In bed with the flu, I’ve been reading up on the multitude of anti-terrorism bills the government is trying to rush through Parliament. Unbelievable! No matter if you’re left, right or neutral, this stuff is so far reaching and so damaging to so many citizen’s rights we have taken for granted that I’m amazed it hasn’t been on page one of every newspaper in the country.
The atmosphere of urgency surrounding these bills is, the government says, because they’re “very important”. They sure are, and for that reason alone they deserve far more consideration than the quickie Senate inquiry they’re getting. After all, as Attorney General Daryl Williams – the author of the package – keeps saying, there is no present terrorism threat in Australia.
The government released it mega-package at 8pm on March 12, and wanted it debated and passed by the House of Representatives the next day – a repeat of what it tried to do to Labor with its border protection legislation, riding public sentiment hard to get impossibly draconian laws rushed through without debate. The Senate committee was given the bills on March 20, and must report by May 3. Despite the short time, Australians have lodged 350 submissions. (You can read the evidence and the political speeches at Senate
To ease the passage of his package, Williams has laid aside two controversial items for the moment – detention without arrest or access to a lawyer for up to six days by ASIO if ASIO thinks you might have information on terrorism, and harsh criminal penalties for whistleblowers who leak information in the public interest.
What’s set to pass soon are bills creating new terrorism offences, allowing the Attorney General or any minister he nominates to ban organisations, attacking the financing of terrorism, increasing the policing powers of the customs service and increasing telecommunications interception powers. most are red hot.
I’ve focused on two aspects of just one bill, the Security Legislation Amendment (Terrorism) bill – the creation of terrorism offences, and the executive power to ban organisations without notice or right to appeal on the merits, and no compensation if he gets it wrong.
I’ve scoured the evidence of Government officials from ASIO, the Attorney General’s department and the Federal Police, and noted with disbelief that there was not even an examination of whether our current criminal laws were sufficient to meet the terrorist threat before producing with the package.
The federal police said they made no submission of the adequacy or present laws, nor did they recommend changes. ASIO said there was no written analysis on possible “gaps” in current law during discussions, and that it’s only big concern was the absence of a law criminalising training with a terrorist organisation, a tiny part of the new terrorism laws. Attorney Generals admitted it had not even asked the States – which make and administer the criminal law – for their views on possible gaps. In these circumstances, it’s rational to seriously doubt the purity of the government’s motives. Is it really about changing the law to help it stamp out terrorism, or is it in part using the present climate of fear as a cover for massive extension of its powers to control citizen’s political freedoms?
The package first reverses the onus of proof at the starting line. Rather than prove to its people that there is a need for all these new laws and explain why civil liberties should be trampled in its cause, they trample first, and leave it to citizens to prove they’re not needed.
In some cases, criminal offences are created with penalties of 25 years jail or life without the prosecutor having to prove any intention to commit the act. It’s called ‘strict’ or ‘absolute’ liability, before now is unheard of in criminal matters.
Non-violent protesters, unionists involved in industrial action, shopkeepers and business will potentially be guilty of ‘terrorist acts’. Protesters at Woomera over Easter, the World Economic Forum in Melbourne before the Olympics, and the waterfront dispute would have been guilty of “terrorist acts” under this legislation, and faced life in jail. The government ‘s only answer is that the police will use their “discretion” not to prosecute under these laws in those cases. Yet the Attorney General’s department, when given the example of someone blowing up a car, said police would decide whether to charge him with terrorism or property damage depending on “which of those offences would be easier to prove”! Either way, we’re talking a police state here – that’s what the weapon of broad, uncertain, highly stigmatised offences creates. The opportunities for police bargaining, threats, blackmail, and coercion to become an informer – are unlimited.
The Attorney General would be prosecutor, judge and jury over community groups – able to peremptorily ban an organisation which, in his opinion, “has endangered, or is likely to endanger, the security or integrity of the Commonwealth or another country”. ‘Integrity’ is not defined, so you go to the dictionary. The first meaning in mine is ‘honesty’ – goodbye refugee protest groups?
Since endangering the security or integrity of another country triggers a ban, free Tibet movements, for example, could be under the gun. The free East Timor movement may very well have been banned if this legislation had been place when the government was pro-Indonesia. The ANC, banned by the apartheid South African government as a terrorist organisation, could have been banned here.
The really weird thing about the new terrorist offences is that the same act or threat will be “a terrorist act” if done to advance “a political, religious or ideological cause”, but a mere criminal act if done for any other reason. The former is easier to prove, and carries greater jail terms.
To take an extreme example, if you graffiti “John loves Julie” on a wall, you’ll go for petty property damage, but if you graffiti “John Howard sucks”, you could go for “a terrorist act”. You can imagine how this option could be abused by governments, of whatever colour, to close down dissent.
Unlike the United Kingdom and the United States – whose terrorism laws happen to be less draconian than our proposed law – there is no recourse for the citizen. The US has its bill of rights, and the UK must must comply with European human rights standards. We have no protection against wanton assaults on our rights. These bills are, in effect, a reverse bill of rights – where freedom of thought, speech and assembly can be trampled at will.
It’s the climate of fear since September 11 that’s letting the government do this to us, but it’s running the mood for all it’s worth to get itself incredible, unaccountable power which in the wrong hands could virtually destroy our democracy.
Labor is going softly softly, as usual, as the government can and will scream that it’s tough on terrorists and Labor isn’t. I just hope the public, if they ever get to know what this stuff is really all about, will remember their usually healthy distrust of big government with big brother powers.
I’ve extracted the relevant sections of the bill below. As you read it, ask yourself when you last committed a “terrorist act”. I know I did – when I last made a donation to Greenpeace. I’ve also published edited extracts from the Senate hearings.
SECURITY LEGISLATION AMENDMENT (TERRORISM) BILL 2002
A Bill for an Act to enhance the Commonwealth’s ability to combat terrorism and treason, and for related purposes
Terrorism
100.1 Definitions
(1) In this Part, terrorist act means action or threat of action where:
(a) the action falls within subsection (2); and
(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; but does not include:
(c) lawful advocacy, protest or dissent; or
(d) industrial action.
