Proposals to further strengthen Australia s counter-terrorism laws 2005


6 October 2005, updated 25 November 2005

Susan Harris-Rimmer, Analysis and Policy
Law and Bills Digest Section
Nigel Brew , Analysis and Policy
Foreign Affairs, Defence and Trade Section

 

Background

On 8 September 2005, Prime Minister John Howard announced a number of proposed changes to Australia s counter-terrorism laws with the aim of enabling Australia to better deter, prevent, detect and prosecute acts of terrorism . Drawing on overseas experience, particularly the London bombings in July 2005, the Prime Minister declared that the reforms will ensure Australia s counter-terrorism legislative regime remains at the forefront of international efforts to counter the global threat of terrorism .

State and Territory leaders unanimously agreed to the proposed changes at a special meeting of the Council of Australian Governments (COAG) on 27 September 2005 and legislation has now been drafted, based on the COAG Communiqu , to enable the implementation of the new measures. At a press conference following the conclusion of the COAG meeting, the Prime Minister said that as a result of the decisions taken today, we are in a stronger and better position to give peace of mind to the Australian community .

Draft State legislation necessary to complement the Commonwealth preventative detention scheme is listed below. Under section 100.8 of the Commonwealth Criminal Code, the agreement of at least four States is required before the Commonwealth can make amendments to Part 5.3 of the Code (terrorism-related offences).

The proposals have attracted a significant amount of debate and commentary from a range of individuals and interest groups. Outlined below is a compilation of references reflecting the reaction to the proposed counter-terrorism measures, the outcomes of the COAG meeting and the draft legislation. This compilation will be continually reviewed and updated as the issue progresses and evolves.

The Parliamentary Library also regularly updates a Law Internet Resource Guide, compiled by Roy Jordan, which features the key existing terrorism legislation, a chronology and commentary. The Commonwealth National Security website also lists all terrorism-related legislation. 

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Draft legislation relating to the COAG Communiqu

The Bills and Bills Digest will be added to the Parliamentary Library Law Internet Research Guide Terrorism Chronology as soon as they are available.

The COAG Communiqu states that:

State and Territory leaders agreed to enact legislation to give effect to measures which, because of constitutional constraints, the Commonwealth could not enact, including preventative detention for up to 14 days and stop, question and search powers in areas such as transport hubs and places of mass gatherings.  COAG noted that most States and Territories already had or had announced stop, question and search powers.

The NCTC will settle the amendments to the Commonwealth Criminal Code by the end October 2005 and consider options for harmonising State and Territory legislative provisions.

The Commonwealth National Security website also lists all terrorism-related legislation.

The Senate Journal No 53 reports at Item 33 that on 13 October 2005, the Minister for Defence and leader of the Government in the Senate, Senator Robert Hill, by leave, moved—That, upon its introduction in the House of Representatives, the provisions of the Anti-Terrorism Bill 2005 be referred to the Legal and Constitutional Legislation Committee for inquiry and report by 8 November 2005. After debate, the matter was adjourned to the next day of sitting (7 November 2005). This effectively gave the Committee one day to scrutinise the Bill.

However, on 3 November 2005, the Attorney-General, Philip Ruddock, introduced the renamed Anti-Terrorism Bill (No. 2) 2005 to the House of Representatives. That same day, the Senate referred the Bill to the Legal and Constitutional Legislation Committee for inquiry and report by 28 November 2005. Submissions to the inquiry are due by 11 November 2005, and the Committee s report will be included here when available. Debate on the Bill is scheduled to commence in the House on 10 November 2005. Submissions to the inquiry and transcripts of hearings are both available online, and the Committee s report will also be included here when available. Debate on the Bill commenced in the House on 10 November 2005.

On 14 October 2005 the ACT Chief Minister Jon Stanhope posted a Draft-in-Confidence version of the Anti-Terrorism Bill 2005 (later renamed as the Anti-Terrorism Bill (No. 2) 2005) on the What's New section of his website. A later Draft-in-Confidence version of the Bill subsequently appeared on the website of a Brisbane law firm. The Parliamentary Library has prepared a comparison of the 3 November version of the Bill with the two leaked versions of the Bill.

The Parliamentary Library has also prepared a comparative table comparing measures contained in the Prime Minister s media release on 8 September, the COAG Communiqu and the draft-in-confidence Anti-Terrorism Bill 2005 (as it was then known) released by ACT Chief Minister Jon Stanhope. The NSW Council for Civil Liberties has posted an unofficial consolidation of the relevant sections of legislation amended by the draft-in-confidence Bill (135 pages).

