Introduction 3. Purposes of privacy 4. Dimensions of privacy 5

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1 Office of the Victorian Privacy Commissioner Submission to the Victorian Parliament Law Reform Committee on its Inquiry into the Powers of Entry, Search and Seizure and Questioning by Authorised Persons 25 February 2002

2 2 Table of Contents Introduction 3 Purposes of privacy 4 Dimensions of privacy 5 International standards of balancing rights of privacy with the rights of search and seizure 7 Specific issues from the Committee's Discussion Paper - Information Privacy Act and the definition of law enforcement agency 9 - Powers to question - the example of seeking names and addresses from public transport users 11 - Video or audio taping of entry and search 17 - Aggregation of data 18 Conclusion 19 Appendix A International Covenant on Civil and Political Rights (1980) 20 Appendix B Information Privacy Principles 37 Appendix C State intrusion powers and privacy checklist 44

3 3 I Introduction The Office of the Victorian Privacy Commissioner ( Privacy Victoria ) is an independent statutory office established by the Information Privacy Act The objects of the Information Privacy Act, to which the Commissioner must at all times have regard, are "(a) to balance the public interest in the free flow of information with the public interest in protecting the privacy of personal information in the public sector; (b) to promote awareness of responsible personal information handling practices in the public sector; (c) to promote the responsible and transparent handling of personal information in the public sector." The functions of the Commissioner are broad and include advice, research, education, investigation, conciliation and enforcement. The Information Privacy Act covers state and local government and certain contracted service providers to government. The statute took effect from 1 September 2001 and organisations have one year to prepare before the enforceable complaints and compliance powers take effect on 1 September The Commissioner s education function is at present a high priority. The Information Privacy Act is one of three new privacy schemes being introduced to Victorians in a nine-month period. Last 21 December, the Commonwealth Privacy Act 1988 spread to cover a large part of the private sector. From 1 July 2002, Victoria s Health Records Act will deal with the privacy of health information. The privacy principles in all three laws are similar and reflect a common international standard.

4 4 Privacy is central to the issues being considered by the Victorian Parliamentary Law Reform Committee ( Committee ) in this inquiry into the powers of entry, search, seizure and questioning by authorised officers. For brevity, in this submission all relevant powers to enter, search, seize and question are collectively referred to as intrusion powers. II Purposes of Privacy Discussion of the state s intrusion powers starts with acknowledging that in a free society there is a presumption against such powers. The good society begins with a presumption of liberty and qualifies it under law only as necessary. The seminal Freedom in Australia extends that thought this way The most that can be sought to be achieved within the complexities of the modern state is that the individual be left alone to pursue the good life in his own way where there is little or no impact on the common good of the community. Where the interests of the individual and the community collide, the latter claim must take precedence regard can still be had to the dignity and interests of the individual. 1 This quotation contains two of the fundamental notions in privacy. The individual has a right to be left alone unless the common good requires otherwise. Even where the common good does limit the individual s liberty, regard can still be had to his or her dignity. Privacy is a slice of the larger concept of liberty. Privacy is essential to the exercise of other aspects of liberty, including freedom of thought and conscience, freedom of expression and freedom of association. But privacy is also essential to the development of the self, to autonomy and to the dignity of the individual. 1 Enid Campbell, Harry Whitmore, Freedom in Australia (Sydney University Press, 1966) p 1

5 5 These are not trivial values. In balancing them against other values, we need a sense of proportion. This is especially the case in the context of intrusion powers for authorised officers of the state, where these abstract notions take very practical forms. III Dimensions of privacy In assessing the impact on privacy of intrusion powers, it is useful to hold in mind the several dimensions of privacy. Not every dimension will arise in this inquiry, nor in every intrusion power context, but all are relevant to giving privacy due weight. Privacy of the body This dimension is critical to dignity and directly relevant to powers of arrest, power to strip search and power to take body samples. Privacy of the home The home is special in privacy law. It is a sanctuary where we are free from the world s scrutiny, where we can relax our public faces and be ourselves. It is a place of intimacy and security. It reflects us through the ways we organise it and decorate it. We like to control who enters and who communicates with us there. Powers for authorised officers of the state to enter and search the home override all these values, and the law has long recognised the significance of the intrusion and the importance of limiting the purposes and the exercise of the powers.

