Commonwealth
Anti-Terrorism Legislation
Briefing Paper prepared for
the Human Rights Council of
Jessica Wyndham
March 2003
1. Introduction
1.1
The international context
On
Similarly, the
hijacking of aircraft is not a new phenomenon, going back to the first recorded
‘successful’ hijacking when a
What sets previous
terrorist attacks apart from that on
President Bush of
the
In
1.2
Chronology of legislative and executive measures taken
post-September 11
The bills were referred to the Senate Legal and Constitutional Legislation Committee which reported in May 2002.
Most bills, with
the exception of the ASIO Bill, pass through Parliament by
13-15 November 2002 - First meeting of the National Counter-Terrorism Committee, which replaces the Standing Advisory Committee for Commonwealth/State Cooperation for the Protection Against Violence (SAC-PAV)
12 December 2002 - Criminal Code Amendment (Terrorism) Bill 2002 introduced, to re-enact Part 5.3 of the Criminal Code (which contains federal terrorism offences enacted in June 2002, and amended in October 2002) so that it would attract the support of State references of power in accordance with section 51(xxxvii) of the Constitution.
In summary, the following pieces of legislation have been introduced and enacted:
The following pieces of legislation were introduced into Parliament but were not passed by both houses of Parliament:
Some pieces of legislation are still being debated by Parliament.
1.3
Political parties’ views on the anti-terrorism legislation
The Liberal Party,
Labor Party and Democrats have each expressed their parties’ abhorrence at the
acts that occurred both on
The Liberal Government introduced a legislative package which was purported to be a comprehensive approach to combating terrorism, including: a new definition of “terrorist acts” in the Crimes Act; legislation aimed at the funding of terrorist acts and organisations; technological means of intercepting information about terrorists and their organisations; and increased powers for police officers and most controversially, the Australian Security Intelligence Organisation, in order to be able to seize, search and question individuals in relation to terrorists, their activities and organisations.
The Government
presented these legislative initiatives as a response to “the community demands
that our counter-terrorism laws are strong and certain”.[4]
The Government stated that “we need this legislation to give our intelligence
agencies vital tools to deter and prevent terrorism”.[5]
In the Parliamentary debates, the events of
The Labor Party in Opposition agreed that “tough and unprecedented”[7] powers had to be given to certain organisations in order to allow them to fulfil their role in the emerging anti-terrorism structure. Where the Opposition differed from the Government, however, was in their commitment to ensuring all measures were “balanced and principled.”[8] Most likely, the Government too could have adopted this terminology but it would have drawn the line differently from the Opposition. In the debates about the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, the Attorney-General, Mr Daryl Williams, acknowledged the need for certain safeguards to be in place to ensure against abuses of power and infringement of certain rights.[9] The Leader of the Opposition, Mr Simon Crean, considered that the protections afforded to citizens within the Bill were insufficient.[10]
The Democrats held a similar position to that of the Opposition, condemning the terrorist attacks, recognising the need for a strong legislative response but guarding against curbing the freedoms that are supposedly being protected in the efforts to combat terrorism. The Democrats also used the opportunity to reiterate their policy that Australia should have a bill of rights or at least a charter of rights to ensure that certain liberties remain inalienable, regardless of the particular social or political climate of the day.[11]
1.4
State activity to enact anti-terrorism legislation
The principal legislative contribution made by the States in relation to terrorism has been a series of Acts ‘referring’ power to the Federal Parliament to legislate on the issue of terrorism.
In April 2002 a Council of Australian Government - ‘leaders summit’ - was held to discuss the issues of terrorism and transnational crime. At the summit the Premiers of the States and representatives of the Federal Government agreed that a legislative package would be introduced by the Federal Government and that it would be supported by ‘references’ from each of the States.
This was the practical solution that arose from the summit communiqué which contained 20 resolutions including:
The need for a ‘reference’ arises from the limitations placed by section 51 of the Commonwealth Constitution on the issues about which the Federal Parliament is permitted to make laws. The legislative package proposed by the Federal Government and which was ultimately passed through Parliament, depended for its Constitutional validity on a wide variety of powers under section 51.[12] As the Attorney-General pointed out, however, it was never clear whether there existed a constitutional gap that could later result in certain terrorist provisions in the new legislation being found to be beyond the constitutional legislative reach of the Federal Government. In order to guard against such an event in the future an agreement was reached that the States would refer the matter of terrorism to the Federal Government in accordance with section 51(xxxvii) of the Commonwealth Constitution.
Section 51(xxxvii) provides that:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: …matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law.
References have
been made from all States and the
(a) matters to which the referred provisions relate, but only to the extent of the making of laws with respect of those matters by including the referred provisions in the Commonwealth Criminal Code in the terms, or substantially in the terms, of the text set out in Schedule 1 [restatement of amended section 5.3 of the Commonwealth Criminal Code]; and
(b) the matter of terrorist acts, and actions relating to terrorist acts, but only to the extent of the making of laws with respect to that matter by making express amendments of the terrorism legislation or the criminal responsibility legislation.
The references, therefore, not only refer the ‘text’ of the federal legislation, but also refer the power to amend the legislation. This latter power is said to reflect the Commonwealth agreement with the States and Territories that future amendments will not be made without the approval of a majority of the states and territories and of at least four states.
A termination provision in each piece of State legislation permits the State Governor, at any time, by proclamation published in the Gazette to fix a day on which references under the Act may terminate. The proclamation can only take effect 3 months after the date of its publication.
The Commonwealth
provisions to which the State legislation refer have not yet been proclaimed.
The Commonwealth is waiting for the Victorian legislation to pass through
Parliament before proclaiming the Commonwealth legislation. The Victorian
legislation was initiated in Assembly on
1.4.1
The Terrorism (Commonwealth Powers) Bill 2002
(NSW) was introduced into the Legislative Assembly and received its second
reading speech on
In
addition to the Terrorism (Commonwealth
Powers) Bill 2002 (NSW), on
The object of the Terrorism (Police Powers) Act 2002 (NSW) is to give special power to police officers to deal with terrorist acts and to give police officers additional powers to protect people in emergencies. The Act provides for a police officer to give an authorisation that certain special powers may be exercised in an effort to prevent an imminent terrorist act or to investigate a terrorist act in the immediate period after its occurrence. These special powers are:
An authorisation may be given by the Commissioner of Police or by a Deputy Commissioner of Police or by a police officer above the rank of superintendent in the instance that neither the Commissioner nor Deputy Commissioner are able to be contacted in as a matter of urgency. (Section 8) The Police Minister must provide his or her concurrence. (Section 9).
Schedule 1 to the Act provides for how personal searches are to be conducted. Frisk searches, ordinary searches and strip searches are provided for under the provisions of the Act. The “privacy and dignity” of the person being searched must be respected “as far as is reasonably practicable in the circumstances”. (Section 5)
Section 6(3) provides that searches can be carried out on children from the age of 10.
A strip search of a child who is at least 10 years of age but under 18 years of age, or of a person who has impaired intellectual functioning, must, unless it is not reasonably practicable in the circumstances, be conducted in the presence of a parent or guardian of the person being searched or, if that is not acceptable to the child or person, in the presence of another person (other than a police officer) who is capable of representing the interests of the person and who, as far as it practicable in the circumstances, is acceptable to the person.
‘Impaired intellectual functioning’ is defined as:
(a) total or partial loss of a person’s mental functions, or
(b) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(c) a disorder, illness or disease that affects a person’s thought processes, perceptions or reality, emotions or judgment, or that results in disturbed behaviour.
Section 7 provides that: “A strip search must not be conducted on a person who is under the age of 10 years”. This express limitation leaves open the ability to frisk or conduct an ordinary search on a child of any age.
Section 22 makes it an offence to obstruct or hinder a search or the exercise of other powers under the Act. The maximum penalty is 100 penalty units or imprisonment for 2 years or both. Under Section 33 the onus of proof of 'reasonable excuse' in proceedings for an offence against the Act or the regulations lies on the person accused of the offence.
1.4.2
The Terrorism (Commonwealth Powers) Bill 2003
(Vic) was introduced to the Legislative Council on
In addition to the
Terrorism (Commonwealth Powers) Bill 2003
(Vic), on the same day the Victorian Government introduced into the
Legislative Assembly the Terrorism
(Community Protection) Bill 2003 (Vic) which also received its second
reading speech on
According to the proposed clause 1 of the Bill, the main objectives of the Bill are to:
(a) provide new powers and obligation relating to the prevention of, and the response to, terrorist acts;
(b) provide for a covert search warrant regime;
(c) prescribe that mandatory reporting of the theft or loss of certain substances;
(d) prescribe that certain operators of essential service infrastructure have an obligation to prepare risk management plans;
(e) protect counter-terrorism methods from disclosure in legal proceedings;
(f) amend the Freedom of Information Act 1982 No. 9859 (Vic) and the Victorian Civil and Administrative Tribunal Act 1998 No. 53 (Vic); and
(g) regulate certain other miscellaneous matters.
Specifically, the Bill proposes to define the terms “terrorist act” in the same terms as the definition of the Criminal Code Act 1995 No. 12 (Cth). A covert search warrant would be issued by the Supreme Court upon application by the police, although the Chief Commissioner of Police, a Deputy Commissioner or an Assistant Commissioner would have to approve the application. An application would only be possible if the police believed, on reasonable grounds, that a terrorist act has been, or was likely to be committed and searching the premises in question would substantially assist in preventing the terrorist act and there was a necessity to search the premises without the knowledge of the occupier.
The Bill also proposed to provide members of the police force with a power to detain and to authorise the decontamination of people who have been exposed to contamination from chemical, biological or radiological agents as part of a terrorist act.
The Bill proposes to introduce a mandatory reporting requirement of theft or loss of prescribed chemicals and other substances, and the obligation to report would be on the occupier of the premises from where the chemical or substance was stolen or lost. Failure to inform the police would carry a maximum penalty of $1000 in the case of a natural person, and $12,000 in the case of a corporation.
The term “counter-terrorism” would be defined as information which relates to covert methods of investigation into a terrorist act. This information would be protected, in certain circumstances, from disclosure in legal proceedings.
The Bill proposes that the Governor in Council would be able to declare any particular essential service to be a “declared essential service”. The operator of a declared essential service would have to prepare a risk management plan for the essential service, with the objective of preventing and responding to terrorist acts. The operator would also have to audit the plan annually to ensure that it continued to meet the prescribed requirements.
1.4.3
The Terrorism (
In addition to the
Terrorism (
According to the second reading speech by the Minister for Police, Fire and Emergency Services, the purpose of the Bill is to provide members of the police force with special powers to deal with terrorist acts or threats of imminent terrorist acts.
The Bill is
divided into six parts. Part 1 sets out the definition, including the important
definition of “terrorist acts”. The
Part 2 of the Bill sets out proposed new powers for members of the police force. The Bill would require the Chief Commissioner of Police to authorise the use of these proposed powers. Such an authorisation would allow a member of the police force to exercise the extended powers in respect of a particular “target person”, “target vehicle” or “target area”. Certain safeguards are also proposed. Proposed s. 15 creates offences relating to failure to produce proof of identity. Penalties are in the range of 100 penalty units ($11,000) or 6 months’ imprisonment.
Part 3 of the Bill proposes certain complementary powers. These include the power to quarantine and decontaminate persons. Such powers are thought necessary in the event of a chemical or biological weapons attack.
Part 4 of the Bill proposes some new powers that may be exercised without an authorisation. The powers would include the seizure of evidence at a crime scene to assist investigations and the use of force in certain situations. Proposed Division 2 of Part 4 would allow the recognition of law enforcement officers from other branches of government and from other jurisdictions. Proposed Division 3 sets out offences for hindering the exercise of police powers, interfering in their exercise or inciting others to resist police, with penalties in the range of 200 penalty units ($22,000) or 12 months’ imprisonment.
Part 5 of the Bill sets out the duties under the Bill. The Part includes provisions relating to the return of seized property and the conduct of searches. Proposed s.41 requires any seizure of property to be on just terms.
Part 6 of the Bill contains a number of miscellaneous and technical provisions.
This Bill is drafted in almost identical terms as the Terrorism (Police Powers) Act 2002 (NSW). Children from the age of 10 may strip-searched and all children may be frisked or be subject to an ‘ordinary search’. In addition, the Terrorism (Emergency Powers) Bill 2003 (NT) provides that when entering premises for the purpose of surveillance or to protect a person, the police officer may direct a person who is on premises that are entered to leave the premises for as long as is ‘reasonably necessary’ (Section 19(2)). The Bill does not provide any protection for children or people with a disability who are told to leave premises under this Section.
1.4.4
The Terrorism (Commonwealth Powers) Act 2002 No.
53 commenced on
The Western Australian Parliament has not passed any other piece of significant legislation in relation to terrorism.
1.4.5
The Terrorism (Commonwealth Powers) Act 2002 No.
68 was assented to on
The Tasmanian Parliament has not passed any other piece of significant legislation in relation to terrorism.
1.4.6
The Terrorism (Commonwealth Powers) Act 2002 No.
79 was assented to on
The Queensland Parliament has not passed any other piece of significant legislation in relation to terrorism.
1.4.7
The Terrorism (Commonwealth Powers) Act 2002 No.
50 was assented to on
The South
Australian Parliament has not passed any other piece of significant legislation
in relation to terrorism.
2. The
international legal framework
2.1
United Nations
The United Nations has for several years addressed particular aspects of terrorists’ activities in its debates and instruments. The first UN instrument relating to terrorism was the Convention on Offences and Certain Other Acts Committed on Board Aircraft (“Tokyo Convention”) adopted by the General Assembly in 1963. Since then eleven further instruments have been adopted, each before 11 September 2001 when a flurry of further statements were made by various UN bodies on the issue of terrorism.[13]
The United Nations
had to respond publicly to the events of
The United Nations
office in
The
Secretary-General’s response to
2.1.1 Office
of the High Commissioner for Human Rights
The seemingly lone voice of caution in the United Nations during the initial debates on the issue of terrorism and subsequent debates about the pursuit for Osama bin Laden in Afghanistan, came from the then High Commissioner for Human Rights, Dr Mary Robinson. Dr Robinson cautioned against adopting whatever means necessary in order to dismantle terrorist networks and catch terrorists, when such means could involve great hardship for and the death of innocent civilians, the creation of large refugee communities and internally displaced persons as well as the construction of ethnic, religious or national stereotypes which could themselves lead to acts of intolerance, discrimination and violence.
2.1.2
Security Council
On
·
Reaffirming further that such acts [as
those which took place on
· Reaffirming the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in resolution 1368 (2001),…
· Deeply concerned by the increase, in various regions of the world, of acts of terrorism motivated by intolerance or extremism,…
· Recognizing the need for States to complement international cooperation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism.
A primary focus of the Resolution was on the financing of terrorist acts[14]. The Resolution also focussed on the criminal nature of terrorist acts and called for cooperation between States in bringing to justice those who plan, assist in or undertake terrorist acts. Paragraph 2(e) says that States shall:
Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts.
The only restrictions placed on States in the execution of the Security Council resolution come in paragraphs 3(f) and (g):
(f) Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts.
(g) Ensure, in conformity with international law, that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts, and that claims of political motivation are not recognized as grounds for refusing requests for the extradition of alleged terrorists.
2.1.3
General Assembly
The General
Assembly resolution passed on
Reaffirming that all measures to counter terrorism must be in strict conformity with the relevant provisions of international law, including international human rights standards.
The Resolution also says that the General Assembly is:
Mindful of the need to protect the human rights of and guarantees for the individual in accordance with the relevant human rights principles and instruments, in particular the right to life.
On one interpretation this statement could be seen as referring only to the potential victims of terrorism but could also be read as referring to all individuals who may, for example, be accused or found guilty of terrorist activities.
Similarly, the General Assembly:
Condemns the incitement to ethnic hatred, violence and terrorism.
"Incitement to ethnic hatred, violence and terrorism" could be seen as both tools of terrorists but also bi-products of terrorism which, when committed by terrorists or those said to be acting against the terrorists, are breaches of fundamental human rights.
2.2
International instruments
2.2.1 International
instruments relating to terrorism
There are 12 principal international multilateral conventions and protocols which relate to terrorist activities and the various ways in which states are responsible for combating them.
These instruments are:
2.2.2 International
human rights instruments
·
International Covenant on Civil and Political Rights, GARes 2200A(XXI), 1966
The provisions of the ICCPR most relevant to any analysis of Commonwealth anti-terrorism legislation are Articles 9 (the right to liberty and security), 10 (the rights of those deprived of their liberty, 14 (judicial administration), and 24 (children). These provisions are reproduced below:
Article 9
General Comment 8 provides guidance in the application of Article 9. Relevantly it provides that:
Article 10
General Comment 21 provides guidance in the application of Article 10. Relevantly it provides that:
Article 14
(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
General Comment 13 provides guidance in the application of Article 14. Relevantly it provides that:
Article 24
General Comment 17 provides guidance in the application of Article 10. Relevantly it provides that:
· Basic Principles on the Role of Lawyers, adopted by the Eighth UN Congress on the Prevention of Crime and Treatment of Offenders, 1990
5. Governments shall ensure that all persons are immediately informed by the competent authority of their right to be assisted by a lawyer of their own choice upon arrest or detention or when charged with a criminal offence.
7. Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight hours from the time of arrest or detention.
8. All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.
·
Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment, GARes 43/173 of
Principle 15
… communication of the detained or imprisoned person with the outside world, and in particular his family or counsel, shall not be denied for more than a matter of days.
Principle 16
1. Promptly after arrest … a detained or imprisoned person shall be entitled to notify or to require the competent authority to notify members of his family or other appropriate persons of his choice of his arrest, detention or imprisonment or of the transfer and of the place where he is kept in custody.
2. If a detained or imprisoned person is a foreigner, he shall also be promptly informed of his right to communicate by appropriate means with a consular post or the diplomatic mission of the State of which he is a national or which is otherwise entitled to receive such communication in accordance with international law or with the representative of the competent international organisation, if he is a refugee or is otherwise under the protection of an intergovernmental organisation.
3. If a detained or imprisoned person is a juvenile or is incapable of understanding his entitlement, the competent authority shall on its own initiative undertake the notification referred to in the present principle. Special attention shall be given to notifying parents or guardians.
4. Any notification referred to in the present principle shall be made or permitted to be made without delay. The competent authority may however delay a notification for a reasonable period where exceptional needs of the investigation so require.
Principle 17
1. A detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it.
2. If a detained person does not have a legal counsel of his own choice, he shall be entitled to have a legal counsel assigned to him by a judicial or other authority in all cases where the interests of justice so require and without payment by him if he does not have sufficient means to pay.
Principle 18
1. A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel.
2. A detained or imprisoned person shall be allowed adequate time and facilities for consultation with his legal counsel.
3. The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.
4. Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law enforcement official.
5. Communications between a detained or imprisoned person and his legal counsel mentioned in the present principle shall be inadmissible as evidence against the detained or imprisoned person unless they are connected with a continuing or contemplated crime.
Principle 19
A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations.
·
Convention on the Rights of the Child, GARes
44/25 of
Article 3
Article 9
Article 20
Article 37
States Parties shall ensure that:
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall … have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or his liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision or any such action.
Article 40
(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
(i) To be presumed innocent until proven guilty according to law;
(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;
(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, …
(iv) Not to be compelled to give testimony or to confess guilt.
·
United Nations Standard Minimum Rules for the Administration of
Juvenile Justice, ("The
7. Rights of juveniles
7.1 Basic procedural safeguards such as the presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross-examine witnesses and the right to appeal to a higher authority shall be guaranteed at all stages of proceedings.
10.3 Contacts between the law enforcement agencies and a juvenile offender shall be managed in such a way as to respect the legal status of the juvenile, promote the well-being of the juvenile and avoid harm to her or him, with due regard to the circumstances of the case.
17.1 The disposition of the competent authority shall be guided by the following principles:
(a) The reaction taken shall always be in proportion not only to the circumstances and the gravity of the offence but also to the circumstances and the needs of the juvenile as well as to the needs of the society;
(b) Restrictions on the person liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum;
(c) Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response;
(d) The well-being of the juvenile shall be the guiding factor in the consideration of her or his case.
3. Analysis
of
3.1
Security Legislation Amendment (Terrorism) Act 2002
The Security Legislation Amendment (Terrorism) Act 2002 amends the Criminal Code Act 1995 to:
3.1.1
Definition of ‘terrorist act’
The definition of ‘terrorist act’ in the Act is an act, or threat of action, that is done or made with the intention of advancing a political, ideological or religious cause; and done or made with the intention of either:
The act, or threat of action, must also cause a person serious physical harm or death, or involve serious risk to public health or safety, serious damage to property or serious interference with essential electronic systems.
Advocacy, protest, dissent and industrial action will not be a ‘terrorist act’ if not intended:
According to this
definition, therefore, the anthrax scare of late 2001 and sniper shootings in
late 2002 in the
3.1.2
Terrorism offences
The terrorism offences created by the Act are:
1. engaging in a terrorist act;
2. providing or receiving training connected with a terrorist act;
3. possessing things connected with a terrorist act;
4. collecting or making documents connected to, and likely to facilitate, a terrorist act;
5. carrying out other acts in preparation for, or planning, a terrorist act.
3.1.3
Terrorist organisations
A ‘terrorist organisation’ is either:
Before an organisation is specified in the regulations, the Attorney-General must be satisfied on reasonable grounds that the organisation is engaged in or contributing to the carrying out of a terrorist act and the Security Council of the United Nations has identified the organisation in a decision relating to terrorism. Regulations are disallowable and cease to have effect two years after their commencement.
The offences in relation to terrorist organisations are:
3.1.4
Air security officers
The Act also amends the Australian Protective Service Act 1987 to extend the arrest without warrant powers of Australian Protective Services officers to the terrorist and terrorist bombing offences and ensures that these powers may be exercised on intra-state flights. The Australian Protective Service Act 1987 sets out powers in relation to certain offences for the Australian Protective Service, such as the power of arrest without warrant for hijacking on inter-State flights.
3.1.5
Review of the Package
The Act also requires the Attorney-General to cause a review of the operation, effectiveness and implications of the amendments made by the Security Legislation Amendment (Terrorism) Act 2002; Suppression of the Financing of Terrorism Act 2002; Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002; Telecommunications Interception Legislation Amendment Act 2002; and Border Security Legislation Amendment Act 2002.
The review must take place three years after the Acts commence, and is to be undertaken by a Committee comprising of the persons specified in subsection 4(3) of the Act. Public submissions and public hearings must be part of the review, the committee must report to both the Attorney-General and the Parliamentary Committee on ASIO, ASIS and DSD, and the report must be tabled in Parliament.
3.2
Suppression of the Financing of Terrorism Act 2002
The Suppression of
the Financing of Terrorism Act 2002 amended the Criminal Code Act 1995, the
Extradition Act 1988, the Financial Transactions Reports Act 1988, the Mutual
Assistance in Criminal Matters Act 1987 and the Charter of the United Nations
Act 1945. The Act implements obligations under United Nations Security Council
Resolution 1373 and the International
Convention for the Suppression of the Financing of Terrorism.
The Act inserted a new offence into the Criminal Code Act 1995 directed at persons who provide or collect funds and are reckless as to whether those funds will be used to facilitate a terrorist act. The maximum penalty for the offence is imprisonment for life.
The Act also amends the Charter of the United Nations Act 1945 to introduce new higher penalty offences for using or dealing with the assets of specified persons and entities involved in terrorist activities and making assets available to those persons or entities. The amendments to the Act will supersede the existing offences in the Charter of the United Nations (Anti-Terrorism Measures) Regulations 2000. The Act makes provision for regulations to be made setting out the procedures to be followed in relation to freezing of assets, including procedures for notifying those whose assets are frozen.
To ensure the new offences can be effectively detected and investigated, the Act amends the Financial Transaction Reports Act 1988 to require financial institutions, securities dealers, trustees and other cash dealers to report suspected terrorist-related transactions to the Director of the Australian Transaction Reports and Analysis Centre (Austrac). In addition, the procedures for the disclosure of financial transaction reports information (FTR information) to foreign countries will be streamlined by enabling Austrac, the Australian Security Intelligence Organisation and the Australian Federal Police to disclose FTR information directly to foreign countries and foreign law enforcement and intelligence agencies.
3.3
Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002
The Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 amended the Criminal Code Act 1995 to make it an offence to place bombs or other lethal devices in prescribed places with the intention of causing death or serious harm or causing extensive destruction which would cause major economic loss.
3.4
Telecommunications Interception Legislation Amendment Act 2002
The Telecommunications Interception Legislation Amendment Act 2002 amended the Telecommunications (Interception) Act 1979 to recognise offences involving terrorism as falling within the most serious class of offences for which interception warrants are available.
3.5 Border
Security Legislation Amendment Act 2002
The Border Security Legislation Amendment Act 2002 deals with border surveillance, the movement of people, the movement of goods and the controls Customs has in place to monitor this activity.
4. Analysis
of the ASIO Legislation Amendment (Terrorism) Bill 2002
4.1 Summary
of the Bill
The Director-General of ASIO may seek the Minister's consent to request the issue of a warrant (clause 34C(1)).
A warrant may provide for:
· Questioning - the giving of information or production of records or things; and/or
· Detention.
The Minister may consent to the making of the request if the Minister is satisfied that:
· there are reasonable grounds for believing that the issuing of the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence; and
· that relying on other methods of collecting that intelligence would be ineffective. (clause 34C(3)(a) and (b)).
If the warrant is for the purposes of bringing a person before a prescribed authority for questioning and detention the Minister must be satisfied that if the person is not immediately taken into custody and detained, the person:
· may alert a person involved in a terrorism offence that the offence is being investigated; or
· may not appear before the prescribed authority; or
· may destroy, damage or alter a record or thing the person may be requested in accordance with the warrant to produce. (clause 34C(3)(c)(i)-(iii)).
A prescribed authority is defined in clause 34B as being either the Deputy President of the Administrative Appeals Tribunal (‘AAT’) or a senior member or member of the AAT if that person is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory and has been enrolled for at least 5 years.
Upon being taken into custody the police officer who is in control of the person must explain to them:
· whether the warrant authorises detention and the period of that detention;
· what the warrant authorises ASIO to do;
· the offences created under clause 34G for, broadly stated, lack of cooperation;
· the period for which the warrant is in force;
· the person’s right to make a complaint orally or in writing;
· the fact that the person may seek from a federal court a remedy relating to the warrant or the treatment of the person in connection with the warrant (this fact must be repeated to the detainee once in every 24-hour period);
· whether there is any limit on the person contacting others. (clause 34E(1))
A complaint may be made to:
· the Inspector-General of Intelligence and Security in relation to ASIO; or
· the Ombudsman in relation to the Australian Federal Police. (clause 34E(1)(e)(i)(ii))
The provisions relating to ‘Communications while in custody or detention’ (clause 34F(8)) are expressly said not to affect the right of the detainee to contact between the person and the Inspector-General or Ombudsman under clause 34E.
An ordinary search may be conducted by a police officer of a person who has been detained.
A strip search may be conducted by a police officer of a person who has been detained if:
· the police officer suspects on reasonable grounds that the person has a seizable item on his or her person; and
· the police officer suspects on reasonable grounds that it is necessary to conduct a strip search of the person in order to recover that item; and
· a prescribed authority has approved the conduct or the search, unless, the person consents in writing to the search being conducted on them. (clause 34L(2)).
4.2
Passage of the Bill
The Australian Security Intelligence
Organisation Legislation Amendment (Terrorism) Bill 2002 was introduced
into the House of Representatives on
The Bill was referred to the Parliamentary Joint Committee on ASIO, ASIS and DSD (‘PJC’). It was also referred to the Senate Legal and Constitutional References Committee. The PJC conducted public hearings and produced a bipartisan advisory report critical of the human rights implications of the Bill. The Senate Committee, in turn, did not conduct an inquiry but reserved the right to do so in the event that the Government did not accept the report of the PJC. The Government accepted some and rejected others of the PJC’s recommendations. At the second reading stage the Bill was referred to the Senate Committee.
The Bill, amended
in many important respects, was passed in the Senate on
The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 could form a trigger for a double dissolution of Parliament. For the Bill to be used in this way it can not be reintroduced into the Parliament within a space of 3 months.
The four principal issues over which the Government and Opposition could not reach agreement in the House of Representatives were:
|
Issue |
Government’s position |
Opposition’s position |
|
Access to a lawyer |
Access to an approved security cleared lawyer |
Access to a lawyer of the person’s own choice as a matter of right |
|
Sunset clause |
No sunset provision |
Clause 3 years after which the efficacy and operation of the Bill would be reviewed |
|
Treatment of children |
Questioning and detention of 14 to 18 year olds permitted |
Prohibit the questioning or detention of children |
|
Period of detention |
Maximum period of 168 hours |
Maximum period of 20 hours |
4.3
Human rights implications of the Bill
The primary human rights concerns raised by the Bill, as outlined in numerous submissions made to the PJC and Senate Committee, were:
4.3.1
Lack of a legal practitioner for the first 48 hours of detention
In accordance with
clause 34C(3C)(d)(ii), a lawyer does
not need to be provided within the first 48 hours of detention.
Principle 17 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides that a detained person shall be entitled to have the assistance of a legal counsel. This Principle, however, is limited by Principle 15 which provides that access to counsel will not be denied for more than "a matter of days". The Basic Principles on the Role of Lawyers similarly provides in Principle 7 that access to a lawyer must be provided within 48 hours of detention.
Under the Beijing Rules, juveniles similarly have a right to counsel. The Rules do not provide for any limitation on this right.
4.3.2 Lack of a legal practitioner of the detainee's choice
Clause 34AA sets out the requirements for a lawyer to be approved for the purposes of providing legal advice to a person detained under the provisions of the Act.
The Minister may approve a legal practitioner for the purposes of the Act. The practitioner must be registered to practice in the Federal Court or a Supreme Court of a State or Territory. They must have been enrolled for at least 5 years. The Minister must consider a security assessment of the legal practitioner and “any other material that the Minister considers is relevant to the question whether to approve the practitioner”. The practitioner must consent to being approved.
Article 14(3)(b) of the ICCPR provides that in the determination of a criminal charge everyone shall be entitled to communicate with counsel of their own choosing. The Body of Principles do contemplate the provision of legal counsel other than of the detainee's own choice. It is unclear, however, whether Principle 17(2) permits the imposition of a particular legal counsel or simply provides that legal counsel will be provided where the detainee does not wish to exercise their choice in appointing their legal counsel.
4.3.3 Requirement that contact between a legal practitioner and a detainee must be able to be monitored
Clause 34U(2) stipulates that contact with an approved lawyer "must be made in a way that can be monitored by a person exercising authority under the warrant."
The relevant provisions of the Basic Principles on the Role of Lawyers and Body of Principles for the Protection of All Persons are drafted in similar terms. Principle 8 and Principle 18(3) respectively, each provide for a detained person to be able to communicate with their lawyer "without delay, interception or censorship and in full confidentiality.” The Basic Principles provide that "Such consultation may be within sight, but not within the hearing, of law enforcement officials." Principle 18(3) does provide an exception to the extent that this right may be limited "in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order."
4.3.4 Requirement that all questions be answered
Clause 34G(3) provides for a penalty of imprisonment for 5 years if a person who has been detained fails to give any information requested of them under the warrant. Similarly clause 34G(6) requires a person to produce any record or thing under questioning when requested to do so in accordance with a warrant.
The effect of these provisions on human rights is two-fold. First, the onus of proof has effectively been reversed to place the burden on the detained person to prove that they did not have the information, record or thing. This is in clear violation of article 14(2) of the ICCPR. Secondly, the requirement that the detained person must answer the questions put to them abrogates the 'right to silence.' This is a tenuous right recognised in common law but which has slowly been eroded by successive judgments in the criminal jurisdiction.
4.3.5 "Special rules for young people"
All provisions of the Bill are said to apply for persons who are at least 14 years of age. Clause 34M(1)(e), for example, provides that ordinary and strip searches may be conducted on children from the age of 14. Special measures are implemented in accordance with clause 34NA which are intended to take into consideration the special interests of the child. A child is permitted to request the presence of a parent or guardian during the questioning and questioning can not take place for more than 2 hour continuous intervals.
The CRC requires that in all actions concerning children, "the best interests of the child" are a primary consideration. Article 37 states that detention should be a "measure of last resort" and for the shortest appropriate period of time. Children should be treated with dignity and, in accordance with Article 40(2)(b)(i) presumed innocent until proven guilty and shall "not be compelled to give testimony or to confess guilt" (Article 40(2)(b)(iv)).
The Beijing Rules expressly recognise the right to remain silent in Principle 7.1. The well-being of the child is to be promoted (Principle 10.3). Deprivation of the personal liberty of a child shall not be imposed simply for the purpose of acquiring information, as proposed in the Bill, but if it is judged that "the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences." (Principle 17.1(c)).
4.3.6 Lack of contact with anyone for the first 48
hours of detention
Clause 34F(8) provides that a detained person is not permitted to contact anyone while in custody or detention unless the warrant specifies that they may. This prohibition is limited in that after 48 hours the detainee may contact a legal representative. Even after 48 hours, there is no right to contact family members or anyone else other than a legal representative.
The Body of Principles for the Protection of All Persons provide in Principle 16 that a detained person shall be able to notify their family or other appropriate persons of their choice of their detention and of the place where they are being held in custody.
A foreigner is extended the right of communication under Principle 16(2) for the purposes of contacting their diplomatic mission, consulate or relevant international organisation in the case of a refugee.
[1] On 28 August 1968 the US Ambassador to Guatemala was killed; 2 March 1973 the US Ambassador to Palestine was killed; 16 June 1976 the US Ambassador to Lebanon was killed; 4 November 1979 Iranian students seized the US Embassy in Tehran, taking 63 US citizens and 40 others hostage; 18 April 1983 the US Embassy in Beirut was bombed killing 63 people.
[2]
[3] Charter of the United Nations
(Sanctions -
[4] Hansard, House of Representatives, Mr Williams,
[5] Ibid.
[6] Ibid, p. 10428.
[7] Hansard, Senate, Senator Faulkner,
[8] Ibid.
[9] Hansard, House of Representatives, Mr Crean,
[10] Hansard, House of Representatives, Mr Williams,
[11] Hansard, Senate, Senator Grieg,
[12] See section 100.2 of the Security Legislation Amendment (Terrorism) Act 2002 which sets out the ‘constitutional basis for offences’. Relevant section 51 powers would include: section 51(v) - postal, telegraphic, telephonic, and other like services; section 51 (xiii) - banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money; section 51 (xiv) - insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned; section 51(xxvii) - immigration and emigration; section 51(xxix) - external affairs.
[13] International Convention
against the Taking of Hostages, United Nations, General Assembly resolution
34/176,
[14] See for example S/RES/1373,
[15] Status of Ratifications of
the Principal International Human Rights Treaties, OHCHR, as of