Liberalism fights back on terror laws

The Senate’s Legal and Constitutional Affairs Committee today released its report into the anti-terrorism package I’ve been banging on about in Webdiary (Coming soon: too many terrorists, Come in, Big Brother) And it’s a sensation! There’s hope!

Committee chair, Liberal moderate Marise Payne, and two Coalition Senators who cannot be described as moderates – Nigel Scullion (Northern Territory Country Liberal Party) and Queenslander Brett Mason – have joined Labor Senators Jim McKeirnan and Barney Cooney and Democrat Brian Greig to trash the Government’s package.

In unanimous findings, the Committee recommended comprehensive changes to protect our liberties and the dumping of the section giving the Attorney-General the power to ban at will virtually any organisation involved in political activism.

The significance of this report cannot be overstated. Three Coalition Senators have stripped Attorney-General Daryl Williams and the Cabinet which backed his package of any pretence that they are worthy judges of the delicate balance required to protect our democracy and our freedoms.

The word is the Committee feared a leak of its report because the Government would send the heavies in and force the gutting of the report. It will probably get its revenge by dumping Payne as chairperson of the Legal and Constitutional Affairs Committee when her term expires in June. That’s what the party does to Liberals who believe in Liberalism these days.

Most importantly, the report gives a timid Labor party desperate to avoid a Howard onslaught of ”You’re terrorist lovers” if it tries to fix the bill in the Senate a powerful tool to do it anyway.

All in all, this report is a wonderful battle victory in the long war ahead on the terrorism package. (Another Committee reports on the ASIO bill next month.)

Apart from the triumph of Liberalism in the report – however short term – the report proves once again that the Senate is vital to protecting Australia’s democracy and ensuring good, considered law is passed by the Federal Parliament. Paul Keating called Senators ”swill” and John Howard wants to gut its powers, but it is only through the Senate and its committees that Australians have a chance to discuss proposed laws, and where there is some possibility of arguments being assessed on the merits.

More than 400 individuals and groups made submissions to the committee in an almost impossible timeframe. That’s hundreds of hours of largely unpaid work on research, thinking and writing, and that effort too is proof that our democracy still has vitality.

I’ve been going through many of your emails on the terrorism package, and hope to put some up tomorrow. For those of you who are interested, I’ve published below the key chapter of the Committee’s report. For the full report, go to Report

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CHAPTER THREE

3.1 This chapter considers the Security Legislation Amendment (Terrorism) Bill 2002 [No. 2] (the Security Bill) and discusses the following key issues:

* whether there is a need for the legislation;

* other major concerns about the enactment of the legislation;

* the proposed treason offence;

* the definition of terrorism; and

* the proposed proscription power.

3.2 Unless otherwise indicated, the references to proposed sections are to proposed sections of the Criminal Code.

The need for the legislation

3.3 Many submissions opposed the Security Bill in particular on the basis that the need for such legislation in Australia had not been demonstrated and that existing criminal offences such as murder, grievous bodily harm, criminal damage, arson, conspiracy and attempt were adequate to address terrorist acts.

3.4 The Honourable Justice John Dowd, President of the Australian Section, International Commission of Jurists, noted Australia’s obligations to comply with resolutions of the United Nations, including Resolution 1373, and stated that the International Commission of Jurists did not oppose the legislation as such. However, ‘the infelicity of expression and the width’ of the Bill was of serious concern.

3.5 The Law Council of Australia pointed out: ”It is by no means clear that Australia’s international obligations require the creation of separate terrorism offences. Security Council resolution 1373 requires that Australia ensure that ‘terrorist acts are established as serious criminal offences in domestic laws and that the punishment duly reflects the seriousness of such terrorist acts’.”

3.6 The Law Council of Australia argued that the Government needed to justify the creation of new statutory offences and powers ‘and to demonstrate that these strike the right balance between the needs of security and the rights and liberties of the individual’. The Council referred to the range of legislative and administrative measures already in place in the event of a mainland terrorist incident in Australia, noting:

”In its first report to the UN Counter-Terrorism Committee on implementation of Security Council resolution 1373, Australia stated that it had ‘a highly coordinated domestic counter-terrorism response strategy incorporating law enforcement, security and defence agencies’. The report stated that Australia ‘already had in place extensive measures to prevent in Australia for financing of, preparation and basing from Australia of terrorist attacks on other countries’, and that it had ‘an extensive network of law enforcement liaison officers and bilateral treaties on extradition and mutual legal assistance to facilitate cooperation with other countries in the prevention, investigation and prosecution of terrorist acts’.”

”Existing Commonwealth and State and Territory legislation covers offences of murder, conspiracy, aiding and abetting, kidnapping, conduct likely to involve serious risk of life, personal injury, damage to property, all involving heavy penalties, as well as dealing with proscribed organisations, intelligence, investigation and enforcement. At the Commonwealth level alone, legislation includes:

* Laws dealing with investigation and enforcement: Australian Federal Police Act 1979; National Crime Authority Act 1984; Telecommunications Act 1977; Australian Security Intelligence Organisation Act 1979; Measures to Combat Serious and Organised Crime Act 2001;

* laws dealing with criminal procedure and international cooperation: Extradition Act 1988; Mutual Assistance in Criminal Matters Act 1987; International Transfer of Prisoners Act 1977;

laws creating specific offences: Crimes Act 1914 (including treason, treachery, sabotage, sedition, unlawful drilling, espionage, official secrets, being in a prohibited place, harbouring spies, taking unlawful soundings, computer related acts, postal and telecommunications offences); Air Navigation Act 1921; Public Order (Protection of Persons and Property) Act 1971; Crimes (Biological Weapons) Act 1976; Crimes (Foreign Incursions and Recruitment) Act 1978; Nuclear Non-Proliferation (Safeguards) Act 1984; Crimes (Hostages) Act 1989; Crimes (Aviation) Act 1991; Crimes (Ships and Fixed Platforms Act) Act 1992; Chemical Weapons (Prohibition) Act 1994; Weapons of Mass Destruction (prevention of Proliferation) Act 1994;

* laws dealing with the proscribing of organisation: Crimes Act 1914 (Part 11A concerning unlawful associations); Charter of the United Nations Act 1945;

* laws regulating the entry and deportation of aliens: Migration Act 1958;

* laws concerning intelligence services agencies: Intelligence Services Act 2001; Australian Security Intelligence Organisation Act 1979; and

* laws concerning suspect transactions (Proceeds of Crime Act 1987; Financial Transaction Reports Act 1988; Charter of the United Nations Act 1945).

3.7 Ms Sandra Cornish, National Executive Officer of the Australian Catholic Social Justice Council noted: ”While the government must ensure that Australia’s national security arrangements are adequate especially in the light of last year’s terrible terror attacks, it is essential that all such arrangements respect and protect human rights. It is the experience of the church that national security legislation in many countries in our region is often misused as a tool of oppression. While we do not believe this to be the intention of the Australian government’s counter-terrorism legislative package, we do want to be sure that Australian national security legislation will not be open to such abuse … To fight terrorism effectively, we must ensure that our methods respect and protect human rights and do not fall into the logic of ends justifying means, as this is the logic of terrorism itself.”

3.8 Justice Elizabeth Evatt argued that if the legislation were enacted, it should be brought into force only if the need were established and then only for a limited time, with a sunset clause applying. The Human Rights Council similarly argued that if the Bill were enacted it should be ‘subject to renewal on a regular basis’, perhaps annually following a review by a parliamentary committee.

3.9 In querying the need for new legislation, various submissions noted that the Hope Review of Australia’s protective security powers and arrangements in the late 1970s did not call for any more offences to address the threat of terrorism. They also pointed to the Attorney-General’s statements that there is no known specific threat of terrorism in Australia and that Australia had ‘well practiced and coordinated national security arrangements’.

3.10 Dr Jenny Hocking, Head of the National Key Centre for Australian Studies at Monash University, told the Committee: ”I think the Attorney-General is correct in his comment that we do not have a high level of threat and there is no known specific threat at this stage – and historically we have not had a high level of terrorist threat either. We need to ask why that is the case. Justice Hope addressed that briefly in the early eighties, when he said that it is possible that in part a functioning democracy that protects the rule of law is one of the best protections against the use of political violence.”

”A marginalised political society is more likely to give rise to political violence than is a society in which all elements of society feel that they can have an avenue, through the political and parliamentary process, for some voice. What worries me about this particular package of bills is that it starts to chip away at that through the avenue that it allows for the criminalisation of support for political positions that are being proscribed and so on. So I think one of our great protections is in fact, as Justice Kirby said, to maintain our constitutionalism and adhere to the great principles of the rule of law.”

