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    Australia on a need to know basis only since the terror laws

Mark Cox LLB: Terrifying Democracy

Right around Australia, civil society groups have started rallying in plain distrust, dissent and disagreement with the proposed terrorism legislation. A recent press release from WA's Social Justice Network states:

IMAGE: Thanks to The Australian and Nicholson cartoons

"More than 500 people packed into a forum at the University of Western Australia on Friday 4th November 2005 to express their fears and anger at the government and its proposed anti terrorism legislation. The distrust of government both federal and state was palpable. Emotions ran high at the failure of the Labor opposition to oppose this appalling threatening legislation, with disbelief expressed that this could be happening in this country of ours."

The Orange Jumpsuit, reserved for USA jail inmates and those in Guantanamo Bay detention camp

"There were calls for Federal Labor to oppose the Bill in both the House of Representatives and the Senate. The WA State Labor government should not cooperate on the implementation of such "draconian legislation."

The Perth forum was addressed by Carmen Lawrence, Federal Labor Member for Fremantle, Rachel Siewert, Greens WA Senator, and Mark Cox, a human rights lawyer. Below is the address to the forum by Mark Cox. He outlines the terror legislation, and he's worried. So should you.

Mark Cox LLB: Terrifying Democracy

an overview of the Anti-terrorism Bill 2005 (NOTE: the First Draft) and existing legislation [1]

"First they came for the Jews and I did not speak out because I was not Jewish. Then they came for the Communists and I did not speak out because I was not a Communist. Then they came for the Trade Unionists and I did not speak out because I was not a Trade Unionist. Then they came for me and there was no one left to speak out for me." - Pastor Niemoeller [2]

INTRODUCTION

In this paper I consider the Anti-Terrorism Bill 2005 ("the Bill") against the backdrop of pre-existing legislation from a rule of law and human rights law perspective. I give particular consideration to:

  • The existing definition of "terrorist act"
  • The new definition of "sedition"
  • New provisions for Control Orders
  • New Provisions for Preventive Detention Orders

A wide range of judges, lawyers, academics, civil and professional organisations, respected individuals, and wide sections of the Australian community, justifiably believe that the Bill and related Federal "anti-terrorist" legislation enacted since 2002 seriously undermine well established principles of democracy, the Constitutional doctrine of separation of powers, principles of common law, human rights and the rule of law. They also breach Australia's international obligations under the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of Children (CROC), amongst other international conventions.

The following principles are amongst those breached:

  • the right to due process and freedom from arbitrary detention or restrictions of liberty;
  • the presumption of innocence;
  • the right of habeas corpus, access to the courts and to legal representation with legal professional privilege;
  • the right to freedom of movement, association, speech, privacy and family life; and
  • the doctrine of separations of powers, and independent judicial scrutiny of administrative and executive powers.

The provisions allowing detention of children as young as 16 for up to 14 days, or control orders for up to 3 months are also very worrying.

Of particular concern is how the regime will affect the Australian Muslim communities and groups opposing the Government. I note that the Weekend Australian (22-23 October 2005) carried on its front page an article headed "Laws will expose 80 Muslim suspects". The article said up to 80 Australian Muslims could immediately be placed under effective house arrest under the Government's proposed legislation.

The regime is also likely to have a chilling effect on critical civil engagement with the State, in public scrutiny, activism, protest, academia, media and the arts. The Bill will add to the already heightened state of police and intelligence surveillance whilst their vastly extended powers lack real scrutiny. The Law Council of Australia and HREOC [3] , amongst others, say passing the Bill would move Australia towards a police state.

It is also very disturbing that the Government has rushed to introduce the laws to Parliament on 2 November 2005 and allow the Senate a short period to report back. [4] In this context it is worrying that until ACT Chief Minister, Jon Stanhope, "leaked" the draft Bill, public scrutiny and comment on it was impossible. Prime Minister Howard then excluded him from further debate on amendments and further drafts of the bill were denied release for public comment. So this overview is based on the earlier draft and existing legislation.

BACKGROUND

The Bill is the Federal Government's latest piece of legislation aimed at protecting Australia from international terrorism. It needs to be considered in the context of, and makes specific amendments to, a regime of Federal "anti-terrorist" legislation, including:

  • Crimes Act 1914
  • Migration Act 1958
  • Crimes (Overseas) Act 1964
  • Crimes (Foreign Incursions and Recruitment) Act 1978
  • Australian Security Intelligence Organisation Act 1979
  • Criminal Code Act 1995
  • Telecommunications Interception Legislation Amendment Act 2002
  • Border Security Legislation Amendment Act 2002
  • Criminal Code Amendment (Anti-Hoax and Other Measures) Act 2002
  • Criminal Code Amendment (Espionage and Related Matters) Act 2002
  • Criminal Code Amendment (Offences Against Australians) Act 2002
  • Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002
  • Security Legislation Amendment (Terrorism) Act 2002
  • Suppression of the Financing of Terrorism Act 2002
  • Criminal Code Amendment (Terrorism) Act 2003
  • Australian Security Intelligence Organisation Legislation Amendment Act 2003
  • Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003
  • Australian Protective Service Amendment Act 2003
  • International Transfer of Prisoners Amendment Act 2004
  • Surveillance Devices Act 2004
  • Maritime Transport Security Bill 2003 (proposed)
  • Aviation Transport Security Bill 2003 (proposed)

I have not attempted an analysis of every aspect and amendment (for example immigration and citizenship laws, financial and foreign transactions, negotiable bonds, airport and aircraft surveillance) in the proposed Bill as this is an enormous task. Instead I have focussed on particular provisions considered to be of particular concern in the context of principles of the rule of law, human rights and international law.

There are other aspects that deserve attention as well, such as the provisions for warrants for search, detention and question under the ASIO Act, but I can only refer to those briefly here.

It is important to know a little about the pre-existing regime of legislation, which the Bill aims to amend or enhance.

