Research Paper Index

Research Paper No. 12 2001-2002

Terrorism and the Law in Australia: Legislation, Commentary and Constraints

Nathan Hancock
Law and Bills Digest Group
19 March 2002

Contents

Major Issues

Introduction

Part 1 Current and Proposed Measures

Part 2 Evaluation Commentary and Issues

Part 3 Powers, Limits and Relationships

Endnotes

Major Issues

To most of us 'terrorism' is a foreign phenomenon which has rarely, if ever, been practised in Australia. However, following the events of September 11 2001 the Australian Parliament and the Australian community have been drawn into a discussion about the nature and extent of the terrorist threat in Australia and the Australian response. The discussion has been prompted by events and circumstances which have included new techniques of violence, a larger scale of damage and casualties and a higher standard of planning and coordination than has previously been the case. It has been informed by the threats and responses in the United States and the United Kingdom. It has been held in the context of our growing awareness of terrorist networks and the latent anger that has prompted and sustained terrorist causes.

Australia's first real exposure to international terrorism was probably the bombing of the Sydney Hilton Hotel in March 1978. The bombing and the subsequent 'Siege of Bowral' highlighted our relative unpreparedness, in an administrative and legislative sense, for terrorist events and the range of terrorist responses that may be required. Just one aspect of the response, the call out of the armed forces during the siege, raised legal issues which remained largely unresolved for two decades, despite various reports examining the need for legislation dealing with terrorism and military aid to the civil power. The necessary legislation was broadly envisaged as early as 1979. Indeed, it was drafted and periodically reviewed between 1980 and 2000. But it was only introduced some twenty years later, because of the need to address security concerns for the Sydney Olympics.

Australia has had experiences with related issues such as politically motivated violence, organised crime and national security. But we have had few real experiences widely accepted as terrorism per se. Similarly, we have enacted laws dealing with foreign incursions, serious offences, defence aid to the civil power, intelligence services and implementation of international law. But, with limited exception, there is no specific anti-terrorism legislation in Australia. Australia's only domestic model is a regime tucked away in the Northern Territory Criminal Code. It was modelled on the United Kingdom Prevention of Terrorism (Temporary Provisions) Act 1974-1976. But it was enacted without any real justification based on real or potential threats to the Northern Territory.

Now, following September 11 2001, Australia will be making its first serious attempts at developing a comprehensive anti-terrorism legislative package. No doubt there have already been significant military and diplomatic responses. Invariably, anti-terrorist laws deal with issues such as control over terrorist organisations, specific terrorist offences and enhanced law enforcement powers. But these must be viewed against a broader canvas of existing laws dealing with intelligence gathering, preventative measures, crisis management and investigative and enforcement powers. It could be argued that this broader canvas is largely complete in Australia. However, we have a limited understanding of what constitutes 'terrorism' and what constitutes 'the terrorist threat' in Australia. We have limited knowledge of how the legislation will affect these issues or how it will affect the broader landscape of laws, civil liberties and human rights.

If Parliament is satisfied that legislation is the way to go (or an appropriate part of the response), the next logical question is one of proportionality, specifically proportionality between the proposed measure and the perceived threat to Australian society. This requires a critical assessment of the specific suspected or perceived threat, using means appropriate to Parliament's central role in our constitutional system while paying due regard to considerations of secrecy and national security. It then requires a careful balance between the possible responses to that threat and their potential impact upon civil liberties. Parliament is entitled to ask whether the gains to security from enacting new laws that enhance the state's coercive powers outweigh the costs to civil liberties.

The major issue for Parliament is that it would be enacting strong laws largely in response to overseas events. Any possible threat to Australia is largely unknown and the responses are unfamiliar. While overseas measures may offer some suggested approaches, they must be placed in context. The United Kingdom may have a range of counter-terrorist laws, but it should be kept in mind that those laws have a very specific context: the enduring conflict in Northern Ireland during which threats to civilian targets became a sometimes daily experience. Likewise, the United States has recently enacted new counter-terrorist measures, but has done so in the aftermath of September 11. Comparative approaches to counter-terrorism are a relevant part of the debate in Australia, but so too is a measured appreciation of the specific threat to Australia posed by terrorism.

Arguably, Parliament will need to approach 'terrorism' as if there were no precedents. It will need to assess for itself whether the proposed measures are necessary, sufficient and proportionate in relation to the actual or potential terrorist threat in Australia. It will need to define clearly the subject matter of the laws (what distinguishes terrorism from other offences or national security concerns?), and the standards against which they will be measured in terms of intended effects (will the laws guarantee security?) and incidental effects (to what extent will they infringe civil liberties and human rights?).

The issue of definition may be critical. 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 September 11. 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?

As this paper demonstrates, a number of Commonwealth agencies already have a significant array of powers to deal with criminal conduct and a number of offences already apply in relation to terrorist-style activities. Before agreeing to augment those powers or offences, it is legitimate for Parliament to ask whether such laws are a necessary or appropriate part of the response to the events of 11 September 2001. The core issue here is proportionality and the appropriate balance between safety and liberty:

Introduction

This project, Terrorism and the Law in Australia, arose in response to the proposals put forward in following September 11 2001. It was prompted by a need to draw together threads which form the core of a discussion on Australia's legislative preparedness for terrorism. Australia has had little exposure to international terrorism and little experience of enduring anti-terrorist responses. Unlike other countries, particularly the United States, Australia has a poorly developed body of (public) literature on the topic of legislative preparedness. Perhaps the threat or potential threat of international terrorism is too remote to sustain this level of discussion. Perhaps the level of community awareness or interest is too slight to justify bringing this discussion from the private to the public domain. Either way when the project began it seemed clear that there was a gap in the Australia literature.

The first step in the project was to identify specific anti-terrorism laws in Australia. Having found little material on this topic, the next step was to develop a schema to identify other laws that may serve the same or similar purposes. In blunt terms, by default or design, there are no specific anti-terrorism laws in Australia. However, there is a wide and almost comprehensive range of laws that may be applicable in the anticipation of and response to an act of international terrorism that directly or indirectly affects Australia.

The second step was to identify an evaluation framework to assess the new proposals. The initial research highlighted the legal situation in the United Kingdom and United States. It also highlighted the growing body of legal commentary on the competition between safety and liberty in relation to anti-terrorism laws. The commentary seemed to have emerged slowly despite the long history of some of these laws. But it seemed to have reached a critical mass with the introduction and passage of laws in response to September 11.

In the process a number of issues and themes arose as possible points for discussion. An obvious example was the impact of proposed anti-terrorism laws on civil liberties and human rights. Other examples included the difficulty with attempting to define terrorism and the competing characterisation of terrorism as crime and terrorism as warfare. Less obvious examples involved the scope and limits of legislative power and relationships between the Parliament and the Judiciary and the Commonwealth and the States.

The project has been produced and presented in two parts. The first part, Legislation, Commentary and Constraints, describes proposals announced in anticipation of legislation introduced in 2002 in context of existing arrangements. It also a framework and criteria for evaluation of those laws and some more detailed analysis for parliamentary consideration. The second part, Supporting Materials, comprises a series of documents on specific issues related to legislative and administrative arrangements.

