At the end of the public hearings, government officials came back to reply. However, there was little if any rebuttal of the evidence presented: instead sweeping rhetoric remained the name of the game.
Dennis Richardson, Director-General, Australian Security Intelligence Organisation: There has been a fair bit of comment on the breadth of the terrorism bills. I understand those concerns. From my perspective, I think the proposed legislation is necessary if we are to have an effective legislative framework to assist in combating terrorism.
The proposed bills certainly will not stop terrorism, any more than legislation against murder and robbery of itself stops those crimes. But the legislation is, in my view, necessary to deter, to punish and to seek to prevent. It is the latter – that is, prevention – which is a central element in the legislation.
In my view, current laws do not adequately deal with terrorism. As you know, there is no terrorism law as such. It is true that terrorists often kill, kidnap, damage property et cetera, and these are offences under Australian law, but these laws do not provide an effective legislative framework for prevention. Take, for instance, the question of training with a terrorist organisation. The Crimes (Foreign Incursions and Recruitment) Act makes it an offence to receive training in the use of arms or explosives or to practise military exercises for certain purposes. These purposes include the overthrow by force or violence of the government of a foreign state and causing by force or violence the public in a foreign state to be in fear of suffering death or personal injury.
However, the provisions are dependent upon proof that the training was provided for those specific purposes. There is no criminal offence of undertaking training with an identified terrorist network, such as Al-Qaeda. I understand that not everyone would agree with my view, but I think it ought to be a criminal offence to undertake terrorist training with a network such as Al-Qaeda. No existing legislation caters for this. The proposed legislation would.
In considering the issue of terrorism, it is I think relevant to note some of the changes since laws such as the Crimes (Foreign Incursions and Recruitment Act) were enacted. The movement of people, money and goods across international borders has grown enormously. The Internet has fundamentally changed the communications equation. Such changes, good in themselves, have also presented opportunities for those committed to using violence for political, religious or ideological reasons.
In order to properly combat terrorism, it is necessary to institute measures which will deprive terrorist networks of the means of support and assistance which they exploit for the purpose of conducting their activities.
This includes financial support, the provision of training and the provision of materials which may be used in the commission of terrorist acts in Australia and overseas. Although the instruments used in terrorism may sometimes be crude, various networks have become increasingly sophisticated in their use of communications, movements and methods to achieve their objectives. The nature and level of threats posed by particular groups may, as demonstrated on 11 September, change quickly and without forewarning.
Turning to the security environment, there is no known specific terrorist threat to Australia at present. The fact that we do not have information concerning any specific terrorist threat does not, of course, provide any guarantee, the most stark illustration being the absence of information on 10 September about what was to unfold the next day.
In terms of the broader security environment, Australia has been relatively free of terrorism. We do not face the same intensity of threats as the United States and some other countries. Equally, we should be in no doubt that the effects of 11 September are long term; 11 September was not a blip on the security landscape which will simply fade gradually into history. It has changed the security environment, and those changes will be with us for some years.
The US and its partners are engaged in a protracted war – or whatever word one wants to use. There will be further terrorist attacks, and of that I believe we can be certain.
Australia’s security environment is now characterised by a generally higher level of threat to Australia and its interests. We have operated for many years in the very low to low zone of the threat spectrum, with threat levels occasionally broaching medium level. Our normal operating level is now low to medium, with threat levels sometimes reaching high. We now have a sustained, high-level of threat to the US, the UK and Israeli interests in Australia and a higher level of threat to some other diplomatic missions and government visitors.
The threat from chemical, biological and radiological terrorist attacks has been raised from low to medium. Likewise, the threat to aviation interests has been raised from low to medium. Also, attention is now paid to threats to national symbols and infrastructure.
Since September 11 the threat to Australian interests abroad has also increased. In early November a grenade was thrown into the grounds of the Australian International School in Jakarta. In December, Singapore authorities uncovered advanced terrorist planning for an attack against largely US interests. The planning also included the Australian High Commission in Singapore.
As mentioned in our written advice, some terrorist groups with global reach have a small number of supporters in Australia and a small number of Australians have trained in UBL terrorist camps in Afghanistan. Not all the latter are in US military custody.
None of this should ring alarm bells. Likewise, I believe it would be unwise not to recognise that we are in a new situation and that part of our overall response should encompass specific legislation to provide a more effective legal framework for meeting the threat of terrorism.