6 6 Privacy of personal belongings The sense of violation felt by all who have been burgled summarises sufficiently the significance for privacy of any state power to authorise strangers to sift through, examine and perhaps seize the personal belongings of others. Privacy from surveillance Not being spied on is perhaps the best understood dimension of privacy. It helps to explain the disquiet about the increasing use of video surveillance cameras in public places. Privacy from eavesdropping Technology permits more than the traditional wiretap on a fixed-line telephone. Use by the state of technology that constantly trawls through the tangle of wireless communications (voice and text), and can scan by keywords and isolate particular conversations for attention, is a higher-tech form of search and seizure than we have been used to. As communications change, as opening s replaces opening envelopes, the same issues of liberty, privacy and the common good arise. The same disquiet is felt. The same presumptions apply. Information privacy In the e-world, personal information in some senses is the person. Our details tell much about ourselves, but never all. Control over who knows what about us, for what purposes, and to whom it is disclosed, is the main concern of this dimension of privacy.

7 7 Control and consent are fundamental in information privacy. When the state takes that control away from the individual, compels disclosure by law without consent and authorises collection and use for purposes determined by others, it overturns the presumption of liberty in a potentially far-reaching way. IV International standards of balancing rights of privacy with the rights of search and seizure Victoria's powers of search and seizure should be consistent with Australia's international human rights obligations. The Universal Declaration of Human Rights (UDHR) of 1948 (to which Australia is a party) states in Article 12 that: "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks." Similarly, Article 17 of the International Covenant on Civil and Political Rights (ICCPR) of 1996 provides for protection against arbitrary interference with an individual's privacy. 2 When Australia ratified the ICCPR on 13 November 1980 it included the qualification that: "Australia accepts the principles stated in Article 17 without prejudice to the right to enact and administer laws which, insofar as they authorise action which impinges on a person's privacy, family, home or correspondence, are necessary in a democratic society in the interests of national security, public 2 Relevant provisions of the ICCPR are attached as Appendix A to this submission.

8 8 safety, the economic well-being of the country, the protection of public health or morals, or the protection of the rights and freedoms of others." Australia is further obliged to comply with the 1980 Guidelines of the Organisation for Economic Cooperation and Development (OECD) concerning the Protection of Privacy and Transborder Flows of Personal Data. Fundamental to the OECD Guidelines is the recognition that: although national laws and policies may differ, OECD countries have a common interest in protecting privacy and individual liberties, and in reconciling fundamental but competing values such as privacy and the free flow of information; transborder flows of personal data require the development of compatible rules and practices; and transborder flows of personal data contribute to economic and social development that may be hindered by incompatible domestic legislation. The information technologies have since 1980 made their reasoning still more compelling. The Victorian Parliament adopted it in the Information Privacy Act 2000, with its 10 Information Privacy Principles reflecting those OECD Guidelines of The United States of America, Canada, South Africa, Argentina and New Zealand are among countries that have recognised in domestic law the importance of balancing explicitly the individual's right to privacy with the State's need to intrude in certain circumstances. 3 3 See United States Constitution Amendments 1,3, 4 - search and seizure and warrants; clauses 5, selfincrimination clause; and 9. The right is applicable in the areas of reproduction, abortion and marriage. South African Constitution section 14, search of person, home, property; seizure of possessions; privacy of communications. Canadian Charter of Rights and Freedoms section 8, right not to be subject to "unreasonable search or seizure". A search is permitted only if authorised by a reasonable law and carried out in a reasonable manner. R v Collins, [1987] 1 S.C.R/ 265. Constitution of Argentina Art 18 the domicile, written correspondence, and private papers may not be violated; search and seizure only in accordance with law. New Zealand Bill of Rights Act 1990 section 21, everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence, or otherwise.

9 9 V Specific issues from the Committee's Discussion Paper Information Privacy Act and the definition of law enforcement agency The Committee has made it clear that the inquiry concerns not intrusion powers exercised by Police, but those of authorised persons who are commonly referred to as inspectors but go by a variety of titles under different pieces of legislation. Although not an investigation of police powers, the inquiry will include legislative provisions that allow either an authorised officer or a police officer to exercise one of the powers under consideration. Those powers exercisable only by police officers will not be included. 4 As the Committee's initial list of relevant legislation shows, the intrusion powers are dotted throughout the statute books. They are by no means confined to classic criminal settings. For this reason it is important to examine the role that the Information Privacy Act and the Information Privacy Principles (IPPs) should play in the practical balancing of privacy rights with intrusion powers. Broadly speaking, collection, use and disclosure of personal information obtained during the exercise of intrusion powers should be consistent with the Information Privacy Principles of the Information Privacy Act. Those recently enacted standards, with their international pedigree, provide a mechanism for balancing the competing interests. Many of the authorised officers will be employed by agencies that fit the broad definition of "law enforcement agency" in the Information Privacy Act. That definition includes organisations or individuals whose function or functions include law enforcement. Where an organisation exercises law enforcement functions, and even where those functions are but a small part of the organisation's overall 4 Discussion Paper p 2