Links to the Bill and the Explanatory Memorandum have been added to the Parliamentary Library s Law Internet Research Guide Terrorism Chronology, and the Bills Digest is also now available.

The NSW Council for Civil Liberties has posted an unofficial consolidation of the relevant sections of legislation amended by the draft-in-confidence Bill (135 pages).

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Official statements proposals announced on 8 September 2005

The Hon. J. Howard MP, Prime Minister, Counter-terrorism laws strengthened, media release, Parliament House, Canberra, 8 September 2005.

Reactions to the Prime Minister s proposals

Australian Federation of Islamic Councils, Engagement or confrontation?, media release, Sydney, 9 September 2005.

Australian Lawyers for Human Rights, Avalanche of opposition to government s new terror laws, media release, Sydney, 9 September 2005.

Law Council of Australia, Don t rush to rubber stamp anti-terror measures, Law Council warns, media release, Melbourne, 9 September 2005.

Law Institute of Victoria, LIV condemns counter-terrorism package, media release, Melbourne, 9 September 2005.

NSW Council for Civil Liberties, PM s new counter-terrorist package: recipe for a police state, media release, Sydney, 9 September 2005.

Crispin Hull, Opinion: The fatal flaws in Ruddock s anti-terror plan, Canberra Times, 13 September 2005.

Ben Saul, Opinion: Without safeguards, new laws are suspect. Sydney Morning Herald, 19 September 2005. Note generally the UNSW Gilbert & Tobin Centre of Public Law Terrorism and Law Resource site.

Agnes Chong, Patrick Emerton, Waleed Kadous, Annie Pettitt, Stephen Sempill, Vicki Sentas, Jane Stratton and Joo-Cheong Tham, Laws for Insecurity? Report on the Federal Government s proposed counter-terrorism measures, 23 September 2005

Mr Jon Stanhope MLA, Chief Minister of the ACT, Opinion: Security solutions cause for concern, Canberra Times, 23 September 2005.

The Hon. K. Beazley MP, Leader of the Opposition, Opposition calls for intelligence-based special police counter terrorism powers, media release, 25 September 2005.

Law Council of Australia, No place for politics and populism at Anti-terrorism Summit, media release, Melbourne, 26 September 2005.

Australian Lawyers for Human Rights, Safeguards Needed for New Terror Laws, media release, Sydney, 26 September 2005.

Australian Homeland Security Research Centre, Critical Issues for the COAG Research Summit, National Security Practice Notes, September 2005.

ABC TV, COAG meeting will discuss proposed counter-terrorism legislation, 7.30 Report, 26 September 2005.

Senator Natasha Stott Despoja, (Australian Democrats), COAG must protect rights, media release, Adelaide, 26 September 2005.

ACT Human Rights Office, Advice to ACT Chief Minister regarding the Council of Australian Government s meeting - potential human rights implications of proposed measures to strengthen counter terrorism laws, Canberra, 27 September 2005.

ABC radio, Police worried about legal action from anti-terrorism laws, AM, 27 September 2005.

Phillip Boulten, SC, Australia s Terror Laws: The Second Wave , Australian Prospect, Winter 2005 (online only).

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Official statements COAG meeting on 27 September 2005

The Hon. J. Howard MP, Prime Minister, Special COAG meeting on counter-terrorism, media release, Parliament House, Canberra, 27 September 2005.

Transcript of the Prime Minister, The Hon John Howard MP, COAG Joint Press Conference, Parliament House, Canberra, 27 September 2005 (includes comments by State and Territory leaders).

Council of Australian Governments (COAG) Communiqu , Special Meeting on Counter-Terrorism, Parliament House, Canberra, 27 September 2005.

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Reactions to the COAG meeting outcomes

The Hon. John von Doussa QC, (President of the Human Rights and Equal Opportunity Commission), New terrorism laws Tough on terror, tough on human rights, media release, Human Rights and Equal Opportunity Commission, Sydney, 27 September 2005.

NSW Council for Civil Liberties, Preventative detention threatens all Australians, media release, Sydney, 27 September 2005.

Gerard Henderson, Opinion: The ayes have it on anti-terrorism laws, Sydney Morning Herald, 27 September 2005.

ABC News online, Anti-terrorism laws do not go far enough: Beazley, 28 September 2005.

Michael Harvey, Terrorists among us. Herald Sun, 28 September 2005.