(2) Action falls within this subsection if it:
(a) involves serious harm to a person; or
(b) involves serious damage to property; or
(c) endangers a persons life, other than the life of the person taking the action; or
(d) creates a serious risk to the health or safety of the public or a section of the public; or
(e) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
(i) an information system; or
(ii) a telecommunications system; or
(iii) a financial system; or
(iv) a system used for the delivery of essential government services; or
(v) a system used for, or by, an essential public utility; or
(vi) a system used for, or by, a transport system.
(3) In this Division:
(a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and
(b) a reference to the public includes a reference to the public of a country other than Australia.
(4) The Schedule (after Division 100 of the Criminal Code) Insert: Division 101: Terrorism (Note: All offences in division 101 apply whether you’re inside Australia or overseas.)
101.1 Terrorist acts
(1) A person commits an offence if the person engages in a terrorist act.
Penalty: Imprisonment for life.
101.2 Providing or receiving training connected with terrorist acts
(1) A person commits an offence if:
(a) the person provides or receives training in the making or use of firearms, explosives or chemical, biological, radiological or nuclear weapons; and
(b) the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act.
Penalty: Imprisonment for life.
(2) Absolute liability applies to paragraph (1)(b).
(3) A person commits an offence under subsection (1) even if the terrorist act does not occur.
(4) Subsection (1) does not apply if the person proves that he or she was not reckless with respect to the circumstance in paragraph (1)(b).
101.3 Directing organisations concerned with terrorist acts
(1) A person commits an offence if the person directs the activities of an organisation that is directly or indirectly concerned with fostering preparation for, the engagement of a person in, or assistance in a terrorist act.
Penalty: Imprisonment for life.
(2) A person commits an offence under subsection (1) even if the terrorist act does not occur.
101.4 Possessing things connected with terrorist acts
(1) A person commits an offence if:
(a) the person possesses a thing; and
(b) the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act.
Penalty: Imprisonment for life.
(2) Absolute liability applies to paragraph (1)(b).
(3) A person commits an offence under subsection (1) even if the terrorist act does not occur.
(4) Subsection (1) does not apply if the person proves that he or she was not reckless with respect to the circumstance in paragraph (1)(b).
101.5 Collecting or making documents likely to facilitate terrorist acts
(1) A person commits an offence if:
(a) the person collects or makes a document; and
(b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act.
Penalty: Imprisonment for life.
(2) Absolute liability applies to paragraph (1)(b).
(3) A person commits an offence under subsection (1) even if the terrorist act does not occur.
(4) Subsection (1) does not apply if the person proves that he or she was not reckless with respect to the circumstance in paragraph (1)(b).
101.6 Other acts done in preparation for, or planning, terrorist acts
(1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.
Penalty: Imprisonment for life.
(2) A person commits an offence under subsection (1) even if the terrorist act does not occur.
Division 102: Proscribed organisations
Subdivision A: Definitions
102.1 Definitions
In this Division:
member of an organisation includes:
(a) a person who is an informal member of the organisation; and
(b) a person who has taken steps to become a member of the organisation; and
(c) in the case of an organisation that is a body corporate a director or an officer of the body corporate.
Declarations of proscribed organisations. 102.2 Attorney-General may make declarations
(1) The Attorney-General may make a declaration in writing that an organisation is a proscribed organisation if the Attorney-General is satisfied on reasonable grounds that one or more of the following paragraphs apply in relation to the organisation:
(a) if the organisation is a body corporate the organisation has committed, or is committing, an offence against this Part (whether or not the organisation has been charged with, or convicted of, the offence);
(b) a member of the organisation has committed, or is committing, an offence against this Part on behalf of the organisation (whether or not the member has been charged with, or convicted of, the offence);
(c) the declaration is reasonably appropriate to give effect to a decision of the Security Council of the United Nations that the organisation is an international terrorist organisation;
(d) the organisation has endangered, or is likely to endanger, the security or integrity of the Commonwealth or another country.
(4) The Attorney-General may delegate powers and functions under this section to a Minister.
Subdivision C: Offences in relation to proscribed organisations. 102.4 Directing activities etc. of proscribed organisations
(1) A person commits an offence if the person:
(a) directs the activities of a proscribed organisation; or
(b) directly or indirectly receives funds from, or makes funds available to, a proscribed organisation; or
(c) is a member of a proscribed organisation; or
(d) provides training to, or trains with, a proscribed organisation; or
(e) assists a proscribed organisation.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to the element of the offence against subsection (1) that the organisation is a proscribed organisation.
(3) It is a defence to a prosecution of an offence against subsection (1) if the defendant proves that the defendant neither knew, nor was reckless as to whether:
(a) the organisation, or a member of the organisation, had committed, or was committing, an offence against this Part; and
(b) there was a decision of the Security Council of the United Nations that the organisation is an international terrorist organisation and that decision was in force at the time the person engaged in the conduct constituting the offence; and
(c) the organisation had endangered, or was likely to endanger, the security or integrity of the Commonwealth or another country.
(4) It is a defence to a prosecution of an offence against paragraph (1)(c) if the defendant proves that the defendant took all reasonable steps to cease to be a member of the organisation as soon as practicable after the organisation became a proscribed organisation.
Application
The Attorney-General may make a declaration under section 102.2 of the Criminal Code after the commencement of that section in relation to: (a) acts or omissions committed before or after the commencement of that section…
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Here’s some edited extracts of what witnesses told the Committee about the bill.
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Anthony Abbott, president of the Law Council of Australia
The breadth of the proposed offences causes us extreme concern. I should say that every one of the Law Council of Australia lawyers accepts the need to respond appropriately to the terrorism threat, but we feel that this response goes much further than is necessary;
We are (also) concerned by the proposed excessive concentration of power in the executive to proscribe organisations, a power which is unprecedented in Australian law;
Finally, we are concerned by the fact that many of the proposed offences are strict liability (ie intention to commit the offence need not be proved) which is unusual in our experience. Strict liability is a concept which attaches to planning offences, building offences and regulatory offences but not to offences which carry the substantial term of imprisonment and the opprobrium of terrorist offences.
The government has in this bill gone considerably further than is necessary and catches conduct which many Australians would regard as innocent, neutral or certainly not as justifying possibly being charged with an offence which carries a term of 25 years imprisonment.
The existing criminal law is adequate to deal with most, if not all, terrorist activity which has been the topic of speculation in the public. The government has not demonstrated in the second reading speech or in the explanatory statement why these powers are necessary.