10 10 operations, it will be defined as a law enforcement agency for the purposes of the Information Privacy Act. Agencies, such as the Department of Human Services in its investigations into suspected child abuse, will be "law enforcement agencies". The Victorian Parliament did not give law enforcement agencies a blanket exemption from the Information Privacy Principles. The law enforcement exemption is qualified. Section 13 of the Information Privacy Act provides that it is not necessary for a law enforcement agency to comply with some, but not all, of the Information Privacy Principles where it believes on reasonable grounds that non-compliance is necessary for one of the purposes set out in the section. They are: (a) (b) (c) (d) for the purposes of one or more of its, or any other law enforcement agency's, law enforcement functions or activities; or for the enforcement of laws relating to the confiscation of the proceeds of crime; or in connection with the conduct of proceedings commenced, or about to be commenced, in any court or tribunal; or in the case of the police force of Victoria, for the purposes of its community policing functions. This qualified exemption is consistent with Parliament having adopted the international standards for information privacy protection. There is great significance in striving for consistency and compatibility in this area of law. The technologies are borderless, ubiquitous and in growing use in the private and public sectors. Section 6 of the Information Privacy Act provides that inconsistent provisions in any other Victorian statute will prevail over the Information Privacy Act to the extent of the inconsistency. This poses a challenge to all who now craft Victoria legislation that deals with information or affects privacy. The Explanatory Memorandum to the Information Privacy Bill states that section 6 is to allow relevant aspects of the IPPs to overlay the operation of other Acts where requirements can be observed concurrently. Where new legislation is proposed, or old statutes are renovated, it would seem that they should be made compatible with the Information Privacy Act where possible. Otherwise, the great imperative of consistent privacy protection in a technological age,

11 11 summarised above, will be frustrated. New, incompatible exemptions will spring up in new pieces of legislation when there already exists, in the Information Privacy Act, a coherent mechanism to balance competing interests with privacy. This point holds for every legislative initiative that you, as parliamentarians, must consider. But in this specific context of intrusion powers, it seems to fit with the desire of the Committee to ensure consistency across all law enforcement regimes. Powers to question - the example of seeking names and addresses from public transport users Privacy Victoria selects this example from public transport for three chief reasons. It affects thousands of Victorians. It is topical. It illustrates the balancing that the IPPs facilitate. Among the powers of authorised officers to seek name and address that the Committee identifies 5 is the power of authorised officers under the Transport Act Powers to request a name and address under the Transport Act are given to police and other officers authorised under that Act. These are typically employees of the private transport operators, regulated by the Secretary of the Department of Infrastructure. The Information Privacy Act applies to state and local government and to certain contracted service providers. The contracted service providers are not covered automatically. The government agency that contracts with them (in this transport example it is the Department of Infrastructure) will be responsible for any breaches by the contracted service provider, unless there is a provision in the contract making the service provider liable. 6 5 Discussion paper p 32. Some additional Acts involving search and seizure provisions that Privacy Victoria has identified while researching this area include the Archaeological and Aboriginal Relics Preservation Act 1972 sections and 31; the Litter Act 1987 sections 10-18; the Commo nwealth Games Arrangements Act 2001 section 56; the Gene Technology Act 2001 Part 11 sections ; the Cemeteries Act 1958 section 42; the Dairy Act 2000 section 50; the Court Security Act 1980 section 3; and Parliamentary Precincts Act 2001 sections Section 17 of the IP Act provides: (1) subject to this section, the status or effect for the purposes of this Act of an act or practice is not affected by the existence or operation of a State contract.