Michelle Grattan, Opinion: Are we really safer now?, The Age, 28 September 2005.

Mike Steketee, Opinion: Human rights under threat in the war against terror. The Australian, 29 September 2005.

K.C. Boey, Letter from Australia: War against terror, New Straits Times, Malaysia, 2 October 2005:

ABC Radio National, panel discussion about proposed counter-terrorism laws, Breakfast, 30 September 2005 (audio file features Alan Behm, Marian Wilkinson and Gerard Henderson)

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Reactions to draft Anti-Terrorism Bill 2005 (renamed as Anti-Terrorism Bill (No. 2) 2005)

Professor Mirko Bagaric, Your rights of your life? It s no contest , Herald Sun, 4 October 2005.

The Law Society of New South Wales, Government Abuses Power Over Anti-Terrorism Laws , media release, Sydney, 14 October 2005.

Andrew Fraser, Human rights chief says anti-terrorism laws could make courts unfair , Canberra Times, 15 October 2005. 

Senator Natasha Stott Despoja, Statement on release of draft anti-terror laws, media release, 15 October 2005.

John Kerin and David King, Backlash forces watering down of tough anti-terror laws , The Australian, 17 October 2005.

International Commission of Jurists (Australia), ICJ Australia Denounces New Counter-Terrorism Laws, media release, Sydney, 17 October 2005. 

ABC TV, Proposed terror laws debated , Lateline, 17 October 2005 (features The Hon. Arch Bevis, MP and John North, President of the Law Council of Australia).

Michelle Grattan and Brendan Nicholson, Should we be afraid of the terror laws? , The Age, 18 October 2005.

Editorial, Terror the real risk , The Australian, 18 October 2005.

Mark Davis, Terror laws end customer privacy rights , Australian Financial Review, 18 October 2005.

Christopher Michaelson, Democracy wilts easily when conducted behind closed doors , Canberra Times, 18 October 2005.

Clive Williams, Australia slow off the mark on terrorism , Canberra Times, 18 October 2005. 

Neil James, Security laws will not end the world , The Australian, 18 October 2005.

Andrew Byrnes, Hilary Charlesworth and Gabrielle McKinnon, Human rights implications of the Anti-Terrorism Bill 2005 , 18 October 2005 (report prepared at the request of Jon Stanhope, MLA, Chief Minister of the ACT).

Michael Gordon, Barney Zwartz & Rachel Kleinman, Unease mounts over anti-terrorism laws , The Age, 19 October 2005.

ABC TV, Bracks, Beattie on anti-terror laws , Lateline, 19 October 2005.

The Rt Hon. Malcolm Fraser, How Democracies Fight Terrorism, Stephen Murray-Smith Memorial Lecture delivered at the State Library of Victoria on 19 October 2005.

Ben Saul, More harm than good may flow from updated anti-terror laws , The Australian, 20 October 2005.

ABC TV, Ruddock defends proposed counter-terrorism laws , Lateline, 27 October 2005.

ABC TV, Lateline survey of Australian security experts , Lateline, 27 October 2005.

The Hon. John von Doussa, QC (President of the Human Rights and Equal Opportunity Commission), Are we crossing the line?: Forum on national security laws and human rights, 31 October 2005.

Neil James, Counter-terrorism laws: calm and informed debate is needed , Australia Defence Association, October/November 2005.

Richard Refshauge, SC, Director of Public Prosecutions (ACT), advice to Jon Stanhope, MLA, Chief Minister of the ACT regarding the Anti-Terrorism Bill 2005, 20 October 2005.

Patrick Walters, ‘Don’t Panic: Threat response is measured’, The Weekend Australian, 22 October 2005.

Paul Daley, Threat Reckoning , Bulletin with Newsweek, 1 November 2005.

Laurie Oakes. Power Plays: Liberties Overboard, Bulletin with Newsweek, 1 November 2005.

ABC Radio National, Proposed anti-terror laws , The Law Report, 1 November 2005.

Janet Albrechtsen, This level of hysteria suggests anti-terror laws are sound , The Australian, 2 November 2005.

Mike Steketee, These are draconian and unnecessary laws , The Australian, 3 November 2005.

Editorial, Security comes first , The Australian, 5 November 2005.

Network Ten, Philip Ruddock, Attorney-General , Meet the Press, 6 November 2005.

Peter Hartcher, Dramatic proof that laws are adequate and the rest is just atmospherics , Sydney Morning Herald, 9 November 2005.

Editorial, The rule of law works against terrorism, too , The Age, 9 November 2005.

