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There are strong intersections among 'treason', 'politically motivated violence' 'unlawful associations' and 'foreign incursions'. The offence of treason and the proscription and offence provisions dealing with unlawful associations appear in the Crimes Act 1914. The expression 'politically motivated violence' relates to an aspect of 'security' which defines the functional responsibilities of the Australian Security Intelligence Organisation. It appears in the Australian Security Intelligence Organisation Act 1979. The expression 'foreign incursion' appears in the Crimes (Foreign Incursions and Recruitment) Act 1978.
The legislative package updates and aligns these concepts to take account of the threat or possible threat of international terrorism in Australia. Key bills on these topics are:
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This Bill and the Terrorist Financing Bill deal with a new Chapter of the Criminal Code: 'Chapter 5—The integrity and security of the Commonwealth'. This Chapter is also dealt with by the Criminal Code Amendment (Espionage and Related Offences) Bill 2002. If all the bills were enacted, it would cover espionage, 'unlawful soundings', treason, terrorism, terrorist financing, proscription of terrorist organisations and related offences.
It is also worth noting the other amendments that would result from the passage of the Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002 and the Criminal Code Amendment (Anti-hoax and Other Measures) Act 2002. The amendments to the Criminal Code made by these Bills are indicated in italics in the following table.
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All three Bills insert the heading 'Chapter 5—The integrity and security of the Commonwealth'. This Bill and the Terrorist Financing Bill also both insert the new heading 'Part 5.3—Terrorism' and the text of Division 100—Preliminary, dealing with definition and the asserted constitutional bases for the terrorism offences. Because of these overlapping provisions, there are two basic issues in relation to commencement:
There are some other contingent commencement issues which are dealt with below.
It is difficult to assess which will be the most significant aspect of the legislative package.
This Bill deals with specific terrorist offences and proscription of terrorist organisations. The Terrorist Financing Bill deals with controls over terrorist entities and assets, by way of a terrorist financing offence, controls over financial institutions and finance specific listing or proscription mechanisms. The ASIO Bill deals with questioning and detention of persons for terrorist intelligence gathering purposes. The Anti-Hoax and Bombing Bills are self explanatory and both relate to commitments made during the General Election.
Undoubtedly, this Bill is significant. It has received unusually strong criticism from the Senate Standing Committee for the Scrutiny of Bills. In its third Alert Digest for 2002 the Committee criticised the terrorist offences, proscription provisions, and the proscription-related offences. 'On its face,' the Committee stated, '[it] seems to introduce considerable scope for discretion in the criminal law'. It stated that it intended to 'seek a briefing and invite comment on the provisions of this bill and other bills in the legislative package'.(22)
There are also strong connections between this Bill and the Terrorist Financing Bill. Both have proscription provisions and proscription-related offences but each takes its own approach. However, the most significant civil liberties issues arise in relation to this Bill.
But the real issue is the extent to which it 'strengthens our counter-terrorism capabilities'. As we will see, it may be that 'there is no legislative "fix" or panacea against terrorism'.(23) And while we lack a comprehensive proscription regime, we already have various provisions under which people may be prosecuted for acts of terrorism. Clearly, there is a focus on criminalising terrorist acts and destroying terrorist organisations and networks. But, it could be argued that the focus on proscription and specific terrorist offences, as opposed to effective intelligence and law enforcement powers and effective financing identification and control mechanisms, is misplaced. Most, if not all, of the acts covered by the specific terrorist offences are already covered under the ordinary criminal law. While proscription may harm terrorist organisations and networks, it is a risky mechanism that may drive the activities of these and other entities further underground.(24) By contrast, improvements in intelligence and law enforcement capabilities and in global cooperation and control over terrorist financing may have a far greater impact on terrorism and terrorist organisations, domestically and internationally. Either way it is necessary to consider whether the particular measures are necessary, sufficient and proportionate.
While various constitutional powers may be called upon to support anti-terrorist laws, there is uncertainty regarding the extent to which the Commonwealth can cover the field.
Generally, it may be said that terrorism is either partly or wholly about crime albeit that the criminal acts may be distinguishable by their seriousness, motivation or intention.
The Constitution does not grant the Commonwealth power over 'criminal activity' as such. But there is no doubt that within limits the Parliament can validly make laws which create criminal offences, and provide for their investigation, prosecution and punishment. In general, offences must either fall directly within, or be incidental to the exercise of, a head of constitutional power. 'In short, and generally speaking, Commonwealth criminal law is ancillary to the performance of the responsibility of the Commonwealth to protect itself, its Constitution, its institutions and services and to enforce its own laws.'(25) In general the test for validity of a law relying on an incidental power is that it is reasonably necessary for the effective operation of the law. It is not essential to show that the law is necessary to effect a purpose within power. Conversely, a law may be invalid if it exceeds rather than expands the main power. The key concepts are reasonableness and proportionality.
Legislative power to deal with terrorism may be derived from a mosaic of various direct and indirect sources. Section 51 of the Constitution provides that the Commonwealth may make laws with respect to 'defence of the Commonwealth … and the control of forces to execute and maintain the laws of the Commonwealth', 'external affairs' or 'matters incidental to the execution of any power vested by this Constitution in Parliament'. It also gives power over corporations, banking, aliens and interstate and overseas trade and commerce. Section 122 gives it plenary power to legislate for the government of the Territories. The Commonwealth may also be able to derive relevant legislative power from its 'inherent right of self-protection' and/or its 'character and status of the Commonwealth as a national government'. On the other hand Commonwealth legislative power is hemmed in by express and implied limits which operate to protect individual liberties.