3.11 Social commentator and activist Ms Eva Cox expressed similar views:

”[I]f you deny people the capacity to sometimes be unlawful in minor ways, as a form of protest, this is exactly the sort of situation that leads people to take up terrorism … he provision of good civil interactions, the ability to demonstrate, and accountability and transparency in decision making are keys to people accepting the rule of law.”

3.12 The Committee was keen to explore with government agencies why such legislation was necessary. The Australian Security Intelligence Organisation (ASIO) advised the Committee that the events of September 11 ‘represented a profound shift in international terrorism’ and that: ”Threat levels to Australian interests at home and abroad have risen. While there is no known specific terrorist threat to Australia at present, the heightened threat levels can be expected to remain for some years at least. Threat levels to United States and United Kingdom (and a number of other countries) interests in Australia have also risen and can be expected to remain for some years at least.”

3.13 ASIO pointed to several factors which it considered had raised the level of threat against Australia, including ‘the specific mention of Australia by Osama Bin Laden on two occasions since 11 September, including his description of Australian troops in East Timor as a “crusader force”.’ ASIO also noted that some international militant groups which view terrorism as legitimate have ‘a small number of supporters in Australia’ and that ‘a small number of Australians have trained in UBL terrorist camps in Afghanistan’.

ASIO advised: ”None of this is to suggest that there is any reason for assessing that Australia is a prime terrorist target. Clearly, the interests of a number of other countries are at considerably greater risk, such as the United States. At the same time, 11 September does mark a profound shift, with real implications for Australian interests themselves and in respect of our responsibilities for foreign interests in Australia.”

3.14 During public hearings the Director-General of Security Mr Dennis Richardson explained why he considered the proposed legislation necessary and why existing laws were inadequate: ”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.”

3.15 The Director-General stated that current criminal laws did not provide an effective legislative framework for prevention, citing as an example 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.”

3.16 The Director-General noted that in recent years the movement of people, money and goods across international borders had grown enormously, particularly with the growth of the Internet, and that those changes had ‘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.”

3.17 The Australian Federal Police also supported the Bills on the basis that they would address ‘identified inadequacies’ in existing legislation, particularly in relation to the financing of terrorism: ”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.”

3.18 In response to questions on notice from the Committee and to issues raised in the public hearings, the Attorney-General’s Department gave several reasons why the existing legislative framework was inadequate: ”The counter-terrorism legislative ‘package’ clearly expresses Australia’s commitment to act to prevent terrorism and prosecute those who participate, and has the advantage of dealing with terrorism comprehensively rather than relying on a myriad of other laws which may apply.

”Specific laws are needed to address legislative gaps, particularly in relation to providing or receiving training, directing an organisation that fosters preparation for a terrorist act and possessing things connected with a terrorist act.

”The laws concerning conspiracy, attempt, incitement and aiding and abetting are problematic, in that many ancillary offences can only be proven if they attach to a specific primary offence. The nature of terrorism is such that many persons involved in terrorist activity may not know the specific details of the act or offence that will be committed.

”Existing provisions relating to the proscription of unlawful associations under Part IIA of the Crimes Act 1914 are primarily directed at politically-motivated organisations rather than those inspired by religious or ideological motivations. In addition, the penalties for those offences (maximum two years’ imprisonment) are clearly inadequate.

”The primary reason for developing terrorist offences is prevention, whereas existing laws generally relate to acts that have already been completed.”

Other concerns about the enactment of the legislation

3.19 Three other major concerns relating to legal and social issues were reflected in submissions and during public hearings, and are discussed below:

* whether the Bill would be held to be constitutionally valid;

* whether the Bill might breach provisions of international law; and

* concerns about possible adverse effects on Muslim, Arab and other ethnic communities.

Constitutional issues

3.20 Proposed section 100.2 sets out the constitutional basis for the terrorism offences in the Bill. Without limiting the grounds, the provision specifies fifteen sets of circumstances in which an action or threat of action would give rise to an offence. They include where the action: affects the interests of the Commonwealth or a Commonwealth authority; affects foreign or interstate trade or commerce; involves the use of a postal service or electronic communication; or takes place outside Australia.

3.21 A submission from Professor George Williams and Mr Iain Gentle noted that the primary heads of constitutional power which could support anti-terrorist legislation were the powers over defence, external affairs and the implied ‘nationhood’ power. They stated that in their view there were ‘significant questions’ as to whether those powers could support the Bill ‘in a time of relative peace’ because of the need for the laws to be reasonably appropriate and adapted to that purpose:

”Members of the High Court have made it clear that a law may fail this test if, for example, it unduly infringes upon basic rights, such as freedom of speech (see Davis v Commonwealth (1988) 166 CLR 79), or contains retrospective criminal sanctions (see Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501).

”Certain provisions in the [Security] Bill may exceed what the High Court would consider to be appropriate and adapted to the purpose of combating terrorist activity. For example, it is arguable, but unlikely, that the Court would consider that life imprisonment for an offence prosecuted under absolute liability is disproportionate to the threat facing Australia. A more likely basis of attack would be upon the proscription power in [proposed] section 102.2

3.22 The particular concerns about the validity of the proposed proscription power are discussed in more detail at paragraphs 3.101-3.158 below.

3.23 The Committee notes that at a recent COAG meeting on 5 April 2002, State and Territory governments agreed to refer further powers to the Commonwealth in the future to ‘plug any gaps’.

Possible breach of international law

3.24 Several submissions expressed concern that the Security Bill could breach international human rights standards, particularly the International Covenant on Civil and Political Rights (ICCPR).

3.25 For example, in its submission, the Law Council of Australia noted its concern about ambiguous and imprecise language in the definitions of ‘terrorist act’ and related offences, which do not include any requirement of intention to terrorise the government or the public through intimidation, coercion or the evocation of extreme fear, and which include action involving serious damage to property.

3.26 The Council also considered there was no justification for the creation of absolute liability in respect of crimes involving serious criminality and penalties involving life imprisonment. Non-compliance with important international human rights standards, such as the right to personal liberty, freedom from arbitrary arrest or detention, the right to a fair trial, the protection against arbitrary interference with privacy, freedom of expression, the right of peaceful assembly, and freedom of association was manifest.

The Council noted: ”Some may argue that little harm is done by the creation of such offences, as ultimately the prosecutorial authorities are unlikely to lay charges of terrorism in relation to other than the most serious of acts and against other than the most dangerous and threatening of organisations. The Law Council does not accept such arguments and is vigorously opposed to the conferral on the prosecutorial authorities of such sweeping and arbitrary powers in the characterisation of offences and laying of charges.

”Such conferral of power is contrary to the prohibition of arbitrary arrest and detention in article 9(a) of the ICCPR “arbitrariness” must be interpreted broadly to include elements of inappropriateness, injustice and lack of predictability. This means that deprivation of liberty provided for by law must not be manifestly unproportional, unjust or unpredictable.

”The Law Council considers that an unacceptable element of arbitrariness and unpredictability arises in that determining whether or not a person is charged with a terrorist offence, with another offence or with any offence at all (a determination which has profound implications in terms of the onus of proof, available defences, stigma of conviction and heaviness of penalties), is left to the prosecutorial authorities without any transparency or public scrutiny.”

3.27 While the ICCPR allows for derogation from the prohibition against arbitrary arrest and detention in article 9 in time of ‘public emergency which threatens the life of the nation’, the Human Rights Council of Australia noted that there was no evidence of such an emergency.

3.28 It was also argued that the Security Bill could infringe other fundamental rights recognised by the ICCPR, including the rights to freedom of association, freedom of expression and the right to be presumed innocent until proven guilty. The Law Council of Australia also noted that the United Nations High Commissioner for Human Rights in a document to guide States reporting their compliance with Resolution 1373 stressed the importance of observing international human rights principles.

Adverse effects on particular groups

3.29 During public hearings Mr Bilal Cleland, Secretary of the Islamic Council of Victoria, raised concerns about the potential adverse effects the passage of such legislation might have on Muslim communities in Australia: ”We are concerned that the definition of terrorism will take on a religious, bigoted tone, and it could mean that the Muslim community here will become unjustified targets of interference and hostility from the state authorities.”

3.30 Similar concerns about the possible impact on Muslim and Arabic communities were expressed by the Supreme Islamic Council of NSW Inc, Liberty Victoria, Fitzroy Legal Service, the Federation of Community Legal Centres (Vic) Inc , the Australian Arabic Council and the Ethnic Communities’ Council of Victoria.

The Victorian Council of Social Service stated that after September 11: ”Arab and Muslim communities in Australia, and women in particular, were, and continue to be, the targets of high levels of racial and religious vilification and discrimination.”