Finally, I want to say that I understand the concerns expressed by many of the people who have given evidence before the committee about the need to protect civil liberties and human rights. From my perspective, we do not seek to challenge those liberties or rights. Rather, we seek a more effective legal framework to address the challenge posed by those whose targets of choice are innocent civilians and who seek to deny innocent people their ultimate right, to life itself.
Senator Payne: In 102.2(1)(d), the language refers to the ‘security or integrity of the Commonwealth or another country’. What is the integrity of the Commonwealth?
Richardson: It is the territorial integrity.
Senator Payne: Mr Marshall may be able to tell me whether that is defined.
Stephen Marshall, legal adviser, ASIO: As far as I am aware, it is not defined in the actual legislation, but I understand from consultations with the Attorney General’s Department that territorial integrity was the intent. (MARGO: The courts cannot take such advice into account when interpreting legislation.)
Senator McKiernan: Many of the witnesses that have appeared before the committee so far and those who have made submissions have argued, some quite strongly, that there is no need for this legislation that is before the committee at the moment, that the existing criminal law provisions can and should apply to acts of terrorism. Apart from your comments on the training in your opening contribution to the committee, what other reasons are there for the bringing in of these laws or, indeed, are the assertions made in submissions correct that the criminal law provisions currently on the statute books could handle all or most situations?
Richardson: I personally think that the existing laws are inadequate, particularly in terms of training, of planning and of things that might be engaged in in the lead-up to a terrorist act. They are difficult to identify. These laws would certainly give no guarantee that you would be able to prevent acts of terrorism, but I think they would certainly provide far greater prospects of being able to prevent than what is there at the moment.
Senator McKiernan: The definition of terrorism, as contained in more than one of the bills, is very broad –
Richardson: Yes, it is.
Senator McKiernan: Isn’t the broadness of the definition a further argument that the criminal law provisions that are currently on the statue books could apply, even to the extent of training for committing of an act of terrorism?
Richardson: The existing laws certainly would not apply in respect of training.
Senator McKiernan: Conspiracy?
Richardson: If you can establish proof that the training was undertaken for specific purposes, then yes it would. However, the mere fact that someone had trained with Al-Qaeda in Afghanistan would not, under existing law, be an offence.
Senator Ludwig: On that point, if we look at organised crime as a label, then under that label there are issues such as drug offences and money laundering – all those types of offences. Isn’t terrorism a similar concept? It is a label which harbours a range of criminal activity, and those criminal activities can be identified and prescribed. We identify criminal activities rather than prescribing that it is illegal to be a part of organised crime. I guess that is the analogy that Senator McKiernan is trying to pull out. In my view, it is a point that has not been answered. It has certainly been raised elsewhere. A number of submissions have said there are offences that we can create. If you say that the training is not one of them, maybe they could turn their mind to create a specific offence about that. But what about all the others? If that is the only gap, we could hypothetically create –
Richardson: I think there are also gaps in terms of planning, the different stages of planning, training and acquiring of things.
Senator Ludwig: That is two or three perhaps. Since September 11 have ASIO looked at the current legislation and developed an options or an issues paper and said, ‘These are the specific areas that we would not be able to address under the current criminal law, specifically the Crimes Act of 1914. We have identified specific crimes that we might then need powers to pursue, enforce or discharge our obligations?’
Richardson: The current draft legislation in its early stages was put together by the Attorney-General’s Department in consultation with us and a range of other agencies. We have had the opportunity to input into the process.
Senator Ludwig: My question was not whether you had input into the process but whether or not your organisation identified gaps in the current law? You either did it or you did not.
Senator Ludwig: I was wondering if that was available for the committee as to what you then said were the gaps?
Richardson: I do not know whether we produced anything in writing on it. There was certainly a range of meetings on it. We certainly identified the gaps that we saw.
Senator Ludwig: You have said those have been training, preparatory acts, planning –
Mr Richardson: And all the different elements of planning, acquiring of things in relation to and also developing some sort of definition of terrorism which is sufficiently broad to encompass its different manifestations, bearing in mind that broadening definitions also creates its own issues.
