|
|||
|
|||
|
 |
|
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As indicated, 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 ASIO. 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:
|
|
|
|
|
|
|
|
|
The Terrorism Bill and 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.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The commencement dates relating to the provisions in this Bill are contingent upon the commencement Division 72 in Chapter 4 and/or the commencement of Part 5.3.
It is difficult to assess which will be the most significant aspect of the legislative package.
The Terrorism 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. This Bill deals with questioning and detention of persons for terrorist intelligence gathering purposes. The Anti-Hoax Act and Bombing Bill both relate to commitments made during the General Election.
The real issue is the extent to which each bill 'strengthens our counter-terrorism capabilities'. As we will see, it may be that 'there is no legislative "fix" or panacea against terrorism'.(6) 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 dangerous mechanism that may drive the activities of these and other entities further underground.(7) 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.
Schedule 1 amends the Australian Security Intelligence Organisation Act 1979.
Items 1–14 contain definitions relevant to two matters:
Items 15–20 effectively empower persons other than officers of ASIO, to communicate intelligence on behalf of ASIO, subject to the existing conditions. Under these conditions the person must act 'within the limits of authority conferred … by the Director-General [of ASIO]'.(8) Failure to do so is an offence which is subject to imprisonment for 2 years.(9)
The Protective Security Review stated that '[i]ntelligence is the first line of defence against terrorism'.(10) Similarly, the 1993 Honan and Thompson review asserted that '[a] sound intelligence process, with highly trained analysts, is fundamental to crisis management'(11) and the 1996 British Inquiry into Legislation against Terrorism commented that intelligence was 'the single most important weapon in fighting terrorism'.(12) While these statements are perhaps obvious, the Protective Security Review statement was made along with a warning that 'this truism will be taken so much for granted that it will be merely paid lip service and more attention given to secondary and more visible lines of defence'.(13)
The Australian Intelligence Community comprises: the Australian Security Intelligence Organisation (ASIO), Australian Secret Intelligence Service (ASIS), Defence Signals Directorate (DSD), Office of National Assessments (ONA), Defence Intelligence Organisation (DIO), and the Defence Imagery and Geospatial Organisation (DIGO).
Broadly, ASIO, ASIS and DSD collect intelligence which is analysed by ONA, DIO and DIGO. ASIS collects intelligence outside Australia whereas ASIO collects intelligence inside Australia. ASIS collects human intelligence while DSD collects signals or communications intelligence. While ASIS collects and analyses intelligence, ASIO may also advise government(s) regarding security threats and take action to address those threats. DSD also advises government(s) regarding security of electronic information. ONA exists under the auspices of the Department of the Prime Minister and Cabinet, ASIO under the Attorney-General's Portfolio, ASIS under the Department of Foreign Affairs and Trade Portfolio whereas DSD, DIO and DIGO come under the control of the Department of Defence (DoD). Generally, the activities of these agencies are subject to scrutiny by the Inspector-General of Intelligence and Security (IGIS).
Until recently, the Australian Intelligence Community was largely ignored by statute. Thus, for seven years after its foundation in 1949, ASIO existed as a purely executive organisation until it was placed on a statutory footing in 1956.(14) Similarly, for nearly fifty years after it was established in 1952, ASIS existed pursuant to an executive order until it was given statutory clothing by the Intelligence Services Act 2001.(15)
The Australian Security Intelligence Organisation Act 1979 defines the roles, functions and powers of ASIO. One of the functions of ASIO is to 'obtain, correlate and evaluate intelligence relevant to security'.(16) Another is to supply security assessments to Commonwealth agencies. Security assessments contain advice about whether a 'prescribed administrative action' should be taken regarding an individual on security grounds, such as denying them entry to Australia or access to sensitive information. ASIO may communicate intelligence to appropriate persons or authorities(17) and provide advice to Ministers, authorities and other prescribed persons.(18) Specifically, it may communicate intelligence to State authorities in response to a proposed 'prescribed administrative action' in that State that would affect security for the purposes of the Commonwealth.(19) The Minister may not override the opinion of the Director-General 'concerning the nature of the advice that should be given'.(20) Nor may s/he override the Director-General's opinion concerning the appropriateness of targeting a particular person without a written direction containing reasons, which is copied to the Inspector-General and the Prime Minister.(21) The Act does not give ASIO any guarantee of access to information held by other agencies, but other legislation permits relevant authorities to disclose to ASIO certain restricted information, such as that relating to taxation(22) or financial transactions.(23)
It is worth noting that, unlike State and Federal Police, ASIO is not a law enforcement body. It is primarily an intelligence gathering agency. Much of what ASIO would want to do is covert and is not captured by the standard rules applying to warrants in relation to law enforcement bodies. As will be seen, ASIO does have certain powers, such as powers to conduct physical searches and powers relating to telephone interceptions, listening devices, tracking devices, and computer access which are governed by warrants. However, it is important to recognise that in exercising these powers, ASIO does not perform a law enforcement role or maintain a direct working relationship the criminal justice system.
Following the Second Hope Royal Commission, the Hawke Government created the office of the Inspector-General of Intelligence and Security (IGIS). Hope had recommended that it primarily monitor ASIO's 'compliance with the law, the propriety of its actions and the appropriateness and effectiveness of its internal procedures',(24) and, secondarily, look into complaints. The IGIS was intended to 'protect the rights of Australian citizens and residents against possible errors or excesses by the intelligence and security agencies and to guard against breaches of Australian law'. It was not meant to 'check on the general effectiveness and appropriateness of the agencies' operations'.(25)
The Inspector-General of Intelligence and Security Act 1986 gives the IGIS power to inquire into the compliance of ASIO, ASIS and DSD with the law, ministerial directions or guidelines, or human rights and the propriety of particular activities undertaken by them. But, the IGIS may not do so without ministerial approval except to the extent that Australians are affected or Australian laws may be violated.(26)
The Terrorism and the Law in Australia project focused heavily on definitional issues. The issues were further canvassed in Bills Digest no. 126, 2001–02 on the Terrorism Bill. The issue for present purposes is the connection between terrorism and the ASIO mandate.
As we have seen there are few, if any, statutes that deal specifically with terrorism.