The purpose of the present paper is to provide information and commentary in the context of a parliamentary debate over anti-terrorist legislation. It assumes that the basic concern prompted by terrorism is the security of individuals and institutions in Australia. Governments have a range of options for responding to that fear and insecurity, and to the events which generated them. They may take military action directed at the suspected aggressors. They may join multilateral campaigns to curb or discourage such activity. They may pursue foreign policies designed to undermine support for extremist activities and/or address grievances. Domestically, they may take administrative steps such as tightening airport security and putting defence and other personnel on a higher level of alert. They may also enact laws that attempt to dismantle terrorist networks and to enhance the coercive powers of the state to investigate, prosecute and punish various conduct.

The Commonwealth Government has already taken administrative steps, and has introduced a suite of significant legislative amendments, in order to reinforce domestic legal responses to the perceived threat of terrorism and the possible existence of terrorist cells in Australia. This paper, along with its companion piece Supporting Materials, reviews existing statutory arrangements at the national level, including specific anti-terrorist measures related to investigation and law enforcement, and more general measures relevant to other prevention and response activities by various agencies. It briefly reviews comparative proposals in the United States and United Kingdom, focusing on the historical development of those laws in response to terrorist threats over time. In the process, the paper examines what is meant by the term 'terrorism' and it briefly considers some legal and policy issues and problems in the legislative treatment of the concept.

Part 1 of this paper surveys the broad range of laws relevant to 'terrorism' in Australia under the key headings of intelligence, prevention, crisis management and investigation. It will be of interest to readers looking for basic materials on the legislative framework for dealing with terrorism and the broad context for specific anti-terrorist laws in Australia.

Part 2 briefly describes and applies an evaluation framework to these laws and to the government's proposals announced in anticipation of legislation introduced in 2002. It will be of interest to readers looking for a basic assessment of whether specific measures are necessary, sufficient and proportionate in relation to the terrorist threat in Australia.

Part 3 broadens the focus to consider legislative powers and limits and the relationships that Parliament may have to deal with in enacting and implementing these laws. It will be of interest to readers seeking a basic institutional critique of anti-terrorism law in light of the underlying constitutional, judicial and federal features of the Australian legal system.

This paper has consciously sought to avoid conclusions or projections. If there is a thesis it is that there are dangers in underestimating our legislative and administrative preparedness and that there are difficulties in striking an appropriate balance between safety and liberty. While precedents are useful, we will need our own views regarding the terrorist threat in Australia and whether the measures in question are necessary, sufficient and proportionate.

Part 1 Current and Proposed Measures

The following discussion briefly examines the actions taken and legislative measures proposed by the Government in the aftermath of September 11 2001. The dominant focus, which has been refined over time, has been on controls over terrorist financing. But, there have also been a suite of other proposals which form the basis of the discussion in Part 2.

Most of the discussion in this part deals with the broader legislative environment viewed through the lens of a schema borrowed from the United Kingdom and United States. The discussion is predominantly descriptive and does not lend itself to particular conclusions. Some issues and themes arising from this discussion are pursued in Part 2 and Part 3.

1.1 Actions

On 3 October 2001 the Reserve Bank of Australia (RBA) announced that the Government had directed it to take steps under the Banking (Foreign Exchange) Regulations to block accounts which might be held by persons or organisations identified by the United Nations and United States. The list of prohibited accounts was based on the listed contained in the Terrorist Financing Executive Order 13224 issued by President George W. Bush that was updated on 9 November 2001. It included 27 people and groups associated with Osama bin Laden or the Al-Qa'ida network. These regulations have been deployed against the Taliban and Taliban-associated entities since December 1999.⁽¹⁾

On 8 October the Government made regulations pursuant to the Charter of the United Nations Act 1945 (Cth) and United Nations Security Council Resolutions 1267 and 1373. The regulations would 'prevent Australian[s] or people in Australia from dealing with the financial and other assets of people or entities that engage in or support terrorism'.⁽²⁾ The Charter of the United Nations (Anti-terrorism Measures) Regulations 2001 prevent Australian citizens or persons in Australia from dealing with financial assets of persons or entities that engage in or support terrorism, or are under the direct or indirect control of such persons or entities. The Charter of the United Nations (Sanctions-Afghanistan) Regulations 2001 prohibit a person in Australia or a citizen of Australia from doing anything that assists, or results in provision of military equipment or services or drug related chemicals from being sold, supplied or transferred to a person in Taliban territory.

1.2 Proposals

On 28 September 2001 the Government announced measures relating to financial support for terrorist networks. The measures also included strengthening Australia's ability to combat the use of false identities in the conduct of financial transactions, enhancing the extraterritorial application of Australian laws and improving information sharing.⁽³⁾

On 2 October the Government announced proposed amendments to legislation to:

• permit, under warrant, the formal questioning by ASIO of people 'who may have information that may be relevant to ASIO's investigations into politically motivated violence' and the arrest by State or Federal police of people 'in order to protect the public from politically motivated violence';
• introduce new general offences based on the Terrorist Act 1994 (UK) covering 'violent attacks and threats of violent attacks intended to advance a political, religious or ideological cause which are directed against or endanger Commonwealth interests'; and
• increase AFP powers 'to search for and seize property of any kind that is used or intended to be used for terrorism or is the proceeds of terrorism'.⁽⁴⁾

During the General Election, on 16 October the Government announced that, if re-elected, it would introduce a retrospective criminal hoax offence 'to specifically target those who seek to terrorise others by exploiting their fear of terrorism'.⁽⁵⁾ On 13 February 2002, the Criminal Code Amendment (Anti-hoax and Other Measures) Bill 2002 was introduced.

On 28 October the Prime Minister recommended a summit of State and Territory leaders 'to develop a new framework under which transnational crime and terrorism can be dealt with by law enforcement at a Commonwealth level'. One objective of the summit would be '[a] reference of constitutional power to the Commonwealth to support an effective national response to the threats of transnational crime and terrorism'.⁽⁶⁾ The summit would also consider the reformation, abolition or replacement of the National Crime Authority.

After the election, on 19 November the Government announced that it would introduce air marshals 'selectively on flights provided by Australian air carriers'. The Air Security Officer Programme would be implemented by the Australian Protective Service.⁽⁷⁾

On 16 December the Government restated its commitment to introduce 'a specific offence of terrorism and a related offence of preparing or planning, terrorist acts' and to amend the Proceeds of Crimes Act 1987 'so that terrorist property can be frozen and seized'.⁽⁸⁾ On 18 December Cabinet agreed to a range of anti-terrorist measures including the new terrorist and terrorist financing offences and expanded powers of arrest and detention for the Australian Security Intelligence Organisation.

On 18 December the Government also announced that the first group of Air Security Officers (Air Marshals) would complete their training to help ensure aviation safety.⁽⁹⁾ It also restated its commitment to the various legislative changes previously foreshadowed.⁽¹⁰⁾

On 21 December 2001 the Government listed in the Australian Government Gazette the names of terrorists and terrorist organisations whose assets must be frozen by the holder of those assets under the Charter of the United Nations (Anti-terrorism Measures) Regulations 2001. It also announced a review of the performance and cost-effectiveness of the NCA by the former AFP Commissioner, Mick Palmer and the former Secretary of the Attorney-General's Department, Tony Blunn.⁽¹¹⁾ The review was completed in early 2002.

