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Current Issues
Proposals to further strengthen Australia’s counter-terrorism laws—2005
E-Brief: Online Only issued 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 Communiqué,
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.
Draft legislation relating to the COAG Communiqué
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 Communiqué 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 Communiqué 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).
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).
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)
Communiqué, Special Meeting on
Counter-Terrorism, Parliament House, Canberra, 27 September 2005.
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)
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.
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.
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.
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.
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
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.
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.
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)).
‘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.
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.
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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