Counter-Terrorism Legislation

There is ongoing debate about how well-conceived and appropriate the anti-terrorism laws are in achieving their aims, while not unnecessarily infringing well-established legal principles, such as natural justice.

Powers granted to agencies such as the Australian Federal Police (AFP) and the Australian Security Intelligence Organisation (ASIO) include the ability to detain and interrogate a person without charge for an extended period. Under some circumstances, the person detained may not even be a terrorism suspect, and there may be restrictions on the person getting access to legal counsel of choice.

As Sir Gerard Brennan pointed out in his address at the 2007 Justice Awards:

Clearly, an exercise of these powers constitutes a remarkable invasion of common law rights, especially if the person is not a suspect and may not be even a sympathiser of terrorism. There should be an effective mechanism to safeguard personal liberty, but the anti-terrorism laws vest the power to interfere with a person’s liberty in the executive branch of Government which controls the procedure and those laws deny natural justice to the person who is the subject of the power.

Legal advocates raised concerns when former terror suspect Mohamed Haneef was detained in Brisbane Watch-House and questioned over a period of 12 days before being charged with terror offences. These charges were withdrawn in July 2007. Following the decision by a Magistrate’s Court to release Haneef on bail, the then Minister for Immigration revoked Haneef’s visa, and Haneef was then placed in immigration detention on the basis of a security certificate issued by the then Attorney-General. Spender J found the minister’s decision invalid on 21 August 2007. Both parties have appealed, and a decision was reserved on 15 November 2007.

The next few months will likely see a number of developments involving criminal trials and civil actions. Notably, after extensive pre-trial hearings during 2006 and 2007, the so-called Melbourne–Sydney ‘terror cell’ suspects will likely come to trial in 2008. David Hicks will be released from a South Australian prison in December 2007, when he may or may not be placed under a control order or preventative detention. Fellow former Guantanamo Bay inmate Mamdouh Habib is currently pursuing compensation from the Commonwealth in the Federal Court for alleged mistreatment in Egypt, Guantanamo Bay and Pakistan.

The Australian Capital Territory and Victoria have enacted human rights legislation. Other state jurisdictions and the Northern Territory could follow suit during the 42^nd Parliament. Such laws may require relevant governments and parliaments to place explicit emphasis on human rights considerations when drafting and debating changes to anti-terrorism laws. The political impact on the federal parliament of such moves by the states and territories is speculative at this point.

Other areas of likely legislative change at the federal level could come in response to:

• the Australian Law Reform Commission’s ‘Fighting Words’ report on sedition laws, and
• the recent reports by the Parliamentary Joint Committee on Intelligence and Security on security and counter-terrorism legislation, and on the proscription of terrorist organisations.

The Blunn Review on the regulation of access to telecommunications was released in August 2005. Among other things, the review dealt with the appropriateness of the regime governing interception of telecommunications by Australian law enforcement officers. Debate around the recent passage of the Telecommunications (Interception and Access) Act 2007 showed that further legislation may be needed to fully implement the Blunn Review recommendations and keep pace with emerging technology.

Finally, the need for independent monitoring of the extensive new powers given to the AFP and security agencies may necessitate changes to the roles, functions and resources given to the Inspector-General for Intelligence and Security and the Commonwealth Ombudsman.