Senator McKiernan: I have told you about the significant concern we have heard about the definition, and the fact that is it too broad. We also heard that the exemption for lawful advocacy, protest or dissent may catch those involved in domestic political or industrial action. I ask you, from your position with ASIO, should such laws be able to catch such groups? There are not really exemptions contained in the act, but there has been argument put to the committee – and tested before the committee – that indeed the laws could be expanded to include what is seen by some to be legitimate protest. The actions at Woomera Detention Centre some weeks ago were used as an instance to illustrate the point to the committee.
Richardson: In answer to your question, certainly this law should not be used to target lawful advocacy, dissent, industrial action and the like. Simply by way of background, the formula that is there was designed to limit, not to expand. It is the formula that is currently in the ASIO Act; it is specifically in the ASIO Act. The act refers to lawful advocacy, dissent and a set of things similar to what is currently in this legislation. Under our act, theoretically, if you were to read our act and if you were to take it literally, you could put up an argument that the act would allow us to be targeting people who are engaged in lawful advocacy. (MARGO: As ASIO has duly done, many times, to the detriment of those so targetted.)
Senator Ludwig: Some submitters have argued that the current definition of terrorism tied with some of the offences would then mean that picketing, demonstrations and civil disobedience could be caught by the legislation. Do you have a view about that?
Mr Richardson: The only comment I would make, and it is really a pragmatic one, is that in the ASIO Act at the moment there is that conundrum there now.
AUSTRALIAN FEDERAL POLICE
Brendon McDevitt, General Manager, National Operations, Australian Federal Police: The proposed provisions in the suite of terrorism and related bills are essential for the investigation and successful prosecution of terrorism and its related offences. This is more important than ever in light of the recent leaders summit at which it was agreed that the Commonwealth should have responsibility for national terrorist situations.
The events of September 11 in the United States have fundamentally changed the law enforcement environment in which the AFP operates. Our law enforcement colleagues, nationally and internationally, are confronting the same issues and challenges in relation to an appropriate terrorism response. The majority of other countries have elected to legislate under the auspices of the United Nations framework, modelled in the charter of the United Nations, in much the same way as Australia is doing now.From a law enforcement perspective it is important for the Commonwealth to enact appropriate legislation without undue delay.
The changes since September 11 have seen a shift in the operational focus and priorities of law enforcement in this country. This is ongoing, we believe, and will continue as law enforcement agencies around the world come to terms with new dimensions of global and transnational crime, including terrorism.
Terrorism is not yet an offence, but government and community expectations, it would seem, are that terrorists will no longer only be identified but be placed before the courts and subsequently removed from where they can harm the community. The new offence of terrorism is at the very serious end of the AFP’s jurisdiction. Investigations into terrorist related crimes would be a top priority whenever they occur.
At all times, federal agents will conduct terrorist related investigations in accordance with the existing safeguards set out in part IC of the Crimes Act 1914. These safeguards are at the heart of best policing practice, and federal agents will be bound by them during investigations into terrorist offences in the same way as the safeguards currently apply to investigations into other serious offences.
Importantly, the overall package of bills will allow law enforcement to meet the increased expectations of government and the community who want to see those responsible for terrorist activity brought to justice.
Terrorist organisations have demonstrated that they are capable of using methodologies very similar to those used in organised criminal activities. There is benefit in aligning the most successful law enforcement strategies to combat both terrorism and other serious offences such as drug trafficking and people-smuggling.
These bills will provide the AFP with the legislative support to ensure consistency in the investigation of the most serious crimes. History consistently has shown us that terrorism offences are inevitably co-committed with other serious and organised crimes. Like other criminals, terrorists are creatures of opportunity and enterprise. It will not be possible to accurately predict the range of activities in which they will become involved, but it is likely that they will take advantage of all and any means to satisfy their objectives.
For this reason it is important to recognise the broad nature of terrorism and its potential links to other serious crimes, and to adopt the most flexible definitions possible.
Senator Payne: In your submission you talk about the definition of terrorism and the scope of terrorism definition which, you indicate, needs to be broad to deal with the unpredictable and diverse nature of the criminal conduct concerned. You then go on to say that, in practice, federal agents will not be pursuing Australians who engage in lawful advocacy such as rightful protest. You give an example – you talk about whether a gathering becomes aggressive and property is destroyed. You talk then about the charge that would be appropriate at the time being something like destruction of Commonwealth property. What I am interested in is where that is made clear in the legislation? How does an Australian reading the legislation understand that what they are participating in – whether it is a picket, a strike, an affray or whatever word might be used to cover it – will not find them at the end of a charge under terrorism legislation?
