stigma visible, we can change the systemic processes that hold it up and allow it to cause harm. Detailed Recommendations from Project Inclusion. Pivot Legal Society. For general information on drug use and health, see our Drug Use and Overdose Response page. Please note that the information in this toolkit is for general information only and should not be taken or relied upon as legal advice.

If you have questions about a specific case, consult a lawyer. Explanatory material 3. Stay informed with all of the latest news from the ALRC. Sign up to received email updates.

Type to search. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations.

In short, they must be rationally connected to the objective. By contrast, the proportionality formula, which has also been used to interpret grants of Commonwealth power, is a more rigorous tool of judicial review. In contrast to its previous deference, when employing the language of proportionality the High Court would ask whether the end could be pursued by less drastic means, and it has been particularly sensitive to laws that impose adverse consequences unrelated to their object, such as the infringement of basic common law rights….

This kind of test resembles those employed in European Union law and in Canada. The use of proportionality in the constitutional law of other countries has its critics. Nor is it necessary, in this Inquiry, to find a perfect method—if such a method exists—for testing the justification of laws that limit rights.

Whether a particular law that limits a right is justified will of course sometimes be a question about which reasonable people acting in good faith disagree.

A rigid insistence on a prescribed proportionality framework may also discourage more thorough and wide ranging analysis. It calls for a considerable degree of rigour, and is clearly more thorough than mere unsupported statements that a law is justified because it is in the public interest. Proportionality is also widely used in many other countries and jurisdictions. When considering similar laws in Australia, law makers will naturally find these other analyses instructive.

Importantly, the use of proportionality tests suggests that important rights and freedoms should only be interfered with reluctantly—when truly necessary. A law that limits a right might therefore be said to be justified procedurally , if the law was made after a procedure that thoroughly tested whether the limit was substantively justified. A quite fundamental procedural justification for laws might be, for example, that the law was made by a democratically elected Parliament in a country with a free press.

Another important process is scrutiny by parliamentary committees.