As a general proposition the external affairs power will support a law regulating persons, places and matters which are physically external to Australia. Moreover, it will support a law which implements an international treaty or convention. When a law purports to give domestic effect to an international instrument, the primary question to be asked is whether it has selected means that are 'reasonably capable of being considered appropriate and adapted to implementing the treaty'.(26) However, the power is not confined to the implementation of treaties or treaty obligations. It will support measures that address matters of international concern, at least where that concern is reasonably concrete.(27) It probably extends also to measures that implement recommendations of international agencies and may extend to measures that pursue agreed international objectives.(28)
Nor is the external affairs power confined to the implementation of a treaty in full. A law is valid even if it only partially implements a treaty,(29) provided the deficiency is not so substantial as to deny the law the character of a measure implementing the treaty.(30) This provides considerable leeway for domestic implementation of selected parts of a treaty.
This head of power is likely to be a primary basis for anti-terrorism measures in Australia. Over the past decade, various international bodies have made statements regarding action recommended to address terrorism and its root causes (see Supporting Materials, 'Document 4: Terrorism and the United Nations). Some of the statements have been of a more formally binding nature. For example, UN Security Council Resolution 1373, and some of the earlier resolutions, include provisions which may be construed as 'decisions' under Chapter VII of the Charter of the United Nations which are formally binding on Australia. Key provisions for present purposes include 'decisions' that 'all States shall … prevent and suppress the financing of terrorist acts [and] [c]riminalize the wilful provision or collection … of funds by their nationals or in their territories with the intention that the funds should be used … in order to carry out terrorist acts' and that all States:
Ensure that any person who participates in the financing,
planning, preparation or perpetration of terrorist acts or in supporting
terrorist acts is brought to justice and ensure that, in addition to
any other measures against them, such terrorist acts are established
as serious criminal offences in domestic laws and regulations and that
the punishment duly reflects the seriousness of such terrorist acts
This sort of language may not only support the enactment of anti-terrorist measures such as the ones proposed, it may impose a positive obligation on Australia to do so.
The defence power relates to 'the naval and military defence of the Commonwealth and of the several States and the control of the forces to execute and maintain the laws of the Commonwealth'. It is a purposive power that will only support a law that is 'reasonably capable of being regarded as being appropriate and adapted' to 'the defence of the Commonwealth [etc.] [against external threats]'. There are three important things to note about the defence power: it is elastic, expanding in times of emergency, it relates to external threats, as opposed to domestic threats, and it has a primary and secondary aspect.
The primary aspect deals with the essence of military defence, that is, raising armed forces, maintaining and reinforcing them and so on. The secondary aspect is less directly concerned with these issues and more with measures conducive to the successful defence of Australia from external threat. The primary aspect obviously operates during wartime but it also persists as a source of power in times of peace. Whether the secondary aspect also operates at times of peace and/or in intermediate situations of heightened international tension is constitutionally less certain. As will be seen, the question of whether a particular series of events constitutes a threat to national security is essentially a Constitutional fact which is ultimately to be determined by the High Court. Moreover, in determining such a fact the Court's assessment will be based on what is called 'judicial notice', which means the information within the ordinary knowledge of judges sitting on the case.
The second part of the defence power may also come into calculations. It has been argued that the 'execution and maintenance of the laws of the Commonwealth' may extend 'to the preservation of general law and order so far as such order may be disturbed by general disobedience to the laws of the Commonwealth'.(32) Conversely, it has been argued that these words are directed to 'the general control of the armed forces, including internal discipline, and the relationship among the members of the forces, between those members and outside persons [etc.]'.(33) The former view would regard the defence power as adding to the Commonwealth's array of powers to prevent, investigate and punish terrorism while the latter view would deny this. There has been little judicial support for the former view.
The implied nationhood power is largely unexplored. It has been characterised as being incidental to the operation of the Commonwealth's executive power under section 61. It has also been characterised as an implied power that is deduced from the 'character and status of the Commonwealth as a national government'.(34) Broadly, it permits the Commonwealth to 'engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation'.(35) But its application in areas such as counter-terrorism remains uncertain and has not been reviewed by the High Court for more than ten years. It may be that 'the predilections of the individual judges will be dominant in any decision' on the issue.(36)
One aspect of the implied nationhood power is a power relating to security and integrity. It has been said that the Commonwealth has an 'inherent right of self-protection',(37) a right to prevent 'intentional excitement of disaffection against the Sovereign and Government'(38) and a legislative power to preserve its institutions which was seen to 'follow almost necessarily from their existence'.(39) Accordingly, the Commonwealth 'has the power to protect its own existence and the unhindered play of its legitimate activities'(40) which might be found in sections 51(vi), the defence power, 51(xxxix), the incidental power, section 61, executive power, and section 68, the vesting of command in chief of naval and military forces in the Governor-General.(41) It might also be found in 'an essential and inescapable implication which must be involved in the legal constitution of any polity'.(42)
While it may expand and contract to meet the exigencies of domestic emergency in an analogous way to the defence power, the Executive probably does not enjoy the same degree of deference from the Judiciary in its exercise. To rely on this power, Parliament would virtually need an unarguable case that the matters dealt with in the law are connected to the survival of the Commonwealth.(43) In 1951, in the Communist Party Case, the High Court found that the 'inherent right of self protection' if it did exist certainly did not support the Communist Party Dissolution Act 1950.