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General commentary

The Hon. Sir Anthony Mason, Democracy and the Law , 2005 Law and Justice Address (Law and Justice Foundation of NSW), 6 October 2005.

The Hon. Alastair Nicholson QC, Contemplating Justice: The Law as a Tool of Justice and Human Rights , An Address to the Annual General Meeting of ReprieveAustralia, 12 October 2005.

The Hon. Terrence Higgins (Chief Justice ACT Supreme Court), Address to the Isaacs Law Society Ball, 13 October 2005.

Human Rights Watch, Australia: Anti-Terrorism Proposal Threatens Civil Liberties, media release, New York, 13 October 2005.

Petro Georgiou MP, Multiculturalism and the war on terror ,, address to the Castan Centre for Human Rights Law, 18 October 2005.

The Hon. Alastair Nicholson, QC, The Role of the Constitution, Justice, the Law, the Courts and the Legislature in the context of Crime, Terrorism, Human Rights and Civil Liberties , An Address to the Postgraduate Student Conference Transgressions Intersections of Culture, Crime and Social Control , 4 November 2005.

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Commentary on specific provisions of the draft Anti-Terrorism Bill 2005 (renamed as Anit-Terrorism Bill (No. 2) 2005

Australian Human Rights Centre, Special online edition on the Anti-Terrorism Bill (No.2) 2005, Human Rights Defender, November 2005.

David Neal, Legalising abuse of power , The Age, 25 November 2005.

Proscription praising terrorism

Michelle Grattan, Opinion: Deflating terror s bubble , The Age, 16 October 2005.

Control orders and preventative detention

Andrew Byrnes, Hilary Charlesworth and Gabrielle McKinnon, Human rights implications of the Anti-Terrorism Bill 2005 , 18 October 2005 (report prepared at the request of Jon Stanhope, MLA, Chief Minister of the ACT).

Richard Refshauge, SC, Director of Public Prosecutions (ACT), advice to Jon Stanhope, MLA, Chief Minister of the ACT regarding the Anti-Terrorism Bill 2005, 20 October 2005.

Helen Watchirs (ACT Human Rights Commissioner), Letter to Jon Stanhope, 19 October 2005.

David McLennan, The terror laws explained , Canberra Times, 22 October 2005.

Lex Lasry and Kate Eastman, Memorandum of Advice: Anti-Terrorism Bill 2005 (Cth) and the Human Rights Act (2004) ACT, 27 October 2005 (to Jon Stanhope).

ABC TV, Keelty puts case for terrorism laws , Lateline, 31 October 2005.

Judicial Oversight

Andrew Fraser, Human rights chief says anti-terrorism laws could make courts unfair , Canberra Times, 15 October 2005. 

Public Interest Advocacy Centre et al, Letter to Jon Stanhope , 19 October 2005.

Joo-Cheong Tham, Anti-Terrorism Bill 2005 (Cth): The failure to provide judicial oversight. 24 October 2005

Ian Munro, Courts' role in new laws called into question , The Age, 26 October 2005.

Nicola Roxon MP, Opinion: Don't look to Courts to guard terror laws , Canberra Times, 26 October 2005

Constitutionality

Samantha Maiden and Dennis Shanahan, PM's bad advice on detention laws . The Australian, 26 October 2005.

Stephen Gageler, SC In the matter of constitutional issues concerning preventative detention in the Australian Capital Territory, 26 October 2005.

ABC TV, Academics discuss legal issues surrounding anti-terrorism legislation , Lateline, 25 October 2005.

ABC TV, Academics are concerned that proposed anti-terrorism legislation is unconstitutional, 7.30 Report, 25 October 2005.

ABC TV, Former Solicitor-General urges Govt not to proceed with counter-terrorism laws , Lateline, 27 October 2005.

AFP use of force

Brian Walters, Opinion: Accounting for the lethal force , The Age, 8 April 2005.

John Kerin, Backlash forces watering down of tough anti-terror laws . The Australian, 17 October 2005.

Michelle Grattan and Brendan Nicholson, Should we be afraid of the terror laws? , The Age, 18 October 2005.

ABC News online, Shoot-to-kill plans aren't new, PM says , 20 October 2005.

Editorial: Critics Duck Debate: Terrorism, not police powers, is the issue that matters The Australian, 22 October 2005.

Brendan Nicholson, So just what does the law say about shoot to kill? The Age, 21 October 2005.

Michelle Grattan, Voters oppose 'shoot to kill' power [and] Age poll , The Age, 25 October 2005.

