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Australian Anti-Terrorism Laws

Written by Terry O’Gorman

Those who support the further extension of Anti-Terrorism Laws say they have widespread popular support.

That may be so. But while the new measures may be superficially appealing, on closer inspection the most controversial of the powers are flawed or unnecessary.

There is an onus on those seeking greater powers to show why they are needed and why current anti-terrorism powers are inadequate.

And it has to be realised that once the new laws are introduced they will never be repealed.

This is so for two reasons. Greater powers given to the intelligence services or the police are never repealed. That is in my experience in over thirty years of practicing criminal law.

Further, we are told that the war on terror may have no end. Therefore the new laws will be permanent.

There are currently two Committees reviewing the three major pieces of anti-terrorism laws which have been introduced into the Federal Parliament since the 11th of September 2001 New York attacks. The abolition of any part of those laws is not on the agenda of the two Committees. Those Committees are simply reviewing how the laws are working in practice.

Some of the new powers proposed by the Prime Minister can be supported but others are thoroughly objectionable.

The proposed new powers which are justified relate to allowing law enforcers access to airline passenger lists, extending the time before a person can be granted Australian Citizenship and a National Code for CCTV in public places.

A significantly enhanced role for the Federal Privacy Commissioner and the establishment of State and Territory based Privacy Commissions are necessary protections to address privacy issues arising from the passenger list and CCTV proposals.

The proposals which are not justified and which carry significant civil liberty negatives are control orders, preventative detention and less external supervision of ASIO warrants.

The control order concept will allow the police to seek from a Court twelve month control orders on people who pose a terrorist risk to the community.

It is said that these will be similar to apprehended violence orders but would allow stricter conditions to be imposed on a person such as having to wear a tracking device and being subject to travel restrictions as well as conditions governing who the controlled person can associate with.

But already it is clear that the proposed control orders will have a much wider effect and be much more mundane than simply being restricted to terrorism matters. Clive Williams who is the Director of Terrorism Studies at ANU who used to work in the Federal Defence Department has argued in last weekend press that control orders are intended to provide the means for law enforcement agencies to act where a person might pose a risk to the community but can not be contained or detained under existing legislation. Mr Williams suggests that such an order could be sought where the Defence Department has a problem with mentally disordered individuals threatening the Defence Minister!

These control orders are new in the UK having been developed only over the last six months in that country.

We do not yet know what will be the facts a Court will have to find exist before a control order can be made.

Existing laws make it an offence to incite terrorism or do an act preparing for a terrorist attack. If the existing law is so wide what possibly justification can there be for imposing a control order on a person especially when 24 hour extensive surveillance of a person of interest is much more likely to yield evidence not only of that person’s activities but also will reveal the existence and activities of associates of the target person which would provide valuable intelligence to the security services and the police.

In this regard note that the budget of all Australia’s intelligence services (and there are a lot of them) have increased by 300% since 11 September 2001.

Preventative detention for fourteen days based on laws brought in by the UK Government in the 1960’s and 1970’s to deal with IRA bombings and the British mainland is part of the new anti-terrorism Howard package.

This power will be on top of a new post 9/11 power which ASIO has enabling it to hold a person for seven days for questioning even if that person is not a terrorist suspect.

Internment without charge for two weeks represents a huge civil liberties loss. Law enforcers who propose this change have not even started to discharge their onus of establishing why such a law change is necessary.

The Prime Minister also proposes that externally issued ASIO search warrants be provided for a duration of three months rather than the current one month and that ASIO mail and courier service ‘peek’ warrants be extended from three months to six months.

No reason has been given for this significant extension of ASIO warrants. Clearly it will have the affect of greatly reducing external supervision of ASIO search and peek activities.

Under the current regime an ASIO warrant once expired has to be the subject of a further application if an extension of the warrant is sought. At the extension application ASIO has to show the extent to which has interfered with a target’s privacy under the expired warrant and justify why a further intrusive warrant should issue.

This external supervision of ASIO’s highly secretive search and peek powers will be hugely weakened under the new proposed powers.

Finally, the new proposals contain an indirect incitement of terrorism proposal. The details of what is proposed are somewhat sketchy but already many are concerned it will chill free speech including restricting the media in its reporting of terrorist and national security matters.

When it is already an attempt to directly incite terrorism, a case has not been made out for a new offence of indirect incitement of terrorism.

The war on terror is supposed to be about protecting our democratic way of life. If the superficially attractive but flawed and unnecessary increased anti-terrorism proposals are brought in a further big slice of hard won civil liberties in this country will be permanently taken away.

Have those who proposed these extra powers made out their case. The answer is clearly no.

(Terry O’Gorman AM is President Australian Council for Civil Liberties and is a criminal defence lawyer based in Brisbane).

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