In announcing the proposed new measures Prime Minister Howard noted that '[o]ne difficulty the Commonwealth has in effectively fighting transnational crime and terrorism is that these crimes may not be strictly federal offences'.(44) Moreover he noted potential constitutional limitations: 'it's not absolutely certain that the Commonwealth has the necessary power, complete constitutional power, as I'm advised, to deal in the way that it might think appropriate for a terrorist attack on a particular part of Australia'.(45)
As noted above, in October 2001 the Prime Minister recommended a summit of State and Territory leaders to consider a reference of constitutional authority to the Commonwealth. Section 51(xxxvii) of the Constitution provides that the Commonwealth Parliament may make laws with respect to: 'Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law'. Thus, State Parliaments can refer 'matters' to the Commonwealth Parliament and give the Commonwealth power to pass laws about them. It is not necessary for all States to refer a matter to the Commonwealth. If only some States make a reference, the Commonwealth law can apply only in those States. Once the law is passed, it may be 'adopted' by the Parliaments of other States and so come into effect there as well.(46)
On 5 April 2002, at the Leader’s Summit on Terrorism and Multi-Jurisdictional Crime, the Prime Minister and State and Territory Leaders negotiated an Agreement on Terrorism and Multi-Jurisdictional Crime. In relation to terrorism, this included an agreement to:
… take whatever action is necessary to ensure that terrorists can be prosecuted under the criminal law, including a reference of power of specific, jointly agreed legislation, including roll back provisions to ensure that the new Commonwealth law does not override State law where that is not intended and to come into effect by 31 October 2002. The Commonwealth will have power to amend the new Commonwealth legislation in accordance with provisions similar to those which apply under Corporations arrangements. Any amendment based on the referred power will require consultation with and agreement of States and Territories, and this requirement to be contained in legislation.(47)
At present, the details and implications of the Agreement are not clear. However, in simple terms, the Attorney-General has said that 'We have an agreement on the referral of powers … so that the Commonwealth can legislate across the board in relation to terrorism'.(48)
Although the Commonwealth may call upon a mosaic of constitutional powers to support anti-terrorism laws, it may ultimately be limited by various express and implied freedoms. In the foreword to a recent text on national security and the law Sir Anthony Mason noted that '[t]he tension between civil liberty and national security is very considerable'. 'Indeed', he wrote, 'the tension is more marked than it has ever been, granted the emphasis now given to freedom of information and freedom of expression as indispensable elements of effective representative democracy and government'.(49)
The Commonwealth Constitution contains a small number of express rights and guarantees for individual citizens which put limits on how far the Parliament can go under its legislative powers. Some additional freedoms arise by implication from the text and structure of the Constitution. If Parliament decides to enact counter-terrorist legislation such laws may well be tested against the constitutional criteria spelt out in these express and implied limits. Some of the more relevant limits are dealt with briefly below.
The Attorney-General is perhaps unlikely to single out religious groups for proscriptive legislation. A more realistic possibility is that perhaps someone challenges counter-terrorist legislation of general application on the basis that in its practical operation it interferes with the free practice of their religion. The Constitution contains an express guarantee of freedom of religion in section 116 which has been given a narrow interpretation by the High Court. A law of general application is unlikely to fall foul of the guarantee in section 116 because, as presently interpreted, it appears to prohibit only those laws which specifically target the practice of religion. Section 116 is not likely to pose problems for Parliament in enacting counter-terrorist legislation unless it singles out particular religious groups or the High Court shifts ground and applies the requirement for free exercise of religion to laws which make no reference to religion on their face.
There is a constitutionally guaranteed freedom of political communication implied from the text and structure of the Commonwealth Constitution. The High Court unanimously in Lange v. Australian Broadcasting Corporation agreed on the test to be applied to laws or actions which are alleged to infringe this guarantee.(50) The test requires 2 questions to be asked:
A law will only be unconstitutional if the answers are 'Yes' and 'No' respectively.
It is conceivable that counter-terrorist measures could impose a prima facie burden on political communication, especially when one notes that communication includes conduct as well as speech and the term 'political' seems to have a broad meaning. This being the case, such laws would project the High Court into the centre of controversy as it engaged in the difficult and somewhat subjective process of assessing whether they imposed a permissible burden on political communication.
The freedom of political communication is said to derive by implication from the text and structure of the Constitution, particularly in the way it provides for elements of representative government. The same reasoning could well give rise to other implied freedoms. For example, in Australian Capital Television Ltd v. Commonwealth Gaudron J, for example, said that '[t]he notion of a free society governed in accordance with the principles of representative parliamentary democracy may entail freedom of movement, freedom of association and, perhaps, freedom of speech generally'.(51) Similarly, McHugh J commented that the principle of 'representative government' implied certain constitutional rights including 'freedom of participation, association and communication' at least in relation to federal elections.(52) And in Lange the Court seemed to endorse a statement that 'representative government' implied not only a requirement for free elections but 'all that this implies in the way of freedom of speech and political organization'.(53)
Ultimately, the existence of the freedom of political association, and its scope beyond the context of federal elections, are questions that have not been fully resolved. Moreover, it is necessary in every case to ask whether measures which appear to infringe this implied freedom are nevertheless 'reasonably appropriate and adapted to serve a legitimate end'.
There are more than a few parallels between the present circumstances and those which gave rise to the Communist Party Dissolution Act 1950. So, constitutional and political issues are likely to be discussed similar to those in the Communist Party Case of 1951.
At the same time, developments in constitutional and administrative law will mean that other issues are also likely to be discussed. The development of a greater 'rights consciousness' in the courts over the last decade points to new and powerful reasons why legislation similar to the Communist Party Dissolution Act 1950 could suffer the same constitutional fate it did 50 years ago. On the other hand, the development of a stronger and more wide reaching body of administrative law over the last three decades suggests that courts may feel less compelled to take the all or nothing approach to constitutional validity that was taken in response to that Act in the Communist Party Case.