Piers Akerman, Just let the AFP do its job , Sunday Telegraph, 30 October 2005.

Retrospectivity

Ian Munro, Anti-terror orders a legal minefield , The Age, 25 October 2005

AFP Notice to produce

Mark Davis, Terror laws end customer privacy rights , Australian Financial Review, 18 October 2005.

Sedition

Ben Saul, Opinion: Watching what you say , The Age, 19 October 2005.

David McLennan, Terrifying new laws , Canberra Times, 22 October 2005.

Brian Toohey, Opinion: Read with care, seditious material , Australian Financial Review, 22 October 2005.

ABC TV, Seditious opinion? Lock em up , Media Watch, 24 October 2005.

Andrew Jaspan, Anti-terrorism laws threaten media freedom The Age, 25 October 2005.

Luke McIlveen, Preachers of hatred face long jail terms , Daily Telegraph, 31 October 2005.

ABC News online, Artists, journalists voice anti-terrorism laws concerns, 31 October 2005.

Ben Saul, Briefing on sedition offences in the Anti-Terrorism Bill 2005 , Gilbert+Tobin Centre of Public Law/The University of New South Wales, 1 November 2005.

National Association for the Visual Arts Ltd/Australian Lawyers for Human Rights, New sedition law to stifle artists, joint media release, 1 November 2005.

Louise Dodson, Sedition laws need the chop, say MPs , Sydney Morning Herald, 5 November 2005.

The Hon. Philip Ruddock, MP, (Attorney-General), There is no threat to freedom of speech , Sydney Morning Herald, 14 November 2005.

Ian Barker, QC, Sedition law should be made redundant , Sydney Morning Herald, 14 November 2005.

Australian Communications and Media Authority, ACMA guidelines on broadcasting terrorism material on subscription services, media release, 17 November 2005.

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Draft State legislation relating to Anti-Terrorism Bill (No. 2) 2005

2002 Referral of Terrorism Powers to the Commonwealth

The current provisions in Part 5.3 of the Criminal Code Act 1995 relied upon legislative power that had been refereed to the Commonwealth Parliament by States in 2002 under section 51(xxxvii) of the Australian Constitution. The terms of that referral (incorporated into section 100.8 of the Commonwealth Criminal Code) were that a majority of States and Territories, including at least four States must agree to any express amendments to Part 5.3 of the Criminal Code.

All jurisdictions except Victoria and the Northern Territory passed Terrorism (Commonwealth Powers) Acts in 2002, using that uniform title. The Parliamentary Library maintains a list of principal State and Territory anti-terrorism legislation.

Victoria passed the Terrorism (Commonwealth Powers) Act 2003 in 2003, while also in 2003 the NT passed the Terrorism (Northern Territory) Request Act 2003. The ACT did not pass any legislation.

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Draft State legislation relating to Anti-Terrorism Bill (No. 2) 2005

NSW

Terrorism (Police Powers) Amendment (Preventative Detention) Bill 2005 [introduced 17 November 2005]

Extract from Hansard 17 November

Mr Iemma: The preventative detention orders will be able to be issued on the same grounds as under the Commonwealth's Anti-Terrorism Bill. They will be issued by judges of the New South Wales Supreme Court acting judicially. Police will be able to apply to the court, initially for an interim preventative detention order, without notice to the person and without the person being present. Such an extraordinary measure is considered necessary to deal with the threat of a terrorist attack and to ensure that those involved are not alerted. The initial order lasts up to 48 hours. Police will have to apply for a continuing preventative detention order within the 48-hour period if they want to detain the person longer than 48 hours. The application will be heard fresh, with both parties being present, able to be heard and legally represented. No person will be able to be detained under any combination of State or Commonwealth preventative detention orders for a total of more than 14 days.

Either the detained person or police may apply to a judge of the Supreme Court for revocation. Hearings on preventative detention orders will be held in closed court. Information relied upon by police in applying for an order will be available to the person subject, of course, to any requirement under the National Security Information (Criminal and Civil Proceedings) Act or public interest immunity related to withholding such information. In considering the applications, the Supreme Court will be able to take into account evidence or information that it considers reliable in the circumstances. Unlike the Commonwealth legislation, under the proposed bill, it will not be an offence for the detained person to disclose to a person that they are detained under a preventative detention order. This will apply under strict guidelines for the police.