We also say that, in responding to the terrorism threat, Australia has gone beyond precedents in the United States and the United Kingdom, and we do not see the need for that.
Ordinary Australians would not accept that a demonstration which might involve damage to property could be a terrorist act punishable by 25 years imprisonment. The width of the definition of ‘terrorism act’ is concerning to the Law Council. The requirements are that the act must involve the advocacy of a political cause, and one or more of serious damage to property or person.
There is an exemption for lawful advocacy, but, in the nature of things, many demonstrations and protests involve some form of illegality such as offences of trespassing on Commonwealth property. If that is involved, all the participants in the demonstration, as we read it, could be guilty of a terrorist act.
Not only does that have serious consequences for them personally in being able to be charged, but it also leads to the organisation being able to be proscribed by the Attorney-General under other powers in the bill. It also means that, under the ASIO bill which is not before your committee, a warrant can be obtained for people to be detained and held for questioning for 48 hours plus, without legal representation. These offences have very serious consequences and we say that they go too far.
The fact that the offences are of strict liability or absolute liability means that innocent Australians do not have to know that what they are doing is assisting a terrorist organisation. The pistol academy that trains a person is, as the explanatory statement says, put on notice to inquire as to whether the person is a member of a terrorist organisation. That trainer has the onus of showing that he neither knew nor was reckless as to whether he was assisting, by his training, a terrorist organisation. We say that goes too far.
Finally, we say that the power of a politician, the Attorney-General, to proscribe an organisation is unprecedented and the law and the Australian government ought to be satisfied with the ability to prosecute illegal activity rather than proscribing organisations and membership of organisations simply for their membership of that organisation.
‘Integrity’ is a term which is undefined and, moreover, it is not just integrity of our country, it is the integrity of any other country. That means that someone who argues for the overthrow of the totalitarian regimes in Iran, Iraq or Burma would be able to be proscribed.
We also have concerns about the fact that, once proscribed, a person can be guilty of a significant offence merely by being what is called an ‘informal member’ of that organisation.
Questions
Senator Scullion (Country Liberal Party, Northern Territory): On this issue of a ‘terrorist act’. Many who have given evidence have been concerned that a simple demonstration, or a normal public affray, perhaps, could fall within this net. I had a similar concern in a practical sense. I thought of the most heinous circumstance, in terms of a public affray in the last few years, that I could recall: the invasion of Parliament House in Canberra.
There was a meeting that got out of control. Property was damaged; people broke into the place; violence was perpetrated on people looking after Parliament House. I thought, ‘If any public affray got out of line, perhaps that would be it.’ I described that in some detail, and I asked the Attorney-General’s Department if those circumstances would lead to people being prosecuted under this act and whether that would be an act of terrorism.
They took the question on notice, and I would just like to hear your response to their answer. “It is not likely that damage to Parliament House during a demonstration would be a terrorist act. The definition of “terrorist act” excludes lawful advocacy, protest or dissent and industrial action. An act that caused damage to Parliament House would only be a “terrorist act” if the act was not lawful advocacy, protest or dissent or industrial action. It would be a question of fact as to whether the act caused sufficiently serious damage to fall within the definition of “terrorist act.
“In relation to how ‘serious’ would be defined by a Court, 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.”
That was their response. What you think about that?
Abbott: The words used are ‘serious damage to property’. Property could be of any dimension, any value. Serious damage to a door means that it is destroyed, and that would on our reading fall within the purview of the section.
Clearly, what is contemplated is damage to buildings, destruction of buildings, but that is not what it says – to a door, it is serious if it is destroyed. That element would clearly be satisfied in our view, and it is just not satisfactory for citizens to be at risk of an interpretation as to serious damage to property like that and whether they are engaging in a terrorist act.
Yes, today we can accept that police and prosecutors will be reasonable in the cases that they prosecute and that they would not prosecute as a terrorist offence that type of offence. But it is just wrong for citizens to have to rely on that discretion to be exercised in their favour. They could be terrorised by the police and the prosecuting authorities holding over their heads the possibility of being charged with a very serious offence which carries undesirable connotations.
Senator McKiernan (ALP, Western Australia): You list a number of organisations that may be caught up by the provisions of the bill: the Australian Council for Overseas Aid, Community Aid Abroad, World Vision, Amnesty International. Isn’t it true to say that an organisation like Al-Qaeda would also be caught up in these provisions and, in that sense, the Australian community is demanding that the parliament and the government do something about organisations such as Al-Qaeda, and others who are listed in UN Security Council Resolution 1373?
Abbott: That is the clear case which justifies some form of government response. The Law Council’s submission would be that the government has existing powers to deal satisfactorily with a clear case like Al-Qaeda and to give a clear message to people that they ought not to assist Al-Qaeda and that if they do, they run the risk of being charged with aiding and abetting or conspiracy to commit a crime.
It may well be that a simple clarificatory provision of the Criminal Code to the effect that assisting in a terrorist act is a crime would be helpful, but there is no need, we would say, to proscribe Al-Qaeda or organisations generally. What should be concentrated on is the activity which they conduct. There is ample scope for the government with its powers now to deal with the activities of Al-Qaeda and organisations like it.
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Julian Burnside QC, representing Liberty Victoria
Our principal point is that there is simply no need for legislation of this sort. What this legislation does is to travel far beyond anything for which there is a demonstrated need, and it creates very serious threats to the democratic freedoms which, in our society, we have come to enjoy. The substantive criminal law is plainly able to deal with events such as September 11.
When you take into account the range of substantive criminal offences and the scope for ancillary liability of accessories before and after the fact, it is difficult to conceive of any aspect of the events of September 11 that would not be amenable to the existing law.
I was trying to think of circumstances which might require this legislation. Australia, fortunately, has been pretty much free in the past of anything that could be regarded as terrorism, although the Hilton bombing comes to mind. It might conceivably fall within this legislation, but it was plainly able to be dealt with by existing law.
The Eureka Stockade, although now viewed benevolently, could at the time have been regarded as a terrorist act. It would undoubtedly have been caught by this legislation. But it was also the subject of prosecutions under orthodox 19th century criminal law, all the elements of which survive.
Then, going down one layer to the difficulties with it, the difficulties arise in two ways. First is the vagueness of the definition of ‘terrorist act’ and the possible ways in which that definition might be applied. Second is the mere fact of making allowance for proscribing organisations, and I will develop that separately.