12 12 Name and address are fundamental items of personal information. Decisions in the Victorian Civil and Administrative Tribunal (VCAT) on the meaning of "personal affairs" under the Freedom of Information Act 1982 (Vic) underline the importance of names and addresses as personal information that should be disclosed only when a public interest in disclosure can be identified. Information Privacy Principle 1 provides in part "An organisation must not collect personal information unless the information is necessary for one or more of its functions or activities. 1.2 An organisation must collect personal information only by lawful and fair means and not in an unreasonably intrusive way." Is the collection of the names and addresses of thousands of public transport users during the current fare evasion blitz lawful, fair and not unreasonably intrusive? Information Privacy Principle 8 deals with anonymity. Wherever lawful and practicable, individuals must have the option of not identifying themselves when entering transactions with an organisation. Travelling on public transport anonymously is the norm. It is both lawful and practicable to give people the option of doing so. Problems arise when a person does not have a valid ticket. (2) A state contract may provide for the contracted service provider to be bound by the Information Privacy Principles and any applicable code of practice with respect to any act done, or practice engaged in, by the contracted service provider for the purposes of the state contract in the same way and to the same extent as the outsourcing organisation would have been bound by them in respect of that act or practice had it been directly done or engaged in by the outsourcing organisation. (3) if a provision of a kind referred to in sub-section (2) is in force under a State contract, the IPPs and any applicable code of practice apply to an act done, or practice engaged in, by the contracted service provider in the same way and to the same extent as they would have applied to the outsourcing organisation in respect of that act or practice had it been done or engaged in by the outsourcing organisation. (4) An act or practice that is an interference with the privacy of an individual done or engaged in by a contracted service provider for the purposes of this Act and any applicable code of practice, be taken to have been done or engaged in by the outsourcing organisation as well as the contracted service provider unless- (a) the outsourcing organisation establishes that a provision of a kind referred to in subsection (2) was in force under the State contract at the relevant time in relation to the act or practice; and (b) the IPP or applicable code of practice to which the act or practice is contrary, or with which it is inconsistent, is capable of being enforced against the contracted service provider in accordance with the procedures set out in this Act. (5) Section 68(1) does not apply to an act done or practice engaged in by a contracted service provider acting within the scope of a State contract.

13 13 These are the initial privacy issues that arise in the context of public transport fare enforcement. (Other concerns include the security, accuracy and disposal of the information that is collected, and access and correction issues). The power of an authorised officer to require a name and address arises only if the officer "believes on reasonable grounds that the person has committed or is about to commit an offence against this Act or the regulations " It is an offence under the Transport Act to travel without a valid ticket 7 or to fail to produce a valid ticket while travelling. 8 However, the Transport Act expressly provides that it is lawful to travel without a ticket if a person took all reasonable steps to purchase a ticket before and after the journey and had no opportunity of purchasing a ticket during the journey. 9 Against this background, when does the authorised officer lawfully exercise the power to request the name and address? As can be seen, there are circumstances when a passenger is entitled to travel without a valid ticket. If those circumstances exist, the authorised officer has no power to demand a name and address. If there is no power to collect the name and address then collection may breach IPP 1. Victoria's public transport system has changed greatly since these provisions were enacted. Ticket machines have largely replaced conductors and station staff. Much of the system is now run by private companies whose staff exercise certain powers that were originally crafted for use by persons accountable through traditional public sector means. In this changed context, what are the reasonable steps that a person must take in order to be able to say that he or she travelled lawfully despite not having a valid ticket? Does the law require that, when, for instance, a ticket machine is not working the person must find a shop that sells tickets before boarding? 7 Transport Act 1983 s. 221(3) 8 Transport Act 1983 s. 221(4). 9 Transport Act 1983 s. 221(3)