1.3 Legislation in Other Countries

In 1996 Lord Lloyd of Berwick conducted a major British inquiry into anti-terrorist laws. Among other things the Inquiry into Legislation Against Terrorism surveyed terrorism legislation in twenty-four jurisdictions. Of those, less than half made specific provision for terrorist crime in their criminal laws, although a wide range of provisions had some application to terrorism. One quarter dealt with proscription of terrorist organisations. Most commonly, legislation dealt with special law enforcement or criminal procedures.⁽¹²⁾ Similarly, a recent study of four decades of counter-terrorist measures in the United States suggested that the relevant laws fell into four main areas: 'alterations in surveillance measures, pursuit of suspected terrorists through the judicial system, increased penalties associated with terrorist activity, and the introduction of weapons-specific initiatives'.⁽¹³⁾

In terms of specific anti-terrorist legislation, if there is a typical model it is probably reflected in the following description. Terrorist laws, it has been said, generally contain:

1.4 Legislative Framework in Australia

1.4.1 Legislative Power

The Commonwealth Parliament has no general power to legislate with respect to crime. Therefore, offences must either fall within, or be incidental to the exercise of, a head of constitutional power. 'In short, and generally speaking,' it is said, '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.'⁽¹⁵⁾

In particular, 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. Further information on these issues can be found in Part 3. Powers, Limits and Relationships under Section 3.1. Legislative Powers.

1.4.2 Specific Laws and Concepts

With the Northern Territory exception, there is no specific anti-terrorist law in Australia. Even the word 'terrorism' is seldom used to describe terrorist acts or activities. However, there are laws dealing with approximate topics such as 'politically motivated violence', 'treason', 'treachery', 'foreign incursions', 'national security', and 'organised crime'.

• Terrorism

The expression 'terrorism' appears in a very limited number of Commonwealth statutes. For example, it is included in the text of incorporated international instruments.⁽¹⁶⁾ It is also used in the context of crisis planning agreements between defence authorities and carriers or carriage service providers under the Telecommunications Act 1997 and in the context of a ministerial power to declare a state of emergency in relation to safety of life, vessels or installations under the Petroleum (Submerged Lands) Act 1967.⁽¹⁷⁾ In addition, it appears in the Crimes Regulations 1990 to define a 'serious Commonwealth offence' for the purposes of controlled operations under the Crimes Act 1914 and the Air Navigation Regulations 1947 to define qualification requirements for security force personnel.⁽¹⁸⁾

In State and Territory legislation, 'terrorism' is also seldom used. It appears in the context of a defence against prosecution and recovery of costs arising from maritime pollution, and emergency use of surveillance devices.⁽¹⁹⁾ But it forms a specific division of 'offences against public order' under the Criminal Code in the Northern Territory which was modelled on the Prevention of Terrorism (Temporary Provisions) Act 1974-76 (UK).

• Politically Motivated Violence

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.⁽²⁰⁾

In 1986, following the Second Hope Royal Commission,⁽²¹⁾ 'terrorism' was deleted from the legislation, 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'.⁽²²⁾ 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.⁽²³⁾

Following the Honan and Thompson review in 1993,⁽²⁴⁾ 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'.⁽²⁵⁾ So, 'terrorism' is defined in the NATP as 'an extreme form of politically motivated violence'.⁽²⁶⁾

• Treason, Treachery and Foreign Incursions

Allied to 'politically motivated violence' are offences such as 'treason', 'treachery' and 'foreign incursions'. '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' covers attempts to overthrow the Constitution, attempts by force or violence to overthrow an established government in Australia or abroad, and acts of treason directed against certain proclaimed countries. 'Foreign incursions' covers attempts to overthrow a government by force or violence, armed hostilities in a foreign state, acts which place a foreign public in fear or damage foreign public property. All of these offences are covered in discrete criminal laws which are dealt with in Section 1.5.7.

• National Security

While 'terrorism' is rarely used in federal statutes, 'national security' is fairly common.

The expression is used in a wider variety of statutory contexts. It is used to describe the purposes for which assistance must be provided by telecommunications carriers or carriage service providers; limits on functions of intelligence agencies; limits on access by the Inspector General of Intelligence and Security to documents; control over various space activities; a range of exempt documents for the purposes of freedom of information legislation; limits on disclosure of information in economic and fiscal reports, annual reports of selected agencies, and suppression orders relating to pre-trial proceedings; circumstances empowering a call out of the Reserves; definition of 'serious Commonwealth offences'; conditions for refusal or cancellation of visas; exceptions to the application of environment protection laws and measures to the Commonwealth; exemptions from various copyright restrictions; and other matters.

However, while the expression 'national security' may be often used, it is seldom defined. The Australian Security Intelligence Organisation Act 1979 defines 'security' as 'the protection of, and of the people of, the Commonwealth and the several States and Territories from espionage, sabotage, politically motivated violence, promotion of communal violence, attacks on Australia's defence system, or acts of foreign interference whether directed from, or committed within, Australia or not'. It includes 'the carrying out of Australia's responsibilities to any foreign country' in these matters.⁽²⁷⁾ This definition is incorporated, where relevant, into the Intelligence Services Act 2001 which defines and regulates the activities of Australia's foreign intelligence agencies.⁽²⁸⁾

Equally, while the courts have often been called upon to consider the impact of national security on the exercise of legislative, executive and judicial power, they have seldom sought to define the concept. From what little has been said it seems clear that 'national security' is not limited to external threats but encompasses internal threats as well. It also 'looks to matters affecting the country in general rather than individual persons'.⁽²⁹⁾

Academically, at least, 'national security' would seem to have a double meaning. In a narrow sense it is generally used to mean intelligence and related law enforcement activity. In a wider sense it is 'capable of referring to political, social, economic, financial or military security'.⁽³⁰⁾ Thus, it may encompass 'all that is associated with the preservation of vital national interests' including 'important policy aspects of defence, foreign relations, trade, science and technology, and relevant aspects of general economic policy'.⁽³¹⁾ In this context, the references to 'national security' above probably relate to physical security.

• Organised Crime

The concept of organised crime is relevant to terrorism in at least two ways. First, the criminal acts that constitute terrorism may involve a number of offenders and networks. Second, the participants may be involved in a diverse and integrated range of criminal activities. Thus, terrorist organisations have reportedly been using drug trafficking to raise funds and 'money laundering methodologies' to conceal and preserve the proceeds of these crimes.⁽³²⁾ Similarly, suggestions were recently made that Al-Qa'ida drew substantial profits from 'short selling' of aircraft and insurance stock prior to September 11. Some links between terrorism and money laundering are explored in Supporting Materials 'Document 13: Money Laundering'.

Like 'terrorism', 'organised crime' has been difficult to define. The reality does not necessarily conform to stereotypical notions of hierarchical familial or cultural networks. Nor is it static, instead 'it is characterised by opportunistic, entrepreneurial and fluid affiliations of criminals where syndicates form and dissolve for particular activities'.⁽³³⁾ However, it is generally thought to involve sophisticated, systematic or integrated criminal networks that are formed for the purpose of satisfying a collective motive such as profit.

As with 'terrorism', few Australian statutes deal expressly with 'organised crime'.