The committee no doubt is familiar with the terms of the definition, and the structure of it is acts or threats of acts of a particular identified range and those acts or threats are made with the relevant intention, namely, advancing a political, religious or ideological cause. Then there is an exclusion of lawful advocacy, protest or dissent or industrial action.
The scope of the exclusion is entirely vague. It is really difficult to know what that exclusion means, especially if you start with the proposition that the relevant criminal intention is the advancing of a political, religious or ideological cause. That will almost always involve something in the nature of advocacy and protest and certainly something in the nature of dissent, and it might or might not involve industrial action, depending on what is meant by ‘industrial action’.
To take an example, if the Workplace Relations Act is the source of the meaning of ‘industrial action’ then picketing is not included. So if a picket, which is almost invariably to advance a political or ideological cause, were to cause any of the range of harms dealt with in subsection (2) then it would be punishable with life imprisonment. Even a threat to picket would be punishable with life imprisonment. That is the startling development in Australian law.
I dare say that it is not what is intended, but the way the law is applied will depend very much upon the political climate in which it is applied. . At the moment there is one group in our society who are automatically the object of suspicion and hostility. It is grossly unfair that it should be so, but it is easy to see that legislation like this is likely to be applied harshly against that group precisely because they are politically unpopular at the moment.
If that needs any justification, let me tell you something has happened yesterday. A friend of mine lives in one of Melbourne’s pleasant, rich, leafy suburbs in a small Victorian house. He is good-hearted enough to be accommodating to people who hold temporary protection visas who have fled persecution in Iran. He was raided yesterday morning by eight officials of the immigration department carrying a search warrant.
The search warrant was granted to them because an anonymous neighbour had reported the presence of Middle Eastern people near the house. That is the political climate in which we presently exist. I hope it will pass, but in that political climate – in a climate that makes that even thinkable – the possible application of this act is quite terrifying. It will undoubtedly bear hardest on groups who are unpopular and groups who are least able to defend themselves.
Let us consider for a moment how a lawyer might go about advising in connection with proposed action a group which is proposing to picket, for example, for political purposes.
It is known that the picket will have an effect, for example, on the operation of the government department by trying to stop people from entering the government offices at the top of Lonsdale Street. Or it may have an effect on the operation of the power plant at Yallourn; power workers do go on strike. Or it might, for example, affect the docks.
It is only a couple of years ago that surprising things happened on the docks which had consequences which are comfortably within the definition in subsection (2). How would a lawyer advise that group of people about whether they could safely pursue their proposed action?
If it was a picket, they would not be saved by the exception. The purposes are clearly within the first part of the definition. They would have to say, ‘Well, is it likely that this will be understood as lawful advocacy, protest or dissent?’ How is that to be understood if the exception of industrial action does not fit? Who is to determine what is lawful advocacy, protest or dissent?
In a poisonous political climate it is very likely that that exception will be read down, and that will operate harshly on any group that is unpopular.
That is the difficulty, it seems to us. In a country where almost nothing is unthinkable these days, it is easy to imagine this legislation being applied very harshly against unpopular groups and in relation to activities which either are already unlawful and therefore are able to be dealt with under existing laws or else are part of our ordinary democratic processes and would be regarded as appropriate, proper, and part of the price of being in a democratic society.
Defining something called ‘terrorism’ and linking it to ideological intention is bound to operate most harshly against those groups who are most politically unpopular, for whatever reason. It is just inescapable, and I think that the history in England with the Irish Republican Army prosecutions illustrate that and commonsense, I think, also suggests it. In the past they were witch-hunts. In the future it will be terrorist prosecutions.
The second problem with it is the proscribing of organisations. Proscribing organisations is a very different thing from proscribing acts. Generally speaking, acts are the object of criminal laws; organisations are not.
Proscribing an organisation is tantamount to proscribing modes of thought – because what makes an organisation, generally speaking, is a community of ideas or beliefs. To proscribe an organisation where there is no act done by individual members of that organisation is, with respect, nothing more than an assault on freedom of thought.
If, on the other hand, members of organisations do engage in acts which contravene the criminal law then the law is able to deal with them.
There is a subsidiary difficulty with the provisions relating to proscribing organisations, and that is the very wide definition of ‘membership’, which includes people who are informal members or who are trying to become members; and those people can not only cause the organisation to become a proscribed organisation but can also be caught up inadvertently in the conduct of other people who are, properly speaking, members of the organisation.
The measure that allows anyone – a judge, the Attorney-General or anyone at all – to proscribe an organisation is profoundly dangerous and, we would say, profoundly undemocratic. It amounts to nothing more than restraining freedom of thought.
We would finish by challenging the proponents of the bill to identify anything that constitutes a terrorist act which cannot be punished now. Until they can identify that, there is no cause for this legislation and the dangers it brings.
Questions
Senator Payne: (Liberal, NSW, committee chairwoman): An example that you use is the nurses union and strike activity… You say in your submission that you believe that would fall within the current drafting of the legislation. That would be an extreme application of the legislation as it is expressed – do you agree?
Burnside: It is at the outer edges of its application, I agree with that. But that is enough cause for concern because it is not too difficult to think of other examples that are also at the outer edges but which would also be caught up.
I come back to what I suggested earlier: test it in practical application. How would a lawyer of ordinary competence advise a client planning to do things like this? This is where one comes across a very genuine concern about our basic democratic freedoms. If a competent lawyer cannot confidently advise you that, for example, nurses picketing would not be an act of terrorism, then in the sort of political climate in which legislation like this might be applied you will have people self-censoring, restraining their own conduct and preventing themselves from exercising their ordinary democratic rights – as we understand them at the moment – out of fear of being sent to jail for life.
Self-censorship is not necessarily a good thing, and restraint by fear is exactly what democracy is meant to avoid.
May I remind you of what happened in April 1998. The change of the guard at the waterfront led to mass public demonstrations at Victoria Dock and other docks around the country as people protested against the arrival of attack dogs and men in balaclavas taking over the jobs of the union members.
Those acts, which undoubtedly affected Australia’s international trade in quite a significant way for a month or so, would have been caught squarely within this definition. It is an astonishing thing to think that conduct that was viewed at the time as a rightful protest in public against conduct that was regarded as unAustralian would be punishable by life imprisonment.