14 14 What would constitute a reasonable opportunity to purchase a ticket during or at the end of a journey? These are decisions for others to make. But they are relevant in this part of this inquiry because the answers determine whether an authorised ticket inspector has reasonable grounds to believe an offence has been or will be committed. It is only on this basis that the authorised person can seek name and address. If they seek name and address unlawfully, they may breach IPP 1. The Transport Act is unclear about what constitutes reasonable grounds for the belief that an offence has been or will be committed. The mere fact that a person does not have a ticket is insufficient, since the law itself contemplates travel without a ticket. Nor is the mere belief by the inspector sufficient. The belief must be founded on some objective fact that makes such a belief reasonable. 10 It is now well documented that Victoria has experienced difficulties with ticket machines. 11 In the circumstances, the fact that a person without a ticket tells an authorised inspector that the ticket machine at the place of boarding was not working is not, by itself, reasonable grounds for the belief. Recognising this, the public transport operators have introduced a system of regularly checking ticket machines electronically and remotely and proving inspectors with a list of ticket machines that are reported to be out-of-order. If a passenger claims to have been unable to purchase a ticket because of a broken machine at a particular location, the inspector checks the list. If the location is on the list, the person is not required to give his or her name and address but instead is allowed to buy a ticket at the end of the journey. An inspector may obtain information by mobile phone to update the list. But if the inspector cannot confirm that the machine at the location stated by the passenger was 10 George v Rockett (1990) 170 CLR Miller Consulting Group (May 2001) Independent Audit: Automatic Ticketing System, report by the Department of Infrastructure, Victoria, pp 3-4,31-32

15 15 out-of-order, the name and address are required to enable the information provided by the passenger to be checked. It is important to emphasise that the Department of Infrastructure receives reports of offences from the operators. And the Department of Infrastructure decides whether to prosecute. The privacy issue arises through the collection of so many names and addresses and because of the practice of seeking verification of names and addresses. Commuters may be asked to provide date of birth, drivers licence, gas bill, or even a bank statement in order to verify name and address. If this information were simply sighted, privacy concerns would be minimal. But it would appear that inspectors usually record this information. In some cases, commuters are asked to give the name and telephone number of another person who can verify identity. This means the collection of personal information of a person not suspected of an offence. Collection is held to a minimum in privacy law partly because, if you do not collect, you cannot misuse, disclose, lose, leak or make information inaccurate (whether by accident or otherwise), nor fail to dispose of it properly. The Transport Act authorises the collection of a name and address only. It does not authorise the collection of further verifying information, nor collection of information about a third person. My staff have been unable to find any authority for the collection of such material. I am advised that the Department of Infrastructure is reviewing these matters. Constructive consultations with my office are continuing. The example of public transport illustrates issues that will be applicable to other legislation that authorises the collection of a name and address. The Committee's Discussion Paper notes that a power to detain for arrest often follows on from a power to require a name and address where a person refuses to provide a name and address. In the Transport Act, suspicion that the name and address are false gives grounds to detain for arrest. It is vital therefore that the person collecting the information has clear authority to do so. Any detention and arrest following a refusal that was in fact

16 16 lawful would potentially have significant repercussions. Privacy of the body is involved. Dignity, a key element of privacy, is at risk. Even when the information is collected lawfully, other privacy principles should be applied. For example: Under IPP 1.3 an organisation is obliged, at the time of collection, or, if that is not practicable, as soon as practicable after the collection, to take reasonable steps to ensure that the individual is aware of a number of matters including: (i) the right to have access to the information collected and to seek its correction; (ii) the purpose for which the information is collected; (iii) to whom the information is to be disclosed. IPP 2 limits the use and disclosure of information to the primary purpose for which it was collected, with some exceptions that permit the balancing inherent in many situations, including the crafting and use of intrusion powers. Under IPP 4 an organisation must take reasonable steps to protect personal information from misuse or loss. In addition an organisation must take reasonable steps to destroy or permanently de-identify information if it is no longer needed for any purpose. These principles need consistently to be connected or integrated into legislation that authorises intrusion, especially the taking of names and addresses in contexts far removed from serious crime. The IPPs are the contemporary standard for the responsible collection and handling of personal information. It makes sense to apply them consistently across the statute books.

17 17 Video or audio taping of entry and search The Committee raises the prospect of empowering authorised officers to record (on audio or video tape) entry and search of premises, especially if the entry and search are carried out with the authority to use force. This proposal needs further consideration before its adoption. If it is adopted, it needs carefully considered procedures to govern the taping and the use of the tapes. It is not difficult to give illustrations of how video and audio taping of the exercise of intrusion powers could seriously and adversely affect privacy. A strip search is perhaps the most intrusive and undignified act that the State can do to the individual. Where a DNA sample is taken, for instance, it comprises entry, search and seizure all in one incident. Add to this the subject's knowledge that he or she is also under the eye of a camera and that a permanent record, potentially able to be copied and disclosed, is also being made, and the grave implications for privacy and its underlying purposes are clear. Comparatively benign intrusion powers take on new privacy invasive dimensions if video recorded. Consider the potential reactions of a farming household if a person accompanies inspectors who arrive to investigate a potential disease threat with a video camera in operation? Such inspections can have serious implications for a farm, and for neighbouring properties. While video or audio taping of certain entry and search procedures may be useful in assessing any subsequent allegations against those conducting such entry and search procedures, the recording may not be necessary. The presence of an appropriately senior and independent witness may be sufficient and will be less privacy invasive. It should be borne in mind that many inspections or searches will produce nothing. Leaving to one side the desirability of video or audio taping entry and search procedures, the proposal as it stands leaves unanswered many questions about the process, if recording were to be adopted.