The National Crime Authority Act 1984 deals with the subject by defining a 'relevant offence' for the purposes of activities by the National Crime Authority. A 'relevant offence' is defined as an offence under Commonwealth, State or Territory law involving two or more persons in substantial planning and organisation using sophisticated techniques. Further, it must involve an offence such as theft, fraud, tax evasion or illegal drug dealing which is punishable by imprisonment for at least three years (s. 4). The NCA's working definition of organised crime is 'a systematic conspiracy to commit serious offences'.⁽³⁴⁾

1.5 General Legislation in Australia

Despite the limited use of terms such as 'terrorism' and 'politically motivated violence', and while few statutes deal specifically with 'national security', various Acts deal with issues relevant to terrorism. They may be grouped by subject matter, for example: intelligence, surveillance, migration and quarantine control, nuclear, chemical and biological weapons, aviation safety, and criminal laws. They may also be grouped according to purpose. The Protective Security Review suggested four categories: intelligence 'including threat assessments relating to terrorism and domestic violence'; prevention 'to deny potential terrorists the means and opportunity to achieve their purpose and to defend the likely targets of their attacks'; crisis management '[involving] law enforcement and other executive action in the event of a terrorist incident'; and investigation or, in more explicit terms, 'criminal investigation, detection, apprehension and prosecution'.⁽³⁵⁾

1.5.1 Intelligence

The Protective Security Review stated that '[i]ntelligence is the first line of defence against terrorism'.⁽³⁶⁾ Similarly, the 1993 Honan and Thompson review asserted that '[a] sound intelligence process, with highly trained analysts, is fundamental to crisis management'⁽³⁷⁾ and the 1996 British Inquiry into Legislation against Terrorism commented that intelligence was 'the single most important weapon in fighting terrorism'.⁽³⁸⁾ 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'.⁽³⁹⁾

• The Australian Intelligence Community

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.⁽⁴⁰⁾ 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.⁽⁴¹⁾

For further information on the Australian Intelligence Community see the Supporting Materials paper, 'Document 6: Intelligence Agencies'.

1.5.2 Prevention

The Protective Security Review viewed prevention as the 'second line of defence', covering 'controls on entry to Australia, denial of means and protection of potential terrorist targets'.⁽⁴²⁾ Similarly, the SAC-PAV Review saw 'prevention' as incorporating 'both the machinery to prevent entry to Australia of suspected terrorists and activities within Australia aimed at reducing the incidence of politically motivated violence'.⁽⁴³⁾ The Protective Security Review expressed the view that preventative measures needed to 'go beyond the capabilities of terrorists' in order to serve an effective protective function. But, they could also serve a deterrent function 'even if falling short of that standard'.⁽⁴⁴⁾

• Migration

Historically, immigration control has been a significant aspect of preventive measures. For example, the first attempts at an international response to terrorism emphasised extra-territorial jurisdiction, extradition and immigration control.⁽⁴⁵⁾ The Protective Security Review of 1979 did canvass the issue of entry controls, emphasising border protection alongside control over breaches of temporary entry conditions, but the bulk of its discussion was excised from the main report in a classified appendix.⁽⁴⁶⁾

Generally visa applicants must meet various public interest criteria. These include that the applicant passes the character test, that he or she is not assessed (by ASIO, etc.) to be directly or indirectly a risk to national security, and that his or her presence in Australia will not (according to the Foreign Minister) prejudice international relations or be directly or indirectly associated with the proliferation of weapons of mass destruction.⁽⁴⁷⁾ An applicant will fail the character test if, among other things, he or she has a substantial criminal record; if, having regard to his or her past or present general or criminal conduct, he or she is of bad character; or if he or she poses a significant risk in relation to inciting discord in or representing a danger to the community or a segment thereof.⁽⁴⁸⁾ In considering an applicant's past or present general conduct a decision maker may take into account any 'activities indicating contempt, or disregard, for the law or for human rights', including his or her involvement in activities such as 'terrorism [or] political extremism'.⁽⁴⁹⁾

The statutory natural justice procedures apply unless the decision is made personally by the Minister. The provisions permit the Minister on the grounds of national interest to set aside favourable decisions made by his or her delegate and to issue 'conclusive certificates', effectively preventing merits review of these decisions.⁽⁵⁰⁾ The character test provisions were essentially introduced with the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1999.

The Minister may refuse or cancel a visa where the person fails the character test. The Minister may also cancel a visa if he or she is satisfied that the visa holder's presence in Australia 'is, or would be, a risk to the health, safety or good order of the community'.⁽⁵¹⁾ He or she must cancel a visa if various prescribed grounds exist, including, that the visa holder has been assessed as posing a direct or indirect threat to national security, or that his or her presence in Australia would be prejudicial to international relations or may be directly or indirectly associated with the proliferation of weapons of mass destruction.⁽⁵²⁾

It is worth noting that the Government may, in accordance with international law, amend the Migration Regulations 1994 to exclude government officials from a particular country based on that country's complicity in acts of terrorism. For example, under regulations made in 1996, Sudanese government and armed forces members and officials are not eligible for any visa unless the Minister is satisfied that there are compelling reasons.⁽⁵³⁾

The Minister may order the deportation of non-citizens in various circumstances. These include that the non-citizen has been a permanent resident for less than 10 years and has been sentenced to imprisonment for at least a year, that he or she has been the subject of an adverse security assessment by ASIO and his or her conduct, whether inside or outside Australia, constitutes a security threat to the Commonwealth, a State or Territory, or that he or she has been convicted of a specified or prescribed serious offence.⁽⁵⁴⁾ Under the Department of Immigration and Multicultural and Indigenous Affairs Migration Series Instructions, these 'serious offences' include (undefined) 'terrorist activity'.⁽⁵⁵⁾

In considering whether to allow a person who has failed the character test to enter or remain in Australia, any 'terrorist activity' is considered to be a 'very serious offence'.⁽⁵⁶⁾ Similarly, in considering whether to deport a person, 'terrorist activity' may also constitute a 'serious offence'.⁽⁵⁷⁾ Perhaps significantly, 'terrorist activity' is included in these lists without any requirement that the activity involve any criminal charges or convictions.

• Proscription

Australia has had a long history of proscription, beginning in the context of World War I and expanding significantly in the aftermath of the Russian Revolution of 1916. Under the Unlawful Associations Act 1916 any organisation which 'by its constitution or propaganda, advocates or encourages ... the taking or endangering of human life, or the destruction of property' was an unlawful association. The Unlawful Associations Act 1917 expanded these measures by empowering the Governor-General to declare unlawful associations, creating offences relating to membership and contributions and dealing with forfeiture.