It is not a far-fetched example; it is a fact which happened in Australia in very recent memory and which would be caught. That is a very alarming prospect. In the course of demonstrations like that some criminal offences are caused – damage to property and so on. Those consequences are readily dealt with under the law as it exists. But, if the effect of passing legislation with as vague a definition as this is that everyone will have to look over their shoulder to see whether their ordinary democratic expression will now be regarded as an act of terrorism, it seems to me to take us to the point where in order to preserve democracy we kill it off.
Senator Greig (Democrat, Western Australia):We heard earlier from some groups such as Electronic Frontiers, who were arguing that this actually brings in some new aspects of criminal law – for example, the rights of authorities to access telecommunications at Internet Service Providers – without a warrant, whereas they cannot do that currently. So I am wondering if perhaps a broader summary would be that it takes some further steps in winding back civil liberties.
Burnside: What this does is to catch a lot of things which most people would not regard as criminal acts or terrorist acts or acts appropriate to be the subject of a term of life imprisonment. It simply reaches too far and across territory that is already covered, and then it goes further into territory where the parliament had never thought it appropriate to proscribe conduct or, for that matter, organisations.
The fact that the associated legislation gives wider powers in relation to search warrants, detention, interrogation and so on, in connection with wide offences of this sort, is obviously a matter for very serious concern because it means that you can predicate all sorts of perfectly ordinary conduct which will allow people to be dragged off the street, held incommunicado, interrogated without lawyers and maybe banged up for 25 years or life. It is a pretty astonishing consequence and something that I suspect most Australians are simply not aware of.
I want to focus the problem on this: at the heart of the definition of ‘terrorist act’ – and this then takes you across into the sorts of organisations that might be proscribed – are two sets of normative words; namely the reference to advancing political, religious or ideological causes on the one hand and the exemptions law for advocacy, protest or dissent.
They are all value laden expressions. I think you will find that, in circumstances that call for this legislation to be applied, the first group – the ideological words – will mean ‘unpopular’ political, religious or ideological causes’ and the exceptions will be understood as ‘popular’ lawful advocacy, protest or dissent. Unless human beings have changed rapidly in the recent past, that is an almost inevitable consequence.
Senator Greig: And dissent, presumably, is anyone who disagrees with the government or popular orthodoxy.
Burnside: Absolutely; it is self-evident. There are plenty of examples of that in history – unpopular causes. It is a truism that one person’s terrorist is another person’s freedom fighter, and we have seen people’s definitions of other groups change over the course of the last decade. Bear in mind the history of South American politics, where sometimes a certain group will be regarded as terrorists and other times they are freedom fighters supported by the US government.
Senator Cooney: (Labor Victoria) If you seriously damage property or seriously harm a person for reasons of greed, lust or envy, you are going to be better off, aren’t you, than if you do it for political or religious purposes?
Burnside: Yes. If you have a noisy dispute on a building site that leads to property damage or shuts down an important service then life imprisonment, but if you do it because you are greedy then, yes, you are right, it will just be a smack on the wrist.
Senator Cooney: There is also the issue of informers. You have no doubt heard the 1938 radio broadcast of Winston Churchill in this area. In his broadcast he talked about Nazi Germany. He said that that society encouraged the development of informers and that this was very bad: people were going about their business not sure what was going to happen to them. That account you gave of your friend who had some difficulty with eight people from the immigration department made me think of it, with the informer in the street talking about them. This creates the climate where that happens. Do you have any thoughts about that?
Burnside: I think it is a distinct possibility, and it is profoundly disturbing. Interestingly, in 1938 Churchill was extremely unpopular politically and his rhetoric probably would have brought him within the provisions of this act!
Senator Cooney: It would have, of course, because he was advocating preparations for war.
Burnside: Yes.
Anne O’Rourke, assistant secretary, Liberty Victoria: As you were talking, I remembered that incident. If you take it that, let us say, it was by members of the CFMEU, they might be an organisation that has endangered, or is likely to endanger, the security or integrity of the Commonwealth, and then that action could be interpreted within that definition and thus they could become a proscribed organisation. The response that you were given is not necessarily the case. It is a matter of interpretation. These things will be argued out.
Burnside: I wonder whether, Senator Scullion, you could think about it this way, because no-one can predict the circumstance in which this legislation might come to be used. Imagine that same episode at Parliament House: lots of damage and so on. Then imagine that in one scenario all of the people participating are dressed in balaclavas and have CFMEU logos front and back. Next imagine that they are all Aborigines. Next imagine that they are all distinctly Middle Eastern in appearance. Next imagine that they are all calling out in a broad Irish brogue. Add the stereotypes as you like. At that point, ask: will they be treated in any different way? Will people understand this legislation any differently, according to the identity of the people involved?
I suspect that the honest answer is that, yes, they will. If it were a bunch of middle-aged housewives who had just got a bit carried away after bingo, I think that people would react rather differently. Then add to that this question: what is the political complexion of the government of the day? Does that make any difference to your confidence that there will or will not be a prosecution? Unless you can answer with confidence and unless people generally would accept your answer as accurate, it is unacceptably vague in its coverage.
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Ms Nicole Bieske, Amnesty International:
Human rights should not be something that governments endorse when they feel like it, but they actually constitute the bare minimum of safeguards necessary to protect the safety of individuals from the abuse of power.
The first significant issue is the reversal of the onus of proof. (The rules of the proposed International Criminal Court deal with) heinous crimes – genocide, crimes against humanity – the worst kind of crimes that people can think of, yet they have still continued the presumption of innocence in relation to those crimes.
We do have concerns in relation to breaches of natural justice in relation to proscription processes, and that it does provide for a form of collective criminalisation, and that there is no ability for full and complete review of this proscription.
Our final concern is the fact that the legislation lacks any provision for compensation if organisations are proscribed and are subsequently found to have been incorrectly proscribed.
Questions
Senator Payne: You talk about ‘collective criminal punishment of an organisation’ –
Bieske: The concern that we have is that the legislation provides for the definition of ‘member ‘ to be extremely broad, to include a person who has taken steps to become a member and to include an informal member. It also allows for proscription of an organisation because of the acts of one person.