3.31 Mr Victor Borg, representing the Ethnic Communities’ Council of Victoria, told the Committee that the incidents of September 11 had a ‘tremendous impact’ on the community, particularly in Sydney and Melbourne. Mr Laurence Aboukhater, the Deputy Chair of the Council, elaborated on this impact: ”This is an important point. It is affecting the diversity of Australia, it is affecting multiculturalism and is affecting our community. The first failing of this Bill is that it is attacking a portion of the community.”

3.32 The Director-General of Security, Mr Dennis Richardson, told the Committee that he understood the concerns that had been expressed, and noted that it was important to ensure that organisations such as ASIO had good relationships with communities and community leaders. If there was a legitimate concern about particular individuals, it would be clear that those individuals were targeted, rather than particular communities.

Committee conclusion

3.33 The Committee notes the concerns expressed by many organisations and individuals about whether the legislative package, particularly the Security Bill, is necessary. The Committee also notes serious reservations about the breadth of the proposed legislation in relation to constitutional issues, potential breaches of international law and possible adverse effects on particular groups within the Australian community.

3.34 While acknowledging that existing criminal laws would cover the results of many terrorist acts, the Committee also notes that Australia has signed various international treaties that seek to address terrorism, including the Convention for the Suppression of Financing of Terrorism and the Convention for the Suppression of Terrorist Bombings that are the subject of two of the Bills under consideration. United Nations Security Council Resolution 1373 adopted on 28 September 2001 indicates a worldwide determination to develop measures to address terrorism and demonstrate a commitment to prevent acts of terrorism and punish those who commit them. The Committee has also heard evidence of certain gaps in Australia’s current legislative framework. Consequently the Committee considers that new legislation to achieve a comprehensive approach to dealing with terrorism is justified.

3.35 The Committee considers that there is no intention that the Bill should have any adverse impact on particular communities, but notes the concerns that have been expressed during the inquiry. The Committee is also mindful of the serious concerns expressed about the width of various provisions of the Security Bill in particular, and for that reason considers that certain amendments must be made. Particular concerns and the Committee’s recommendations in response to them are discussed in more detail in the rest of this chapter.

The treason offence

3.36 Proposed section 80.1 contains a new treason offence which is designed to replace the existing treason offence (contained in section 24 of the Crimes Act 1914). The Bill modernises the wording of the treason offence and provides a new ground for the offence, namely, engaging in conduct that is intended to assist and does assist, by any means whatever, another country or an organisation engaged in armed hostilities against the Australian Defence Force (ADF) (paragraph 80.1(1)(f)).

Criticism of the provisions

3.37 The definition of treason was the focus of a number of submissions. The Association of Criminal Defence Lawyers argued that proposed paragraph 80.1(1)(f) broadens the definition of treason in an unacceptable manner. The Association argued that this definition would include non-military assistance and humanitarian aid such as medical assistance, sustenance and disaster relief.

3.38 The Human Rights Council supported this view, adding that the lack of a definition of the word ‘assists’ exposes humanitarian organisations such as the International Committee of the Red Cross and Medicins sans Frontieres and their members to criminal liability. The Law Council of Australia pointed out that the potential for the criminalisation of humanitarian aid was made particularly acute ‘given the increased deployment of the ADF in peace keeping, border protection, disaster relief and other forms of non-military action’. NOWAR (Adelaide) expressed concern that the definition could also encompass those people in Australia demonstrating in support of a country or organisation against whom the ADF was engaged in conflict.

3.39 Concerns were also expressed about the definition of ‘enemy’ and the meaning of ‘armed hostilities’ in proposed paragraphs 80.1(1)(e) and (f). During the public hearings, Ms Dimity Fifer of the Victoria Council of Social Service (VCOSS) noted that the Explanatory Memorandum states that an ‘enemy’ may be a country or an organisation, and raised the question of who exactly was the enemy in the current conflict in Afghanistan – the people, or the suspected terrorist organisation. VCOSS called for ‘enemy’ to be defined.

3.40 The Hon Justice Dowd on behalf of the International Commission of Jurists suggested that paragraph (f) could have the effect of rendering guilty of treason any person involved in the Afghanistan civil war who fought against an Australian soldier. The NSW Council for Civil Liberties argued that it would have been ‘a simple matter’ for the government to proclaim the Taliban or Al-Qaeda to be an enemy under existing law, so as to make it clear that activity with them would be treason. By contrast, the Council said that the new provision in paragraph (f):

”Now makes it such that you could be convicted of treason for fighting the Australian Defence Forces whether you are aware that they are involved in the activities or not. Particularly in covert sorts of operations, you could find yourself fighting the ADF without knowing about it and in those circumstances be guilty of treason.”

3.41 In response to the concerns about the ambit of proposed subparagraph 80.1(1)(f), the Attorney-General’s Department acknowledged that the offence could apply in a circumstance that had begun as a civil war, but that: ”In practice the offence would only be used when an Australian or a person connected with Australia assisted a country or organisation engaged in armed hostilities against the ADF.”

3.42 Further concerns were expressed by Justice Dowd and Liberty Victoria about proposed subsection 80.1(3), which requires the Attorney-General’s consent before proceedings for treason can be brought. They argued that this provision could politicise the prosecution process.

3.43 On another point, the NSW Council for Civil Liberties also noted that while the Second Reading Speech referred to an intention to ‘modernise’ the law of treason: ”We still have the rather odd situation that killing the Duke of Edinburgh is an act of treason but conspiring to blow up the federal Cabinet or the federal parliament is not an act of treason.”

3.44 Justice Dowd on behalf of the International Commission of Jurists also drew the Committee’s attention to proposed paragraph 80.1(2)(b), which creates an offence that used to be called ‘misprision of felony’. The provision, which effectively restates in modified form the existing provision in the Crimes Act 1914, creates an offence if a person ‘knowing that another person intends to commit treason, does not inform a constable of it within a reasonable time or use other reasonable endeavours to prevent the commission of the offence’. The maximum penalty for such an offence is imprisonment for life. Justice Dowd observed that most countries and most Australian States have ‘moved away from misprision of felony’ and that it was often difficult to know whether someone was going to commit an act of treason or whether it was mere talk or rumour.

3.45 The Committee referred these concerns to the Attorney-General’s Department, who advised that misprision is recognised both in the USA and the United Kingdom, attracting severe penalties.

Committee conclusion

3.46 The Committee considers that there are serious problems arising from definitional issues in proposed subsection 80.1(1).

3.47 The Committee notes the concerns expressed by the Victorian Council of Social Service in relation to the definition of ‘enemy’ in proposed paragraph 80.1(1)(e), but considers that, since that paragraph merely restates the existing provision and requires an enemy to be specified by proclamation to be an enemy at war with the Commonwealth, this provision does not require amendment.

3.48 Nevertheless, the Committee considers that the breadth of terms such as ‘engaged in armed hostilities’ and the potential for humanitarian aid to be included as a treasonous activity require review.

3.49 The Committee notes that the courts must have regard to legislation as drafted. Where there are definitional gaps, or definitions so broad that there is potential for inappropriate interpretation, the legislation must be amended to ensure the courts have a clear view of what the legislation is intended to achieve. In the Committee’s view, it cannot be intended that the legislation includes the possibility – however remote – of an aid worker being convicted of treason.

3.50 Accordingly, the Committee recommends that the Attorney-General review the provisions in order to clarify their meaning, as set out in the following recommendation.

3.51 In relation to the concerns expressed about possible politicisation of the prosecution process because of the need for the Attorney-General’s consent for proceedings, the Committee notes that this provision merely restates the existing law. As the Commonwealth Director of Public Prosecutions (DPP) will still need to be satisfied that prosecution would be appropriate, the Committee considers that this extra requirement will act as an additional safeguard rather than displacing the DPP’s discretion.

3.52 In relation to NSW Council for Civil Liberties’ point about the failure of the proposed ‘modernised’ offence to include any reference to Australian democratic institutions or heads of state, the Committee urges the Attorney-General to consider whether further amendments should be made in the longer term.

Recommendation 1

The Committee recommends that proposed section 80.1 in the Bill be amended so that the terms ‘conduct that assists by any means whatever’ and ‘engaged in armed hostilities’ are defined, in order to ensure that the humanitarian activities of aid agencies are not caught within the ambit of the offence of treason.

***

The definition of terrorism

3.53 There is an acknowledged difficulty in defining terrorism at international law.

3.54 As noted in Chapter 2, proposed section 100.1 of the Security Bill defines a terrorist act as action or threat of action where:

* the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

* the action:

– involves serious harm to a person;

– involves serious damage to property;

– endangers a person’s life (other than that of the person taking the action);

– creates a serious risk to the health or safety of the public or a section of the public; or

– seriously interferes with, seriously disrupts, or destroys, an electronic system, including an information, telecommunications or financial system, a system used to deliver essential government services, or a system used by an essential public utility or transport system.