Firstly, to enable to Commonwealth government to enact this legislation, the states enacted legislation referring the powers to do so. For example, in Western Australia the Terrorism (Commonwealth Powers) Act 2002 referred "matters relating to terrorist acts to the Parliament of the Commonwealth for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth".

"Terrorist Act"

A broad definition of terrorism was introduced into Commonwealth Criminal Code Act 1995 ("the Criminal Code"). See the Annexure at the end of this paper for the definition of "terrorist act" in s101.1 of the Criminal Code.

That section defines a terrorist act an action done or threat made with the intention of advancing a political, religious or ideological cause; and the action is done with the intention of coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or intimidation the public or a section of the public.

The penalty is life imprisonment.

The definition would apply to members and supporters of organisations not in conflict with Australia at all, such as (in the past) the African National Congress in South Africa, Fretelin in East Timor, (and presently) the MDC in Zimbabwe, not to mention pro-independent Palestinian, Basque, Turkish Kurds, Vietnamese Mong people, Brazilian landless and Bolivian nationalisation movements and others.

Sub sections 101.1(2)(e) and (f) includes action that:

  1. (e) creates a serious risk to the health or safety of the public or a section of the public; or
  2. (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
    1. an information system; or
    2. a telecommunications system; or
    3. a financial system; or
    4. a system used for the delivery of essential government services; or
    5. a system used for, or by, an essential public utility; or
    6. a system used for, or by, a transport system.

Striking nurses, doctors or ambulance drivers might be accused of creating health and safety risks. Wide ranges of strikers or protest groups routinely interfere with or disrupt telecommunications systems (for eg. telstra or postal workers), financial systems, government services, public utilities and transport systems.

Although s101.1(3) of the Criminal Code excludes "advocacy, protest, dissent or industrial action", there are actions taken by unions and/or workers, which might not meet the statutory definition of industrial action, or actually be declared not to be "industrial action", under the Federal Workplace Relations Act 1996 [5] . They could potentially fall within the definition of terrorism. How would "Reclaim the Streets" protestors be treated when they illegally bring city traffic to a standstill?

It needs to be noted that while the offence of terrorist act is defined in broad terms, the onus is cast on the defence to prove, on narrow grounds in s101.1(3), that it is not a terrorist act.

The offences created extend far beyond violent acts to ancillary conduct, for example to mere possession of a thing having a "connection with" engagement in a "terrorist act": s101.4. Knowingly or recklessly "providing or receiving training" [6] , "possessing things" [7] , "collecting or making documents" [8] , or "other actions" [9] "connected with preparation for, the engagement of a person in, or assistance in terrorist acts", even if terrorist acts do not occur. Such offences are punishable by imprisonment for between 10 years and life. See Annexure.

Section 102.1 of the Criminal Code provides that regulations can be passed listing an organisation as a "terrorist organisation" if the Attorney General is satisfied on reasonable grounds that the organisation is "directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur)". Membership of such an organisation is punishable by imprisonment of up to 10 years: s102.3. [10]

ASIO

The ASIO Act 1979 was amended by ASIO Legislation Amendment Act 2003 to give ASIO broad powers to question and detain persons suspected of, amongst other things, having information related to a "terrorism offence" [11] (ASIO Act 1979 Div 3, Part 2). Safeguards against abuses are not apparent. In fact, it is illegal to disclose information about these and a wide range of other ASIO activities.

Section 34 of the ASIO Act provides for a wide range of powers to search, seize, arrest, detain without trial and interrogate for up to 7 days. [12] The detained person may be prevented from contacting anyone except their lawyer [13] , and an ASIO officer must monitor any contact with their lawyer. [14]

ASIO may use force likely to kill or cause grievous bodily harm if they believe doings so is necessary to protect life or prevent serious injury. [15]

There are "special rules" for children aged 16 to 18: they may contact and be accompanied by a parent or guardian or other person "able to represent their interests" [16] and they must not be interrogated for more than two hours at a time, although there is no limit on how many hours cumulatively they may be interrogated per day. [17]

It is not necessary that the lawyer be provided with any material, documents or information other than a copy of the warrant. [18] The huge disadvantage this puts the detained person in when trying to challenge their detention or subsequently seek a remedy is discussed below. The lawyer cannot intervene in the interrogation except to clarify ambiguity, and they may be removed for "disrupting" the process. [19]

It is an offence to reveal the fact that a warrant has been issued, or the contents of it, or the fact that a person has been detained, or that they were questioned, or "operational information" before the warrant expires or for two years after it expires (5 years imprisonment). [20]

THE ANTI-TERRORISM BILL 2005

Expanded Definition of Sedition

Schedule 7 of the Bill amends the Crimes Act 1914 to add to s30A the definition of "seditious intention" to mean "an intention to effect any of the following purposes:

  1. to bring the Sovereign into hatred or contempt;
  2. to urge disaffection against...
    1. the Constitution;
    2. the Government of the Commonwealth;
    3. either house of the Parliament;
  3. to urge another person to attempt, otherwise than by lawful means, to procure a change to any matter established by law in the Commonwealth;
  4. to promote feelings of ill-will or hostility between different groups so as to threaten the peace, order and good government of the Commonwealth. [21]

The new section 30A(1)(b) declares unlawful "any body of persons, incorporated or unincorporated, which by its constitution or propaganda or otherwise advocates the doing of any act having or purporting to have as an object the carrying out of seditious intention" as defined above. [22] There is no reference to violence or illegality being a requirement in either the definition of seditious intent or unlawful organisations.

There is a clear potential for critical comment (or art or literature) to fall within an intention to bring the Sovereign into "contempt or hatred", or to urge "disaffection", and for a range of civil action or disobedience across and range of social and environmental issues to be declared unlawful. The definition is too vague and vulnerable to abuse.

As demonstrated by Chris Connelly [23] "sedition" has a history of abuse for political ends. He refers to, amongst others, the imprisonment of Ghandi, Nelson Mandela, and in Australia, the participants and supporters of the Eureka Stockade and the Secretary-General of the Australian Communist Party in 1949 (who failed in his attempt to rely on substantially similar defences as are provided in the "good faith" defences in this Bill, referred to below).