We feel that, because of the penalties that flow from the organisation being proscribed, what you are effectively doing is collectively criminalising all of the members of the organisation because of the conduct of possibly one renegade member
The UK Terrorism Act specifically targets the organisation and the conduct of the organisation. It does not focus on the conduct of individual members. It requires the organisation to have been involved in terrorism, whereas the Australian legislation, as drafted, provides for an individual member and the acts of an individual member to be sufficient grounds for a proscription.
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Mr Joo-Cheong Tham, lecturer at the law school at Victoria University: The key to understanding the operation of the bill is really the foundational concept of a ‘terrorist act’. There are two main elements to the definition of ‘terrorist act’: there is a motive element – ‘intention of advancing a political, religious or ideological cause’, and the action element, which the bill describes as action falling within subsection (2). The outer limits of the action element are basically constituted by two circumstances: action involving serious harm to a person and action involving serious damage to property.
The second point about the definition of ‘terrorist act’ is the limited protection that is afforded by the exclusions. Public demonstrations technically involve some element of unlawfulness. Any public demonstration, even though it is completely peaceful, might involve trespass or public nuisance, and not come within the envelope of this exclusion.
The second exclusion relates to industrial action. That is left undefined by the bill. The significance of this is that, under the Workplace Relations Act, the full bench of the Federal Court has defined industrial action to exclude all forms of picketing.
Let me pick an example that Senator Scullion put to various witnesses about representatives of the National Farmers Federation coming to Parliament House. Say the National Farmers Federation, because of a political issue, comes to Parliament House and enacts a truck blockade. The motive element is clearly satisfied – there are no worries about that. In setting up the blockage, they are probably trespassing and there is a public nuisance, so the protection of lawful advocacy, protest and dissent is out the window.
Thirdly, when they set up a truck blockade, they notice a real chance that those trucks will be removed to allow passage to Parliament House for people like you. When that happens, the Australian Federal Police move in and remove the trucks. It is seriously arguable that the National Farmers Federation knew that the truck blockade carried a high chance of being removed and involving serious damage to property. The fact that that action did not directly cause serious damage is not the point with this definition in the bill, because the word ‘involved’ is used.
Another example is the protests at Richmond Secondary College, where various people were engaged in passive civil disobedience. They linked arms and blocked off the entrances to Richmond Secondary College. When they did that, they knew that there was a very strong chance that the police would come in and remove them and, in that process, inflict physical injury or serious harm to a person.
That is what happened: the police came in, applied pressure-point tactics and inflicted serious harm to various protesters. It is seriously arguable, under the bill’s definition of a terrorist act, that the action of protesters in engaging in purely passive civil disobedience would constitute a terrorist act.
Let me give you a few examples from the industrial sphere. Various types of picketing are going to constitute terrorist acts under the bill. You can assume that the motive element is satisfied. If people picket for some notion of industrial wage justice, fine – the exclusion of industrial action does not apply.
The exclusion for lawful advocacy, protest and dissent is not applied because any form of picketing, whether peaceful or otherwise – this is to be stressed – involves some unlawful element. Peaceful picketing can involve nuisance, defamation, trespass and so on. The common law has always been trenchantly hostile towards forms of industrial action. So we have those two elements satisfied.
The third element is the action element. If you have picketing that elicits heavy-handed tactics by police or private security guards, again you can run through the same analysis about action involving serious harm or serious damage.
In other cases there is the absence of heavy-handed tactics by police or private security forces – for example, picketing by information technology engineers. When they take industrial action, they intend to disrupt information technology systems. You have to satisfy the action element and the action element can be satisfied if there is action which seriously disrupts or interferes with the electronic system. The same reasoning applies for picketing bank tellers.
You satisfy the action element in a different way for picketing nurses. The action element can be satisfied if it creates a risk to the public or a section of the public. The bill does not define what a section is, but let us say a section is 10 people. When nurses picket, it is not uncommon that there would be a risk to the health of certain sections of the public. These are illustrations of the breadth of the foundation or the concept of a terrorist act.
I want to talk about the impact of this bill on business. Proposed section 101.4 criminalises a person possessing a thing – that is the first element. The second element is that the thing is connected with the preparation, engagement and so forth of a terrorist act. The bill affords a limited defence where it is established that a person was not reckless as to the fact that the thing was connected with the engagement, preparation et cetera. The impact on business may be as follows.
We know there is a wide range of items that could be used for terrorist purposes in a primary sense. It could involve fertiliser being used to make explosives. Another example relates to my father who, when he was boarding a plane in Malaysia, had his nose hair tweezers confiscated. That gives you an idea of the range of items that could be used for terrorist purposes in a primary sense.
In the example of an unfortunate retail business which sells fertilisers that could be used for explosives, that business possesses ‘a thing’ – no worries. If one of its customers uses that fertiliser to make a bomb, the thing is connected with a terrorist act. It then falls on the business to discharge, on the balance of probabilities, that he or she was not reckless as to the fact that this bag of fertiliser was going to be used for a terrorist purpose.
As the Law Council mentioned, the Attorney-General’s explanatory memorandum is clear. If you possess a thing connected with a terrorist act, you are put on notice. You either divest yourself – for the business, it means closing down the business and getting rid of the bags of fertiliser – or you ensure that that bag of fertiliser will not be used for terrorist acts.
Let us try to imagine what that might mean. What that might mean for business is, I would say, an effective system of inquiry directed at the customers’ usage of their items. For example, that might require customers signing statutory declarations saying ‘I shall not use this for a terrorist act’ or – depending how judges interpret this particular provision – obtaining clearances from the AFP, the state police and so on.
Let me illustrate this with a short hypothetical to make this concrete or more real. Let us take a ‘Mr Abdul’, who is a sole proprietor. He runs an incorporated business called Abdul Pty Ltd which sells agricultural products. One of the things he sells is fertiliser. A Mr Smith who patronises his shop is a member of a white supremacist group and he plans to bomb the office of a cabinet minister. He has been told by his comrades in Tennessee, ‘If you buy this fertiliser, it is particularly effective in making homemade bombs and explosives’. He has a sheet of paper with specifications about what particular fertiliser he has to buy.
He walks into Mr Abdul’s shop and he hands over the sheet to Mr Abdul, and Mr Abdul says, ‘Great, I’ve got that fertiliser,’ and he sells that fertiliser, takes the money from Mr Smith, issues an invoice and dutifully puts down the GST component.