Significantly, 'terrorism' once appeared in the Australian Security Intelligence Organisation Act 1979. It was included in a list of matters incorporated by the definition of 'security' (see below). It was defined to mean 'acts of violence for the purpose of achieving a political objective in Australia or in a foreign country'; 'training, planning, preparations or other activities for the purposes of [such acts or] violent subversion in a foreign country' and offences related to internationally protected persons or aviation.(27)
In 1986, following the Second Hope Royal Commission,(28) 'terrorism' was deleted from the Act, and merged with 'subversion', to form a wider expression 'politically motivated violence'. The definition was not intended to exclude any matters originally covered. It would cover 'terrorism and related activities of the kind covered by the present definition' including 'threats of or acts causing unlawful harm to achieve a political end'.(29) Thus, 'politically motivated violence' is defined to mean acts that include or may include acts or threats of violence or harm for the purpose of influencing domestic or foreign governments or overthrowing or destroying a domestic government or constitutional system. It also includes offences related to foreign incursions, hostages, ships and fixed platforms and aviation and offences related to internationally protected persons.(30)
Following the Honan and Thompson review in 1993,(31) the broader expression was incorporated into the National Anti Terrorist Plan (NATP) alongside the older, narrower expression 'in recognition that many of the preventative measures applicable to countering terrorism are also appropriate against other forms of politically motivated violence'.(32) So, 'terrorism' is defined in the NATP as 'an extreme form of politically motivated violence'.(33)
Under the new provisions the definition of 'politically motivated violence' would extend to 'acts that are terrorist offences' within the meaning of proposed Division 72 and/or Part 5.3 of the Criminal Code, depending upon the commencement dates of the relevant Bills.
Item 24 inserts new Division 3 which deals with questioning and detention powers.
In announcing the measures contained in this Bill, the Attorney-General stated that:
In Australia, there are few examples of a mandatory duty to inform. Historically, the common law contained an offence of misprision of felony which was committed where a person knew that an offence had been committed but failed reasonably to disclose this to the relevant authorities.(35) These offences have generally been abolished and replaced with statutory offences.(36) But, these offences relate to knowledge of past offences rather than mere suspicion of possible future offences. The only other example seems to be in relation to treason. It is an offence for a person who knows that another person intends to commit treason not to provide information to a constable or take preventative measures.(37)
Ordinarily, a duty to provide information will arise in response to a summons or subpoena as an inherent or statutory incident of judicial or quasi-judicial power. This approach is taken in various contexts: royal commissions, the Australian Securities and Investments Commission (ASIC), the New South Wales Crime Commission (NSWCC), and the Independent Commission Against Corruption (ICAC). The Royal Commissions Act 1902 gives Royal Commissions the power to compel witnesses, backed by a power to punish witnesses for contempt. The Australian Securities and Investments Commission Act 2001 gives ASIC the ability to compel witnesses, backed by criminal penalties for failure to comply. Thus, witnesses in inquiry hearings may be compelled to produce documents or answer questions.(38) In respect of ICAC, witnesses may only be compelled to produce documents in their custody or control. The National Crime Authority (NCA) is a relevant example in the present context. Under the National Crime Authority Act 1984 a member may, in the context of a special investigation, order a person to give evidence before a hearing(39) or to produce a document(40) that is relevant to a special investigation. In its view these powers 'set the NCA apart from traditional police services, and are essential if the community is to be protected from the impact of complex national organised crime'.(41)
A duty to provide information may also arise in response to a request or production notice as a statutory incident of executive power. This is how information is compulsorily obtained in a variety of contexts: customs,(42) taxation,(43) civil aviation safety,(44) consumer protection,(45) companies and securities regulation,(46) therapeutic goods,(47) social security,(48) workplace relations,(49) national security,(50) and immigration.(51) A relevant example in the present context is the power of the Attorney-General, under the Crimes Act 1914, to require a person to answer questions, furnish information or allow documents to be inspected if he or she believes that the person has any information or documents relating to the money, property, payments or transactions of an unlawful association.(52)
Ordinarily, there are various ways to avoid an executive duty to provide information. The most obvious avenues are based on relevance, reasonable excuse and self-incrimination.
Where an investigatory body is confined by terms of reference, in theory, any coercive powers will be subject to a requirement of relevance. Thus, a witness will be able to maintain a right to silence in respect of questions that are not relevant to the terms of reference of the inquiry. In practice it may be difficult to establish that a particular line of inquiry is not and could not become a relevant line of inquiry for the purposes of the terms of reference. Donaghue cites various thresholds for establishing relevance.(53)
Under most relevant statutes, witnesses must answer questions and produce documents unless they have a 'reasonable excuse'. This clearly incorporates excuses based on physical or practical difficulties. In limited cases it incorporates excuses based on the standard legal privileges and immunities, such as the privilege against self-incrimination.
It is worth noting that there was a reasonable excuse provision in the National Crime Authority Act 1984 but that it was recently repealed by the National Crime Authority Legislation Amendment Act 2001. At least two reasons were given by the Government. First, the ability of witnesses to claim the excuse constituted an '[inappropriate] challenge [to] the legitimate and essential role of the Authority in investigating serious and organised crime'. Second, a person who was prosecuted for failure to answer a question or produce a document would be able to avail themselves of the other defences in the Criminal Code.(54)
One of the most significant issues in administrative and judicial or quasi-judicial inquiries relates to the privilege against self-incrimination. It is also a significant issue in this Bill. The privilege against self-incrimination protects an accused who is required 'to produce documents which tend to implicate that person in the commission of the offence charged'.(55) It extends to protect a person from revealing anything which may lead to the discovery of adverse evidence not in the person's possession or power.(56) It has been said that it is a human right 'based on the desire to protect personal freedom and human dignity'.(57) It has also been said that it is a significant element in the accusatorial system of justice. It follows from the propositions that 'the prosecution must prove the guilt of the prisoner'(58) and that 'an accused is not bound to incriminate himself'.(59) A middle ground seems to be the proposition that the privilege provides for a 'fair state-individual balance' in the conduct of criminal proceedings. To some extent the reason for the privilege may also be based on the public interest in the administration of justice.(60)
Legal professional privilege protects a range of confidential communications made between lawyers and clients.(61) Traditionally, it protects communications in the context of actual or anticipated legal proceedings. It also protects other communications between lawyers and clients, provided they pass 'as professional communications in a professional capacity'.(62) Moreover it may protect communications between lawyers and third parties, 'but only when they are prepared for, or in contemplation of, existing or anticipated litigation, or for the purpose of ... obtaining evidence with reference to such litigation'.(63)
Traditionally, the rationale of the privilege was understood to be the 'maintenance of confidence pursuant to a contractual duty which arises out of a professional relationship'.(64) The modern rationale is its 'tendency to broaden the operation of the rule of law as well as to enhance the individual's capacity to secure its protection'.(65) It is essentially the need to ensure that there is a freedom and candour of communication between lawyer and client.(66)
Generally, privileges apply to administrative and judicial inquiries.
Thus, it has been said that the privilege against self-incrimination is 'too fundamental a bulwark of liberty to be categorised simply as a rule of evidence applicable to judicial or quasi-judicial proceedings'(67) and must therefore be applicable to non-judicial proceedings.(68) It was originally considered that legal professional privilege was confined to judicial or quasi-judicial proceedings.(69) But, the privilege is more than a rule of evidence or procedure and is part of the substantive common law.(70) On this basis, it has the power to affect disclosure outside the judicial or quasi-judicial sphere. However, while it may extend to extra-judicial proceedings, its content varies according to the nature of the document for which protection is sought and the context in which production is sought.(71)
Similarly, it was originally considered that legal professional privilege was confined to judicial or quasi-judicial proceedings.(72) However, it is clear that the privilege is more than a rule of evidence or procedure and is part of the substantive common law.(73) Thus, it has the power to affect disclosure outside the judicial or quasi-judicial sphere. However, while it may extend to extra-judicial proceedings, its content varies according to the nature of the document for which protection is sought and the context in which production is sought.(74)
However, it is equally clear that both privileges may be confined or abrogated by statute.(75) While neither privilege can be abrogated except by a clear statutory intention evidenced by express words or necessary implication,(76) some Acts have clearly and effectively done so.
One might expect that where a privilege is abrogated, any evidence that a witness is compelled to give would be protected in subsequent proceedings. This might extend to proceedings relating to that evidence (use immunity) or to evidence or other material which is derived from the answers or documents given (derivative use immunity). This would respect both the public interest in disclosure at Royal Commissions and the public interest in the administration of justice and protection of human rights in the courts.
Historically, evidence given to a Royal Commission was presumed to be admissible in subsequent legal proceedings.(83) However, it may be more accurate to say that the issue turns upon construction of the relevant statute.(84) The difficulty is that 'Australian statutes … rarely express guidance in relation to the admissibility of compelled evidence'.(85) Moreover, while some statutes expressly deal with inadmissibility it is often incorrectly assumed that the statutory abrogation of a privilege necessarily implies that the evidence obtained by the Royal Commission is not admissible in subsequent proceedings.(86)
The Royal Commission Act and related Acts deal with compelled evidence as follows:
It is worth noting that the National Crime Authority Act 1984 once contained not only a use immunity, but also a derivative use immunity that protected a witness from being prosecuted on the bases of 'any information, document or thing obtained as a direct or indirect consequence of the answer or the production of the [primary evidence]'.(94) The extension of the immunity apparently reflected 'a legislative intention that the NCA should not use its coercive powers against the main suspects under investigation'.(95) Broadly, the argument in favour of this approach is that an investigatory team is able to gather a wide range of evidence and develop a broad picture to further their investigation. The argument against the approach is that it may hinder an investigatory team and focus their attention on peripheral players in the hope that evidence can be obtained further upstream.(96)
These arguments reflect a fundamental policy tension underlying all such inquiries:
It is also worth noting that the derivative use immunity was repealed by the National Crime Authority Legislation Amendment Act 2001 on the basis that '[t]he Authority is unique in nature and has a critical role in the fight against serious and organised crime':
In a criminal trial, there is generally a right to legal representation. It has been said that representation is a usual component of a person's right to receive a 'fair trial according to law' which is itself a 'fundamental element of our criminal justice system'.(99) Implicitly, this forms the basis of an argument for public legal aid in serious criminal proceedings. However, it is significant that the common law originally did not guarantee a person's right to be legally represented whether privately or publicly. Indeed, an accused person was not permitted to be represented as of right until passage of The Trials for Felony Act 1836.(100)
In an administrative or judicial inquiry, a right to legal representation may be implied by natural justice or it may be expressed in statute. As a matter of administrative law, it may arise as an incident of broader procedural fairness obligations. The obligation to accord procedural fairness, or 'due process', is described as 'a common law duty to act fairly... in the making of administrative decisions that affect rights, interests and legitimate expectations'.(101) It may require an inquiry to allow legal representation 'if this is the only way in which fairness can be attained, as where, for example, a matter is particularly serious and complex or a witness is incapable of representing himself or herself'.(102)
The Royal Commission Act and related Acts deals with the right as follows:
The Australian Security Intelligence Organisation Act 1979 provides for various warrants, including search warrants,(111) computer access warrants,(112) listening device warrants,(113) and tracking device warrants that may relate either to persons(114) or objects.(115) All of these warrants may be issued by the Attorney-General on similar grounds. For example, the Attorney General must not issue a search warrant unless satisfied that there are:
A search warrant must specify the subject premises.(117) It may also specify a range of activities in relation to those premises, including entering, searching, and inspecting the premises and removing and retaining records or other things on those premises.(118)
As noted, ASIO is not a law enforcement body. It does not perform a law enforcement role or maintain a direct working relationship the criminal justice system. Much of what ASIO would want to do is covert and will not place it in direct contact with the subject persons.
It is worth noting that statistics on warrants or applications for warrants do not seem to be reported. The ASIO Report to Parliament 2000-2001 states that '[t]he number of warrants varies over time, in response to the changing security environment'.(119) The IGIS Annual Report 2000-2001 is also silent about the number of warrants applied for or issued. It notes that because warrants generally relate to covert surveillance '[f]or security reasons it is difficult to report these cases in detail'.(120) It is worth noting that the Government has refused in the past to give details regarding the number of telephone intercepts undertaken by ASIO on the basis that '[i]t has been the policy of successive Australian governments not to comment on operational intelligence matters'.(121)
Proposed section 34D provides that a 'prescribed authority' may issue warrants that either:
Those warrants must also authorise ASIO, subject to any conditions or restrictions, to:
Warrants may be in force for up to 28 days (proposed paragraph 34D(6)(b)).
A 'prescribed authority' is a person who is prescribed in writing by the Attorney-General (proposed section 34B). The Attorney-General may prescribe a Federal Magistrate (by consent), a Deputy President of the Administrative Appeals Tribunal or a member(122) of the Administrative Appeals Tribunal who is been enrolled as a legal practitioner in a superior court for at least 5 years (proposed subsection 34B(2) and (3)). In the performance of their duties under the new provisions, 'prescribed authorities' have the same protections and immunities as Justices of the High Court of Australia (proposed subsection 34B(4)).
Warrants may be issued by a prescribed authority if:
Ordinarily, the Director-General may not make a request without the Attorney-General's consent (proposed paragraph 34D(1)(a) with proposed section 34C(4)). However, in some circumstances (see 'detention' below), the Director-General may make a request directly to a prescribed authority, provided it is a Deputy President of the AAT (proposed paragraph 34D(1)(a) with proposed section 34C(5)).
The Director-General must give the Attorney-General a draft request that includes the draft warrant, statement of supporting facts and other grounds, and a statement regarding any previous requests for questioning warrants in relation to that subject person (proposed subsection 34C(2)).
The Attorney-General may consent if:
The Attorney-General may give consent subject to changes being made to the draft request (proposed subsection 34C(4)(a)).
It is an offence to:
All offences are subject to imprisonment for 5 years.
The privilege of self-incrimination does not apply in relation to the key offences above. That is, a person may not refuse to give information, or produce records or things 'on the ground that [it] might tend to incriminate the person or make the person liable to pay a penalty' (proposed subsection 34G(8)). However, there is a (criminal but not civil) 'use immunity'. That is, answers given and documents produced in response to requests before the prescribed authority are not admissible in criminal proceedings 'other than proceedings for an offence [above] or a terrorism offence' (proposed subsection 34G(9)).
In the United Kingdom, United States and Canada, the apparent need to compel people to disclose information regarding terrorism has been dealt with in one of three ways. In the United Kingdom, it has been dealt with by way of a duty to disclose relevant information. In the United States it has been dealt with by way of prosecutions by military tribunals. In Canada, it has been dealt with by way of judicial proceedings similar to those in the Bill.
The Prevention of Terrorism (Temporary Provisions) Acts 1974–1989 imposed an unusual duty on all persons to give police information relating to the commission or possible commission of terrorist offences. In the report, Inquiry into Legislation Against Terrorism, Lord Lloyd of Berwick identified two criticisms of this unusual duty to give information. First, while citizens have a moral obligation to assist the police, he argued that 'the state should be reluctant to transform this into a legal duty'. Second, while the duty is expressed generally he observed 'prosecutions are most often used against members of the families of suspected terrorists, putting them in an impossible position of conflicting loyalties'.(123) A Home Office Circular apparently defended the duty on the basis that it is seldom used.(124) In his report Lord Lloyd of Berwick commented: 'I do not regard it as satisfactory to create a wider-ranging offence, and then circumscribe it by a Home Office Circular'.(125)
The duty to give information is carried through into the Terrorism Act 2000 in two forms. There is a specific obligation to disclose information regarding possible offences which a person acquires in the course of a trade, profession, business or employment.(126) There is also a general obligation to disclose information which a person knows or believes might be of material assistance in preventing an act of terrorism or securing the apprehension, prosecution or conviction of a terrorist, subject to a defence of reasonable excuse.(127)
It is worth noting that the specific obligation relating to trades and professions, etc. is subject to an exception in relation to legal professional privilege.(128) Arguably, the same result would be achieved by the reasonable excuse defence which attaches to the general obligation, however, significantly, the privilege may not be claimable as of right.
On 18 September 2001, President George W. Bush announced in a Use of Military Force Joint Resolution that those responsible for the September 11 2001 attacks would be tried before a military tribunal.(129) On 13 November, he signed a Military Order authorising non-citizens suspected of terrorism to be 'detained and … tried for violations of the laws of war and other applicable laws by military tribunals'.(130) The order provided for mandatory detention of persons, identified by presidential decree, who were or had been members of al Qa'ida, who had engaged in acts of international terrorism, (131)or who had knowingly harboured such a person.(132) 'When tried', these persons would be tried by a military commission 'for any and all offenses triable by military commission'.(133)
Under the order, rules of evidence and procedure are
to be determined by the Secretary of Defence. As a minimum they would
have to provide for 'a full and fair trial'(134) and the admissibility
of evidence having 'probative value to a reasonable person'.(135)
This is subject to two significant limitations. First, the military commission
is the trier of 'both fact and law'.(136) Second,
On March 21 2002 the Secretary of Defence announced the Procedures for Trials by Military Commissions, pursuant to the Military Order of 13 November 2001.(139) Among other things, those procedures require such things as the presumption of innocence,(140) that convictions be based on members being 'convinced beyond reasonable doubt'.(141) Moreover, detainees have rights to legal representation,(142) to silence,(143) and to call,(144) and cross examine,(145) witnesses.
It has also been argued that the military commissions would be confined by guarantees implied by the Uniform Code of Military Justice. 'Absent exigencies of war',(146) these include, privilege against self-incrimination (both in pre-trial and trial procedure)(147) and the rights to legal representation(148) and to obtain witnesses.(149) Whether these guarantees apply in the aftermath of the September 11 or apply so as to qualify the operation of the Military Order or the Procedures for Trials by Military Commissions may be unclear.
The Anti-Terrorism Act 2002 (CA) provides for 'investigative hearings'. A provincial court judge may order a person to appear before the court for questioning and to 'remain in attendance until excused'.(150) He or she may issue warrants for the arrest of persons who avoid compliance with any such orders,(151) and as indicated, may order the detention of persons in order to prevent the commission of terrorist acts and to allow recognizances.(152) Orders may be made on application by the police if the judge is satisfied that there are reasonable grounds to believe that a terrorism offence has been or will be committed and that information regarding the offence or the whereabouts of an offender is likely to be obtained, provided reasonable attempts have already been made to get this information.(153) The police must obtain the Attorney-General's consent before making an application.(154) Generally, a person must answer any question put to them in investigative hearing. However, a person may refuse to provide information if it is 'protected by any law relating to non-disclosure of information or to privilege', subject to a ruling by the judge.(155) A person may not refuse to provide information on the ground that it would incriminate them, however fairly wide use and derivative use immunities apply to the evidence.(156) A person also has the right to retain and instruct a lawyer at any stage in the proceedings.(157)
It is worth noting that duties to disclosure have been criticised and a number of reviews have recommended that they be abolished. Arguments against the 'misprision of felony' offence in New South Wales and disclosure offence in the United Kingdom have included:
These arguments may be strongest in relation to family members. Anecdotally, it seems that these duties are most often enforced against family members of suspects.(162) Yet, these are the people for whom there may be the least justification or likelihood of success.
Significantly, the New South Wales Law Reform Commission and Lord Lloyd of Berwick could not see any way to fix the problems associated with the duty to disclose. They both recommended that the relevant duties of disclosure and offences be abolished.(164)
In his announcement relating to the measures in this Bill, the Attorney-General said:
Detention for the purpose of questioning and, to some extent, for the purpose of protecting the public, has been canvassed in anti-terrorist laws in the United Kingdom, the United States and Canada. It is worth noting that, at least in the United Kingdom and Canada, these laws relate to law enforcement rather than intelligence action. In both regimes there must be reasonable suspicion that a terrorist offence has been or is likely to be committed. In effect, detention is instigated by the police and not by intelligence agencies.
Among other things, the Prevention of Terrorism (Temporary Provisions) Acts 1974–1989 permitted the arrest and detention of any persons whom the police reasonably suspected were 'concerned in the commission, preparation or instigation of acts of terrorism'.(166) These persons could be detained for 48 hours and the Secretary of State could extend this by a further 5 days.(167) Such detention was always reviewable by a writ of habeas corpus (a legal action which compels authorities to bring someone in custody before a court to determine the lawfulness of their detention). But, despite the large number of detentions ordered,(168) habeas corpus writs were rarely sought or issued. Moreover, given the short duration of detention, such action was practically unavailable in most cases.(169)
These provisions were largely reincorporated without change into the Terrorism Act 2000. However, there were some significant changes. For example, it introduced safeguards, by transferring the power to extend detention from the Secretary of State to the Judiciary. Thus, a judicial authority could only extend detention if satisfied that the further detention of the person is reasonably necessary to obtain or preserve relevant evidence and that the relevant investigation is being conducted diligently and expeditiously.(170) The provisions were subsequently expanded by the Anti-Terrorism, Crime and Security Act 2001. This Act introduces a general obligation to disclose information which a person 'knows or believes might be of material assistance in preventing the commission … of an act of terrorism or in securing the apprehension, prosecution or conviction of a [terrorist]'.(171)
The relevant legislation in the United States is the USA PATRIOT Act of 2001.(172) The Act provides for the mandatory detention of any alien whom the Attorney-General has reasonable grounds to believe is an 'inadmissible alien' or 'is engaged in any other activity that endangers the national security of the United States'.(173) The Attorney-General must review the situation every six months, but aliens may continue to be detained if their release will threaten national security or the safety of the community or any person.(174) An 'inadmissible alien' was defined to include persons who have incited or engaged in terrorist activity(175) and members or representatives of a foreign terrorist organisation.(176) The Act extends the definition to cover persons who use a position of prominence to endorse or espouse terrorism, or belong to a group that endorses terrorism, in a way that 'undermines United States efforts to reduce or eliminate terrorist activities'. It broadens the definition of 'engaging in terrorist activity' to include incitement, preparation, information gathering, planning and soliciting funds or members for terrorist activities or organisations.(177)
The Act provides decisions by the Attorney-General may only be reviewed by a writ of habeas corpus.(178) Thus, there is no administrative review, although it has been said that the habeas corpus review grounds closely parallel some of the judicial review grounds.(179)
The relevant legislation in Canada is the Anti-Terrorism Act 2002 (CA). The Act permits arrest and detention of any person where the police believe on reasonable grounds that a terrorist act will be carried out and where they suspect on reasonable grounds that detention is necessary to prevent this occurring.(180) These persons can be detained for 24 hours to allow them to be brought before a judge.(181) The power to arrest and detain exists in the context of broader judicial powers relating to arrest and detention, with the primary focus being on orders by way of 'recognizance with conditions'. Thus, a judge may, on the basis of an 'information' laid by the police, cause a person to appear before the court,(182) and may extend the detention above for a further 48 hours,(183) in order to order that the person 'enter into a recognizance to keep the peace and be of good behaviour'.(184)
In principle, domestic and international law are antagonistic to arbitrary detention or the detention of persons without legal authority, without charge or without review.
Traditionally, '[t]o make imprisonment lawful, it must either be by process from the courts of judicature, or by warrant from some legal officer having authority to commit to prison'.(185) In either case, detention would be subject to the supervisory jurisdiction of the courts, a fact which is implicit in the constitutional separation of powers requirement. So, it has been said that, with limited exception, 'the citizens of this country enjoy, at least in times of peace, a constitutional immunity from being imprisoned … except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth'.(186)
In the absence of judicial power, the Constitution only permits administrative detention which is connected with a head of legislative power and which is reasonably necessary for the purpose of its exercise. Thus the mandatory detention of asylum seekers has been held to be a valid exercise of the aliens power provided it is not punitive or is 'limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered'.(187) The caveat in italics above raises the question as to whether the detention of persons in times of hostilities or threats to national security may be a valid exercise of the defence power.
Detention, and the limits of executive and judicial power, is covered in various international instruments. For example, the International Covenant on Civil and Political Rights(188) prohibits arbitrary detention.(189) Moreover, international law recognises that detention may be arbitrary notwithstanding that it is lawful as the concept of arbitrary detention includes 'elements of inappropriateness, injustice and lack of predictability'. The Human Rights Committee has stated that detention 'must not only be lawful but reasonable in all the circumstances' and 'must be necessary in all the circumstances, for example, to prevent flight, interference with evidence, or the recurrence of crime.(190)
As noted above, a prescribed authority may authorise a person to be detained. A questioning warrant must either require a person to attend before a prescribed authority or authorise a person to be 'immediately taken into custody' by a police officer and, following hearing before the prescribed authority, detained under arrangements made by the officer 'for a specified period of not more than 48 hours' (proposed subsection 34D(2)).
It would seem that successive warrants can be issued and, while each is subject to a limit of detention for no more than 48 hours, they could permit indefinite detention. Moreover, once a person has been detained continuously under a warrant for more than 48 hours, the Director-General may make a unilateral request to a prescribed authority, without seeking or obtaining the Attorney-General's consent, if the prescribed authority is a Deputy President of the AAT (proposed paragraph 34D(1)(a) with proposed section 34C(5)).
A prescribed authority may issue directions for a person to be detained, further detained, to appear for questioning, or be released from detention (proposed subsection 34F(1)). Detention can only be required where the prescribed authority is satisfied that there are 'reasonable grounds for believing' that, if the person is released, he or she may alert a person involved in a terrorist offence, may fail to appear before the prescribed authority or may destroy, damage or alter evidence described in the warrant (proposed subsection 34F(3)). Also, a direction cannot 'result in a person being detained' for more than 48 hours 'after the person first appears before a prescribed authority' (proposed subsection 34F(4)).
Significantly, a direction may only be issued by the prescribed authority 'when a person appears before [it] for questioning' (proposed subsection 34F(1)). So, the prescribed authority has no power to end detention while a person is in detention but not appearing for questioning. He or she must rely on directions made during previous appearances regarding subsequent opportunities to review and reconsider detention. Moreover, directions must either be consistent with the warrant or, if inconsistent, approved in writing by the Attorney-General (proposed subsection 34F(2)). It is unclear how this restriction works. Clearly, the prescribed authority is not able to permit a detainee to contact a person who is not specified in the warrant (see proposed subsection 34D(4)). In theory, it should be able to order that a detainee be released before the end of the period specified in the warrant if it is not satisfied that continued detention and questioning will substantially assist the collection of intelligence (see proposed paragraph 34D(1)(b)). But, can the prescribed authority order that a detainee be released on the grounds that the conditions, such as those relating to further appearances (proposed paragraph 34F(1)(e)) and detention arrangements (proposed paragraph 34F(1)(c)), are not being met?
The successive warrants issue is more important than the prescribed authority discretion. The Director-General may request successive warrants, which may result in detention for an indefinite period. But a prescribed authority may only issue directions against a given warrant and they cannot result in detention for more than 48 hours. In theory, successive warrants may permit a prescribed authority to issue successive directions resulting in indefinite detention. The provisions are silent on this question, although it is clear that, where a person is released, the making of a direction does not limit the issuing of further warrants and detention whether by warrant or by direction (proposed subsection 34F(7)).
As noted, if a questioning warrant authorises detention, it must specify all of the people whom the person may contact while in custody or detention (proposed subparagraph 34D(2)(b)(ii)). Once a person is taken into custody or placed in detention they may only contact those persons specified in the warrant or prescribed authority's direction (proposed subsection 34F(9)). However, while in custody, they may make oral or written complaints to the Ombudsman or IGIS and must be given 'facilities' in order to do so (proposed paragraph 34F(9)(b) and (c)).
No express provision is made for legal representation. However, the warrant may specify that the person may contact their legal adviser (proposed subsection 34D(4)). A direction issued by a prescribed authority may also specify this (proposed paragraph 34F(1)(d)) provided it is consistent with the warrant or is approved (proposed subsection 34(2)).
In executing a warrant or direction, or in exercising a power to enforce a warrant or direction, a person must be 'treated with humanity and with respect for human dignity and must not be subjected to cruel, inhuman or degrading treatment' (proposed section 34J).
Item 23 deals with personal searches in conjunction with search warrants.
Item 24 deals with personal searches in conjunction with the new questioning provisions.
Traditionally, the common law has sought to prescribe narrow powers of entry, search and seizure. Originally, search warrants were permitted for stolen goods, had to be issued by judges and had to describe what was to be searched and seized and/or the related offence. Recognising the need to balance individual privacy with public interest in law and order, these powers have been extended to allow police officers to seize other property they discover by chance which they reasonably believe reveal other offences.(191) Otherwise the common law 'was, and remains, hostile to any greater degree of generality'.(192)
These powers have been extended by statute. First, there have been piecemeal extensions to cover particular classes of offences. Second, there have been extensions which largely codify the common law rules relating to search warrants. Third, there have been measures which provide for 'general warrants' which may be unlimited with respect to place, time or the offences to which they relate or, while partially limited, may be issued not by a judicial officer but by an administrative officer.(193) 'General warrants' have been widely criticised on the basis that they lack certainty(194) and suffer from a lack of independent scrutiny.(195)
In addition, the common law permits entry, search and seizure in the absence of a warrant, pursuant to making an arrest. As above, these powers have been extended by statute. Various Acts provide for the exercise of these powers based on 'reasonable suspicion'. Typically they deal with emergencies or dangerous situations. As with 'general warrants' 'warrantless searches' have been criticised for the absence of independent scrutiny: 'a warrantless power of search and seizure represents a relatively discretionary mode of authorisation, legal control and review of which are substantially diminished'.(196)
Clearly, the general position is that search warrants require concrete information.(197) Moreover in issuing a search warrant a justice must balance at arms length the competing interests in light of this information. He or she must 'stand between the police and the citizen' and give 'real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen'.(198)
As above, the common law is generally antagonistic to personal search powers on the basis that they are 'an affront to dignity and privacy of the individual'.(199) However, it will permit 'ordinary searches' of individuals following arrest if there are reasonable grounds for believing that they have a weapon or carry any implement which might be used for escape or that they possess evidence which is material to the offence or other offences.(200) It is unclear if it would permit such searches in the absence of any criminal offence.(201)
Also as above, these powers have been extended by statute. For example, personal search powers are found in the Crimes Act 1914, Customs Act 1901, and Migration Act 1958. Moreover, strip search powers are found in the Crimes Act 1914, the Customs Act 1091 and the International War Crimes Tribunal Act 1995.(202) Some other Commonwealth statutes give authorised regulatory officers the power to carry out ordinary searches and frisk searches—for example, the Environment Protection and Biodiversity Conservation Act 1999(203) and the Wildlife Protection (Regulation of Imports and Exports) Act 1982(204)—but explicitly prohibit them from carrying out strip searches.
A number of types of personal search are provided for in Commonwealth statutes.(205) In ascending level of intrusiveness, these are ordinary searches, frisk searches (also known as pat down searches), strip searches (also known as external searches) and internal searches (also known as body cavity searches). In general, the greater the level of intrusiveness the greater the amount of protection afforded the person who is to be searched.
|
|
|
|
|
|
|
|
|
|
|
|
Ordinarily, strip searches are subject to conditions that relate to threshold issues or preconditions that must exist before authorisation can be sought; who can apply for, authorise and conduct a strip search; the protections afforded to minors aged between 10 and 18 years; the provision of searches by consent; and record keeping requirements.
For example, under the Crimes Act 1914 a strip search:
In relation to foreign intelligence, the Attorney General may, at the request of the Director General, issue a warrant in relation to premises, a person, a computer or thing authorising ASIO to any of the things ordinarily permissible in relation to search warrants, computer access warrants, listening and tracking devices and postal or delivery service articles.(218)
There would seem to be an ambiguity in the operation of this provision. On one view, it may only permit ASIO to do the things in relation to premises, a person, a computer or thing that are ordinarily permissible in relation to the subject premises, person, computer or thing. That is, ASIO may do the things ordinarily permissible under a search warrant but only in relation to specified premises. On another view, it may permit ASIO to do any of the things permitted in relation to any of the things identified. That is, ASIO may do the things ordinarily permissible under a search warrant in relation to a specified person, such as searching for and removing records or other things relevant to the security matter.
It is worth noting the search warrant grounds relating to intelligence agencies in other jurisdictions. A warrant may be issued under the Intelligence Services Act 1994 (UK) if the Secretary of State 'thinks it necessary for the action to be taken on the ground that it is likely to be of substantial value in assisting' the relevant agencies in the performance of their functions. Similarly, under the Government Communications Security Bureau Bill (2001) (NZ) an interception warrant may only be issued if it is 'essential for the protection or advancement of 1 or more of the [relevant objectives]', that the value of the information 'justifies the particular interception' and is 'not likely to be obtained by other means'.
Proposed subsection 25(4A) allows the Attorney-General, in issuing a search warrant over subject premises, to authorise 'ordinary' or 'frisk' searches of any person who is 'at or near the subject premises' when the warrant is executed, if there is 'reasonable cause to believe' that those persons possess 'any records or things relevant to the security matter'. He or she may authorise the inspection, copying, etc of any record or other thing found 'that appears to be relevant to the collection of intelligence by [ASIO]' under the Act.
Proposed subsection 25(4B) provides that this may not involve strip or internal searches.
Proposed section 34L permits a police officer to conduct ordinary and frisk searches of persons detained pursuant to a questioning warrant or prescribed authority direction. A frisk search may be conducted if the police officer suspects on reasonable grounds that the person carries a 'seizable item' and it is necessary to conduct a strip search to recover it, if the prescribed authority approves (proposed subsection 34L(2)). He or she may use 'such force as is necessary and reasonable in the circumstances' (proposed subsection 34L(7)) and may seize any 'seizable item' or item 'relevant to collection of intelligence that is important in relation to a terrorism offence' (proposed subsection 34L(8)).
The expression 'seizable item' does not seem to be defined in the Bill or the Act.
Proposed section 34M contains rules governing the conduct of the strip search.
The power in proposed section 34L, and the rules in proposed section 34M closely resemble the power and rules in section 3ZH and 3ZI of the Crimes Act 1914. Obvious differences are that under the latter statute searches are performed by police officers, under the control of senior police officers and (where relevant) magistrates, and are directed at the gathering of 'seizable items' and other 'evidential material' in relation to offences. Under the Crimes Act 1914 a 'seizable item' is 'anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody'.(219)
Significantly, the Crimes Act 1914 provisions deal expressly with searches of minors. Strip searches may not be conducted on children under 10 years.(220) Between 10 and 18 years strip searches may not be conducted unless the person has been arrested and charged or in accordance with a magistrate's order and unless the person has a parent, guardian or other suitable adult who is able to capable of representing the person's interests.(221)
The rules in proposed section 34M effectively duplicate these provisions in relation to questioning and detention. Strip searches may not be conducted on children under 10 years. Between 10 and 18 years strip searches may not be conducted unless in accordance with a prescribed authority's order and unless the person has a parent, guardian or other suitable adult who is able to capable of representing the person's interests.(222)
While it seems inconceivable that minors would be suspects for terrorist offences or targets for questioning warrants, the Bill clearly contemplates their questioning and detention. As noted there has already been a live debate in relation to family members of terrorist suspects who fell within the ambit of anti-terrorist laws in the United Kingdom.(223)
The prescribed authority has a limited role in the issuing of questioning warrants. Clearly, they must be satisfied as to the reasonable grounds (proposed paragraph 34DF(1)(b)). But, while the Attorney-General may make changes to the warrant (proposed subsection 34D(3)), the prescribed authority cannot. The warrant it ultimately issues must be 'in the same terms as the draft warrant given to [it]' (proposed subsections 34D(2) and (5)).
Once a warrant is issued, the prescribed authority may not have a significantly larger role. The prescribed authority, before whom the person first appears for questioning, must explain the effect of the warrant and the consequences of any failure to comply (proposed section 34E). So, in later appearances, there may be no duty to make any explanation or warning. It must also inform the person of their right to make a complaint to the IGIS in relation to ASIO or the Ombudsman in relation to the AFP (proposed paragraph 34E(1)(e)). As indicated, it has a discretion in ordering and terminating detention (proposed section 34F), but only as approved by the Attorney-General under the warrant or separate written approval (proposed subsection 34F(2)). It may have authority to control the conduct of questioning by ASIO but the Bill is largely silent on this issue. It states, in the context of the authorisation in the warrant, that ASIO must be authorised to question a person before a prescribed authority 'subject to any restrictions or conditions' (proposed paragraph 34D(5)(a)). It does not state how these are established or enforced.
There may be constitutional issues arising from the conferral of power on judicial officers to both issue warrants and preside over questioning at the return of warrants. In a recent newspaper article Dr. Greg Carne of the Faculty of Law, University of Tasmania stated that '[t]he obligations on that person during detention make it likely that the power to issue the warrant and be present at the interrogation will be constitutionally challenged.(224) One obvious avenue of challenge is one based on the separation of powers requirement or the principle in the Boilermakers' Case.(225) The argument may work in at least in respect of Federal Magistrates, the issuing of questioning warrants may be viewed as an exercise of executive power that is incompatible with their role as members of the Judiciary.
Generally, it is assumed that the issue of a warrant is not an exercise of judicial power. This proposition is widely accepted in relation to listening device and telecommunications interception warrants.(226) In part it is based on the fact that such decisions do not involve such things as the adjudication of the rights of parties,(227) or the identification and enforcement of rights in accordance with legal principles.(228)
It is also assumed that the issue of a warrant is not inconsistent with the exercise of judicial power. The conferral of a power on a judge to issue warrants will be consistent with the Boilermakers principle if it is given to the judge as an individual, it is received by consent and it is not incompatible with the performance by the judge of their judicial functions or the proper discharge of the judiciary of its responsibilities as an institution.(229) Ultimately, it was accepted by the majority in Grollo v. Palmer, the issue remains 'whether a particular extrajudicial assignment undermines the integrity of the Judicial Branch'.(230) Examples of incompatibility would include the conferral of an overwhelming non-judicial workload, the conferral of functions which of their nature compromise or impair judicial integrity or undermine public confidence in the integrity of the judge or the judiciary.(231) Another example may be the conferral of an unduly confined administrative discretion. In Wilson v. Minister for Aboriginal and Torres Strait Islander Affairs the High Court held that a judge, in preparing a report under heritage protection legislation, was so confined by ministerial direction and control as to be deprived of a free and open discretion. This, combined with other factors, made it incompatible with the exercise of judicial function.
It may be possible to argue that the power to issue a questioning warrant, with the consequent detention powers and the limitations on prescribed authority's discretion to vary the terms of the warrant or, potentially, to control questioning and detention, may undermine public confidence in the judiciary. It is perhaps significant that, in acknowledging that the ultimate inquiry relates to judicial integrity, the majority in Grollo v. Palmer quoted from Mistretta v. United States. In that case a United States court reacted against a perception that it could be 'borrowed by the [Parliament or Executive] to cloak their work in the neutral colors of judicial action'.(232) In the Bills Digest on the Security Legislation Amendment (Terrorism) Bill 2002 [No. 2] it was suggested that a judicial review court, reacting against its limited ability to review the bases behind proscription declarations, might be tempted to make a similar comment. The temptation may be even stronger given the limited power to vary questioning warrants.
The Director-General of ASIO must provide a written report to the Attorney-General for each questioning warrant. However, the report need only discuss 'the extent to which the action taken under the warrant has assisted [ASIO] in carrying out its functions' (proposed section 34P). The same requirement applies to other warrants issued by ASIO.(233) Also he or she must, as soon as practicable, provide a report to the IGIS (proposed section 34Q).
There is no requirement to report to Parliament or to table reports to the Attorney-General.
The Bill seeks to introduce an unusual combination of powers in order to address the threat or potential threat of international terrorism in Australia. It essentially gives a law enforcement function (questioning) to an intelligence agency (ASIO) and gives a criminal justice function (detention) to non-judicial persons (members of the AAT). In so doing, it removes, or permits the suspension of, what are standard procedural guarantees as to the rights of an accused (privilege against self-incrimination, right to legal representation).
This unusual combination of powers overlaps with the ordinary criminal justice system. Notwithstanding the power to question and detain persons for the purposes of intelligence gathering, a parallel regime of questioning and detention will operate under the criminal justice system, based on reasonable suspicion regarding the commission of an offence. However, as implied above, there are substantial differences in relation to the bodies that exercise law enforcement and criminal justice functions and the procedural guarantees.
The overlap is the result of competing policy tensions. Terrorism has been seen as a 'disease in search of a cure',(234) or a condition for which there is no legislative "fix" or panacea.(235) It is understandable therefore that preventative intelligence should be seen as the 'first line of defence'(236) or the 'single most important weapon in fighting terrorism'.(237) However, terrorism has also been seen as 'an attack on society as a whole, and our democratic institutions'.(238) So it is understandable that deterrence and punishment should be seen as primary objectives that 'duly reflect[s] the seriousness of such terrorist acts'.(239)
Ordinarily, this competition would result in compromise. An emphasis on intelligence would mean a concession in relation to prosecution. This would involve a compulsion to answer questions with a protection in the form of 'use' or 'derivative use immunity'. And an emphasis on prosecution would mean a concession in relation to intelligence. This would involve a right to silence and to legal representation, whatever the consequences.
However, this compromise seems to be increasingly weighted in favour of prosecution, as the recent amendments to the National Crime Authority Act 1984 suggest. While the Act implicitly emphasised intelligence, requiring the NCA in effect to focus on non-suspects, the removal of derivative use immunities on the basis of a 'public interest' in investigation and conviction has combined intelligence and prosecution functions, enabling the NCA to focus freely on suspects and non-suspects in order to fight 'serious and organised crime'.
While there may be a specific need for intelligence in relation to international terrorism, the core issue is proportionality and the appropriate balance between safety and liberty. It may be reasonable to ask whether certain procedural safeguards cannot be maintained without threatening the intelligence gathering process. Areas of interest might be the need to demonstrate reasonable suspicion in relation to the commission of terrorist offences, a 'use' and 'derivative use immunity' in relation to questioning of non-suspects, a prohibition on the use of non-judicial officers as prescribed authorities, an expansion or clarification of the role of prescribed authorities and a publicly funded right to legal representation.
The absence of at least some of these protections raises various questions for Parliament. Obviously, there are general questions as to whether the measures are necessary, sufficient and proportionate. However, there are also questions of substance regarding the purpose of these measures. In blunt terms, if the full weight of the criminal justice system were brought to bear on terrorism, the only contribution that these measures would make would be the immediate detention of non-suspects who might have information that is 'important in relation to a terrorism offence'. If the NCA (or ACC) was permitted to apply special powers to terrorism offences, it would limited to immediate detention of non-suspects.
Ultimately, it might be argued, their real contribution is to permit preventative detention. As indicated above, in announcing these measures, the Attorney-General indicated that detention would 'only be authorised where the [prescribed authority] was satisfied it was necessary in order to protect the public from politically motivated violence'.(240) Since that statement there seem to have been no references to protective or preventative detention. This may be because the notion of preventative detention is arguably contrary to common law standards. For example, the common law does not accept excessive periods of detention for the sole purpose of protecting the community from repeat offenders.(241) Indeed, imprisonment is generally considered as a last resort and a court will generally strive to impose the minimum sentence necessary to protect the community. Moreover, while community protection is a primary consideration in sentencing,(242) it will be weighed against the personal characteristics and circumstances of the offence and the offender.(243)
Significantly, it may be possible to argue that preventative detention is inconsistent with the separation of powers requirement or the principle in the Boilermakers' Case. In Kable v. Director of Public Prosecutions (NSW) the High Court held that state legislation, which empowered state judges to order preventative detention of Gregory Kable, conferred powers that were inconsistent with the exercise by those judges of federal judicial power. While the New South Wales Parliament had the authority to 'make general laws for preventative detention when those laws operate in accordance with the ordinary judicial processes of the … courts', it did not have the authority to 'remove the ordinary protections inherent in the judicial process'. McHugh J stated that the state legislation did so:
Similarly, while the Federal Parliament may have the authority to make general laws for administrative detention and, indeed, preventative detention, it may be necessary, at least if the powers are to be exercised by judges, that certain 'ordinary protections' are provided. The alternative, that the powers are given solely to members of the AAT, may resolve this problem, but may create its own problems given the nature of the measures in this Bill.
This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.
ISSN 1328-8091
© Commonwealth of Australia 2002
Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.
Published by the Department of the Parliamentary Library, 2002.