The proposed s80.2(1) of the Crimes Act provides that a person commits an offence if the person urges another person to overthrow by force or violence the Constitution, the Government or the lawful authority of the Government of the Commonwealth. The penalty is seven years' imprisonment. Subsection (2) extends the offence to recklessness. [24]

What constitutes "force" and "lawful authority" in this context? Does "force" include unlawful industrial action or mass demonstrations, pickets or "reclaiming the streets"? What would be considered reckless?

The proposed s80.2(7) provides for the offence of urging another person to engage in conduct; and the person intends that other person's conduct to assist by any means an organisation or country at war (declared or not) with Australia that is declared to be an enemy at war with Australia. The offence is punishable by seven year's imprisonment.

What of moral or psychological assistance, or prayers? I raise this to demonstrate the potentially wide and absurd offence created under s80.7. Consider if one were to lead a prayer for the people of Iraq during the US/UK/Australian invasion, or for the people of any country that Australia is at war with.

Might not that be considered assisting the people of that country, by inveighing God's help, while believing - as most people praying do - that God can help them?

What about "human shields" who peacefully put themselves in the way of an invading army, as some Australians did, including some prominent ones. [25]

What about Australian Unions expressing solidarity with Iraqi Unions as Unions. Would that be "assisting" those people psychologically? There are myriad other examples. Chris Connelly [26] gives these examples:

  1. A trade union could be banned for advocating that the rulings of the new fair pay commission be ignored (breach of IR laws) while appeals are lodged or a campaign is conducted to reform the terms of reference of the commission.
  2. A small business tax reform association could be banned for advocating slow payment of GST (breach of tax legislation) while they advocate for the removal of red tape.
  3. An environmental organisation could be banned for encouraging members to march on a port (without permission) while they argue for a ban on the import of radioactive waste.
  4. An indigenous organisation could be banned for establishing a tent embassy on Commonwealth land (trespass) while they lobby for a treaty.

Section 80(8) provides for the offence of urging another person to engage in conduct intended to assist by any means an organisation or country that is engaged in armed hostilities against the Australian Defence Force. The offence is punishable by seven year's imprisonment.

Australian journalist and writer John Pilger is one example among many who might arguably have committed one of such offences. For example, he said on ABC's Lateline that the insurgents in Iraq were "democracy's last hope against American imperialism" and that American and Australian troops were "legitimate targets" because they were an illegal occupying force.

The proposed s80.3 of the Crimes Act purports to set out defences for civil dissenters or reformers' to the above offences. Whereas the offences are cast in broad, vague terms, the burden is on defendants to prove (beyond reasonable doubt) very specific and limited defences of trying "in good faith to show that" the government or sovereign or their advisers are "mistaken"; or pointing out "in good faith errors or defects" in the government or law or administration with a "view to reforming" them. Connelly: "No such defence is available to banned organisations."

The use of Lethal Force

The Bill proposes provision in s105.23 of the Criminal Code for using only such force as is necessary to take someone into custody or prevent them escaping, and must not use force likely to cause death unless the AFP member believes on reasonable grounds that doing so is necessary to protect life or prevent serious injury.

There has been considerable controversy around this provision, particularly because it echoes similar provisions in the UK, which were purportedly used by officers who shot and killed an innocent commuter.

Various Labor State Premiers have said they would not agree to it, and the Prime Minister has agreed to amend or scrap (depending on which reports you read) the provision, and so I say no more for the present about it.

Control Orders

The Bill proposes division 104 of the Criminal Code, which provides for control orders that may be applied for by an Australian Federal Police (AFP) officer with the written consent of the Attorney General: s104.1. [27]

The order may be granted by a Federal Court Judge or Magistrate or Family Court Judge if satisfied on the balance of probabilities that it would assist in preventing a terrorist act, or the person has been trained by or provided training to a listed terrorist organisation; and the controls are "reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act": s104.3.

There is a major problem with this provision: it is retrospective. Control orders can be made in relation to persons who trained with or provided training to a "terrorist organisation" in the past, even though it was not an offence to do so at the time and it was not even listed as a "terrorist organisation" at the time, and the person may no longer have any connection with or sympathy for that organisation. This violates the principle against retrospectively creating offences. [28]

Control orders can be for up to 12 months for adults (s104.4(1)(d)), and three months for children of 16 to 18 years of age (s104.14), but successive orders can be made against the same persons [29] , and there does not appear to be any restriction on how many times successive orders can be made.

Control orders may restrict the person being at certain places; leaving Australia; require that they remain at certain places; wear a tracking device; not communicate or associate with certain persons; not access telecommunications, technology or internet; not possess certain (otherwise legal) things; not do certain activities; require reporting to specified persons at specified places and times; require being photographed or fingerprinted; and if they consent, do counselling or education: s104.4(3).

They may also be prevented from contacting their lawyer: s104.4(5).

Contravention of an order is punishable by five years imprisonment: s104.13.

Applications made by an AFP officer are determined ex parte. In other words, the person to be controlled has no opportunity of being heard inter partes in the court hearing the application. The person is not informed of the order until after it is made, when it is served on him or her: s104.9.

The person or their lawyer may be given a copy of the order, but it is expressly stated that there is no requirement to provide the basis for the application or the reasons it was ordered: s104.10.

There is provision in s104.11 for a controlled person to apply to the issuing court for a revocation of the order, but they will not know the basis, information or material on which it was applied for and ordered, and so it may be difficult if not impossible, to satisfy the court that the order should not have been made.

This unfairness is exacerbated by the fact that court applications and legal fees are not inexpensive, and costs might be ordered against the controlled person.

Given the potentially very harsh regime of control that a person might be subject to, including home detention with no social contact for a year, it is worrying that such a low standard of proof is required to obtain them. All that needs be shown is that an AFP officer has a reasonable suspicion, which is probably lower than the civil standard of proof, on the balance of probabilities, and is certainly much lower than the criminal standard of beyond reasonable doubt.