Even before Mr Smith carries out the bag of fertiliser and exits the shop, I can count a list of five separate offences that have been committed under this bill. Let us assume Mr Abdul does not have an effective system of inquiry into his customers’ use of items; he does not ask for such declarations and has not heard of the Security Legislation Amendment (Terrorism) Bill 2002.
While the bag of fertiliser is sitting in Mr Abdul’s possession, he is committing the offence of possessing a thing connected with a terrorist act. It does not matter under the bill that a terrorist act has not been committed because that is expressly spelt out in the proposed offences. That is offence No 1.
Offence No. 2 is committed when Mr Abdul is in possession of the documents specifying what fertiliser should be bought for making explosives. Again, he is committing the proposed offence of possessing a thing connected with a terrorist act. When he collects the document, he is committing the proposed offence of collecting the document connected with the terrorist act.
When he issues the invoice, he is making a document connected with a terrorist act. Finally, because he is a sole proprietor, he is directing an organisation indirectly concerned with the preparation of a terrorist act. There are five offences, each of them punishable by life imprisonment.
You can see from my discussion about the illustration of the bills’ applications that the package is going to have a clear adverse impact on freedom of assembly, freedom of association, business and the right to strike. For that reason alone, these proposed schedules should be abandoned.
The second reason is – and the point has been made repeatedly by witnesses before this committee – the adequacy of the criminal law. Senator Bolkus raised Justice Hope’s comments in respect of that, and the point is made clearly by Justice Hope in the protective security review report, which was commissioned by the Fraser government after the Hilton Hotel bombing. He said, ‘Terrorism by its nature involves breaches of the ordinary criminal law.’
And the third reason, which is perhaps the most disturbing aspect about this bill and about the counterterrorism package in general, is that the process leading up to and the proposals of the bill really represent a grievous failure of democracy. In saying this, I can accept what I think Senator Scullion said in the Sydney public hearings that, ‘It’s rubbish to say that the world hasn’t changed since September 11.’ That is true. But the question is: how has it changed?
It is clear that there is great pressure on people like yourselves – politicians – to introduce new laws to respond to what Eva Cox described as the ‘moral panic’ that has arisen since September 11. But a key question for the Senate is this: what is the demonstrated need for new legislation, new offences and new powers?
We know that there is no specific known threat of terrorism in Australia. We know this because the Attorney-General, Daryl Williams, has reassured us numerous times since the September 11 attacks that that is the case. All we have to clutch at in terms of demonstrated need for new legislation – new offences punishable by life imprisonment – is just vague references to a ‘changed international security environment’ and the like.
For the most part, the need for legislation is assumed rather than explained or justified. The transcripts of the Sydney hearing, for example, had Mr Ford from the Attorney-General’s Department referring to ‘gaps in legislation’. That is assumed. I for one could not find why these were considered gaps – why the existing criminal law could not cover whatever was intended to be covered. The scandalous nature of the failure to justify – and it is really a failure to be democratically accountable – is thrown into stark relief when one looks at the Protective Security Review report by Justice Hope and the careful examination that is contained in that report.
Questions
Senator Greig: There would be those who are generally supportive of the principles behind this legislation who would say, ‘Oh, come on, Mr Tham, this legislation is not directed at people selling fertiliser. Clearly the key word here is ‘recklessness’ and it would be absurd or unreasonable for any court to say that a retailer selling somebody fertiliser could be deemed to have been reckless. It would be like saying a second-hand car dealer might be convicted because somebody was involved in a car accident because they sold them that car’. If I can draw another analogy. What would you say to those people who would say, ‘No, the law is structured in such a way – the terminology is there in such a way – that it would not capture people in the fringe hypothesis that you give; it is more directed towards more concrete examples of recklessness’?
Tham: The clear terms of the bill basically place the onus on whoever is charged to discharge, on the balance of probabilities, that he, she or it was not reckless and that the thing was not connected with the preparation, engagement and so on to commit a terrorist act. That in itself inherently requires that person to take some positive steps to actually discharge that onus. It is well settled: you can look at the Acts (Interpretation) Act and you can refer to the explanatory memorandum interpreting the bill. The explanatory memorandum says quite clearly that people who have things connected ‘with a terrorist act’ are put on notice. Again, that means it requires them to take some positive steps to be able to discharge their onus and say, ‘I was not reckless.’ Those positive steps, of course, could only be settled by judicial interpretation, but it is quite arguable to say that those positive steps would involve at least some inquiry by the retail business or whoever asking, ‘What are you going to use this for?’ I think that is an eminently possible interpretation of the bill.
Senator Greig: I cannot imagine a scenario where somebody retailing fertiliser would ask the purchaser what they were going to use the fertiliser for, as opposed to somebody purchasing a rifle or a weapon or explosives of some sort. But even there I cannot picture an example where a purchasing officer in a mining camp in Western Australia would be asked why he would be buying gelignite, for example.
Tham: In those situations, if you cannot imagine it and if those businesses have not actually asked questions about why the customers are using it, those businesses run the risk of being convicted under this bill.
Senator Ludwig (Labor, Queensland): You mention the downloading of material in your submission. Is that a person who – innocently, I guess, because it is a strict liability offence – downloads material which could then include them within the definition of terrorism? They might be simply searching the web or surfing the web for a whole range of assignments on terrorism, for argument’s sake.
Tham: Exactly. Take the example of a document detailing, blow by blow, the actions of Al-Qaeda. The bill uses the phrase ‘connected with’; a document ‘connected with’ the engagement in a terrorist act. I think it is seriously arguable that a document documenting the terrorism of Al-Qaeda is a document ‘connected with’ the engagement in terrorist acts. It arises from the natural and ordinary meaning of the bill. If a person downloads the document from the Net, he or she makes a document ‘connected with’ the engagement in terrorist acts.
I am a university academic. If I knowingly do research – I know it is a document about Al-Qaeda, because that is what I am doing research on – and knowingly download a document, I cannot avail myself of the defence that I was ‘not reckless’ about the fact that it was connected with the engagement in a terrorist act because it was a knowing act.
Senator Bolkus (Labor, South Australia): On page 18, you refer to what I think is also a somewhat worrying provision which has not been focused upon: “The Attorney-General can proscribe an organisation if s/he believes on reasonable grounds that a relevant offence has or is being committed”. What you are suggesting there is that by that position the Attorney-General is putting himself into the position of judge and making an assessment of whether an offence is committed, and that offence does not have to be proven at law.