This will not be part of the COAG agreement and is not considered necessary by NSW Police. However, the proposed bill will provide for the Supreme Court to make a non-contact order to prevent a detained person contacting specified persons, if this will assist in achieving the purpose of the preventative detention order. A person detained under a preventative detention order will not be able to be questioned, except to confirm their identity. It will be an offence for anyone implementing a preventative detention order to fail to treat the person with humanity and dignity. To ensure full transparency in the use of these powers, the proposed bill will provide for police to be subject to oversight by the Ombudsman and the Police Integrity Commission.

The Attorney General and the Minister for Police will prepare a report annually, which will be tabled in Parliament, on the operation of the provisions. In addition, as is the case with the Terrorism (Police Powers) Act 2002, the legislation will be reviewed after two years and after five years by the Ombudsman. In accordance with the COAG agreement, the bill's sunset provision will operate after 10 years. It is my sincere hope that by the time the sunset clause operates, we will no longer need these laws.

The NSW Legislative Review Committee report on this bill will be tabled next Tuesday 29 November in committee's Legislative Review Digest No 15. 

 NSW introduces anti-terrorism legislation, ABC News Online, 17 November 2005

 Andrew Clennell Split on terrorism laws as restrictions eased , Sydney Morning Herald, 16 November 2005

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South Australia

Terrorism (Preventative Detention) Bill 2005 [9 November 2005]

Victoria

Terrorism (Community Protection) (Amendment) Bill 2005 [15 November 2005]

 Extract from Hansard 16 November:

Mr Bracks: After COAG and before the commonwealth bill was introduced, Victoria has been involved in negotiations with the commonwealth to ensure that the provisions of the commonwealth bill based on referred state power contained sufficient safeguards including review of the merits and lawfulness of a control order or preventative detention order.

This bill I am second-reading today will be debated when Parliament resumes in February 2006.

This will allow the Victorian community time to examine the provisions.

The Senate is currently holding a public inquiry into the related commonwealth bill, which federal Parliament is expected to pass by Christmas.

The government will give consideration to the Senate inquiry report, the final form of the commonwealth legislation, and any issues that arise out of the public consultation process.

Any further improvements that may be required to the Victorian bill will be made as house amendments in February.

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Queensland

Terrorism (Preventative Detention) Bill 2005 [22 November 2005]

Extract from Hansard 22 November:

Mr Beattie: I have been widely quoted describing these laws as draconian. I do not back away from that. These laws are tough. They are almost unprecedented in our legal system. They may result in people being locked up for 14 days without charge or trial and with very limited rights of communication with the outside world. I do not wash my hands of the responsibility to act against terrorism where that is needed.

In proposing draconian laws, however, I take seriously my responsibility and the responsibility of my government and my colleagues to ensure that every reasonable safeguard is in place. For example, I secured the Prime Minister s agreement to the inclusion of a role for Queensland s Public Interest Monitor, or PIM, in both the Commonwealth control order laws and in Queensland s preventative detention laws. This continues a recent tradition for Queensland of having stronger and better safeguards that do not impair the efficacy of law enforcement. Members will recall another recent example in the Cross-Border Law Enforcement Legislation Amendment Act 2005, where other jurisdictions agreed to recognise certain Queensland law enforcement authorisations in their own jurisdictions despite higher thresholds and safeguards applying under Queensland law.

In a civil society, law enforcement powers are strengthened, not compromised, by improving their public accountability and credibility. The PIM, or Public Interest Monitor, is a nationally unique mechanism for doing this at the front end of the process. Other jurisdictions use reactive mechanisms that only apply after the event, such as complaints, inspections and reports. There is no doubt a role for those back end accountability measures, but they are immeasurably enhanced by proactive safeguards like the Public Interest Monitor at the front end. I am sure those opposite will join me in calling on other states to use public interest monitors in their corresponding procedures in the future. I hope one day that we have a national system of public interest monitors operating in our legal systems around Australia.

A major difference from the Commonwealth and other states legislation is that, as I have mentioned, the Public Interest Monitor will be involved in applications for both initial and final PDOs. For initial applications before senior police officers, this represents a significant departure from the Public Interest Monitor s existing practice. Until now, the Public Interest Monitor has only appeared before judges hearing covert surveillance applications. Now, the Public Interest Monitor will make representations to a senior police officer. However, I have decided that the Public Interest Monitor has the most value to bring to the process at the first stage, particularly where the detainee will not be on notice or be entitled to appear. That is important that is, to have the public interest represented at that point. So the Public Interest Monitor will be notified of initial and final PDO applications and will be entitled to make representations to the senior police officer or the serving or retired judge. The detainee will be notified of the application only if they are already in detention under a Commonwealth PDO or a Queensland initial PDO.