The Communist Party Case provides a number of lessons in relation to the present Bill:
In the Communist Party Case the High Court was called upon to consider the validity of a statute which sought to unilaterally proscribe the Communist Party of Australia. The Communist Party Dissolution Act 1950, cited as its constitutional foundation the defence power on the basis that the Communist Party posed a threat to national security. The Court held that it is for the Judiciary and not the Parliament to determine issues such as the nexus between a set of facts and the national security aspect of the defence power:
[T]he validity of a law … cannot be made to depend on the opinion of the law-maker or the person who is to do the act that the law … is within the constitutional power upon which the law in question itself depends for its validity.(54)
This is not to say that the Judiciary will determine as a matter of objective fact whether an organisation poses a threat to national security. But it will determine whether proscription can be 'reasonably capable of being considered appropriate and adapted' to defence:
[T]the Court will not substitute an opinion of its own for an opinion of [the Executive or Parliament] but it will form an opinion as to whether the reasons for the [action] can reasonably be regarded as connected with defence preparations.(55)
The key issue here is not that there is an opinion involved, but that the Judiciary will reserve the right to intervene in respect of opinions of the Parliament or Executive to the extent that they bear on the constitutional validity of a legislative or administrative act. Where opinions relate to constitutional issues, such as the purpose of proscription, or constitutional facts, such as the existence of a lighthouse, the importation of a good, or the presence of an industrial dispute, the Judiciary can trump the Parliament or Executive.
However, circumstances may point to a large degree of judicial deference. So, in relation to defence, once the Judiciary is prepared to acknowledge the existence of a war or national emergency it will give the Parliament or Executive considerable leeway to determine whether particular measures are necessary. In these circumstances, it is said, judicial deference becomes almost absolute: rights and liabilities may be made 'to depend on any event or matter the Parliament may choose including administrative opinion'.(56) Of course, this depends on the nature or depth of the emergency which prompts the measures.
Overall, the impact of the 'stream and source' doctrine or the extent of deference may be affected by the extent to which judicial review remedies provide an alternative safety net. In broad terms, the 'stream and source' doctrine can be characterised as a judicial remedy to uphold the Constitution. This 'judicial remedy' is a brutal one in the sense that a law may hang or fall on a fairly delicate issue of whether a Parliament or decision maker has been empowered to determine a fact which goes to constitutional validity of the law.
To a large extent a similar function may be served by other judicial review remedies. The development of administrative law, under the common law and statute, since the 1970s has enhanced the ability of courts to scrutinise particular exercises of a coercive power authorised by statute. Courts today may feel less compelled to take the all or nothing approach to constitutional validity which the High Court majority did in the Communist Party Case, confident that excesses of power will be picked up in individual cases.
In Liversidge v. Anderson the House of Lords was called upon to consider the limits of a power which permitted the detention of persons during wartime.(57) The relevant regulations permitted the Executive to detain a person based on a 'reasonable cause to believe' that the person was 'of hostile origin or associations'. In dissent, Lord Atkin argued that it was for the Judiciary and not the Executive to determine issues such as the limits of the discretion, or decision making jurisdiction, suggested by 'reasonable cause to believe':
the plain and natural meaning of the words 'having reasonable cause' imports the existence of a fact or state of facts, and not the mere belief by the person challenged that the fact or state of fact exists … 'reasonable cause' for a belief, when the subject of legal dispute, has always been treated as an objective fact, to be proved by one or other party and to be determined by the appropriate tribunal.(58)
The dissenting judgment was subsequently endorsed as a correct statement of law.(59) In Australia the jurisdiction issue has been expressed, perhaps conservatively, in this way:
[T] he opinion of the authority that a particular exercise of its powers is within the law cannot be decisive of the question of the validity of a provision enacted by the authority, unless, indeed, the power was conferred by the law creating the power … in terms which provided that the opinion of the authority should be decisive.(60)
However, as with the constitutional situation, this is not necessarily to say that the Judiciary will always exercise its own discretion in relation to jurisdictional matters. But it will determine whether a decision in relation to any discretion was 'formed by a reasonable man who correctly understands the meaning of the law under which he acts':(61)
It should be emphasised that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to enquire whether the opinion required by the relevant legislative provision has really been formed [under law].(62)
The key issue here is not that there is an opinion involved, but that the Judiciary will reserve the right to intervene in respect of opinions of the Executive to the extent that they bear on the limits of a decision making power. This includes opinions that relate to jurisdictional issues, such as the appropriate question to be asked or the meaning of a statutory expression, or jurisdictional facts, such as the question of whether a person is an Aboriginal for the purposes of a public inquiry,(63) whether a road is a public road for the purposes of a land rights claim,(64) and whether a dismissal amounts to a punishment.(65)
Arguably, there is a similarity here with the 'stream and source' doctrine discussed above. One obvious difference is that the limiting power in the previous case is constitutional whereas the power in the present case derives from statute. As a result, much will depend upon the language and the scope, purpose and object of the relevant legislation. This explains the comment above that an opinion as to decision making jurisdiction is not decisive 'unless, indeed, the power was conferred by the law creating the power … in terms which provided that the opinion of the authority should be decisive'.(66)
The Crimes Act 1914 deals with a number of offences against the government including treason, treachery, sabotage and sedition. These offences were largely codified from the common law in a wholesale reform of the Crimes Act 1914 by the Crimes Act 1960. The reform implicitly acknowledged the threat of 'non-conventional' or 'asymmetric' warfare and the need to address external threats to the Constitution, government or defence of Australia and internal threats to the government or defence of foreign countries. 'Treason' covers levying war against the Commonwealth, assisting an identified enemy at war with the Commonwealth or instigating a foreigner to invade the Commonwealth. 'Treachery' includes any act done with the intent to overthrow the Constitution by revolution or sabotage. It includes 'the overthrow by force or violence of the established government of the Commonwealth, of a State or of a proclaimed country' and acts of treason committed within the Commonwealth directed against a proclaimed country. These are similar acts to those covered in 'politically motivated violence' and unlawful associations provisions.