In s104.3(c) the reference to "a terrorist act" is open ended. I reiterate the point made above in relation to the definition of "terrorist act" in s101.1 of existing Criminal Code: it is too wide and potentially embraces pro-democracy or industrial activities that large numbers of Australians have engaged, or may engage in.

In a letter dated 18 October 2005 to ACT Chief Minister Jon Stanhope, Professor Andrew Byrnes, professor of International Law, Uni of NSW, Professor of International Law and Human Rights, Australian National University, Hilary Charlesworth and Gabrielle McKinnon of the Regulatory Institutions Network consider the provisions for preventive detention and control orders in the Bill. They say these control orders could breach the following international rights and freedoms:

  • Right to liberty and security of the person the right to be free from arbitrary detention: art 9 ICCPR;
  • Right to a fair and public hearing in the determination of one's rights and obligations in a suit at law or in the determination of a criminal charge: art 14 ICCPR;
  • Right to privacy and respect for family life: art 17 ICCPR;
  • Freedom of Association: art 22 ICCPR;
  • Freedom of expression: art 19 ICCPR;
  • Freedom of movement: art 12 ICCPR;
  • Right to work: art 7 International Covenant on Economic, Social and Cultural Rights;
  • Freedom of Religion: art 18 ICCPR.

Preventative Detention Orders

The proposed division 105 of the Criminal Code provides for 2 sorts of preventative detention. [30] The object of these is stated to detain a person for a short time in order to prevent an imminent terrorist act occurring; or to preserve evidence of, or relating to, a recent terrorist act: s105.1.

They may be ordered where an AFP senior officer or "issuing authority" is satisfied that there are reasonable grounds to suspect that a person will engage in a terrorist attack; or possesses a thing that is connected with the preparation for, or engagement of a person in, a terrorist act; or has done or will do an act in preparation for, or planning, a terrorist attack: s105.4(2). It must be an attack expected within 14 days in the future: s105.1(3); or have been within the last 28 days: s105(4).

Firstly, initial preventative detention orders may be sought by any AFP officer and may be granted by an AFP superintendent or more senior officer (s101.1(1)) for a 24 hour period: s105.8(5). It may then be extended for 24 hours and further extended for 24 hours (there is no limit on the number of times they can be extended): s105.10.

Professor Byrnes et al note their understanding from Chief Minister Stanhope of the ACT that the States and Territories have agreed to legislate to extend the period for initial preventative detention.

Secondly, continued preventative detention orders may be sought by an AFP officer and granted by an issuing authority (a Federal Judge or Magistrate nominated by the Attorney General: s105.2) for a person subject to an initial order for up to 48 hours: s105.12. They may also be extended and further extended, again there is no limit on how many times they can be extended.

Again, Professor Byrnes et al note their understanding from Chief Minister Stanhope that the States and Territories have agreed to legislate to extend the period for continued preventative detention to up to 14 days. [31]

These preventative detention measures violate the prohibition on arbitrary detention for a number of reasons.

Initial orders are not made the courts. The AFP is applicant and issuing authority. As Professor Byrnes et al note, this involves a clear apprehension of bias, procedural unfairness and an inequality of arms (the AFP has vastly greater resources than an individual). It is also clearly vulnerable to abuse. There does not appear to be any restriction of the aggregate number of times or period that a person could be subject to further extensions of the 24-hour detention.

A Federal Court Judge or Magistrate issues continuing orders in their personal capacity as an appointee of the Attorney General as an executive action, not as a court. [32] This amounts to a violation of the doctrine of separation of powers enshrined in the Australian Constitution, which dictates that the judicial, administrative and executive arms of government should operate separately from one another to ensure Rule of Law.

Continuing orders are applied for and determined by the issuing authority on an ex parte basis (ie without the person having the opportunity of appearing before the issuing authority to be heard and oppose the application inter partes), and so they lack procedural fairness. The only information on which the issuing authority determines the application is provided by the AFP, and is untested by counter evidence or examination.

Further, there is no obligation on the AFP to provide the detained person or their lawyer with anything other than a copy of the order (s105.29(7)), such as the reasons, information or material upon which the order was made: s105.28.

Professor Byrnes et al point out that "[t]his makes any application to the Federal Court or complaint to the Ombudsman very difficult to pursue in any meaningful way", and it is therefore arbitrary.

Professor Byrnes et al also say the preventative detention regime breaches articles 9 and 14 of the ICCPR.

Article 9 of the ICCPR provides (in part):

  1. Everyone has the right to liberty and security of the 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 procedures 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 the charges against him.

Where preventative detention is used for public security, the UN Human Rights Commission has stated in its General Comment No. 8 (1982) on article 9 that:

"[It] must not be arbitrary, and must be on grounds and procedures established by law (para 1), information of the reasons must be given (para 2) and court control of the detention must be available (para 4)".

Article 14 provides for the right of access to courts for the determination of one's rights and obligations.

Even absent international law (which is not adopted in Australian domestic law and is therefore not binding on Australian courts [33] ), these provisions breach the common law right of habeas corpus, which entitles a detained person to be brought before a court at the earliest opportunity for a determination of the legality of their detention.

The regime proposed by the Bill does not allow for revocation of the order, other than on the application of the AFP: s101.17. The regime is exempt from the Administrative Decisions (Judicial Review) Act 1977. Professor Byrnes et al say:

"Accordingly it appears that the person detained is limited to making a complaint to the Ombudsman (who does not have power to set aside such an order) or seeking judicial review by the Federal Court on the grounds of error of law, rather than on re-examination of the merits of the decision [34] , or possibly a later action in tort for unlawful imprisonment. Detainees would have to bear the cost of such an application or action. In our view, this falls well short of effective judicial oversight ... and arguably breaches the right of access to court under article 14(1) of the ICCPR."

Prohibited Contact Orders

An AFP member may apply for a prohibited contact order in relation to a person for whom a preventative detention or continuing order is being sought to prevent them contacting named persons, including their lawyer, if this "would assist in achieving the objectives of the preventative detention order": ss105.15 and 105.16.

However, s105.28(5) states that the AFP member is not obliged to tell the detained person that a prohibited contact order has been made or the name of the person(s) in relation to whom they are made. I wonder what purpose might be served by a prohibition on the detained person contacting certain people if s/he is not told that they cannot contact them.

The requirement that such order assist in achieving the purpose of the order is wide open to abuse, and might be used to defeat the provision discussed next.

Restrictions on Contact with other People and Lawyers

Section 105.31 prohibit a detained person contacting another person, except as provided in s105.32: one of their family members, an employer, a person they employ in their business, and "solely for the purpose of letting the person contacted know that the person being detained is safe but is not able to be contacted for the time being".

The person may also contact the Ombudsman: s105.33, and their lawyer: s105.34. If their lawyer is a person subject to a prohibited contact order, the AFP officer has to give reasonable assistance to choose another lawyer, who may be a state security-cleared lawyer: s105.34(3).

A further cause for concern is that all contact with any person, including the detained person's lawyer is to be monitored (with the assistance of an interpreter if necessary): s105.35. This violates the principle of client-lawyer privilege [35] and confidentiality, and breaches the requirement in article 14(3) of the ICCPR for access to legal assistance.

The person's lawyer is in turn prohibited from disclosing the fact that a preventative detention order has been made, or that they are detained or any information the detainee gives during the contact, except for the purpose of Federal Court proceedings or a complaint to the Ombudsman: s105.38. The penalty is 5 years imprisonment.

Preventative Detention of Children and Mentally Handicapped Persons

In one of the perhaps more disturbing provisions, s105.36 purports to set special measures for detained persons under 18 but over 16 years of age and persons incapable of managing their own affairs. Such persons are allowed to contact, and be visited by, a parent or guardian, or "another person who is able to represent the person's interests and is, as far as practicable in the circumstances, acceptable to the person and to the AFP member.

This last mentioned part is wide open to abuse. Who ultimately will decide whether a particular person meets these requirements?

Contact with such a person must be available for up to two hours each day. Again all such contact must be "conducted in such a way that the content and meaning of any communication can be monitored by an AFP member": s105.36(6). If the contact is not in English it is not to take place until an interpreter is available: s105.36(7).

Significantly, any such person that is permitted contact with the detained person is subject to the limitations and penalties in s105.38(2) relating to disclosures. In other words, a parent who has contact with their child is not allowed to tell their spouse or anyone else where their child is or that they are subject to detention order, under pain of 5 years' imprisonment.

While there is a prohibition on taking identification material from such persons unless ordered by a Federal Magistrate (s105.40(4)), subsection (7) provides that it can be taken without Magistrate's orders if the person agrees in writing and their parent, guardian or another appropriate person agrees in writing.

How can a child or mentally handicapped person give consent in this regard when at law they are not able to consent for all other legal, contractual or criminal matters? Again, whom an appropriate person is to accompany and consent for the child is open to abuse.

Power to demand names and addresses

A person whom an AFP member believes on reasonable grounds is able to assist the AFP in executing a preventative detention order faces a fine of 20 penalty units ($1,000?) if they refuse to assist.

Other legislation

The Age Online on 2 November 2005 featured an article by Andrew Lynch, director of the Terrorism and Law Project at the Gilbert + Tobin Centre of Public Law, University of New South Wales [36] . Mr Lynch pointed to another piece of proposed legislation, The Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005, which

... seeks to introduce very significant changes to the way in which terrorism suspects will be tried in this country. Its central purpose is to allow a court to take evidence from witnesses via video link and also foreign evidence not delivered "live" but in the form of written, video or audio material... This is where torture comes in. How can we be sure that evidence used to convict somebody of a terrorism offence and which has been brought in from overseas was not procured through torture? The bill makes no mention of this concern - not even directing the court to exercise its discretion to refuse such evidence unless it can be satisfied that torture has not played a part. Nor does the bill recognise that torture is openly employed in some countries and so evidence obtained from a prisoner or accused held in those places should be dismissed as a matter of course.

Mr Lynch pointed out that there would be a high burden on the defendant to preclude such evidence.

Finally, without discussing them, I simply mention that the Bill also introduces wide-ranging provisions for obtaining documents relating to terrorism (as widely defined), including of telephone, bank, utility or other accounts or transactions, and travel details (Schedule 6). These proposed provisions expressly override any other law, the right against self incrimination, legal professional privilege or other duty of confidence or public interest: 3ZQR of the Crimes Act 1914.

Conclusion

The ABC Online reported on Wednesday 2 November 2005 evening: [37]

The Prime Minister has secured the support of enough state and territory leaders to introduce the proposed anti-terrorism laws into federal Parliament.

John Howard needed four leaders to sign off on the latest draft of the laws. He now has the backing of the premiers of New South Wales, Victoria, Tasmania and South Australia, and in-principle support from Queensland.

Of the remaining states and territories, Western Australian Premier Geoff Gallop says he still has concerns about some of the provisions in the laws.

ACT Chief Minister Jon Stanhope says he cannot possibly support the laws in their current form. Mr Stanhope also says he and his Northern Territory counterpart have been excluded from discussions like the telephone link-up with the Prime Minister. [38]

This "coincided" with his announcement that he had received intelligence that Australia faced a potential terrorist attack. Despite that information, Australia's terror alert level remains "medium".

The Bill needs to be read against background of wide ranging new security legislation. Together they undermine the rule of law and present serious concerns to lawyers, civil libertarians and the community.

Broad definitions of offences, particularly of terrorism and sedition, and lack of judicial scrutiny of police and intelligence powers and review of orders affecting persons in the Australian community demand further attention.

Imposing control orders or preventative detention on people who have not committed any offences, and who cannot be convicted of any offences, is a serious breach of the right to liberty, and the presumption of innocence. As provided for, they can be extremely burdensome and punitive, potentially more so than serious than criminal punishments. Yet the standards required for them to be imposed are dangerously low and subject to inadequate safeguards or judicial review.