Tham: It does not have to be proven at law and, further than that, the person does not even have to be charged with that offence for the Attorney-General to reach an opinion.
Senator Cooney: Julian Knight is somebody who shot dead six or seven people in Hoddle Street in Clifton Hill, or Collingwood. You have heard of the shootings in Port Arthur in Tasmania? Neither of those examples would be examples of terrorism. Even though lots of people were killed, they were not terrorist acts under this definition. That is right, isn’t it?
Tham: Because of the motivation, yes.
Senator Cooney: So what we are punishing here is motivation rather than facts. Is this what you were saying before – that there is already plenty of legislation there to deal with the facts, and what this is dealing with is motive and that is all? Motive is normally used to work out whether a person is likely to have committed a crime – the intent is what counts in criminal law, isn’t it, rather than motive?
Tham: That is right.
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Rev David Pargeter, Director, Justice and International Mission Unit, Uniting Church : The issue of greatest concern to the unit is the issue of proscribing organisations. Of great concern to the unit is section 102.2 of the bill, in which the Attorney-General is granted the ability to proscribe any organisation where that organisation ‘has endangered, or is likely to endanger, the security or integrity of the Commonwealth or another country’.
We are concerned that this provision could be misused to proscribe nonviolent political independence movements in other countries. For example, this provision could be used to proscribe nonviolent Kurdish, Tamil, Palestinian, Sudanese or West Papuan organisations that seek independent states. The unit is deeply concerned at the level of executive power that this provision places into the hands of the Attorney General.
We are also deeply concerned that anyone that ‘assists’ a proscribed organisation in section 102.4 could face 25 years imprisonment. Despite written assurance from the Attorney General’s Department, it remains unclear what would constitute assistance. Had this been in place during the church’s campaign to end apartheid in South Africa (we) would have a number of people still in jail simply because of their involvement in their support of the ANC and the allocation of funds at times to support education programs in the schools in South Africa.
As churches, we also provide political assistance. We have relations with a number of partner church organisations around the world and we often feed into common bodies, such as the Middle East Council of Churches and the World Council of Churches. We make comment and seek to actively assist those partner churches. Hypothetically – very theoretically – you could end up in a situation in which someone we are assisting is banned. That puts us in a situation in which we are in danger of being caught under the assistance provision.
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Professor David Kinley, Director, Castan Centre for Human Rights Law, Faculty of Law, Monash University: The challenge for any country such as Australia is that the legal response to terrorism must be one that falls within the acceptable bounds of a democratic society and a society like ours, which is proclaimed to follow the tenets of the rule of law. The bottom line is that the response must be proportionate.
Our concern with the manner in which the bill chooses to go is that it has chosen not to fall under the normal criminal law provisions, but rather to have a specific act. The terrorist net that is cast by the bill leaves, we think, too much opportunity for incidental or collateral damage. Therefore, it is not, in our view, proportionate in certain respects.
What is ‘lawful protest’? What is the ‘reckless provision of training’? What is ‘direct’, and more to the point what is ‘indirect’ assistance in the directing of terrorist organisations? How does one deal with the reversing of the onus of proof-the proof now having to be demonstrated by the individual that they were not assisting a claimed terrorist organisation?
Secondly, the net that is cast by the terrorist provisions is potentially too wide, and wider than is necessary. Incidental unlawfulness that may occur at Woomera – is that to be considered part of a terrorist act? In the protests against the WTO, are the incidental elements of unlawfulness or the whole of that protest to be considered a terrorist act?
Indeed, one can go so far as to say, is the promotion of an ideology such capitalism, if it has environmental damage as a consequence of pushing the ideas of capitalism – in other words, a corporation seeking profit, and this happens – a terrorist act? I think there could be an argument raised that that would fall under the current provision.
Questions
Senator Scullion: You were looking at circumstances that perhaps would be caught in the net unintended, and you are the first person giving evidence to suggest that if a corporation were somehow involved in some sort of ecoterrorism then it would be caught in this net. Could you lead me through how you came to that conclusion?
Kinley: Take the definition of a terrorist act, at proposed section 100.1(1), which is that: “(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause …”
There are so many things that would fall under that, and at least one thing could be capitalism; I think that is an ideological cause. The definition continues: … “but does not include: (c) lawful advocacy, protest or dissent …”
You might say that capitalism could be considered, on its broad basis, a lawful advocacy – that is, the advocating of capitalism. But then it says, at 100.1(2), that: ‘Action falls within this subsection if it: (a) involves serious harm to a person; or (b) involves serious damage to property …’
If that happens as a consequence of a proponent of capitalism – a captain of industry or a company – then they immediately remove themselves from the protection of lawful advocacy because it is unlawful damage to property. I am saying that it is not just the liberals-with a small ‘l’ – the open-toed sandal wearers – who might be inadvertently caught by this but also the captains of industry. That shows how unnecessarily broad the definition is.
Senator Cooney: (Several witnesses) have given evidence from their own experience or on the basis of people they have spoken to, that this legislation and the background to it – the whole episode from 11 September on and even before that – has had a fearful effect on certain groups in society, Arabs and Muslims in particular but on ethnic groups generally. Has your organisation got any concern about that, or have you got any answer to that? If you look at proportionality, you have got a very harsh effect if you accept the evidence – and I do not see any reason why we should not. That affects multiculturalism in a very bad way, and yet nothing that really seems to point to any terrorist act.
Kinley: Unquestionably, like medicine, the best thing to do in law is to prevent violations of human rights, of which terrorism is one example. But if you do that in a way that is pre-emptory, but overextending in its pre-emptory form, you will end up yourself producing violations of people’s rights, including discord within society, which is what I think you are expressly referring to.
There is no doubt that, in providing or receiving training or in the normal course of events with the general public, people must be careful about the sort of person they are associating with because, if that person turns out utterly unbeknownst to them to be a terrorist, then they may fall within the net that says that they have aided and abetted a terrorist.
As we said in our submission, if you are a photocopier, are you therefore to look at somebody and think, ‘They look Middle Eastern, they look Arab, so therefore I should refuse to allow them to use my photocopier’? That would be unconscionable.
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See part two for the government’s response.