Detainees will be held in a police watch-house, a prison or a youth detention centre. The Queensland Police Service, Department of Corrective Services and Department of Communities will enter into administrative arrangements, but it is envisaged that, in light of the nature of the detention, most, if not all, detainees will be held under maximum security conditions in a prison.

A preventative detention order cannot be made in relation to a person under 16 years of age. The bill contains special rules for detainees aged 16 or 17 years. As with the Commonwealth bill, it allows for contact with a parent or guardian for two hours or more per day. Unlike any other jurisdiction, however, it includes a mechanism so that, where a preventative detention order is made for a person under 18, the police officer must notify the Department of Communities. That department must then arrange for one of its officers to visit the child within 24 hours of being taken into detention to ensure that the child understands the nature of the detention and that the child s interests are being protected. The visit may be deferred if national security considerations require. Members would be aware that under Queensland law 17-year-olds are treated as adults. Therefore, to ensure maximum protection, 17-year-olds have been included with 16-year-olds in these measures.

Compared to the four bills that have been introduced in other jurisdictions, this bill confers the broadest entitlements for family contact. Detainees will be able to contact the following family members:

their parents or another family member,

a person they live with,

an employer, an employee and a business partner as applicable, and

another person the police officer approves.

Only Victoria and Tasmania allow that range of contacts. We think that is important. We think that is a very important check and balance and safeguard. Moreover, unlike the Commonwealth, South Australian and Victorian bills, this bill allows a detainee to tell these people that he or she is being detained under a preventative detention order for up to 14 days. Only New South Wales allows for that range of disclosure. So, we have a broader range of contacts and a broader range of information that can be conveyed. In combination, these provisions mean that Queensland has the broadest and best family contact provisions. However, the effectiveness of the orders is maintained by making it an offence for family members to knowingly disclose the detention to third parties.

The police officer must apply for revocation of a preventative detention order or a prohibited contact order if the grounds on which it was obtained cease to exist. I and my fellow Premiers were not satisfied with the lack of provision in the Commonwealth bill for judicial review of preventative detention. The bill therefore includes provision for a detainee to apply to the Supreme Court for variation or revocation of a preventative detention order at any time I repeat that: at any time. This right will arise as soon as the detainee has been taken into custody.

Beattie steps up implementation of anti-terrorism laws, ABC News Online, 9 November 2005.

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Tasmania

Terrorism (Preventative Detention) Bill (87 of 2005) [tabled 22 November 2005]

Western Australia

No Bill yet but note still debating the Terrorism (Extraordinary Powers) Bill 2005 dealing with covert search warrants.

The Liberals and the Greens banded together in the state's Upper House on 18 November to delete a clause in the bill which would have prevented court challenges to stop-and-search warrants issued by the Police Commissioner.

ACT

No bill yet. Stanhope promises at HREOC Forum on 29 October that ACT Bill will be human rights compliant.

NT

No Bill yet. Bill expected to be introduced first quarter of 2006.

Key differences

  • Cth Bill 105.35(2) - not entitled to disclose you are detained compared to NSW Bill 26ZE(2) detainee is entitled to disclose fact of detention and length of detention
  • Suppression order offence in relation to court proceedings instead of disclosure offences NSW 26P
  • No reference to State police cooperation with ASIO 34D warrant in NSW Bill (Cth 105.25)
  • No children in adult prison NSW 26X, Qld 46(3).
  • Role of the NSW Police Integrity Commissioner roughly similar to references to Commonwealth Ombudsman
  • Preventive detention orders will be issued only by Supreme Court judges acting in their judicial capacity under the NSW and Tasmania legislation, as compared to lower court judges under the federal proposals, or judges and retired judges in Qld and SA.
  • Either the detained person or police may apply to a judge of the Supreme Court for revocation at any time in NSW, Qld, Tas.

The Victorian Bill provides for compulsory legal aid - 13E (12) and (13).

 The Queensland Bill has the broadest contact provisions, plus:

  • the Public Interest Monitor will be notified of initial and final PDO applications and will be entitled to make representations to the senior police officer or the serving or retired judge. The detainee will be notified of the application only if they are already in detention under a Commonwealth PDO or a Queensland initial PDO.
  • where a PDO is made for a person under 18, the police officer must notify the Department of Communities. That department must then arrange for one of its officers to visit the child within 24 hours of being taken into detention to ensure that the child understands the nature of the detention and that the child s interests are being protected.
  • a detainees rights under the Judicial Review Act Qld are unaffected (the Cth Administrative Decisions (Judicial Review) Act is excluded under clause 105.51(4)).