Allied to treason is the offence of 'foreign incursion'. Under the Crimes (Foreign Incursions and Recruitment) Act 1978 it is an offence to recruit people, or to train and organise in Australia, for armed incursions or operations on foreign soil. It is an offence to 'engage in hostile activity in a foreign state' or to 'enter a foreign state with intent to [do so]'. It is also an offence to do preparatory things for the same purposes. And it is an offence to 'give money or goods to, or perform services for, any other person or any body or association of persons for the purpose of supporting or promoting [these activities]'. 'Hostile activities' include any acts done for the purpose of overthrowing a government by force or violence, engaging in armed hostilities in a foreign state, placing a foreign public in fear and causing damage to foreign public property. They exclude activities undertaken in the service of a foreign power's armed forces.(67) These acts essentially correspond to acts which constitute the offence of treason, but are instead committed against a foreign power.
The Bill basically reproduces the existing offence of treason. However it extends its operation to deal not only with 'levying war against the Commonwealth' but also with other forms of 'armed hostilities' particularly those which amount to 'asymmetric warfare'. 'Asymmetric warfare' refers to a military conflict in which one participant simply avoids the conventional military strengths of the other and focuses on its civilian weaknesses.
Under the Crimes Act 1914, it is an offence to intentionally engage in conduct which 'assists by any means whatever … a [proscribed] enemy at war with the Commonwealth'. Under proposed section 80.1 it will also be an offence to intentionally engage in conduct which 'assists by any means whatever … another country or an organisation … engaged in armed hostilities with the Australian Defence Force' (proposed paragraph 80.1(1)(f)).
Thus, a person will be guilty of treason for an act that is somewhere between a 'foreign incursion', in the sense that it may occur overseas but may also involve service in the armed forces of a foreign power, and a traditional act of 'treason', in the sense that it will involve hostilities but it may be directed at the Australian Defence Force rather than the Commonwealth and may involve an organisation rather than another country. Good faith exceptions will continue to apply (proposed subsection 80.1(6)).
The new treason provisions also differ from the old provisions in some other respects. For example, under the Crimes Act 1914, it is an offence to knowingly assist another person who is guilty of treason to escape punishment. Under proposed section 80.1(2) it will be an offence to assist a person escape punishment or apprehension. In addition, proceedings may not commence unless the Attorney-General has given his or her consent. Pending this consent, a person may lawfully be arrested, charged or remanded in custody or on bail (proposed subsections 80.2(3) or (4)). It is also worth noting that the provisions attract the widest extraterritorial jurisdiction available and apply irrespective of nationality.
The word 'terrorism' is said to derive 'from the era of the French Revolution' describing 'state-directed policy of inflicting terror … to obtain political and social control'. Its more modern usage is almost the reverse describing offences by individuals or individual organisations against states in order to obtain discrete political objectives.(68)
In the United Kingdom 'terrorism' was once defined as 'the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear'(69)and as '[t]he use of serious violence against persons or property, or threat to use such violence, to intimidate or coerce a government, the public or any section of the public, in order to promote political, social or ideological objectives'.(70) It is now defined in the Terrorism Act 2000 (UK) as 'the use or threat of [serious violence, property damage, threats to life, risk to health or safety or disruption of electronic systems]' that is 'designed to influence the government or to intimidate the public or a section of the public' and 'is made for the purpose of advancing a political, religious or ideological cause'.(71) As will be seen below, this definition has been largely reproduced in this Bill.
In the United States, it is defined variously as 'the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives' (Federal Bureau of Investigations), 'the calculated use of violence or the threat of violence to inculcate fear, intended to coerce or intimidate governments or societies as to the pursuit of goals that are generally political, religious or ideological' (Department of Defence) and 'premeditated, politically-motivated violence perpetrated against noncombatant targets by subnational or clandestine agents, usually intended to influence an audience' (State Department).(72) In the United States Code 'terrorism' is defined as '[criminal] activities that involve violent acts or acts dangerous to human life' that 'appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion or to affect the conduct of a government by mass destruction, assassination, or kidnapping'.(73) There are also more specific definitions related to collective offences such as 'federal terrorism crimes' and 'acts of terrorism transcending national boundaries'.
In Canada, terrorism is defined in the Criminal Code to include an act or omission endangering life or causing serious risk to public health or safety, etc. that is committed in whole or on part 'for a political, religious or ideological purpose, objective or cause' and with the intention of 'intimidating the public … with respect to its security … or compelling a person government or … organisation to do or refrain from doing any act'.(74)
The Australian Defence Force defines terrorism as '[t]he use or threatened use of violence for political ends, or any use or threatened use of violence for the purpose of putting the public or any section of the public in fear'. A 1979 protective security review defined it as 'acts of small groups of persons who use criminal violence to obtain publicity for their political views, or to achieve or to break down resistance to their political aims, by the intimidation of governments or of people'.(75) A 1993 counter-terrorist review defined it as 'acts or threats of violence of national concern, calculated to evoke extreme fear for the purpose of achieving a political objective in Australia or in a foreign country'.(76)
The only statutory definition of terrorism in any Australian jurisdiction is found in the Northern Territory where it is defined as 'the use or threatened use of violence to procure or attempt to procure the alteration, cessation or doing of any matter or thing established by a law of … a legally constituted government or other political body'. It includes such acts done 'for the purpose of putting the public or a section of the public in fear' or 'for the purpose of preventing or dissuading the public or a section of the public from carrying out, either generally or at a particular place, an activity it is entitled to carry out'.(77)
A large number of definitions have been proposed domestically and internationally to describe terrorism but no comprehensive working definition has emerged. On the one hand, they may reflect differences in precision, emphasis or perspective. On the other hand, they may reflect differences in the underlying phenomena. Across the various definitions listed above, there appear to be four core elements: (a) acts or threats of violence or criminality that are (b) significant in seriousness or magnitude which are (c) motivated by political, social or ideological objectives and/or (d) intended to influence a government or intimidate or coerce the public or a section of the public.
The issue for present purposes is not that there is a degree of consensus on definitions. The issue is that the consensus is event driven and that it waxes and wanes over time and place. In reality, 'terrorism' is multi-faceted. It is difficult to conceptualise or operationalise. While the elements of criminality, seriousness, motivation and intention may be identifiable, a terrorist act does not fall neatly into legislative categories because the relevant laws do not all strictly correspond to 'a terrorist act'.
Moreover, 'terrorism' is subjective. It is a label which is 'both political and perjorative'. The classic statement is that '[w]hat might appear as an evil act of terrorism to people in an affluent Western society may seem like a reasonable and legitimate political action to a liberation or rebel movement operating in the poverty-stricken and desperate conditions in the Third World'.(78) Having canvassed some of these issues, an official Australian report on counter-terrorist capability noted in 1993 that: '[w]e suspect that the nature of terrorism and its relationship to politically motivated violence probably means that no one 'definition' would be satisfactory, or widely accepted in the Australian community'.(79) For this reason, it is argued, 'defining the term itself creates more problems than it solves'.(80)
Few Australians would dispute that hijacking commercial aircraft and flying them into a city skyscraper, killing thousands of civilians, is an act of terrorism. But any national, let alone international, consensus over what is or is not terrorism rapidly evaporates as one moves away from the shocking immediacy of the events of 11 September 2001. Are Chechens engaged in armed conflict with Russia 'terrorists'? Is India engaged in a war on 'terrorism' in Kashmir? Did Australians who, before 1991, donated money to the African National Congress (an organisation committed to the overthrow of the apartheid regime in South Africa) help to finance a terrorist organisation? Most terrorism 'readers' appeal or refer to the adage that 'one person's terrorist is another person's freedom fighter'.
Proposed subsection 100.1(1) effectively defines 'terrorism' as an act or threat that:
is done or made 'with the intention of advancing a political, religious or ideological cause'.
This definition is virtually identical to the one used in the Terrorism Act 2000 (UK). However, the latter definition requires that the 'use or threat of action' is 'made for the purpose of advancing a political, religious or ideological cause' and that it is 'designed to influence the government or to intimidate the public or a section of the public'.(81)
The definition is also similar to the one in the Canadian Anti-Terrorism Act 2002 (CA). However, the latter definition relates to conduct that 'intentionally' involves death or serious harm. The latter also relates to conduct that 'causes serious interferences with or serious disruption of an essential service, facility or system, whether public or private'.(82)
Some disparities are worth noting:
This omission may be significant. A background brief on the Canadian Anti-Terrorism Act by the Canadian Justice Department remarked about statutory definitions of 'terrorism':(84)
It is not enough for an act to be an expression of political, religious or ideological belief. It must also be committed for a political, religious or ideological purpose, and it must also intentionally cause death or serious injury, and it must also have the intent to intimidate the public or compel a person, organization or government to do something.
At stake in the debate over the Canadian legislation was concern that any reference to 'political, religious or ideological cause' would inadvertently target the expression of political, religious or ideological beliefs or unlawful protest activity. In defence the Justice Department argued that removing this reference 'would transform the definition from one that is designed to recognize and deal strongly with terrorism to one that is not distinguishable from a general law enforcement provision in the Criminal Code'.(85) The same argument might apply to references to 'intent to intimidate' or 'designed to influence'.
The Bill excludes 'lawful advocacy, protest or dissent' or 'industrial action' from the definition of a 'terrorist act'. Significantly, 'lawfulness' is not defined. On its face it would seem to be redundant. Any advocacy, protest or dissent that involves 'serious harm', 'serious property damage', 'endangers a person's life' or 'creates a serious risk' to public health or safety might rarely be considered lawful in civil or criminal terms. As noted below, most, if not all, terrorist acts are criminal acts and few anti-terrorist offences actually criminalise conduct that would otherwise be lawful in the ordinary circumstances.
It is worth noting that 'protest, dissent, … or industrial action' are limits on the use of powers by defence forces when 'called out' in respect of aid to the civil power.(86)
It is also worth noting that there is no such exception in the Terrorism Act 2000 (UK). Moreover, a similar exception was removed from the Anti-Terrorism Act (CA). The 'lawful advocacy, protest or dissent' exception originally applied (only) to acts or omissions that caused a serious interference with an essential service, facility or system. The reference to 'lawful' was removed to avoid uncertainty. In this way 'advocacy, protest or dissent' would need to meet the criteria for the other offences in order to be targeted:
This would ensure that protest activity, whether lawful or unlawful, would not be considered a terrorist activity unless it was intended to cause death, serious bodily harm, endangerment of life, or serious risk to the health or safety of the public.(87)
Arguably the Canadian model is preferable. By focusing on personal as opposed to property crime, requiring intention as opposed to recklessness, and focusing on essential services the model is able to deal with finer shades of culpability and focus on conduct which is designed to intimidate the public. Moreover, by expanding the 'advocacy, protest or dissent' exception, limiting it to interference with essential services and tying culpability ultimately to personal offences, the model is able to accommodate a wider range of actions that might otherwise be supported, accepted or tolerated by the Australian community.
In the United Kingdom most of the specific terrorism offences are related to proscription. However, the Terrorism Act 2000 deals expressly with offences related to the provision of certain weapons training,(88) directing terrorist organisations,(89) possession of things for terrorist purposes,(90) and the collection or recording of information for terrorist purposes.(91)
In the United States a wide range of acts are deemed to be terrorism offences. These include killing, kidnapping, maiming, assault with a dangerous weapon, attack on property, or attack against government employees.(92) They also include acts that create 'a substantial risk of serious bodily injury to any other person' through damage to property.(93)
The Bill creates a number of direct and indirect terrorist offences. It is an offence to:
Some general comments can be made:
It is worth noting the scope of proposed sections 101.4 and 101.5. They could criminalise conduct which is only remotely connected with terrorism, such as retention by a public organisation of documents or evidence relating to debate over terrorist acts. Clearly, much will depend upon the nature of the connection implied by these provisions.
In the report, Inquiry into Legislation Against Terrorism, Lord Lloyd of Berwick observed that '[i]t is an illusion to believe that the fanaticism and determination of well established terrorist organizations can be defeated by laws alone, even of the most severe and punitive kind'.(94) He concluded that 'there is no legislative "fix" or panacea against terrorism'.
In the Protective Security Review, Justice Hope acknowledged bluntly that '[v]irtually all terrorist acts involve what might be called ordinary crimes – murder, kidnapping, assault, malicious damage, and so on – albeit for political motives'. On this basis there was little apparent need to enact specific offences to target terrorists and their associates. 'The appropriate objective for a government,' he commented, 'is to bring them to justice'.(95)
Clearly, most, if not all, definitions recognise that terrorist acts are criminal acts. However, as one commentator has suggested, 'if … an act of terrorism is simply "a heinous crime", much of the modern rhetoric surrounding efforts to define terrorism as a separable phenomenon appears insignificant'. Moreover, 'if the inherent political nature of terrorism is ignored, terrorist acts can be identified more easily for the purposes of prosecution'.(96) Labelling an act as 'terrorism' may not assist investigation or prosecution and may in fact harm these processes, especially in the context of exercising extraterritorial jurisdiction, or negotiating extradition arrangements and mutual assistance.
Similarly, other 'core elements' such as seriousness or motivation do not necessarily assist. A single incident involving multiple deaths may cause alarm because it is indiscriminate or newsworthy but these factors exist in other well established offences. Moreover, as one Australian commentator noted, '[t]he circumstances that the criminal activities of a terrorist group are designed to achieve', namely some political or ideological ends rather than some individual or collective financial benefit, 'does not seem … to make the existence or the operations of the group less pernicious, nor to create any less difficulty for law enforcement agencies in the discharge of their duties.(97) On the other hand, as Lord Lloyd of Berwick commented, '[t]he reason for making explicit the terrorist element where it exists is, quite simply, that this is how it is seen by the public. Murder in the course of a terrorist activity is thought of as a more serious offence than 'ordinary' murder'.(98) To the government and the wider community it would seem 'terrorist crime is seen as an attack on society as a whole, and our democratic institutions. It is akin to an act of war'.(99)
Arguably, much of the pressure for creating a specific or separate terrorist offence is the need to acknowledge a community affront at a perceived attack on society. Nowhere has this been more evident than in the United Kingdom which has the oldest specific anti-terrorist statute. As one commentator has put it, passage of the Prevention of Terrorism (Temporary Provisions) Act 1974 (UK), which followed a series of bombings by the Irish Republican Army in mainland Britain, was 'influenced by two conflicting considerations':
On the one hand, there was the unavoidable truth that terrorism could not be abolished by legislative fiat and that much could already be achieved by the fullest application of the regular criminal law. On the other hand, there was a strong desire to respond to what was perceived as 'the greatest threat since the end of the Second World War'. In short, as one Member observed 'The House wants blood'.(100)
Lord Lloyd of Berwick canvassed the issue of a specific terrorist offence in his 1996 report. He offered two arguments in favour of a specific offence: 'that terrorism presents an exceptionally serious threat to society' and 'that terrorists have proved particularly difficult to catch and convict without special offences and additional police powers'. He also noted five characteristics which distinguished terrorism from ordinary crime: it is directed at the public, it frequently involves lethal force, it creates fear, it has a political or ideological purpose and it is frequently perpetrated by overseas professionals.(101)
The pressure for creating specific offences may also come from a derivative source. In addition to the arguments relating to community perceptions and the 'unique' nature of terrorism, it may be argued that a specific terrorist offence provides an anchor for arguably more important issues such as preventative or investigatory powers. For example, these powers might relate to intelligence gathering, surveillance, proscription and deportation. Overseas experience demonstrates that anti-terrorist measures should rely on the existence of specific terrorist offences with clear and workable physical and mental elements. Australian experience demonstrates a similar, albeit more limited, trend. For example, the existing proscription power in the Crimes Act 1914 is dependent on a threat of a treasonable or seditious offence and AFP powers in relation to controlled operations are conditioned on the threat of serious offences involving potential imprisonment for 3 years.
In addition to these issues, there is a concrete source of pressure from the United Nations.
As we have seen, Resolution 1373 decided that Australia should ensure that 'terrorist acts are established as serious criminal offences in domestic laws … and that the punishment duly reflects the seriousness of such terrorist acts'.(102) This decision is formally binding on Australia under Chapter VII of the Charter of the United Nations. However, it is unclear whether this translates as a requirement to create separate terrorist offences, or a requirement to provide statutory guidance in relation to sentencing and, thus, punishment.
Assuming that it is not possible or practicable to establish a complete set of terrorist offences, it may be possible to develop sentencing guidelines which focus attention on factors such as political motivation or intention to influence government or coerce the public. At the same time, it may be necessary to consider whether this would unduly interfere with judicial discretion and with the domestic and international jurisprudence on sentencing theory. It may also need to consider whether sentencing guidelines interfere with the requirement for separation of powers between the Judiciary and Parliament.
As noted above, the Scrutiny of Bills Committee criticised various aspects of this Bill. One area of concern was the fact that elements of the terrorist offences attracted absolute liability. Both the Explanatory Memorandum and the Scrutiny of Bills Committee Alert Digest suggest that most of the offences contain elements which attract absolute liability. As the Explanatory Memorandum notes, this ordinarily means that 'as long as the person's provision or receipt of … training [for example] was voluntary, the person's mental state is not relevant'.(103) It also means that no defence exists based on reasonable mistake of fact.(104)
The Explanatory Memorandum justifies this approach on the basis that absolute liability is 'appropriate' where 'there is no legitimate ground for the person to allow a situation to occur where the absolute liability element occurs'. That is, it is appropriate where 'there is no legitimate ground for the person to allow a situation to occur' where the training that he or she provides or receives ends up being connected with preparations for a terrorist act. Thus, a person who provides or receives training 'should be on notice that this should not be done if there is any possibility of this being connected to a terrorist act'. Ultimately, he or she 'must avoid this possibility arising' or otherwise 'not provide or receive the training'.
The Alert Digest criticised this on the basis that it is a 'very considerable departure from the general principle that criminal liability should depend on the accused having acted intentionally or recklessly'. It suggested that 'criminal liability is being imposed here on the basis of 'possible connections': 'if the provision of training is possibly connected to a terrorist act then a person commits an offence [if that possibility is later realised]'. In its view the provisions 'would seem to widen the scope for criminal liability alarmingly'.(105)
In fact, the argument over absolute liability may be misleading. In the relevant provisions (proposed sections 101.2, 101.4 and 101.5) it is linked to a statutory defence based on recklessness (proposed subsections 101.2(4), 101.4(4) and 101.5(4)). So, for example, a person will not be guilty if he or she did not know that the training he or she provided was connected with preparations for a terrorist act or he or she was either unaware that there was a substantial risk that this was the case or, having regard to the circumstances known to him or her, it was, objectively speaking, justifiable for him or her to take that risk.(106)
The connection between absolute liability and the recklessness defence does two things. First, it deals with the 'possible connections' problem raised in the Alert Digest. A person will not be guilty if the 'possible connections' between the training and the act of terrorism are so remote as to justify the person taking the risk and providing the training. Second, it shifts the legal burden to the accused. If recklessness was an element of the offence, the prosecution would have to prove that the person was aware of the 'possible connections' and was not justified in taking the risk. Because it is a defence, the accused must prove that he or she was either unaware of the 'possible connections' or was otherwise justified.
The definition and offence provisions are drafted so as to operate extraterritorially. Thus, references to persons, property, incorporated and unincorporated bodies and 'the public' are not specific to Australia or Australians (proposed subsection 100.1(1) and 100.1(3)) and all of the offences attract 'extended geographical jurisdiction–category D' (proposed subsections 101.1(2), 101.2(5), 101.3(3), 101.4(5), 101.5(5) and 101.6(3)).
A number of issues arise regarding the enactment and enforcement of extraterritorial law. Essentially, Parliament may enact an extraterritorial criminal law wherever a valid basis exists for enacting a domestic criminal law. But the Executive and the Judiciary may face obstacles in enforcing or adjudicating on such a law particularly where an offence attracts the jurisdiction of a foreign power and/or lacks a real and substantial link with Australia.
The standard practice seems to be that prosecutions do not commence without consultation between the Commonwealth Attorney-General and his or her foreign counterpart.
Ultimately, courts may be called on to consider the relevance of 'international comity' or to develop principles which would govern international 'conflicts of law' over these offences.
As a matter of constitutional law, the Commonwealth Parliament has a plenary power to legislate extraterritorially that is not limited in respect of any nexus with the 'peace, order and good government' of the Commonwealth.(107) Indeed, it is said that extraterritorial criminal laws are supportable whenever a valid basis exists for enacting a criminal law.(108) The authority to legislate extraterritorially can be derived from the external affairs power because it relates to matters that are 'physically external' to Australia.(109) But it may also be derived from the other legislative powers of the Commonwealth either directly or indirectly, using the incidental power in section 51(xxviii) of the Constitution.
International law recognises a jurisdiction where a valid nexus exists between the alleged criminal conduct and the state. The nexus will exist where the offence occurs within the territory or where the offender is present within the territory ('territorial jurisdiction') and where the results of the conduct are felt within the territory ('extra-territorial jurisdiction'). It may also recognise a jurisdiction based on the offender's nationality ('nationality principle'), the victim's nationality ('passive personality principle') and the need to protect the interests of the state (the 'protective principle'), but there is a degree of uncertainty.(110)
These principles are generally recognised in domestic jurisprudence, within the limits implied above. So, for example, the common law explicitly recognises the categories of 'territorial jurisdiction'(111) and 'extra-territorial jurisdiction'.(112) Except in relation to the Commonwealth, it would not ordinarily recognise the 'passive personality principle'.(113) Neither would it ordinarily recognise the 'protective principle', although there have been cases in which, having recognised an extraterritorial jurisdiction over a principal offence, it has recognised a jurisdiction over inchoate offences (such as attempt and conspiracy). This has occurred on the basis that intended results or the intended victim were within the territory and it was necessary to protect 'peace, order and good government'.(114)
The extraterritoriality provisions in this Bill draw on a regime in the Criminal Code that was established by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 1999. The regime describes a 'standard geographical jurisdiction', in which the conduct or a result of the conduct occurs or is intended to occur wholly or partly within Australia. It also describes different categories of 'extended geographical jurisdiction' to capture cases in which the conduct or a result of the conduct occurs overseas, but:
The standard jurisdiction is intended to apply to all Commonwealth offences unless a contrary intention appears. The extended categories will apply by specific reference.
By using this template, the regime covers all of the jurisdictional issues identified above.
The Bill takes the unusual, but not extraordinary, approach of reciting, in a non exhaustive fashion, the constitutional bases for the terrorist offences (proposed section 100.2).
It is unclear, however, what purpose the recitals are meant to serve. Arguably proposed subsection 100.2(1) states the obvious. Ultimately, no law or offence will survive judicial scrutiny unless it falls within legislative power. Moreover, as the Communist Party Case shows, it is for the Judiciary to determine constitutionality not Parliament (see below). On the other hand there may be (at least) two practical points for having the provisions. They could operate as limits on power, assisting a court in reading down various provisions that appear to be beyond power (although the listed grounds in proposed subsection 100.2(2) are expressed so as not to limit the broad proposition in proposed subsection 100.2(1)). They could also assist the prosecution in determining when to lay charges in a given case.