3.55 The same definition is used in the other Bills under consideration.

Intent to intimidate or coerce

3.56 A submission from Professor David Kinley from the Castan Centre for Human Rights Law at Monash University argued: ”There is no mention of an intention to cause harm to persons or property, or to instil fear in the public and government. These should be a key element of any definition of terrorism.”

3.57 Professor Kinley told the Committee that the inclusion of this element would avoid some of the potential problems identified during the inquiry as to the breadth of the activities that could be caught: ”The notion of intention would provide an extra safeguard for those who would otherwise fall under the current scope [of terrorism] when their intention was never anything to do with terrorism but rather some sort of other consequential damage or criminal act.”

3.58 The submission listed examples of definitions of terrorism used elsewhere:

* ‘intended or calculated to provoke a state of terror’ (UN General Assembly);

* ‘calculated use of violence or the threat of violence to inculcate fear’ (USA);

* ‘intended to intimidate or coerce’ (USA); and

* ‘calculated to evoke extreme fear’ (a 1993 Australian counter-terrorist review).

3.59 The same point was made by other submissions. Some noted that the omission in the Bill of such an element differed from the definition outlined by the Attorney-General when he announced Cabinet’s agreement to the development of new terrorist offences in 2001.

3.60 The Committee notes that legislation in the United Kingdom , the USA and Canada and the proposed NZ legislation also include the element of intention to intimidate the population and/or coerce the government.

3.61 When questioned by the Committee about why the Security Bill does not include such an element, a representative from the Attorney-General’s Department explained: ”The argument for not including that extra limb in the definition is that, if a terrorist’s objective is pure destruction and their intent or agenda is merely to impair the functioning of the nation, to destroy its buildings, to kill people, but they have no broader purpose beyond that in terms of how people will react to that, as to whether people will be intimidated or as to whether government policy will be influenced, that can still be seen as terrorism. So that is the additional category of cases that is caught.”

3.62 The Department argued that inclusion of such an element ‘would potentially exclude an important category of cases where the objective is just pure destruction’. The Committee notes the Department’s explanation but is concerned about the width of the definition, as discussed further at paragraphs 3.75-3.78.

Specific concerns about the definition of terrorist action

3.63 Particular concerns about the width of the definition of the action required in proposed section 100.1 for a terrorist act to be committed included:

1. The width of ‘serious’ harm or ‘serious’ property damage.

The meaning of this term is potentially very broad. Witnesses argued that serious damage to property could include putting something on the wall of a building, damage by protesters to the walls or fences of embassies, immigration and other detention centres, or damage to logging trucks, chicken sheds or fishing nets. It was also argued that ‘harm’ should be restricted to physical harm, and that damage to property should be restricted to ‘destruction of property that threatens life or serious injury’. The Attorney-General’s Department when asked to respond on this matter commented only that ”A court would interpret “serious” in the context of this provision as meaning damage on a very substantial scale. It is very common for offences to include the word “serious” and for the court to interpret the term in the context of the relevant legislation.”

2. The use of the word ‘involving’, rather than causing, such serious harm or damage.

Victorian law lecturer Mr Joo-Cheong Tham argued that this phrase ‘significantly loosens the nexus’ between the person carrying out the act and the harm or damage that is caused, so that it is ‘seriously arguable’ that the definition would be satisfied where a person’s act results in a third party inflicting the harm or damage.

3. The width of ‘creating a serious risk to the health or safety of the public’, which could arguably include industrial action by police officers, nurses or other emergency services personnel resulting in reduced essential services.

4. The width of ‘serious interference’ or ‘serious disruption’ of electronic communications systems. It was argued that this could include flooding a system with emails as part of a protest; air traffic controllers taking industrial action; or the destruction of traffic lights.

The proposed exemptions

3.64 The definition of ‘terrorist act’ in proposed section 100.1 specifies that it does not include ”lawful advocacy, protest or dissent’; or ‘industrial action’.

3.65 These exemptions also attracted much criticism during the inquiry. Many submissions noted that unlawful acts, such as property damage, obstructing police, unlawful assembly and offensive behaviour, frequently occurred in the course of protests or industrial action. There was concern that what is intended to be industrial action could be labelled as political, and when any violence is involved it may mean that it ceases to be an industrial action.

3.66 Particular examples given in submissions and during public hearings included protests outside Parliament House resulting in damage to the building, or the recent protest at the detention centre in Woomera. For example, the Monash Student Association and Law Student Society noted that the unplanned dismantling of perimeter fencing by activists at Woomera could be construed as a ‘terrorist act’, since it could be described as serious damage to property and was done with the intention of advancing a political and ideological cause. Moreover, those who had acted in any organisational capacity, who had circulated information about the planned protest or who had been found in possession of items such as screwdrivers or bolt cutters, even though they had not used them, would potentially face penalties of life imprisonment.

When questioned by the Committee, the Attorney-General’s Department noted that while such acts might satisfy the definition of ‘serious’ damage to property, all the circumstances of the offence, including the specific purpose of the legislation in combating terrorism, would need to be considered.

3.67 Questions were also asked about whether acts of civil disobedience would be caught, and whether the word ‘lawful’ was confined to advocacy or extended to ‘protest and dissent’.

3.68 The Director-General of Security noted that the phrase ‘lawful advocacy, protest or dissent’ was a phrase used in the legislation governing ASIO’s functions and that it was ‘designed to limit, not expand’ the ambit of that legislation. In response to a question from the Committee, the Attorney-General’s Department noted that the Office of Parliamentary Counsel had confirmed that the word ‘lawful’ was intended to qualify each of the words ‘advocacy, protest and dissent’, rather than being confined to ‘advocacy’.

3.69 Both the Attorney-General’s Department and the AFP submitted that police and prosecuting authorities would not proceed against people with terrorism offences in such cases. AFP representatives referred to various safeguards in the process for charging and prosecuting offenders:

”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.”

3.70 The Attorney-General’s Department also argued that: ”Read literally and out of context, many statutes could be construed so as to create unintended consequences with the result that virtually all Australians would commit an offence every day … [A] court would read the counter-terrorism provisions as a whole in the context that they are provisions directed at terrorism, not minor instances of civil disorder.”

3.71 However, Justice Dowd on behalf of the International Commission of Jurists noted that the very existence of such offences created the potential for abuse:

”Once you give this power, you give the power to investigating policemen or policewomen to say, ‘I can charge you with this’. It makes it very easy when you have alternative Commonwealth and State offences to say, ‘We could charge you under the Terrorism Act,’ and it becomes much easier for you to plead guilty to a street offence or a minor property offence under a state law because you have that sanction. Do not lightly give law enforcement agencies powers because, although we have a very good record in Australia with law enforcement agencies, available powers can be abused.

3.72 Another key concern was the meaning of ‘industrial action’. Submissions noted that the term was not defined in the Bill and argued that the definition in the Workplace Relations Act 1996 would be considered highly influential in a court’s interpretation of the term. Mr Joo-Cheong Tham argued that as the Federal Court had found that ‘industrial action’ in the Workplace Relations Act 1996 excluded picketing, picketing might be excluded from the exemption in the Security Bill. The ACTU and Liberty Victoria expressed similar concerns.

3.73 However, representatives of the Attorney-General’s Department noted that the definition of industrial action in the Workplace Relations Act 1996 was limited in order to protect the rights of those involved in picketing, because a court could make an order prohibiting industrial action in certain circumstances. In the current Bill, the context was different, ‘and clearly industrial action is meant to have a more expansive meaning that would encompass actions like picketing’.

3.74 During the public hearing, AFP representatives also emphasised that police would not use the new provisions ‘for something that fell within the public order regime’:

”Picketing is clearly a tool of industrial action … It is to stop entry or egress from a work site or to stop access to materials coming in and out and so on. That is why people picket. When that sort of behaviour is apparent and it is causing disruption to people’s lawful movement around a city, police have access to a range of legislative powers to remove people who are picketing, to ensure that public access is available and so on. Those powers are available already to deal with that sort of activity.”

Committee conclusion

3.75 The Committee notes the significant concern expressed about the width of the definition of ‘terrorist act’ in proposed section 100.1.

3.76 The Committee considers that there is no compelling reason why Australian legislation should reach further than legislation enacted in the United Kingdom, the USA or Canada, or as proposed in New Zealand. The United Kingdom and the USA have experienced significantly higher levels of terrorist threat and, indeed, acts of terrorism than Australia has faced or is considered to be facing. While the Committee acknowledges the difficulties that have been experienced internationally in defining terrorism, all the definitions that have been drawn to the Committee’s attention during this inquiry contain some element of intent to cause extreme fear to the public and/or coerce the government. The Committee considers that this element is at the very heart of the nature of terrorism.

3.77 The Committee is also mindful of the concerns about the potential width of other elements of the definition, in particular ‘serious damage’ and ‘serious harm’, and interference with electronic systems, as well as the lack of clarity in the proposed exemptions for ‘lawful advocacy, protest or dissent’ and ‘industrial action’. The Committee considers that the inclusion of the necessary element of intimidation/coercion in the definition of ‘terrorist act’ would go a long way towards addressing the concerns it has heard that terrorist offences might otherwise be broad enough to capture those people who cause damage or commit other less serious offences as a consequence of protest, civil disobedience or industrial action.

3.78 Accordingly the Committee considers that the definition of ‘terrorist act’ should include reference to a design to influence government by undue intimidation or undue coercion, or to intimidate the public. The Committee notes that it is not clear that the term ‘government’ would necessarily include all elements of Australia’s system of government, including non-government members of Parliament, State and Territory governments and the judiciary. The Committee notes, for example, that the equivalent definition in the Canadian legislation refers to individuals, government and domestic and international organisations. The term ‘government’ should be clarified in any proposed amendments to the Bill.

Recommendation 2: The Committee recommends that the definition of ‘terrorist act’ in proposed section 100.1 in the Bill be amended to include a third element, namely that the action or threat of action is designed to influence government by undue intimidation or undue coercion, or to unduly intimidate the public or a section of the public.

***

The new terrorist offences

3.79 The new offences, all of which are punishable by imprisonment for life, are:

* engaging in a terrorist act (proposed section 101.1);

* providing or receiving training for a terrorist act (proposed section 101.2);

* directing organisations concerned with a terrorist act (proposed section 101.3);

* possessing things connected with a terrorist act (proposed section 101.4);

* collecting documents likely to facilitate a terrorist act (proposed section 101.5); and

* acts in preparation for a terrorist act (proposed section 101.6).

3.80 Apart from the offence in proposed section 101.1 (engaging in a terrorist act), there is no need for a terrorist act to have actually been committed.

Absolute liability

3.81 In addition, the offences of providing or receiving training (proposed section 101.2), possessing things (proposed section 101.4) and collecting or making documents likely to facilitate terrorist acts (proposed section 101.5) contain an element of absolute liability. That means that the prosecution need not prove that the person knew or intended that the training, thing or document was connected with a terrorist act, and the defence of honest and reasonable mistake of fact is not available. The legislation contains, however, a limited defence that applies where the person can prove that he or she was not reckless with respect to the connection with a terrorist act.

3.82 The imposition of absolute liability in respect of certain elements of the offences caused significant concern in submissions and during the public hearings, particularly in light of the high penalties and the fact that no terrorist act need be committed for the offences in proposed sections 101.2, 101.4 and 101.5. Many submissions noted that absolute and strict liability offences have traditionally been limited to relatively minor or regulatory offences, such as parking or traffic offences.

Justice Dowd on behalf of the International Commission of Jurists noted: ”We in Australia have a system of law which obliges the prosecution, in almost all offences and in all serious offences, to prove all the elements of the offence and to negative self-defence and other defences. This [Bill] obliges the person to go into evidence That is not reasonable here, no matter how much we may be concerned with terrorist acts.”

3.83 The Scrutiny of Bills (Senate) Committee also drew attention to these provisions on the grounds that they may be considered to trespass unduly on personal rights and liberties.

3.84 The Law Council of Australia noted: ”Reversed onuses are potentially very oppressive, particularly where it is difficult to grasp what an ordinary person should do in the relevant circumstances in order to exhibit sufficient care to avoid imprisonment for life.

3.85 Several organisations such as Amnesty International and the Human Rights Council argued that such provisions violate article 14(2) of the ICCPR and article 11 of the Universal Declaration on Human Rights, which provide that everyone charged with a criminal offence has a right to be presumed innocent until proved guilty.

3.86 The Association of Criminal Defence Lawyers also noted that the proposed offences in the Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002 require proof of intent to cause death or serious harm or extensive destruction to a place. Consequently two different standards of proof could apply to the same activity, depending on which Act was used.

3.87 In relation to the proposed training offence, ACTU representative Mr Robert Durbridge told the Committee that the absolute liability element and the defence of recklessness were inappropriate. He gave as an example TAFE teachers who instruct mining personnel in the use of explosives:

”How do they know that any of the people that they have trained will use that knowledge in ways other than intended? They could be completely unaware that a trainee later intended to use that knowledge at some time in the future to blow up something in Australia or somewhere else in the world. They would have to prove that they were not reckless in not knowing that the training could be used or was being undertaken with a terrorist act in mind – or later formed – to avoid conviction and imprisonment for life How do you show that you were not reckless in the provision of training? TAFE colleges do not conduct security checks on their students.”

3.88 Similarly, the New South Wales Bar Association argued that in relation to providing training at a rifle range: ”There should be a requirement of some degree of actual knowledge of circumstances indicating connection with a terrorist act before otherwise lawful and innocent training is so seriously criminalised.”

3.89 In response, the Attorney-General’s Department stated that the question of whether the person providing training was reckless would be determined with regard to the facts known at the time he or she conducted the training. The Department asserted that it would not be necessary for the person to make inquiries or obtain additional information to confirm the students’ bona fides.

3.90 The Committee heard similar arguments that the offence in proposed section 101.4 of possessing a ‘thing’ (not defined in the Bill) that was connected with preparation for or assistance in a terrorist act was unacceptably broad. Mr Joo-Cheong Tham argued that this provision would unduly impact on businesses that sold items that could be used for terrorist acts. It would effectively require businesses to determine customers’ use of the items sold if they were to avail themselves of the defence that they were not reckless.

3.91 Similar arguments were also heard in relation to proposed section 101.5 which concerns collecting or making a ‘document’ connected with preparation for or assistance in a terrorist act. Oz Netlaw, the Internet law practice of the Communications Law Centre at the University of New South Wales, argued that the offence could apply to journalists and news organisations who receive information in the course of their investigations, or to people who merely download information from a website. The submission also argued that it was the use or disclosure of the documents, rather than their collection, that should attract fault, and that the onus of proof should in any case remain with the prosecution.

3.92 In relation to this concern, the Law Council of Australia told the Committee:

”The absence of any requirement of some degree of actual knowledge of circumstances indicating connection with a terrorist act, or of an intention to assist in an act of terrorism is surely a most objectionable aspect of the proposed treatment of terrorist acts. Thus, s.101.4 would criminalise the possession of things connected with preparation for, the engagement of a person in, or assistance in a terrorist act, such as objects and documents, by persons such as scholars, researchers and journalists who have no intention of assisting in a terrorist act and whose scholarship, research of journalism may in fact be in opposition to or intended to expose terrorist acts. The defence in s.101.4(4) would not save such scholars, researchers or journalists because that defence would apply only where such persons could prove on the balance of probabilities that they were not reckless with respect to the thing’s connection with a terrorist act. Such persons would, notwithstanding the absence of any intention to assist in a terrorist act, be guilty of an offence and, potentially, liable to life imprisonment.”

3.93 However, the Attorney-General’s Department pointed to the dangers of defining terrorist activity too narrowly:

”It is difficult to conceive of the exact nature of a terrorist attack before it has been completed. The unprecedented attacks of September 11 clearly demonstrated this. It is even more difficult to create a legislative scheme that effectively addresses the problem of terrorism and terrorist networks. If legislation is worded too narrowly, activity that is clearly terrorist in nature may be immune to prosecution and, worse, still, may not be affected by the measures aimed at preventing it.”

3.94 While acknowledging that the provisions ‘depart from general practices’, the Attorney-General’s Department noted two examples of serious Commonwealth offences which contain elements of strict or absolute liability. They are the offence of murder of United Nations or associated personnel and the child sex tourism offence.

The Department concluded: ”All Government action requires a balance to be achieved between different interests. In this case, the balance is between the need to safeguard the security of all Australians, and the need to preserve individual liberty. The evil at which the proposed legislation is aimed justifies the balance that has been achieved.”

3.95 However, Justice Evatt told the Committee that the proposed offences were not sufficiently precise to satisfy fundamental criminal law principles:

”Being put in fear of prosecution will lead to many organisations and individuals not knowing whether they have committed an offence [P]art of the rule of law [in a just society] is that people should know with certainty whether their acts are likely or not likely to be criminal. I defy anybody to know, if this bill were enacted, whether certain actions would be or would not be seen by the security forces or the Attorney-General as contrary to law. It will never be known whether they are contrary to law until it has been through the courts. It is very risky stuff, this.”

Committee conclusion

3.96 The Committee considers that the significant concerns expressed in many submissions and during public hearings about the very broad nature of the proposed terrorist offences and the reversal of the onus of proof for the ‘ancillary offences’ connected with terrorist acts must be addressed.

3.97 The concerns are even more pressing given the proposed maximum penalties of life imprisonment. In Australia’s system of law, it is not the practice to create strict or absolute liability offences for other than regulatory or minor offences. Such a departure from fundamental principles of criminal law needs to be justified. While the Committee acknowledges that the nature of terrorist offences is very serious and that the safety and interests of the Australian population must be protected, the rights and liberties of individuals, including those charged with criminal offences, must also be safeguarded. The fact that the offences are very broadly defined and could potentially cover a wide range of activities and items make this even more compelling.

3.98 The Committee notes advice from the Attorney-General’s Department that the approach in the Security Bill is consistent with that in the United Kingdom Terrorism Act 2000. However, the Committee also notes that the UK legislation contains a narrower definition of ‘terrorist act’, as outlined in paragraph 3.60 above. In addition, the Committee notes that legislation in both the USA and Canada requires intention that the act causes serious harm or other serious consequences, rather than the looser connection of ‘involving’ serious harm that the Security Bill requires (discussed in paragraph 3.63 above). Thus a more onerous burden of proof would appear to be required in those jurisdictions than will apply under the current provisions.

3.99 The Committee considers that the fact that the Scrutiny of Bills Committee drew attention to the danger that these provisions could be considered to trespass unduly on personal rights and liberties emphasises the seriousness of this issue. The Committee notes also that intent to cause death or serious harm or extensive destruction to a place must be proven in the proposed offences in the Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002 (discussed further in Chapter 4). Consequently the burden of proof which the prosecution must discharge would differ markedly if a person were charged with the same offence under the two different sets of provisions.

3.100 Accordingly the Committee concludes that the Bill should be amended to remove the absolute liability elements in proposed sections 101.2(2), 101.4(2) and 101.5(2). The Committee notes that there may be concerns raised by law enforcement agencies about the difficulty of proving that a defendant who was peripherally involved in preparation for or the commission of a terrorist act intended that this should be the result. To address those concerns, the Committee considers that recklessness as to that result should suffice, but that the onus of proof should remain with the prosecution. The Bill should provide that the offences are committed if the person knew or was reckless as to the required element in 101.2(1)(b), 101.4(1)(b) and 101.5(1)

Recommendation 3

The Committee recommends that:

(i) the Bill be amended to remove proposed subsections 101.2(2), 101.4(2) and 101.5(2), which impose absolute liability in respect of certain elements of those offences; and

(ii) the offences in proposed subsections 101.2(1), 101.4(1) and 101.5(1) be amended to provide that they are committed if the person knew or was reckless as to the required element in 101.2(1)(b), 101.4(1)(b) and 101.5(1).

The Attorney-General’s proposed proscription power

3.101 The provisions of the Bill dealing with the Attorney-General’s proposed proscription powers raised the most concern in submissions and during public hearings. The overwhelming view was that the provisions as currently drafted are inappropriate and should be rejected. The Committee recognises that the proposal to proscribe organisations is a very serious one and has considered the circumstances and elements of the process in detail.

3.102 The remainder of this chapter discusses:

* the provisions;

* constitutional issues;

* the grounds for proscription;

* the delegation of power;

* revocation procedures;

* review procedures;

* alternatives to the current model; and

* the Committee’s conclusion.

The provisions

3.103 Proposed section 102.2 allows the Attorney-General to declare an organisation to be a proscribed organisation if he or she is satisfied on reasonable grounds that:

* the organisation, or a member of the organisation, has committed or is committing a terrorism offence, whether or not the organisation or member has been charged with, or convicted of, the offence;

* the declaration is reasonably appropriate to give effect to a decision of the UN Security Council that the organisation is an international terrorist organisation; or

*the organisation has endangered or is likely to endanger the security or integrity of the Commonwealth or another country.

3.104 A submission from the Law Council of Australia typified the concerns of many organisations and individuals in outlining its reasons for opposing the proposed proscription powers.

The Council called the provisions: ”A serious departure from the principle of proportionality, unnecessary in a democratic society, subject to arbitrary application, and contrary to a raft of international human rights standards including the right to personal liberty, the right to a fair trial, protection against arbitrary interference with privacy, freedom of expression, freedom of association and rights of participation. Important principles of the rule of law are infringed, including the need for effective judicial remedies when a person breaches the law, and the requirement that criminal offences for which liberty can be deprived after conviction, be clearly defined so that citizens can know permissible limits of activity.”

3.105 Mr Cameron Murphy, President of the NSW Council for Civil Liberties, argued: ”It allows the government to outlaw virtually any group – any church, any political party or any human rights activist … It destroys the fundamental principles of our democracy in order to suppress and prevent terrorism. Many people around the world who were once labelled as terrorists are now regarded as international leaders or even statesmen. People such as Gandhi and Nelson Mandela have been labelled as terrorists in the past. Hindsight shows us that these people are not terrorists but freedom fighters. Even today, Aung San Suu Kyi, Xanana Gusmao, or the Falun Gong movement – who have groups in Australia that support and assist them – could be regarded as terrorists under this legislation.”

”There is a belief that this power is safe because none of us would use it to outlaw the Catholic Church or the Australian Labor Party or some other group that might not be supporting the government of the day. But none of us can predict who will be in power or when this legislation will be used, and that is the danger of putting this sort of legislation on the statute books.”

3.106 Dr Jenny Hocking emphasised similar concerns, arguing that: ”[T]here can be no adequate safeguards [against] the dangers raised [by] the workings of such a Bill, for the danger is the Bill itself. It is subversive of the rule of law in its failure to allow for a trial in this aspect, it breaches the notion of equality before the law in its creation of groups for which the usual judicial process does not apply and it breaches absolutely the separation of powers in even allowing for such a use of Executive power.”

Constitutional issues

3.107 Professor Williams raised the ‘disturbing similarity’ between the Security Bill and the Communist Party legislation that the High Court found invalid in the 1950s.

3.108 The Communist Party Dissolution Act 1950 granted the Governor-General an unfettered and unreviewable power to declare an organisation to be unlawful or a person to be a communist, relying on the defence power. By a 6:1 margin the High Court found the Act constitutionally invalid, holding that it was beyond the Parliament’s power to suppress an organisation under its defence power on the opinion of the Governor-General in a time of relative peace.

3.109 Professor Williams argued that the Security Bill might similarly be struck down by the High Court if passed in its current form. While the Bill contains some provision for review of the Attorney-General’s decisions, he noted that, while the High Court has not yet determined a case on an implied freedom of association, it was ‘clearly arguable’ that the High Court would find such a freedom and that the proscription power might infringe that freedom. He noted that the Security Bill ”is different in some critical respects, but still there are definite constitutional issues there.”

”But, apart from those constitutional issues, you would have to say we ought to have learnt our lesson from that legislation: do not vest powers of this kind in the executive and do not vest powers of this kind where there is not adequate review. As the High Court itself reflected in that case, the dangers to our civil liberties do not just extend from at that point communism or at this point terrorism; they extend from the fact that we might unbalance our democracy by giving too much power to any arm of government. ”

The grounds for proscription

3.110 Several submissions and witnesses to the inquiry, including the NSW Council for Civil Liberties, noted with concern that it is sufficient for a member to state that he or she is acting on behalf of the organisation, for the organisation to be proscribed, and that more extreme or ‘fringe’ members would therefore pose a real danger to organisations. Others argued that as criminal acts were committed by individuals, those individuals should be punished under existing criminal laws, rather than enacting laws to allow organisations to be banned.

3.111 A particular concern was the width of the power in relation to a threat to ‘security and integrity’ of Australian or any other country. The meaning of ‘integrity’ was queried, given that the term is not defined in the Bill. For example, Professor Williams told the Committee, ”integrity’ has no fixed meaning that is clearly understood in the popular or legal community”.

”We have searched through cases to find out what ‘integrity’ might mean and we have found nothing which would suggest a clear meaning of that word. This means we have a word which is malleable in the sense that an Attorney can use it to mean what he wants it to mean, and there is nothing in the law or otherwise that might be used to suggest otherwise. It is a word that clearly on the current meaning – an unbounded, open meaning – would extend to organisations such as freedom fighters using violence and whether or not they should be proscribed, and also to organisations that might seek to challenge the territorial integrity of nations by peaceful means, organisations such as those supporting independence for Tibet or organisations perhaps supporting independence for East Timor in prior periods. This legislation, in extending to those organisations, is clearly far too broad. Australians do not regard those organisations as terrorist organisations. Those organisations ought not to be within the ambit of this power, and it is disturbing to see how broad it might go.”

3.112 The ACTU argued that if such a provision had been law in the past in Australia, membership of organisations that supported the East Timor independence movement or the anti-apartheid movement in South Africa could have been caught. Similarly, the New South Wales Bar Association stated that the power could apply to ”(p)eople banding together, raising money, publishing arguments, encouraging otherwise lawful protests, to secure the downfall of a tyranny elsewhere”.

3.113 Ms Eva Cox pointed to the difficulties international aid organisations might face, querying what would have happened if the proposed laws had been in place when Care Australia workers in the former Yugoslavia were imprisoned some years ago:

”What would have happened if the Yugoslav government had requested that the Australian government declare Care a terrorist organisation on the grounds that they had arrested some members of Care who had come to their country’s notice for what they deemed to be terrorist-type activities? It sets Australia up in a very difficult position.”

3.114 Ms Cox also argued that groups in Australia ‘which are probably perfectly innocent but noisy’, could be deemed by certain countries to be against the government and as threats to their security and integrity. She gave as an example the YWCA whose projects supported women in other countries in relation to such issues as genital mutilation. She expressed concern that such projects might be closed down because of the organisation’s fear of being seen to be opposing a particular government or undermining the security of the country in some way, thus leaving the organisation or its staff vulnerable.

3.115 During public hearings, the Attorney-General’s Department told the Committee that the phrase ‘integrity of the Commonwealth’ was used in various international conventions, and would be interpreted as meaning ‘territorial integrity’ of the Commonwealth. However, there is no reference to this in the Explanatory Memorandum. The Committee raised with the Department the concerns expressed by witnesses and in submissions about support by Australians for pro-independence or other similar movements in other countries, but was not persuaded by the Department’s response. The Committee considers that any review of the proscription provisions must ensure that such organisations would not be caught by the provisions.

3.116 Professor Williams opposed making a decision by the UN Security Council sufficient grounds for proscription: ”You are setting up quite severe penalties based not upon ascertainable or knowable criteria but upon a decision of that council that might have been made that day or the day before. It is very hard for anyone to take account of what that council might do. When you think of current conflicts in the Middle East and other issues which can change so rapidly-today’s freedom fighter can be tomorrow’s terrorist-that is quite dangerous in this context.”

3.117 Professor Williams argued that organisations should only be targeted ”because of their relationship to clear, identified criteria that target terrorist acts”.

”So, if an organisation bombs or does something else, that is why you target them; you do not do so because of some other more convoluted process. In a sense, what you have here is that you become proscribed because of a political decision made by the United Nations.”

Delegation of power

3.118 Justice Dowd on behalf of the International Commission of Jurists raised concern about the fact that the Attorney-General’s power could be delegated to any minister (proposed section 102.2(4) and 102.3(5)). He argued: ”The most junior minister in the government may in fact be the person with a power to delegate to deal with proscribed organisations … That power should be subject to review, not just disallowance by a parliamentary committee controlled by the government. It should be reviewable as a matter of law by the courts.”

3.119 Similar concerns about the delegation of the Attorney-General’s power were expressed by the Australian Catholic Social Justice Council.

Revocation

3.120 Amnesty International raised concern that the Bill does not spell out procedures for having a proscription revoked, and stated: ”The legislation should make provision for the organisation to apply directly to the Attorney-General to have their status reviewed. Further the legislation should allow the proscribed organisation to make representations as to their status during a review process – a failure to provide this may breach the principles of natural justice.”

3.121 The Committee notes that the UK legislation includes specific provisions providing for an application by a proscribed organisation or any person affected by the proscription to the Secretary of State, and establishes a Proscribed Organisations Appeal Commission to hear appeals against a refusal to deproscribe an organisation.

3.122 Amnesty International and Liberty Victoria also argued that compensation should be available where an organisation is wrongly proscribed and suffers consequent damage, on the basis that such provision is consistent with the principles of natural justice.

The new proscription offences

3.123 Many submissions expressed concern about the width of the new offences connected with the activities of proscribed organisations. Those concerns are discussed below.

The new offences

3.124 A wide range of new offences connected with the activities of proscribed organisations is created under proposed section 102.4:

– directing the activities of the organisation;

– directly or indirectly receiving funds from or making funds available to the organisation;

– being a member of the organisation;

– providing training to or training with the organisation; or

– assisting the organisation.

3.125 The offences are punishable by imprisonment for a maximum of 25 years.

3.126 Strict liability applies to the element of the offence that the organisation is a proscribed organisation (proposed subsection 102.4(2)). In other words, the prosecution need not show that the defendant knew or was reckless as to the fact that the organisation was proscribed. Instead, the defendant must prove that he or she did not know and was not reckless as to whether:

– the organisation or one of its members was committing a terrorist offence;

– the UN Security Council had decided that the organisation was a terrorist organisation and that decision was in force; or

– the organisation had endangered, or was likely to endanger, the security or integrity of Australia or any country (proposed subsection 102.4(3)).

3.127 Strict liability offences differ from absolute liability offences in that the defence of honest and reasonable mistake of fact is available for strict liability offences but is not available for absolute liability offences.

3.128 It is an additional defence to a prosecution for membership if the defendant proves that he or she took all reasonable steps to cease to be a member ‘as soon as practicable’ after the organisation was proscribed (proposed subsection 102.4(4)).

3.129 The Attorney-General explained during the Second Reading Speech that: ”Placing the onus on the defendant is justified by the need for strong measures to combat organisations of this kind, and the fact that a declaration that an organisation is a proscribed organisation will not be made lightly.”

Membership and ‘informal’ membership

3.130 A member of an organisation is defined to mean a person who is an ‘informal member’; a person who has ‘taken steps to become a member’; and a director or officer of the body corporate (proposed section 102.1). ‘Informal member’ is not further defined.

3.131 Several submissions and witnesses referred to concerns about the width of this definition, particularly in light of the strict liability that applies to the element that an organisation is proscribed. Ms Eva Coxnoted: ”You can be declared a member of an organisation where you have done no more than having been rung up and then making a donation, and your name then appears on some list somewhere, particularly these days when you seem to get onto email lists with incredible ease. Given the fact that one could easily offer donations or -as someone said earlier – you have gone to a concert in support of Palestinian refugees or to a fundraiser for some particular group, you may well find that you are suddenly part of a proscribed organisation.”

3.132 The Law Council of Australia noted that the provisions ‘would potentially render persons only remotely connected with an organisation’ liable to imprisonment for up to 25 years, and that ”the more remote a person is from a proscribed organisation and its activities, the more difficult it will be to discharge the onus of disproving recklessness”.

3.133 Dr Hocking asked on what basis it would be alleged that a person was an informal member and who would make this claim: ”The Communist Party Dissolution Act notion of affiliation included people who ‘shared policy concerns’ with that proscribed organisation, who attended meetings or who are claimed by others ‘to have been associated with’. So, clearly it seems to me, it is one of the areas where both an open-ended aspect comes into the bill and where an element of arbitrary decision making can come in through the proscription power.”

3.134 However, the Attorney-General’s Department explained that the rationale for the definition was to ensure that a person could not evade liability by a technical argument about their lack of formal membership status and to ensure the provisions could not be avoided by a terrorist group that avoids a formal membership structure.

3.135 On another point, Justice Dowd criticised as ‘absurd’ the defence in proposed subsection 102.4(4): ”All the defendant has to do is prove that he got out as soon as he knew. So if there is a bomb and the person leaves the organisation after the bombing – files his resignation the next day – he does not commit an offence, which is absurd.”

‘Assisting’ a proscribed organisation

3.136 The width of this term also attracted criticism. Mr Joo-Cheong Tham pointed out that this could include those who provide legal advice and representation to organisations that have been proscribed and seek to challenge that proscription. In response, representatives from the Attorney-General’s Department noted that because the intention was clear that a declaration of proscription could be subject to judicial review, there would be a ‘good argument’ that the provision could not have been intended to include legal advice and representation.

3.137 The Committee also asked the Attorney-General’s Department why the offence could not be limited to the more specific definition adopted in the USA legislation, namely, providing ‘material support or resources’. The Department responded that the US definition, which lists specific examples such as the provision of financial services, expert advice, safehouses, false documentation or identification, transport and personnel, ‘creates a risk that some types of support may not be covered’.

Review of the Attorney-General’s decision

3.138 The Explanatory Memorandum states that the lawfulness of the Attorney-General’s decision making process and reasoning is subject to review under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act), although there is no mention of this in the Bill.

3.139 Many submissions criticised the adequacy of such a review on several grounds.

First, such a review is not a review of the merits of the decision.

Second, review under the ADJR Act is only available on narrow grounds. Section 5 of the ADJR Act provides that a person who is aggrieved by a decision may apply for an order for review in respect of nominated grounds, including: that a breach of the rules of natural justice occurred; that procedures required by law to be observed were not observed; that the decision was not authorised by the relevant legislation; that the making of the decision was an improper exercise of power; that the decision involved an error of law or was induced or affected by fraud; or that there was no evidence to justify the making of the decision.

Third, it was queried how meaningful a review could be where the basis for the Attorney-General’s decision was national security considerations or highly political matters, as courts have traditionally been reluctant to review such matters.

3.140 During public hearings Professor Williams told the Committee: ”Where a decision is made where reasons do not need to be given, where someone can be proscribed under any one of four criteria, the onus resting upon the organisation to disprove that the decision was properly made is too high a burden. It is very hard to ever marshal evidence to show that there were not adequate national security grounds for making such a decision. It is stacked against the organisation and against the courts in such a way that there is unlikely to be adequate review.

”Even if you overcome the national security problem, even if you overcome the evidence problem, there is simply no scope under the Administrative Decisions (Judicial Review) Act for any review of the merits of the decision. There are very narrow, well-tailored grounds for review that relate to the legalities of the decision but they do not relate to the merits of the decision. So, indeed, the Attorney could make a decision that might be wrong on the merits but there will not be any review of that.

”I think what that means is that, where we have a decision where the power is vested solely in a member of the executive, without any meaningful possibility of review, we simply cannot rely upon retrospective judicial review to cure this decision making process of its obvious problems. Not only would it take a lot of time but the likelihood is that an organisation would be damned by the process by the time the courts could look at it.”

3.141 Professor Williams also argued that a ‘serious limitation’ in the scope of the proposed review was that: ”Even though it is possible to ask whether the Act itself is constitutionally valid by applying a proportionality text, no such test would be applicable in reviewing decisions actually made under the Act. In other words, it could not be argued that a decision was wrongly made because it was not ‘reasonably appropriate and adapted’ to the relevant purpose or object.”

3.142 Submissions from Professor Kinley and the Law Council of Australia supported those concerns.

Alternatives to the current model

3.143 During the inquiry, various alternatives to the proscription provisions were suggested. They were:

– determination by the courts, possibly by use of the existing unlawful association provisions in the Crimes Act 1914;

– review of the merits of the Attorney-General’s decision by the courts; or

– parliamentary involvement, either by disallowance of the Attorney-General’s declarations or by determining proscription itself.

Determination by the courts

3.144 Professor Williams suggested that a preferable approach would be determination by the courts of whether an organisation should be proscribed, because of his belief that no form of subsequent judicial review could ever be effective in this context:

”Any form of independent involvement must be at the decision making stage because, once an Attorney makes a decision on national security or other grounds, a court simply is not well equipped to review such a decision, even if you gave it the power to do so on the merits. That means that, if you want a power to proscribe organisations, ideally it would work in such a way that the decision would be made only by an independent and open tribunal-or perhaps in camera, in very limited circumstances. It would be a tribunal that might be required to exercise a decision at extremely short notice, and courts have often proved able to do that.”

3.145 The Association of Criminal Defence Lawyers also supported a full court hearing to determine proscription, giving affected parties the opportunity to be heard.

3.146 A precedent for declaration of proscription of ‘unlawful organisations’ by the courts currently exists under Part IIA of the Crimes Act 1914. Those provisions apply to bodies which advocate the overthrow of the Commonwealth Constitution or the government of any country, or the destruction of Commonwealth property, or the carrying out of a seditious intention.

3.147 The provisions specify that:

– the Attorney-General must apply to the Federal Court for an order to show cause why the organisation should not be declared to be an unlawful association;

– any officer or member of the body may appear on behalf of the body;

– if the court is not satisfied of cause to the contrary, it may declare the body to be an unlawful association; and

– any interested person may apply to the Federal Court within 14 days to have the order set aside, with such application to be heard by the Full Court.

3.148 Some witnesses queried why the existing provisions, which at least provide for judicial determination, could not be used. For example, Professor Williams told the Committee that he supported this model on the basis that there would be ‘community confidence in the process’ and issues concerning the separation of powers would be avoided.

3.149 The Attorney-General’s Department commented that as far as they were aware, there had been no prosecutions under the unlawful association provisions. The Department also noted that the maximum penalties for the relevant offences under Part IIA, ranging from six months to two years, were ‘clearly insufficient’ for acts of terrorism.

Merits of the decision reviewable by the courts

3.150 Another option suggested by Amnesty International was that proscribed organisations should be entitled to appeal against a proscription decision and to have an external review of the merits of the Attorney-General’s decision.

Parliamentary involvement

3.151 A further option that was explored at public hearings was the option of parliamentary review of Attorney-General’s decision through disallowance.

3.152 The Committee notes that the Scrutiny of Bills Committee drew attention to the exercise of the proscription powers as ‘being more of a legislative function than an administrative one’ and queried why the function should not be subject to Parliamentary scrutiny.

3.153 Justice Dowd went even further in arguing that proscription of an organisation should be a decision by Parliament: ”Let the parliament go over the whole issue and say why or why not. Let the people’s parliament decide and not, in effect, an official in the Attorney-General’s Department with the approval of the Attorney-General.

”Remember: governments are very quick to come to Australia to get their enemies in their own countries proscribed Those things will happen very quickly and are going to be very difficult with the comity between nations.”

3.154 A final alternative was to have a sunset clause on proscription of any organisation. Ms Eva Cox suggested that proscription should have an initial period of 30 days and the proscription should then be reviewed.

Committee conclusion

3.155 The Attorney-General’s proposed proscription power in the Security Bill was clearly one of the most significant issues of concern during this inquiry and aroused the most vehement opposition.

3.156 The Committee is particularly mindful of the history of proscription in Australia. Based on the submissions made to and the evidence received by the Committee, the Committee believes that the proposed provisions are not acceptable to a large proportion of the Australian community and contain significant omissions. In particular:

– the broad discretion given to a member of the Executive to proscribe organisations is inappropriate, particularly by reference to a perceived threat to the ‘integrity’ of any country and in light of the fact that this power may be delegated by the Attorney-General to any other minister;

– the decisions on proscription are effectively unreviewable, because of the limited scope of the available review under the ADJR Act and the traditional reluctance of the courts to examine issues relating to national security;

– although the Bill provides for revocation, it contains no procedures under which a proscribed organisation may apply for consideration of that option; and

– the proposed offences in relation to proscribed organisations are excessively broad, particularly in relation to the offence of ‘assisting’ such an organisation and in light of the strict liability element.

3.157 During the inquiry, while many submissions opposed the proscription powers completely, the Committee heard various suggestions as to how the provisions might be improved if some means of declaring organisations to be ‘terrorist’ were to be included in the legislation. These suggestions included allowing the courts to conduct a review of the merits of the Attorney-General’s decision; making use of the existing unlawful association provisions under the Crimes Act 1914; and giving the Parliament power to decide these matters or at the very least to disallow the Attorney-General’s declarations.

3.158 The Committee recommends that the proscription provisions in proposed Division 102 should not be enacted. The Committee urges the Attorney-General to reconsider the proposed proscription powers and to develop a procedure which:

– does not vest a broad and effectively unreviewable discretion in a member of the Executive;

restricts the ground under which an organisation may be proscribed if it has endangered or is likely to endanger the ‘security or integrity’ of the Commonwealth or any country, by defining ‘integrity’ as meaning ‘territorial integrity’;

– provides detailed procedures for revocation, including giving the right of a proscribed organisation to apply for review of that decision;

– more narrowly defines the proposed offences in relation to proscribed organisations, particularly in relation to the offence of ‘assisting’ such an organisation and the broad notion of ‘membership’; and

– does not create offences with elements of strict liability, given the very high proposed penalties.

Recommendation 4

The Committee recommends:

(i) that proposed Division 102 in the Bill in relation to the proscription of organisations with a terrorist connection not be agreed to; and

(ii) that the Attorney-General review the proscription provisions with a view to developing a statutory procedure which:

– does not vest a broad and effectively unreviewable discretion in a member of the Executive;

restricts the proposed ground under which an organisation may be proscribed if it has endangered or is likely to endanger the ‘security or integrity’ of the Commonwealth or any country, by defining ‘integrity’ as meaning ‘territorial integrity’;

– provides detailed procedures for revocation, including giving a proscribed organisation the right to apply for review of that decision;

– provides for adequate judicial review of the grounds for declarations of proscription;

– more appropriately identifies and defines the proposed offences in relation to proscribed organisations, particularly in relation to the offence of ‘assisting’ such an organisation; and

– does not create offences with elements of strict liability, given the very high proposed penalties.

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