The retrospective nature of the provisions for control orders violates the principle against retrospectively creating offences.

Regarding the point I have made about the violation of the Constitutional doctrine of separation of governmental powers: there are (at least) two ways in which this doctrine is violated or undermined in the Bill. First, by giving police powers to detain without trial the doctrine is violated because we have a right to be sentenced to detention by a court (the judicial arm), and police (the administrative arm) should not be exercising such powers. Secondly, by the Attorney-General appointing judges to act in a personal capacity, the executive arm of government is performing a role reserved for the judiciary.

In this regard it is disturbing that the head of ASIO, Dennis Richardson is quoted in the Weekend Australian (22-23 October 2005) as saying that most of the people to which such order are already anticipated to apply would never "face a court of law" because "the capacity to obtain evidence sufficient to meet proper legal standards is beyond reach".

Attorney-General Philip Ruddock said the main impetus for the new anti-terror laws came from advice from the AFP that existing laws were inadequate for protecting Australia from terror attacks such as those in London on 7 and 21 July 2005 (note they already had such laws in place and they failed to prevent those attacks). The Federal Police Commissioner was interviewed on ABC's Lateline on 31 October 2005. He said the laws were necessary because "we're fighting an idea, or people who embrace an idea and who may never have come to the attention of law enforcement agencies before."

When asked what sort of people could be subject to preventive detention orders he said:

"not... people who go about their everyday business and who have nothing to fear... [T]he ones who are covered by it are people who do fit the intelligence picture that's been fed to us either through our own sources or other sources and about whom we don't have enough information to make an arrest and who decide not to cooperate with the police... [W]here they don't have sufficient evidence and need to protect the community, then we need a different power than what we've got."

He said that witnesses were a "good example" of people who might be subject to preventive detention because "people who have been connected to the event need to be eliminated as witnesses or continue to be thought of as suspects. And whilst that uncertainty is in the mind of the officer, what we need always to be doing here is protecting the interests of the wider community."

The Commissioner did not reject the interviewer's suggestion that family members of suspects could also be targeted. He said it was necessary to have criminal sanctions for family members who reveal to each other that a member of their family is in preventative detention.

Professor Byrnes et al assess the undertakings attributed to the Prime Minister at the Council of Australian Governments in September 2005 that the new laws would:

  1. Be based on clear evidence that they were needed in a democratic society and that the desired effect could not be achieved by less intrusive or onerous ways;
  2. Be effective against terrorism;
  3. Conform to the principle of proportionality; [39]
  4. Comply with all of Australia's obligations under international law - in particular its obligations under the ICCPR;
  5. Involve rigorous safeguards against abuse, including against discrimination;
  6. Be subject to judicial review; and
  7. Contain a sunset clause.

The writers assess each of these undertakings against the provisions of the Bill and conclude that it is not at all clear that the first two are met; it is clear that the third to sixth are not met, and only the last is clearly met as there is a ten year sunset clause on the proposed law.

In my view and that of others the sunset clause period of ten years is too long.

The writers conclude, in summary that:

"The preventative detention order regime breaches the human rights to be free from arbitrary detention and to due process and cannot be said to be subject to an effective procedure of judicial review that provides adequate safeguards against violations of human rights.

The control order regime breaches the rights to be free from arbitrary detention, to a fair trial, to freedom of movement, to privacy and family life, and to the presumption of innocence."

It is worth noting that several people in the UK, including the "Birmingham Six" and the "Guildford Four" were detained under detention without trial provisions, convicted and subsequently found to have been wrongly convicted after abuse and pressure in detention led to the false confessions. [40] It is also worth noting the abuse of such ostensibly "reasonable" and "lawful" detentions in South Africa under Apartheid.

The fact that Australia does not a bill of rights makes the prospect of this legislation all the more alarming. Extensive bills of human rights enshrined in domestic legislation now protect the people of both South Africa and the UK. Therefore, in the UK where anti-terrorism legislation is also being introduced, people are protected under the Human Rights Act 2000 (UK) and can have recourse ultimately to the European Court.

MARK COX

Footnotes

[1] Mark David Cox, BA LLB (Hons) (University of Melbourne), Barrister & Solicitor, 4 November 2005.

[2] Engraving on a monument to the victims of the Holocaust in the Supreme Court Gardens, St Georges Terrace, Perth.

[3] "HREOC sees police state under terrorism laws" ABC Online 31/10/05.

[4] This is in contrast to the process surrounding the Anti-Terrorism Bill 2002 (amongst other things, giving ASIO additional questioning powers), which was subject to 3 separate Parliamentary inquiries and was considered over 12 months.

[5] For eg. see Davids Distribution P/L v National Union of Workers (1999) 165 ALR 550 at 575.

[6] Section 101.2.

[7] Section 101.4.

[8] Section 101.5.

[9] Section 101.6.

[10] Legislation already existed providing for the making of a list of banned "terrorist organisations". It was illegal to be a member of, or to use or deal with the assets of, or to directly or indirectly provide assets to, the listed person or organisation: Charter of the United Nations Act 1945, sections 20-21. There is reported to be presently 17 "banned terror groups": Weekend Australian 22-23 October 2005.

[11] "Terrorism offence" is given the same meaning as defined in part 5.3, s101.1 of the Criminal Code, referred to above.

[12] Section 34D.

[13] Section 34F.

[14] Section 34U.

[15] Section 34JB. This provision is in substantially the same terms as the provision in the Bill that has caused so much controversy.

[16] Section 34NA.

[17] Section 34NA(6)(b).

[18] Section 34U(2A).

[19] Section 34U(4) & (5).

[20] Section 34VAA.

[21] This last paragraph is already enshrined in the s24A(g) of the Crimes Act 1914 (Cth) and yet to my knowledge it has never been used, despite the existence of race hate, such as that in the Perth based blog: http://www.tothelefttotheright.blogspot.com and http://avoiceofdissent.blogspot.com The blog contains varying and numerous instances of racial vilification, incitement to racial hatred, victimization and harassment, and promotes communal hostility against Jews, Blacks, Africans, Muslims, Asians, Australians of Middle Eastern origin, homosexuals, refugees, activists and others, thus endangering peace and order in the Australian Commonwealth. It also contains defamatory material, breaches rights to privacy of named individuals and contains threats.

[22] The Attorney-General may apply to the Federal Court for an order that an organisation is unlawful: s30AA.

[23] Submission to Legal and Constitutional Committee, 27 October 2005.

[24] The ACT Director of Public Prosecutions has questioned the need for such severe penalties: "It does not seem to me, however, that the penalty for sedition should be increased as the essence of the offence consist only of urging another to act, and does not involve any actual act of violence in itself." http://www.chiefminister.act.gov.au/docs/DPPadvice.pdf

[25] For example, a Priest from Australia who spoke at Fremantle Town Hall shortly after the invasion, whose name I do not recall.

[26] Referenced above, note **.

[27] Or, in emergency situations, the AFP officer can seek the Attorney General's consent within four hours after seeking such orders.

[28] Rob Stay or the Criminal Defence Lawyers Association in Victoria was reported on ABC Online on 4 November 2005 saying he expected his clients would be targeted because they had trained with the Taliban in Afghanistan, even though they were now settled in the Australian community with no involvement in that organisation. It needs to be remembered that the US once sponsored the Taliban when it was fighting USSR invasion.

[29] It is not made clear that successive orders cannot be order upon children.

[30] Schedule 4 of the Bill.

[31] The writers also quote from the Prime Minister's media release on 8 September 2005 to the effect that the States and Territories will be asked to legislate for up to 14 days detention "because there are constitutional restrictions on the capacity of the Australian Government to provide for this type of detention." The writers say this appears to have the explicit intention to circumvent the constitutional separation of powers between the executive and the judiciary, which prevents the executive from imposing sanctions without trial or conviction by the courts.

[32] Nominated judges or Federal magistrates must consent to the appointment: s105.2(2).

[33] Except to the extent that it is enshrined in legislation such as the Human Rights and Equal Opportunity Act 1986 (Cth), which is only a very limited adoption of the ICCPR, and in the ACT Human Rights Act 2004, which is a much more extensive adoption of the ICCPR, and is unique in Australia for being so.

[34] Although, I note that recent media reports suggest the Bill may be amended to provide for merits review. But to date we have not been permitted to see any redraft of the Bill.

[35] Section 105.46 purports to provide that nothing in the Bill affects legal professional privilege, but that is empty in the face of mandatory monitoring of all client lawyer contact.

[36] New law could link our courts with torture

[37] http://www.abc.net.au/news/newsitems/200511/s1496339.htm

[38] Mr Stanhope stated that Prime Minister Howard was excluding him to "punish" him for leaking the draft of the Bill.

[39] The restriction of fundamental rights must be: in pursuit of a legitimate objective; necessary for the achievement of that objective in that they must be rationally connected to the achievement of the objective, be proportionate, and minimally impair rights; and the restrictions must be subject to safeguards against abuse.

[40] "Brendan O'Neill, has noted: 'Of the 7,052 (mostly Irish) people detained under the Prevention of Terrorism Act between 1974 and 1991, only 14 per cent had charges brought against them. Many of the other 6,097 (86 per cent) were held for days at a time, denied access to a solicitor, interrogated ..., and then released'." Greg Barns, "Anti-terror laws make a Federal Bill of Rights more necessary" http://www.onlineopinion.com.au/view.asp?article=25 (21 Sept 2005)

Annexure

ANNEXURE OF TERRORISM OFFENCES

Definition of Terrorist Act

The Criminal Code s101.1 contains this definition: "terrorist act" means an action or threat of action where:

  1. the action falls within subsection (2) and does not fall within subsection (3); and
  2. the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
  3. the action is done or the threat is made with the intention of:
    1. coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
    2. intimidating the public or a section of the public.

(2) Action falls within this subsection if it:

  1. causes serious harm that is physical harm to a person; or
  2. causes serious damage to property; or
  3. causes a person's death; or
  4. endangers a person's life, other than the life of the person taking the action; or
  5. creates a serious risk to the health or safety of the public or a section of the public; or
  6. seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
    1. an information system; or
    2. a telecommunications system; or
    3. a financial system; or
    4. a system used for the delivery of essential government services; or
    5. a system used for, or by, an essential public utility; or
    6. a system used for, or by, a transport system.

(3) Action falls within this subsection if it:

  1. is advocacy, protest, dissent or industrial action; and
  2. is not intended:
    1. to cause serious harm that is physical harm to a person; or
    2. to cause a person's death; or
    3. to endanger the life of a person, other than the person taking the action; or
    4. to create a serious risk to the health or safety of the public or a section of the public.

(4) In this Division:

  1. a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and
  2. a reference to the public includes a reference to the public of a country other than Australia.

Penalty: imprisonment for life: 101.1(1)

Section 101.2: Providing or receiving training connected with preparation for, the engagement of a person in, or assistance in terrorist acts: (1) knowingly: 25 years; (2) recklessly: 15 years; (3) even if the terrorist act does not occur.

Section 101.4: Possessing things connected with preparation for, the engagement of a person in, or assistance in terrorist acts: (1) knowingly: 15 years; (2) recklessly: 10 years; (3) even if the terrorist act does not occur.

Section 101.5: Collecting or making documents connected with preparation for, the engagement of a person in, or assistance in terrorist acts: (1) knowingly: 15 years; (2) recklessly: 10 years; (3) even if the terrorist act does not occur.

Section 101.6: Other acts done in preparation for, or planning terrorist acts: (1) life imprisonment; (2) even if the terrorist act does not occur.

Division 102 Terrorist organisations

102.1 Definitions

(1) In this Division:

member of an organisation includes:

  1. a person who is an informal member of the organisation; and
  2. a person who has taken steps to become a member of the organisation; and
  3. in the case of an organisation that is a body corporateža director or an officer of the body corporate.

recruit includes induce, incite and encourage.

terrorist organisation means:

  1. an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act occurs); or
  2. an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4)).

(2) Before the Governor-General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in this section, the Minister must be satisfied on reasonable grounds that:

  1. the Security Council of the United Nations has made a decision relating wholly or partly to terrorism; and
  2. the organisation is identified in the decision, or using a mechanism established under the decision, as an organisation to which the decision relates; and
  3. the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur).

(3) Regulations for the purposes of paragraph (b) of the definition of terrorist organisation in this section cease to have effect on the second anniversary of the day on which they take effect. To avoid doubt, this subsection does not prevent:

  1. the repeal of those regulations; or
  2. the cessation of effect of those regulations under subsection (4); or
  3. the making of new regulations the same in substance as those regulations (whether the new regulations are made or take effect before or after those regulations cease to have effect because of this subsection).

(4) A regulation specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in this section ceases to have effect when:

  1. the decision mentioned in paragraph (2) (a) ceases to have effect; or
  2. the organisation ceases to be identified as described in paragraph (2) (b).

The regulation does not revive even if the organisation is again identified as described in paragraph (2) (b).

(5) To avoid doubt, subsection (4) does not prevent:

  1. the repeal of a regulation; or
  2. the making of a regulation that is the same in substance as a regulation that has ceased to have effect because of that subsection.

(6) For the purpose of making regulations specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in this section, it does not matter whether the relevant decision of the Security Council of the United Nations was made before or after 6 July 2002.

Subdivision B Offences

102.2 Directing the activities of a terrorist organisation

(1) A person commits an offence if:

  1. the person intentionally directs the activities of an organisation; and
  2. the organisation is a terrorist organisation; and
  3. the person knows the organisation is a terrorist organisation.

Penalty: Imprisonment for 25 years.

(2) A person commits an offence if:

  1. the person intentionally directs the activities of an organisation; and
  2. the organisation is a terrorist organisation; and
  3. the person is reckless as to whether the organisation is a terrorist organisation.

Penalty: Imprisonment for 15 years.

102.3 Membership of a terrorist organisation

(1) A person commits an offence if:

  1. the person intentionally is a member of an organisation; and
  2. the organisation is a terrorist organisation because of paragraph (b) of the definition of terrorist organisation in this Division (whether or not the organisation is a terrorist organisation because of paragraph (a) of that definition also); and
  3. the person knows the organisation is a terrorist organisation.

Penalty: Imprisonment for 10 years.

(2) Subsection (1) does not apply if the person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after the person knew that the organisation was a terrorist organisation.

Note. A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).

102.4 Recruiting for a terrorist organisation

(1) A person commits an offence if:

  1. the person intentionally recruits a person to join, or participate in the activities of, an organisation; and
  2. the organisation is a terrorist organisation; and
  3. the first-mentioned person knows the organisation is a terrorist organisation.

Penalty: Imprisonment for 25 years.

(2) A person commits an offence if:

  1. the person intentionally recruits a person to join, or participate in the activities of, an organisation; and
  2. the organisation is a terrorist organisation; and
  3. the first-mentioned person is reckless as to whether the organisation is a terrorist organisation.

Penalty: Imprisonment for 15 years.

102.5 Training a terrorist organisation or receiving training from a terrorist organisation

(1) A person commits an offence if:

  1. the person intentionally provides training to, or intentionally receives training from, an organisation; and
  2. the organisation is a terrorist organisation; and
  3. the person knows the organisation is a terrorist organisation.

Penalty: Imprisonment for 25 years.

(2) A person commits an offence if:

  1. the person intentionally provides training to, or intentionally receives training from, an organisation; and
  2. the organisation is a terrorist organisation; and
  3. the person is reckless as to whether the organisation is a terrorist organisation.

Penalty: Imprisonment for 15 years.

102.6 Getting funds to or from a terrorist organisation

(1) A person commits an offence if:

  1. the person intentionally receives funds from, or makes funds available to, an organisation (whether directly or indirectly); and
  2. the organisation is a terrorist organisation; and
  3. the person knows the organisation is a terrorist organisation.

Penalty: Imprisonment for 25 years.

(2) A person commits an offence if:

  1. the person intentionally receives funds from, or makes funds available to, an organisation (whether directly or indirectly); and
  2. the organisation is a terrorist organisation; and
  3. the person is reckless as to whether the organisation is a terrorist organisation.

Penalty: Imprisonment for 15 years.

(3) Subsections (1) and (2) do not apply to the person's receipt of funds from the organisation if the person proves that he or she received the funds solely for the purpose of the provision of:

  1. legal representation for a person in proceedings relating to this Division; or
  2. assistance to the organisation for it to comply with a law of the Commonwealth or a State or Territory.

Note. A defendant bears a legal burden in relation to the matter in subsection (3) (see section 13.4).

102.7 Providing support to a terrorist organisation

(1) A person commits an offence if:

  1. the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and
  2. the organisation is a terrorist organisation; and
  3. the person knows the organisation is a terrorist organisation.

Penalty: Imprisonment for 25 years.

(2) A person commits an offence if:

  1. the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and
  2. the organisation is a terrorist organisation; and
  3. the person is reckless as to whether the organisation is a terrorist organisation.

Penalty: Imprisonment for 15 years.

Division 103 Financing terrorism

103.1 Financing terrorism

(1) A person commits an offence if:

  1. the person provides or collects funds; and
  2. the person is reckless as to whether the funds will be used to facilitate or engage in a terrorist act.

Penalty: Imprisonment for life.

Note. Intention is the fault element for the conduct described in paragraph (1) (a). See subsection 5.6 (1).

(2) A person commits an offence under subsection (1) even if the terrorist act does not occur.

(3) Section 15.4 (extended geographical jurisdictionžcategory D) applies to an offence against subsection (1).

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