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Mini-Bill : Anti-Terrorism Bill 2005

On 2 November 2005, Prime Minister John Howard announced at a joint press conference with the Attorney-General Philip Ruddock that, later that afternoon, the Attorney-General would be introducing into the House of Representatives an urgent amendment to the existing counter-terrorism legislation . The amendment was extracted from the larger, original Bill dealing with new anti-terrorism measures (the renamed Anti-Terrorism Bill (No. 2) 2005), and sought to substitute the definite article the with the indefinite article a in describing a terrorist act. The amendment was intended to clarify that it is not necessary for the prosecution to identify a specific terrorist act, but rather, sufficient for it to prove that certain activities were related to a terrorist act. See the Bills Digest and Explanatory Memorandum for further detail.

The Prime Minister said the reason for seeking the urgent amendment was that the Government had received specific intelligence and police information this week which gives cause for serious concern about a potential terrorist threat , and that the Government was satisfied on the advice provided to it that the immediate passage of this amendment would strengthen the capacity of the law enforcement agencies to effectively respond to this threat .

Citing the sensitivity of operational matters , the Prime Minister would not elaborate on the nature, timing or other details of the threat. In a separate media release, the Prime Minister said the Government was acting against the background of the assessment of intelligence agencies that a terrorist attack in Australia is feasible and could well occur , a statement repeated by the Attorney-General when he introduced the Bill.

Having already consulted the Premiers of the States, the Leader of the Opposition, and the Shadow Minister for Homeland Security (but not, it was later confirmed, the Chief Ministers of the Northern Territory and the ACT), the Prime Minister declared that the States had agreed to the passage of the amendment. The Opposition later voiced its support for the amendment and it was ultimately passed by the House later that day. The Senate, which was not sitting at the time, was immediately recalled to consider the Bill, and on 3 November 2005, it too passed the Bill. The Bill also received Royal Assent on 3 November 2005.

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Reactions to the mini-Bill : Anti-Terrorism Bill 2005

Peter Andren, MP, Andren challenges reasons for emergency terror law, media release, 2 November 2005.

Channel Nine, Prime Minister discusses anti-terrorism legislation , A Current Affair, 2 November 2005.

ABC radio, Ruddock defends action on terror threat advice , PM, 2 November 2005.

Senator Lyn Allison, PM pedantic on semantics, press release, 3 November 2005.

Andrew Lynch, Laws enough for clear danger , Sydney Morning Herald, 3 November 2005.

Miriam Gani, A minor legal change that will have major consequences , Canberra Times, 4 November 2005.

Michelle Grattan, The politics of fear , The Age, 5 November 2005.

ABC TV, Labor defends decision to back anti-terrorism laws , Insiders, 6 November 2005 (interview with The Hon. Arch Bevis, MP, Shadow Minister for Homeland Security).

ABC TV, Howard defends anti-terror changes , 7.30 Report, 7 November 2005.

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UK legislation

Prime Minister John Howard stated on 8 September 2005 that some of the proposed measures were based on UK legislation. A good summary of the evolution of the current and proposed UK anti-terrorism legislation can be found in a UK House of Commons Library Research Paper on The Terrorism Bill 2005 06 . Further detail on measures such as preventative detention and control orders can be found on the UK Home Office Terrorism website (includes reviews of terrorism legislation).

See also the report by Mr Alvaro Gil-Robles, European Commissioner for Human Rights, on his visit to the United Kingdom, 4 12 November 2004.

On 12 October 2005, the UK’s Foreign and Commonwealth Office released a research paper comparing counter-terrorism legislation and practice across ten countries, which included seven European nations, the US, Canada and Australia.

The full text of the Report by the Independent Reviewer Lord Carlile of Berriew, QC on Proposals by Her Majesty’s Government for Changes to the Laws Against Terrorism, is available in an article published by The Times online on 12 October 2005.

On 9 November 2005, the push by UK Prime Minister Tony Blair to extend from 14 days to 90 days the period a person can be detained without charge, was defeated in the House of Commons by a majority of 31 votes. A compromise proposal to double the existing period to 28 days was subsequently accepted by the House.

For further detail, please consult the Parliamentary Library s Law Internet Resource Guide on terrorism.

 

For copyright reasons some linked items are only available to members of Parliament.

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