McDevitt: The definition of terrorism specifically excludes lawful advocacy, protest or dissent, and industrial action. The definition can only be applied to activity that is politically, ideologically or religiously motivated and that involves serious harm to persons, serious risk to public health or safety, serious damage to property or serious interference with essential electronic systems.
The sort of activity that we find at demonstrations is the sort of activity – whether the demonstrations are lawful or unlawful – which falls within the ambit of other existing legislation, such as the Protection of Public Persons and Property Act 1971 and so on. People can be arrested and charges can be laid in relation to the sort of activity where property is damaged, where people are injured or where lawful access and egress to a particular place is inhibited. To me the definition, quite clearly, does not include that sort of activity.
Senator Payne: Have you had a look at any of the submissions the committee has received from other organisations or individuals, such as the Law Council of Australia, Professor David Kinley or the International Commission of Jurists, which raise concerns about the breadth of definition and the breadth of activity that may, whether intentionally or unintentionally, fall within the definitions currently provided in the legislation? Has the AFP had a look at any of those?
Annie Davis, Director, Legislation Program, Australian Federal Police: Yes, we have had a look at some of those. In practice, police officers have a look at the offences that exist in legislation and then have to take additional steps, all of which involve safeguards – some of which are enshrined already in the criminal justice system and some of which are enshrined in policing practice.
Once an officer forms a reasonable suspicion that an offence is being committed they have to exercise their discretion guided by the ultimate brief of evidence that will be scrutinised and adjudicated by the courts.
They will also need to respect people’s civil liberties and rights while interacting with them face-to-face and with regard to whatever they may subsequently follow up with that person. Policing practice is governed formally and informally-formally, by our commissioner’s instructions and informally by being embedded within the police officer’s training and professional development in terms of exercising their discretion.
Senator Payne: … The legislation should be such that people will not need a briefing at the beginning of their demonstration or some advice as to whether – should an extreme…environment=al group decide that an appropriate thing to do is to jam an electronic system, whether it be a fax or email system, to try to convey a message to a minister of the government – that falls within the scope of this legislation. You can give me a lot of examples but, at the end of the day, if I understand them, that is one thing, but if it is not clear on the legislation, if what we are putting through the parliament is not clear, then that is another matter altogether.
Senator Ludwig: Has the AFP made a submission to their boss, I guess, to say, ‘Look, since September 11 something has changed. We need these powers to deal with the changed environment’?
McDevitt: To my knowledge, no, that has not occurred.
Senator Ludwig: Would you normally do that if there was a deficiency in the law, to say, ‘We do not have laws to cover this’?
McDevitt: That is correct. In this instance, my understanding is that that was already being recognised and generated by agencies other than ourselves.
Senator Ludwig: We were told also of a hypothetical case – we will call it the fertiliser scenario – where a person sought to buy fertiliser. Fertiliser is one of those substances which can be used to make an explosive device. The person came to buy the fertiliser at Mr Smith’s shop. In doing so he used a piece of paper to pursue the order for the fertiliser. He bought the fertiliser, so there was an exchange, and then took the fertiliser away. Looking at the types of offences, we were told that up to five offences could have been committed with that simple act because the fertiliser could be regarded as a substance used to make an explosive device. The shopkeeper did not make reasonable inquiries that the fertiliser was not going to be used for that purpose. The person utilised a piece of paper and therefore they were not careful enough in ensuring that the order was not fulfilled or they did not put themselves on reasonable notice to inquire that it would not be used. I cannot recall all of the bits but why would it not be the case that that would fall within this legislation?
McDevitt: To be totally honest, I think that that scenario is one that no self-respecting police officer in this country would try to take to a court. It would never get there. It would never get past first base. The checks and balances are there. Can I put it to you that the particular constable sergeant would probably say, ‘Go home, silly.’ That is just not happening. It would not ever get a run.
Senator Ludwig: But what we are looking at are the unintended consequences of these types of action. Looking at ‘possesses a thing’, 101.4 of the legislation states that ‘a person commits an offence if the person possesses a thing’. ‘A thing’ could be literally anything, including a mobile phone or a bag of fertiliser, or it could be ‘things connected with preparation for, the engagement of a person in, or assistance in a terrorist act’. We go on and find that an absolute liability then applies to (1)(b), and so there is not a lot of room to move.