The current unlawful associations provisions, which focus on revolutionary and seditious conduct, were introduced primarily by the Crimes Act 1926. During the 1925 General Election, the incumbent Bruce Government had asserted that 'the paramount issue in this campaign is the maintenance of law and order, and the supremacy of constitutional government'.⁽⁵⁸⁾ The provisions, which were introduced alongside provisions dealing with powers of arrest without warrant and offences related to serious industrial disputes, were considered to reflect a 'clear and definite mandate'⁽⁵⁹⁾ to 'defeat the nefarious designs of the extremists in our midst'.⁽⁶⁰⁾ They were 'aimed chiefly at the rising Communist Party'.⁽⁶¹⁾

The Communist Party Dissolution Act 1950 sought largely to continue this tradition, but with a specific focus on the Australian Communist Party. The Act attempted to dissolve this organisation and provided means to declare related associations unlawful. As noted in Section 3.1.3 it was held to be constitutionally invalid in the Communist Party case.⁽⁶²⁾

Part IIA of the Crimes Act 1914 declares unlawful any association which directly or indirectly 'by its constitution or propaganda or otherwise advocates or encourages the overthrow of the Constitution ... by revolution or sabotage' or the overthrow by force or violence of the established government of the Commonwealth or of a State'. The Federal Court, on the motion of the Attorney-General and after providing a hearing, may declare an association to be unlawful. It is an offence to be a member of, or to represent, an unlawful association. Similarly, it is an offence to publish, sell or distribute material produced by an unlawful association, or to let premises to such an association.⁽⁶³⁾

• Contributions, Financial Assistance and Forfeiture

As with proscription, there is no Commonwealth Act which deals explicitly with contributions or assistance to terrorist organisations or forfeiture of terrorist property. However, under the unlawful associations provisions in the Crimes Act 1914 it is an offence to 'give or contribute money or goods' or 'receive or solicit subscriptions or contributions of money or goods' for an unlawful association (s. 30D) and any property held by or for the benefit of an unlawful association is forfeited to the Commonwealth (s. 30G). The Commonwealth Government has also taken non-legislative steps in relation to controlling financial assistance to terrorist organisations. On 21 October 2001 it signed the Convention for the Suppression of the Financing of Terrorism of 1999.⁽⁶⁴⁾ The Convention states that countries will take action against people or countries that provide or collect funds for terrorist purposes. Essentially the Convention aims to starve terrorists of assets.

• Proceeds of Crime

Under the Proceeds of Crime Act 1987 authorities have the power to confiscate assets or money used in, or acquired as a result of, serious offences against Commonwealth or Territory laws. Assets may be frozen to prevent them being dissipated or removed from the jurisdiction. Authorities also have extra powers of search and seizure to trace and identify the proceeds, benefits or property of crime. Property that remains confiscated or restrained six months after conviction is forfeited automatically to the Commonwealth.

• Asset Freezing and Transaction Blocking

One of the first responses in the United States to the September 11 attacks was to freeze the assets of organisations associated with Al-Qa'ida. On September 23 President Bush issued the Terrorist Financing Executive Order 13224 which imposed financial sanctions on a list of proscribed organisations. The President described these measures as 'a major thrust of our war on terrorism'⁽⁶⁵⁾ and as 'the first strike in the war against terror'.⁽⁶⁶⁾ On November 7 the President announced that the United States had blocked assets of a further 62 organisations and individuals under the authority of Executive Order 13224. Executive Order 13224 was issued pursuant to various statutory authorities dealing with national security and foreign relations,⁽⁶⁷⁾ particularly in light of United Nations Security Council Resolutions (see Supporting Materials, 'Document 4: Terrorism and the United Nations').

While there is no Commonwealth Act expressly permitting asset-freezing or transaction-blocking in respect of terrorism and terrorist activities, the Commonwealth has also been able to take measures to implement various international resolutions. As indicated above, the Government has made regulations designed to implement aspects of the United Nations Security Council Resolutions 1267 and 1333 under the Charter of the United Nations (Anti-Terrorism Measures) Regulations 2001. Under the Charter of the United Nations Act 1945 the Government has power to give effect to resolutions of the United Nations in domestic law. The Governor-General may make regulations giving effect to binding decisions that the Security Council has made under Chapter VII of the Charter of the United Nations in so far as those decisions require Australia to apply measures not involving the use of armed force (s. 6).

The Charter of the United Nations (Anti-terrorism Measures) Regulations 2001 allow the Minister (currently the Foreign Minister) to 'proscribe' a person or entity involved in terrorist acts. The Minister may also list assets or classes of assets that are owned or controlled by such persons. The regulations provide that a legal person (for example a bank) who holds assets that are owned or controlled by a proscribed person or entity must not use or deal with or allow an asset to be used or dealt with. A fine of up to $5500 applies for a breach. It is also an offence if a person makes an asset available to a proscribed person and is reckless to whether or not the person or entity is proscribed. The provision requires institutions such as banks to thoroughly examine their accounts to ensure that they do not hold assets belonging to a proscribed person. Use or dealings can be authorised to allow humanitarian activities to take place.

The Charter of the United Nations (Sanctions-Afghanistan) Regulations 2001 prohibit a person in Australia or a citizen of Australia from doing anything that assists, or results in:

• arms or related materiel being sold, supplied or transferred to Taliban territory; or
• technical advice, training and other assistance in relation to the military activities of the armed personnel of the Taliban being sold, supplied or transferred to the Taliban;
• acetic anhydride, a chemical used in the cultivation of opium poppy, being sold, supplied or transferred to a person in Taliban territory, or to a person for the purpose of an activity carried on in, or operated from, Taliban territory.

The regulations also prohibit the use of Australian aircraft or ships in relation to points 1 or 2 above and prohibit a person in Australia, or a citizen of Australia, from dealing with financial assets of the Taliban or Osama bin Laden, or individuals associated with them. A fine of up to $5500 applies for a breach of the regulations.

1.5.3 Crisis Management

• Aid to the Civil Power / Aid to the Civil Community

From the Commonwealth's perspective, one of the most important forms of response to a terrorist incident is the use of the Australian Defence Forces and Reserves. Generally, the Australian Defence Force may provide either Defence Assistance to the Civil Community (DACC) or Defence Aid to the Civil Power (DACP). The essential difference is that the former involves non-controversial assistance to civilian authorities whereas the latter involves assistance to law enforcement agencies that expressly contemplates the use of force. In common parlance, defence aid to the civil power is 'calling out the troops'.⁽⁶⁸⁾

Further details on DACC and DACP can be found in Supporting Materials, 'Document 8: Role of the Defence Force'.

• Disaster Legislation

Various State and Territory Acts deal with disaster management.⁽⁶⁹⁾ However, disaster management is primarily an administrative issue and little if any nexus with legislation. A brief overview of the issues and structures can be found in Supporting Materials, 'Document 9: Crisis Management Issues and Structure'.

1.5.4 Investigation

Clearly, to the extent that terrorism is characterised as a criminal issue, 'investigation' will be a significant part of the pre-emptive and responsive counter-terrorist machinery. As noted above, where jurisdictions have enacted specific anti-terrorist laws, those laws have most commonly dealt with special law enforcement or criminal procedures. Specifically, it seems that most specific measures in this area have focused on 'alterations in surveillance measures, pursuit of suspected terrorists through the judicial system, increased penalties associated with terrorist activity, and the introduction of weapons-specific initiatives'.⁽⁷⁰⁾

The following discussion examines the framework of Australian 'investigation' laws. For present purposes the key categories are law enforcement agencies and law enforcement methods, offences and cooperation with foreign countries.

1.5.5 Law Enforcement Agencies

Various law enforcement agencies have a potential counter-terrorist role, including the Australian Federal Police (AFP), the National Crime Authority (NCA) and the Australian Protective Service (APS). Mention should also be made of the Australian Bureau of Criminal Intelligence (ABCI) and the Office of Strategic Crime Assessments (OSCA).

While the AFP currently has a more significant role in relation to counter-terrorism, arguably, the NCA has the most significant functions and powers. It has two types of functions which may be of particular relevance to terrorist investigations.

Its general functions are to 'investigate and combat serious organised crime on a national basis and to analyse and disseminate relevant criminal information and intelligence' to law enforcement agencies and public inquiries to which it is relevant.⁽⁷¹⁾ These functions can be exercised on its own initiative.⁽⁷²⁾ They include collecting, analysing and disseminating criminal information and intelligence, investigating matters of its own choosing, making arrangements for the establishment of task forces and co-ordinating their work. The NCA's coercive powers cannot be exercised in relation to its general functions.

Its special functions are to investigate matters referred to it, which relate to 'a federally relevant criminal activity'.⁽⁷³⁾ A 'federally relevant criminal activity' includes any 'relevant offence' against Commonwealth law or State or Territory law which has 'a federal aspect'.⁽⁷⁴⁾ A State or Territory offence will have a 'federal aspect' if its physical elements or the circumstances in which it was committed fall within federal legislative power.⁽⁷⁵⁾

As indicated above, the Government has recommended that a summit of State and Territory leaders consider improving law enforcement networks to deal with transnational crime and terrorism, including the reformation, abolition or replacement of the NCA. One commentator has suggested that '[t]he Government is likely to seek to expand its national role, but place it under the management of the Australian Federal Police'.⁽⁷⁶⁾

Further details on the law enforcement agencies can be found in Supporting Materials, 'Document 7: Law Enforcement Agencies'.

1.5.6 Law Enforcement Methods

• Telecommunications Interception

Under the Telecommunications Act 1997 carriers and carriage service providers are required to give officers and authorities of the Commonwealth 'such help as is reasonably necessary' to enforce criminal laws and to safeguard national security such help includes the provision of interception services including services covered by interception warrants under the Telecommunications (Interception) Act 1979. Generally, assistance is given in accordance with an agreement between the carrier or carriage service provider and the relevant authority and is to be given on a cost-neutral basis.⁽⁷⁷⁾

Under the Telecommunications (Interception) Act 1979 warrants can be obtained for two purposes. The first is national security. The second is law enforcement. The Attorney-General may issue warrants for the interception of telecommunications where the subject of the warrant is reasonably suspected of engaging in activities prejudicial to national security. An application is made to the Attorney-General by ASIO's Director-General. In certain circumstances, the Director-General may issue a warrant for a limited period if waiting for the Attorney-General's response would seriously prejudice national security.

Where a law enforcement agency wishes to obtain an interception warrant, an application must be made to an 'eligible judge' or a nominated member of the Administrative Appeals Tribunal. Interception warrants can only be issued in relation to the investigation of what are called class 1 and class 2 offences. Class 1 offences include murder, kidnapping and narcotics offences. Class 2 offences include offences punishable by imprisonment for life or a period of at least seven years and offences where the offender's conduct involves serious personal injury, drug trafficking or serious fraud.

The Act also enables warrants to be issued in respect of telecommunications services and named persons (ie in relation to any telecommunications service that a named person uses or is likely to use).

Before the Parliament was prorogued for the 2001 General Election, the Telecommunications Interception Legislation Amendment Bill 2001 was introduced to enable telecommunications interception warrants to be issued for the purposes of investigating serious arson and child pornography where the relevant offence attracts a penalty of at least seven years imprisonment. The Bill lapsed when the election was called.

• Listening Devices

Three Commonwealth laws govern the issuing and use of listening device warrants. They are the Customs Act 1901, the Australian Federal Police Act 1979 and the Australian Security and Intelligence Organisation Act 1979. Under the Customs Act, listening device warrants can be obtained for the investigation of narcotics offences. Under the Australian Federal Police Act, listening device warrants can be obtained for the investigation of non-narcotics offences categorised as either class 1 general offences or class 2 general offences. Class 1 offences include murder and kidnapping. Class 2 offences include offences carrying a penalty of 7 years or more imprisonment which involve a risk of loss of life, serious personal injury or serious damage to property and drug trafficking.

Under the Australian Federal Police Act 1979, a judge or, following amendments to the Act in 1997, certain nominated members of the Administrative Appeals Tribunal may issue listening device warrants.⁽⁷⁸⁾ They may relate to a particular person, particular premises, or, following amendments in 2001, a particular item.⁽⁷⁹⁾ Under the Australian Security and Intelligence Organisation Act 1979 the Minister may issue listening device warrants.⁽⁸⁰⁾ The Act provides expressly for warrants in relation to a particular person or a particular premises, but is silent as to whether devices can be used for particular items. It is possible that such warrants could not be issued by the Minister under the Act.⁽⁸¹⁾

• Tracking Devices

The Australian Security and Intelligence Organisation Act 1979 provides for warrants which allow ASIO to use devices to track persons or objects where the Attorney-General is satisfied there is a reasonable suspicion of activities prejudicial to security and a likelihood that the device will assist ASIO in gathering intelligence.⁽⁸²⁾

• Computer Access

The Australian Security and Intelligence Organisation Act 1979 provides for search warrants which allow ASIO to use computers to access data relevant to security, to print copies to take away from the premises, to make electronic copies and to alter, add to or delete data. It also provides for 'computer access warrants' which permit the use of electronic means to access data relevant to security which is stored in a target computer.⁽⁸³⁾ This includes the ability to add, delete or alter data in the target computer, copy data, do anything necessary to conceal activities under the warrant and do anything else reasonably incidental. A note in the legislation makes clear that acting under a warrant will exempt an ASIO operative from criminal liability which would otherwise apply.

• Controlled Operations

It is often thought that convictions cannot be obtained by 'entrapment'. In Ridgeway v. Queen the High Court clarified this misconception, rejecting the suggestion that there was a substantive defence of 'entrapment' in the common law,⁽⁸⁴⁾ but confirming that evidence obtained by criminal inducement could be ruled inadmissible as a matter of public policy.⁽⁸⁵⁾ As a result most jurisdictions passed statutory 'controlled operations' regimes.⁽⁸⁶⁾

Under the Crimes Act 1914 law enforcement officers are protected from civil and criminal liability arising from conduct undertaken in a 'controlled operation' for the prosecution of a 'serious Commonwealth offence'. To be protected, the officer must act in accordance with a controlled operations certificate and must not intentionally induce a person to commit an offence that they would not otherwise have intended to commit. An authorised officer may issue a 'controlled operation' certificate if he or she is satisfied, among other things, that the controlled operation is justified and there are limits or controls on the extent of unlawful activity, possession of illicit goods or harm to others.⁽⁸⁷⁾ Controlled operations are subject to some ministerial and parliamentary scrutiny.⁽⁸⁸⁾

'Serious Commonwealth offences' include crimes subject to 3 or more years imprisonment that involve money laundering, armament dealings, espionage, sabotage, threats to national security, misuse of computer or electronic communications and importation of prohibited imports or exportation of prohibited exports. They also include offences subject to 3 or more years imprisonment that involve 'violence' or 'terrorism'.⁽⁸⁹⁾

• Assumed Identities

The Measures to Combat Serious and Organised Crime Act 2001 enables intelligence officers and law enforcement officers⁽⁹⁰⁾ to use a statutory regime for assumed (false) identities. The Minister's Second Reading Speech explained the assumed identities provisions in the following way: 'Assumed identities are false identities adopted to facilitate intelligence and investigative functions, or infiltration of a criminal, hostile or insure environment with a view to collecting information and investigating offences'.⁽⁹¹⁾

• Special Hearings

The National Crime Authority Act 1984 empowers the NCA to exercise special powers when carrying out its special functions. These include 'hearings, including compulsory appearances and production of documents, imposition of penalties and warrants for search and seizure, for arrest and for interception of communications'.⁽⁹²⁾ In the hearings context, a member of the NCA may require a person to appear before him or her and produce a specified document or thing that is relevant to a special investigation. Failure to comply is an indictable offence subject to a maximum fine of $20 000 or 5 years' imprisonment.⁽⁹³⁾

1.5.7 Offences

• Terrorism

As indicated, there is no Commonwealth offence of 'terrorism', but it is worth considering the law in the Northern Territory. Under the Criminal Code (NT) it is an offence to commit a terrorist act, which is liable to imprisonment for life. A terrorist act involves '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 is an offence to obtain or procure goods or services for the purposes of a terrorist act and a court may order that such property be forfeited. It is also an offence to knowingly belong to, be involved in, or assist, support an unlawful organisation. It is even an offence to address a meeting of an unlawful organisation. An 'unlawful organisation' is one that, in the opinion of the court, 'uses, threatens to use or advocates the use of unlawful violence in the Territory to achieve its ends'.⁽⁹⁴⁾

According to the Northern Territory Government the provisions were enacted in response to various domestic and international concerns: 'Darwin was only 320 kilometres from Indonesia; there had been considerable terrorist action around the world by Moluccan guerillas; and there had been an aeroplane hijacking incident in Alice Springs in 1972'.⁽⁹⁵⁾ According to its drafters, the terrorism provisions were drafted so as to take into account 'the Territory's isolation and its geographical position as a gateway to Australia'.⁽⁹⁶⁾ While it is difficult to measure the significance of these arguments or incidents in retrospect,⁽⁹⁷⁾ it seems clear that any of these concerns could have been dealt with under Commonwealth law. Some two years later, in correspondence with the Prime Minister, the Chief Minister suggested 'there are acts that are not and cannot be the subject of Commonwealth law', citing a hypothetical example 'where a person threatened to set off explosions in public places unless a demand-such as the release of a prisoner-was complied with'.⁽⁹⁸⁾ At the time the Northern Territory Opposition Leader, acknowledging that the Commonwealth might have 'constitutional limitations', recommended that it assume jurisdiction through a referral of powers by the States under section 51(xxxiii) of the Constitution.⁽⁹⁹⁾

• Treason, Treachery, Sabotage and Sedition.

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.) 'Sabotage' includes destroying or damaging weapons or articles used by the ADF with the intention of prejudicing the safety or defence of the Commonwealth (s. 24AB).

The Crimes Act 1914 also contains offences of unlawful drilling, espionage, official secrets, being in a prohibited place, harbouring spies, and taking unlawful soundings.⁽¹⁰⁰⁾ Before Parliament was dissolved for the 2001 General Election, the Government introduced a Criminal Code Amendment (Espionage and Related Offences) Bill 2001 which would have reformed the law relating to espionage and similar activities, introduced some increased penalties and repealed some existing offences (eg harbouring spies and unlawful drilling). The Minister's Second Reading Speech stated that the Government sought 'to ensure that the offences in the Bill establish an effective legal framework that both deters, and punishes, people who intend to betray Australia's security interests':

As part of our review we have considered such things as technological advances in information management and communication as well as international standards and experience. As a result, the proposed offences are consistent with equivalent provisions in the United States, the United Kingdom, New Zealand and Canada.⁽¹⁰¹⁾

The Bill lapsed when Parliament was dissolved.

• Foreign Incursions

The Crimes (Foreign Incursions and Recruitment) Act 1978 makes it 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.⁽¹⁰²⁾

In essence this corresponds to the offence of treason committed against a foreign power.

The offender must be an Australian citizen, ordinarily resident in Australia or resident in Australia for at least a year for purposes connected to these acts. 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.⁽¹⁰³⁾

• Other Offences

Aside from these specific offences there are a wide range of other general offences which may apply to a particular terrorist incident. These include offences relating to (federal) property, computers, postal and telecommunications services, hostage taking, heads of state and other internationally protected persons, aviation, shipping, biological, chemical and nuclear weapons and weapons of mass destruction.

Further information on these general offences can be found in Supporting Materials, 'Document 10: General Commonwealth Offences'.

1.5.8 Cooperation with Foreign Countries

It is a paradox that our laws are largely domestic but the threat is largely international. In the Protective Security Review, Justice Hope suggested that the threat of international terrorism in Australia was more significant than the threat of civil unrest: 'the greatest risk appears to be the possibility of international terrorist activity originating from abroad'.⁽¹⁰⁴⁾

A wide range issues may arise in relation to criminal procedure where foreign countries are drawn into the picture. Particular issues may arise in relation to extraterritorial application of Australian laws, extradition, mutual assistance with other countries in criminal matters, prisoner exchange arrangements and other practical considerations.

The issue of extraterritoriality is discussed further in Supporting Materials, 'Document 11: Extraterritorial Application of Australian Laws' and further information on issues related to extradition, mutual assistance, etc. is in 'Document 12: International Cooperation'.

Part 2 Evaluation Commentary and Issues

The following discussion seeks to draw out the key issues and themes arising from the descriptive survey of legislation provided in Part 1. The focus of attention is largely on the proposals announced by the government prior to the introduction of legislation in 2002. It leaves open some of the broader institutional issues which are considered in Part 3.

One of the key difficulties for the Parliament when considering anti-terrorist legislation is how the terrorist threat to Australia can be measured independently of the threat to other countries which may be considered by virtue of the apparent precedent value of their laws. Having identified a real or feared threat to Australia, and having decided that a response is necessary, Parliament must then determine its nature and extent, taking into account the difficulties in defining and dealing with terrorist behaviour and the need to balance the protection of collective public safety with the protection of individual civil liberties.

2.1 The Pressure to Act

Australia is under pressure from two sides to take measures to address terrorism both locally and globally. On one side is an open-ended requirement from the United Nations Security Council requiring States to take comprehensive measures to combat terrorism. On the other side are strong precedents set by the United Kingdom and United States which far exceed these requirements, particularly in the context of law enforcement powers.

2.1.1 United Nations

In Resolution 1373 the Security Council consolidated its previous comments on the need for stronger and more cooperative measures among States. It 'decided' that 'all States shall ... prevent and suppress the financing of terrorist acts [and shall] [c]riminalize the wilful provision or collection ... of [terrorist] funds by their nationals or in their territories'. It also required States to ensure that terrorists, their accomplices and supporters are brought to justice, and that 'terrorist acts are established as serious criminal offences in domestic laws ... and that the punishment duly reflects the seriousness of such terrorist acts'.⁽¹⁰⁵⁾ On 17 November 2001, the International Monetary Fund backed this move by expressing grave concern at the use of the international financial system to finance terrorists acts and to launder the proceeds of illegal activities. It called on all member countries to ratify and implement fully the UN instruments to counter terrorism, particularly Resolution 1373.

Resolution 1373 was not the first exhortation in relation to anti-terrorism measures. The General Assembly has made repeated calls over three decades for States to enact anti-terrorist laws which deal with criminalising terrorist acts, state sponsorship of terrorism and the links between terrorism and organised crime. The Security Council has made calls over recent years dealing specifically with Afghanistan, the Taliban and Osama bin Laden. For further information see Supporting Materials, 'Document 4: Terrorism and the United Nations'.

At the same time, other United Nations bodies have recently urged caution. For example The United Nations Committee Against Torture recently reminded states in considering anti-terrorist laws of the 'non-derogable nature of most of the obligations undertaken by them in ratifying the Convention [against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]'.⁽¹⁰⁶⁾ The High Commissioner for Human Rights also urged states enacting such laws 'to refrain from any excessive steps, which would violate fundamental freedoms and undermine legitimate dissent'⁽¹⁰⁷⁾ and expressed concern over the detention of prisoners at the United States Naval Base at Guantanamo Bay, Cuba.⁽¹⁰⁸⁾

2.1.2 United Kingdom and United States

Recently the United Kingdom and United States have enacted laws to further strengthen their suite of anti-terrorism laws in the aftermath of the September 11 Attacks. The Anti-Terrorism, Crime and Security Act 2001 (UK) amended the Terrorism Act 2000 to increase powers over terrorist financing, immigration, terrorist weapons, aviation safety, criminal investigation and law enforcement. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (US) amended and extended a range of existing laws to strengthen treatment of terrorist financing, immigration, organised crime, criminal investigation and intelligence gathering.

As with the resolutions above, these measures have a considerable historical context. For example, the United Kingdom legislation is based in large part on legislation that was first introduced over six decades ago in response to attacks by the Irish Republican Army. Between 1974 and 2000 a series of Prevention of Terrorism (Temporary Provisions) Acts were passed to address the changing situation and concomitant threat in Northern Ireland. Similarly, the United States legislation supplements measures that were first taken at least two decades ago in response to a long cycle of terrorist acts against the United States. The measures were amended and extended in response to various incidents, including the Oklahoma City bombing in April 1995. Both the United Kingdom and United States laws can be characterised as the result of a piecemeal increase in anti-terrorist powers in response to particular terrorist incidents or patterns over time that correspond to a gradual decrease in civil liberties protection by incremental amendment and extension.

For further information on these jurisdictions see Supporting Materials, 'Document 2: Legislation in the United Kingdom' and 'Document 3: Legislation in the United States'.

2.1.3 The Obligation to Act

While there may seem to be strong pressure on Australia to enact tough anti-terrorist laws, realistically the obligations are far less exacting. Substantively, all that Resolution 1373 requires is that Australia ensure that its laws criminalise terrorist activities, that those laws deal with terrorist financing and material support for terrorist organisations and that they be applied or enforced in conformity or conjunction with other foreign jurisdictions. Arguably, anything more, for example along the lines of the United Kingdom and United States approaches, exceeds our obligations to the international community. Following these precedents may be dangerous for Australia. First, overseas experiences may provide little guidance as to the particular threat facing Australia. Second, overseas reactions may provide little certainty regarding the extent to which safety can be guaranteed. Third, overseas critiques may provide ample evidence of the impact on civil liberties.

2.2 The Framework for Action

2.2.1 The Evaluation Framework

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'.⁽¹⁰⁹⁾ He concluded that 'there is no legislative "fix" or panacea against terrorism'.

Various commentators have put forward general principles that should govern legislation dealing with terrorism and counter-terrorism. In the United Kingdom one set of commentators suggested three principles: 'equality of treatment before the law; fairness in application of the law and respect for certain basic principles of human dignity'.⁽¹¹⁰⁾ The inquiry by Lord Lloyd of Berwick, which preceded the enactment of the Terrorism Act 2000 (UK), expanded upon these categories, emphasising proportionality:

1. legislation should approximate as closely as possible to the ordinary criminal law and procedure;
2. additional statutory offences and powers may be justified, but only if they are necessary to meet the anticipated threat. They must then strike the right balance between the needs of security and the rights and liberties of the individual;
3. the need for additional safeguards should be considered alongside any additional powers; [and]
4. the law should comply with [the nation's] obligations in international law.⁽¹¹¹⁾

The inquiry also put forward three principles regarding administration of these laws:

1. all aspects of the anti-terrorist policy and its implementation should be under the overall control of the civil authorities and, hence, democratically accountable;
2. the government and security forces must conduct all antiterrorist operations within the law;
3. special powers, which may become necessary to deal with a terrorist emergency, should be approved by the legislature only for a fixed and limited period.⁽¹¹²⁾

2.2.2 Balancing Safety with Liberty

One of the strongest themes in terrorism and antiterrorism discourse is the difficulty of balancing safety with liberty. In theory, it is possible to achieve security objectives without threatening individual liberty and the protection of the rule of law. However, in the 'heat of the moment' there may be a strong tendency toward conflict and compromise. So, 'as the dynamics have taken over America's response to terrorism ... a battle between civil liberties, on the one hand, and vulnerability to terrorism, on the other, has emerged'.⁽¹¹³⁾

The judiciary has expressed caution against potential excess. Member of the judiciary in the United States,⁽¹¹⁴⁾ the United Kingdom⁽¹¹⁵⁾ and Australia⁽¹¹⁶⁾ have urged caution against potential excess. Other arms of government have found it more difficult to be so adamant. The standard line in the United States, the United Kingdom and Australia has been simply to acknowledge if not resolve the complex competing interests of safety and liberty.⁽¹¹⁷⁾ More recently the Prime Minister expressed the standard line in the following way:

These observations emphasise the need for proportionality not only in relation to each individual measure and its effect on terrorism, but across the broad range of legislative and executive measures in existence at any given time, and across the various amendments and alterations that appear in response to or anticipation of particular terrorist incidents.⁽¹¹⁹⁾

2.3 Applying the Framework

The above discussion suggests the key questions for Parliament are whether the existing laws are necessary, sufficient or proportionate in relation to the particular threat facing Australia. Comparative approaches to counter-terrorism are a relevant part of the debate in Australia as is a measured appreciation of the specific terrorist threat in Australia.

In order to deal with the issues comprehensively, a clear appreciation is needed of:

• the subject matter of the laws (terrorism v other offences or national security issues?)
• the actual or possible terrorist threat facing Australia (domestic v global?)
• our present level of preparedness (are present arrangements sufficient?) and
• the standards against which they will be measured in terms of:

• intended effects (to what extent will the laws guarantee security?) and
• incidental effects (to what extent will they infringe civil liberties?)

2.3.1 The Subject Matter

One of the most difficult issues in anti-terrorism discourse is the problem of definition. There has been a longstanding debate on the causes and consequences of terrorism, but the debate on the threshold question of definition has been even more enduring. As one commentator has noted '109 different definitions of the term were advanced between 1936 and 1981, and more have appeared since'.⁽¹²⁰⁾ Another commentator likened discussion on terrorism to the Bermuda Triangle - 'much goes in, but not much comes out'.⁽¹²¹⁾

Clearly, 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. