ANTI-TERRORISM BILL 2004

13th May 04

Mr ORGAN (Cunningham) (11.01 a.m.) — The Attorney-General has told us that the purpose of the Anti-terrorism Bill 2004 is to strengthen Australia's counter-terrorism laws in a number of respects, a task which he told us was made more urgent following the tragic terrorist bombings in Spain. Quite why a Basque separatist organisation bombing in Spain specifically makes strengthening our counter-terrorism laws more urgent is a mystery. ETA, which finances its activities primarily through extortion and robbery, has been primarily involved in bombings and assassinations of Spanish government officials, security and military forces, politicians and judicial figures. The group has killed more than 850 persons and injured hundreds of others since it began lethal attacks in the early 1960s, but to the best of my knowledge none of them in Australia.

The Anti-terrorism Bill 2004 seeks to redefine and extend the investigation period set out in the Crimes Act. It proposes changes to foreign incursion offences in situations where terrorist organisations are operating as part of the armed forces of a state. It would amend the Criminal Code Act relating to members of terrorist organisations and make it an offence to provide training to or receive training from a terrorist organisation, and it seeks to amend the Proceeds of Crime Act to tighten restrictions on any commercial exploitation by a person who has committed foreign indictable offences.

As I have said before in this House, balancing anti-terrorism and civil liberties is a complex and difficult task. I have also expressed my concern that the government is tipping the scales too far, and the bill now before us is an extension of that tipping. The Sydney Morning Herald made the point well in an editorial on 13 April this year. The editorial said:

In a plural liberal democracy, the yearnings of the police and intelligence services have traditionally been countered by a legislature making laws that create and protect citizens' rights. The present climate makes it harder for liberal voices to be raised in the discourse about setting the right balance, but they must be.

It is all very well for the Attorney-General to tell us, as he did in his second reading speech:

Our counter-terrorism laws require review and, where necessary, updating if we are to have a legal framework capable of safeguarding all Australians from the scourge of terrorism.

But how much further does the Attorney-General intend to erode our civil rights? It has already been suggested that the government is gearing itself up for a `terror' election campaign, and that is a very dangerous game. As the Sydney Morning Herald put it in its editorial:

No one doubts that there exists a deeply troubling threat to orderly society by some fanatical individuals and organisations. But who within the two major Australian political parties is raising his or her voice about the importance of balancing the perceived need for more draconian measures with the equally important preservation of civil liberties?

The answer is: very few, if any. That is perhaps not surprising given the climate of fear that the government is cultivating by the use of emotive phrases like `the scourge of terrorism' and logical gymnastics like tying the need for the Anti-terrorism Bill to a bombing in Spain, tragic though the consequences of that reprehensible act were.

When we debate legislation like this we should bear in mind that it is 24 years since Australia ratified the International Covenant on Civil and Political Rights, yet we remain the only democratic country—that is right, the only democratic country—in the world not to have passed laws that give effect to those obligations. Instead, the Howard coalition government, our government, has introduced no fewer than 17 pieces of legislation in the last three years which in some way restrict civil freedoms in the name of enhancing the power to combat terrorism.

Members will be aware, I am sure, that the Senate Legal and Constitutional Legislation Committee has been considering the Anti-terrorism Bill and presented its report just yesterday. While there are a couple of changes proposed by the committee, it has basically accepted the thrust of the bill. How prescient that Sydney Morning Herald editorial of 13 April now seems, where it said:

When a federal Labor Opposition indicates it is prepared to agree to future government legislation even before its detailed content is known, alarm bells should ring.

Well, they did ring and they are still ringing.

The Anti-terrorism Bill is another egregious assault on civil liberties by the Howard government. As I said earlier, the bill would amend the Crimes Act to extend the fixed period for investigations into suspected terrorism offences to a maximum of 24 hours. The Attorney-General maintains that this is necessary because the current four-hour initial period, which can be extended by eight hours for serious crimes if authorised by a magistrate or other judicial officer, is:

... an inadequate length of time in which to question suspects in the context of complex terrorism investigations that may have international aspects.

I feel that is not much in the way of justification. Certainly the Castan Centre for Human Rights Law at Monash University do not think it has much substance. This is what they told the Senate committee's inquiry that I mentioned earlier:

However, no evidence is offered to support this claim that the investigation of terrorist offences is sufficiently complex as to warrant a doubling of the total permitted time of detention from 12 to 24 hours. Indeed, given the breadth of the definition of `terrorism offences', it is difficult to see how such evidence could be produced. The potential subject matters of investigation are simply too varied.

For example, it was explained above that it might be possible to commit a terrorism offence by possessing the minutes of a union meeting. The investigation of this sort of offence does not seem overly complex. Why is a special exception, permitting a doubling of the time of detention of an arrested person, required? Even for those cases in which the offence for which a person has been arrested is closer in nature to such stereotypical terrorist conduct as planning a bombing or a hijacking, there is no reason to think that, in general, the investigation of such offences would be any more complex than the investigation of narcotics importation, white collar fraud or other organised crime.

It is a fundamental principle of the rule of law that no one should be deprived of his or her liberty arbitrarily. This is a principle to which Australia is committed under article 9 of the International Covenant on Civil and Political Rights. It would seem highly arbitrary for an arrested individual's liability to detention to turn simply on the chapter of the statute book in which the alleged offence is to be found. But no reason has been given to suggest that terrorism offences would have anything else in common, and distinct from other offences, in virtue of which an extended period of detention would be warranted.

The Civil Rights Network had similar concerns:

We are concerned that this proposal does not seem to have arisen from any real, practical difficulty which has been experienced. Further, there has been a complete absence of debate as to the reasons for and necessity of this amendment. When changes to Australia's legal system which have the potential to severely impact on individual's liberty and rights are proposed it is fundamentally important that the community is properly consulted and informed before our elected representatives act.

Australian Lawyers for Human Rights sounded an even more dire warning:

... potentially, the total time a terrorism suspect could be detained could be as much as 40 hours. Legislators should be aware of that available interpretation of the legislation and not be misled by assertions that the total period of detention (as opposed to investigation) is 24 hours prior to charge or release.

Then there is the provision to permit law enforcement agencies to reasonably suspend or delay questioning a suspect while they make inquiries overseas as part of an investigation. The Attorney-General has told us that the present questioning regime `does not permit investigators to make overseas inquiries without running down the investigation ``time clock'' or, worse still, releasing the suspect'. The Attorney said that international time zones are `a likely cause of delay in responding to requests for information and assistance from Australian authorities'. Therefore, the Attorney-General said:

... the bill prescribes this time as `dead time' so that it does not exhaust the finite investigation period.

Do not forget that the Attorney-General had already proposed extending the investigation period to 24 hours.

Professor George Williams from the Gilbert and Tobin Centre of Public Law at the University of New South Wales is not impressed by the `dead time' idea. He said it should be amended to impose an absolute limit on detention, pointing out:

Otherwise, the detention could be extended for undue periods. For example, while the time that can be disregarded while waiting for a reply from international agencies must not `exceed the amount of the time zone difference', this alone could add up to an extra 23 hours to the detention period. This and the other potentially lengthy periods of disregarded time mean that there should be a cap on the absolute amount of time a suspect can be kept in custody without charge.

The Public Interest Advocacy Centre has expressed similar concerns. It told the Senate inquiry:

While this `dead time' is limited to not extending beyond the time zone difference between Australia and the relevant time zone, this period could add an extra 23 hours to the detention period. Together with other areas of `dead time', this could mean potentially very long periods of detention in order to conduct up to 24 hours of investigation time. With this potential, if nothing else there should be an absolute limit on the time that a suspect can be detained in custody without charge. Anything less could be a breach of the human right of an arrested person to be “promptly informed of any charges” against them. Finally, if this new category of `dead time' were to be adopted, it would be a departure from the nature of the other areas of `dead time', which generally, as outlined above, apply to conduct for the benefit of the detainee. Such a departure from the fundamental principle that any deprivation of liberty should be restricted to absolute necessity would require serious consideration. The current Bill appears to have failed to give adequate attention to this principle, as it is arguable that most international inquiries could be made either prior to or without the suspect's detention.

The Castan Centre for Human Rights Law goes further:

This amendment to the `dead time' provisions for terrorism suspects would constitute an undesirable departure from the principles on which the current dead time provisions are based. Currently, the periods of time not counted against the investigation period are either: one-off events that are not part of the investigation itself but are necessary preconditions of it, such as conveying the suspect to premises suitable for the carrying out of the investigation, or applying for an extension of the investigation period; time spent on matters that are for the benefit of the suspect, such as rest, medical treatment or the contacting of a lawyer; or time spent on investigative procedures that demand the presence of the suspect, such as identification parades. The amendment would introduce periods of `dead time' that result directly from investigative activities, but which are not activities requiring the presence of the subject. At present these matters are presumably investigated prior to the arrest of the suspect, or subsequent to their release or remand. No reason has been given as to why this needs to change.

The New South Wales Council for Civil Liberties is similarly unimpressed. It told the Senate inquiry:

The Council is in general concerned about any extension of the power to detain people as proposed by this bill.

So am I.

The proposed amendments to the Crimes (Foreign Incursions and Recruitment) Act are also problematic. The Attorney-General asserted:

The recent armed conflict in Afghanistan demonstrates that in today's security environment terrorist organisations may be acting in collaboration with the armed forces of a foreign state.

You will note, Mr Deputy Speaker, the clever `step and swerve' around the fact that the Taliban were the government of Afghanistan. One might be forgiven for thinking that the Attorney-General had David Hicks and Mamdouh Habib in mind when he wrote that. Maybe that is what the Civil Rights Network had in mind in framing their comments on this part of the bill. They said:

The proposal to grant the power to prescribe terrorist organisations under the Foreign Incursions Act and to make it an offence to fight with the armed forces of the State if also involved in a prescribed organisation is problematic on a number of levels

(i) the Attorney General already has the power to list organisations as terrorist organisations without those organisations being listed by the United Nations. Under this Bill the Attorney General would also have the power to prescribed organisations under the Foreign Incursions Act. Neither the Explanatory Memorandum nor the Bill identifies what criteria will be used before an organisation is prescribed. Given the clear intention expressed in the explanatory memorandum to be able to prescribe organisations swiftly it is imperative that clear criteria be given in order to justify such listing. Whilst regulations may be disallowable, any actions taken under that instrument before it is disallowed could have significant impacts upon the life and liberty of Australian citizens overseas.

(ii) Given the rapidly changing nature of international geopolitics it would seem likely that an organisation which may be listed as a terrorist organisation in some circumstances would not be considered to be such an organisation in others. We recommend that the committee considers whether it is appropriate (if it accepts that the Attorney General should have the power to prescribed terrorist organisations under this Bill) to insert what in effect would be a sunset clause for the listing of organisations. It may well be that there should be a provision that requires the reconsideration of the status of any organisation listed under this Act.

(iii) It should be made clear that if a person enters into a foreign state with the intent to engage in hostile activity while in an organisation and that organisation is acting at the behest of that foreign state, and at that time that organisation is not a prescribed organisation, any prospective listing of that organisation will not extend liability to that person. It would be against the rule of law to retrospectively impose criminality upon an individual.

In other words, they are saying that this amendment should be rejected—and so it should.

The Civil Rights Network is just one of the organisations concerned about the proposal in the bill to broaden the scope of terrorist offences by including training. They say the reason for adopting strict liability is not adequately explained in the explanatory memorandum to this bill, nor in the Attorney-General's second reading speech. The Castan Centre for Human Rights Law are particularly critical of this aspect of the legislation. They say:

The proposed new offence should also be opposed. The Explanatory Memorandum describes it as a strict liability offence, and while technically true this is, once again, not as informative as it might be. The proposed new offence is best conceived of as a reverse-onus recklessness offence. It differs from the existing recklessness offence in three respects. First, it applies only to an individual who trains with an organisation proscribed under paragraph (b), (c), (d) or (e) of the definition of terrorist organisation in sub section 102.1(1). Second, it carries a more severe penalty (25 years imprisonment rather than 15 years). Third, the effect of proposed subsections 102.5 (3) and (4) is to make the offence, for practical purposes, a reverse-onus recklessness offence according to which the onus is on the accused to establish a reasonable possibility that they were not reckless, before the prosecution then incurs an obligation to prove their recklessness beyond reasonable doubt.

They continue:

This proposed new offence should be opposed on two grounds. First, no reason has been given as to why the onus of proof with respect to the recklessness of the accused should be reversed in this matter. In his Second Reading speech, the Attorney-General says that

The effect of this amendment is to place an onus on persons to ensure that they are not involved in training activities with a terrorist organisation.

This amendment will send a clear message to those who would engage in the training activities of terrorist organisations, which could result in an attack of the kind seen in New York or in Bali, that they can expect to be dealt with harshly (Commonwealth, Parliamentary Debates, House of Representatives, 31 March 2004, p 26475).

The first of the quoted paragraphs is extremely misleading, exploiting as it does an ambiguity between the law's `placing an onus' on someone not to perform a certain act, by criminalising such conduct, and the technical sense in which a criminal law may place an onus of proof on either the prosecution or the defence. The law already places a clear onus on persons to ensure that they are not involved in training activities with terrorist organisations, by prohibiting such conduct under section 102.5. And the law already has the capacity to deal harshly with such offenders. As indicated above, the maximum penalty for knowingly training with a terrorist organisation is 25 years (the same penalty as section 268.59 of the Criminal Code imposes for the war crime of rape), and the maximum penalty for recklessly training with a terrorist organisation is 15 years.

Finally there are the provisions to broaden the scope of the Proceeds of Crime Act or, as I like to think of it, the `make sure David Hicks and Mamdouh Habib never have the chance to tell their story publicly to a wider audience act'.

The Public Interest Advocacy Centre dismisses this idea out of hand, saying:

The general rule is that laws should not be given retrospective operation. Arguments for a serious deviation from such a fundamental principle should be carefully considered, particularly in an area such as this that relates to freedom of speech.

But there is more:

If passed this definition would give recognition in Australian law to offences that are the creation of the executive arm of the United States Government. This would essentially breach a basic cornerstone of democracy and the Australian political and legal system, the separation of powers.

I think I have made the point. This bill is poorly drafted. It is bad law. It is a further erosion of civil rights, and the real experts are telling us to reject it. That is what I recommend. And, if, as the Sydney Morning Herald asked, there are people in this place raising their voices about the importance of `balancing the perceived need for more draconian measures with the equally important preservation of civil liberties', this House will reject the Anti-terrorism Bill. I certainly reject it, but I suppose it is a big ask for others to join me.