To escape liability, you have to prove ‘that he or she was not reckless with respect to the circumstance in paragraph (1)(b)’. So, utilising the picketing example, even if a person was not reckless but they were using a mobile phone, which is ‘a thing’ they have to organise the picket, absolute liability attaches. They have not been reckless in the use of the mobile phone; they were organising the picket. So, on its own, the possession of the mobile phone would create an offence, let alone the earlier picketing falling within the terrorist act. Would you agree with that?
McDevitt: I can only say that it would be a question of mens rea (intent). It is a question of intent in terms of –
Senator Ludwig: There is no intent in the legislation. It is absolute liability.
Senator Scullion: I notice page 2 of your submission says that the Australian Federal Police has relied on existing provisions of the Crimes Act 1914 and other statutes as the basis for assisting the FBI with their inquiries. Have you found any shortfalls in your capacity, under the Crimes Act, to assist the FBI with regard to the issues surrounding September 11?
Davis: The shortfalls are simply planning, training and conspiracy.
ATTORNEY GENERAL’S DEPARTMENT
Keith Holland, Assistant Secretary, Security Law and Justice Branch, Attorney-General’s Department: (Re the evidence to date.) The first theme that has been very pronounced is the argument that there is no threat, therefore we need do nothing.
On the morning of September 11, 3,200-odd people, 497 of them from 91 different countries and three of them from Australia, woke up with absolutely no reason whatsoever to believe that in a few hours they would be dead. There was no identifiable threat that they were aware of, nor their government nor their government’s agencies. But they were dead because a group of people chose to think the unthinkable and turn the unthinkable into the unbelievable. The international community and the Australian government responded to that.
We have had reference in the course of these hearings to resolution 1373. The purpose of that resolution was to try and deal with the events of September 11, not for the sole purpose of punishment. This was a point that the Director-General of ASIO made this morning. There were a number of facets to what the international community decided to do…
It should also be remembered that those who perpetrated the acts of September 11 lived for varying degrees of time, some quite long, in the United States in a middle-class lifestyle, flying to and from different locations. And that cost a lot of money. Somebody had to be paying them to do that.
The premise, therefore, is that this legislation is about treating terrorism. It is why it is called terrorism. It is not about crime, it is not about organised crime; it is about organised terrorism and the individuals who commit it with the assistance and the finance of those organisations.
There are two messages that the legislation is meant to send: first, that we will do everything we can in conjunction with the international community – and this legislation cannot be looked at other than in the context of the role that the international community is playing and 1373 – to try to stop you doing what you are doing and, second, that at the end of the day, if we are unsuccessful, we will also do everything we possibly can to see to it that you are punished in order that another message is sent as well.
Senator Ludwig: In assessing the Crimes Act, what material did you go to? Did you do a framework analysis to determine what offences you were short of? You mentioned your framework, I suspect, but was there material that you relied on or could you produce the documents so that we can have a look?
Karl Alderson, Principal Legal Officer, Criminal Law Branch, Attorney-General’s Department: It was not based on a specific written document; it was based on our understanding of relevant Commonwealth offences and in many cases state offences and the coverage that those provide.
Senator Ludwig: Did you talk to the states about developing the current legislation?
Alderson: The main context in which there has been discussion between the states and territories on this issue is in the context of the special leaders summit that the Prime Minister chaired a few weeks ago and the officer level negotiations leading up to that.
Senator Ludwig: Yes, but I am talking about the legislation. In terms of identifying what legislation you required to address terrorism per se and the current legislation that you have, did you consult with the States about what gaps they considered they might have in the legislation?
Alderson: In the framing of the legislation there were no formal consultations with the States.
Senator Scullion: Yesterday, I was talking about the image of a car that has been blown into pieces and body parts – whether it is in a suburb of Perth or elsewhere. It might be an alleged consequence of people particularly interested in motorbikes or an alleged consequence of people who are trying to take some political action. How are you going to differentiate between those two very similar events? The reason I ask the question is that the penalty for one is murder and the other is more a strict liability penalty. I would suggest that the principal difference would be whether or not you were advancing a political, religious or ideological cause.
Holland: It would seem to me that if the police were confronted with a crime and had to decide whether it was a terrorist offence or an ordinary criminal law offence – for want of a better phrase – one of the factors that might influence them would be which of those offences would be easier to prove.