18 18 These are the kinds of questions that will require careful thought and precise procedures, with accountability for adherence: How long will the video or audio recording run and how much detail of the entry and search will be gathered? For example, will there be limits placed on tracking and zooming? What part of the entry and search procedure will be recorded? How intrusive will the recordings be? How long will the recording be retained? Who will have access to the recordings? Will the individual have access? What safeguards will prevent the tape being doctored, copied altered and distributed or otherwise misused? Aggregation of data The Committee's recommendation 10.1 proposes that each agency which exercises intrusion powers should maintain a centralised record of all occasions on which those powers are exercised and should report annually to the Parliament on the exercise of those powers. Privacy Victoria supports the administrative clarity and accountability that this recommendation implies. Reports to Parliament are especially valuable. Tabling of reports should be compulsory and not a matter of ministerial discretion. In refining the details of this recommendation, privacy awareness requires analysis of how detailed the records should be. The measure of openness required for proper accountability may need to be weighed carefully against privacy protection. De-identification of statistics and case studies are useful techniques in this context. Where the raw, identifiable data is retained, it should not be aggregated. Keeping it in separate databases and even separate agencies can assist security. Where identifiable data is aggregated, security should be tight and access strictly controlled. For example, intrusions that resulted in the seizure of documents and property may be distinguished from those intrusions that resulted in nothing warranting further action.

19 19 One way to establish accountability without aggregating all the data may be to establish procedures for an independent audit of the information collected about use of intrusion powers and procedures. VI Conclusion Privacy Victoria supports the view that greater consistency in intrusion powers and procedures should be adopted. Standard guidelines are part of that reform. Consistency is also a key element in coherent privacy law in an era of information technology and the e-government and e-commerce that it can facilitate. The attached privacy checklist is an attempt to make a practical contribution to the Committee's important work in this area of the law. PAUL CHADWICK Privacy Commissioner 25 February 2002

20 20 Appendix I DEPARTMENT OF FOREIGN AFFAIRS AND TRADE CANBERRA International Covenant on Civil and Political Rights (New York, 19 December 1966) Entry into force generally (except Article 41): 23 March 1976 Entry into force for Australia (except Article 41): 13 November 1980 Article 41 came into force generally on 28 March 1979 and for Australia on 28 January 1993 AUSTRALIAN TREATY SERIES 1980 No. 23 [REPRINT] Australian Government Publishing Service Canberra (c) Commonwealth of Australia 1998 INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS THE STATES PARTIES TO THE PRESENT COVENANT, CONSIDERING that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, RECOGNIZING that these rights derive from the inherent dignity of the human person, RECOGNIZING that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights, CONSIDERING the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms, REALIZING that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant, AGREE upon the following articles: PART I Article 1 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic

21 21 co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. PART II Article 2 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. Article 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant. Article 4 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation. Article 5

22 22 1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant. 2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent. PART III Article 6 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide.[1] This penalty can only be carried out pursuant to a final judgement rendered by a competent court. 3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant. Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. Article 8 1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. 2. No one shall be held in servitude. 3. (a) No one shall be required to perform forced or compulsory labour; (b) Paragraph 3(a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court; (c) For the purpose of this paragraph the term "forced or compulsory labour" shall not include: (i) Any work or service, not referred to in sub-paragraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention; (ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors;

23 23 (iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community; (iv) Any work or service which forms part of normal civil obligations. Article 9 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. Article All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. 2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; (b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status. Article 11 No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. Article Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country. Article 13 An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed

24 24 by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority. Article All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. 6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the nondisclosure of the unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. Article 15

25 25 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby. 2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations. Article 16 Everyone shall have the right to recognition everywhere as a person before the law. Article No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. Article Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. Article Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Article Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. Article 21 The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and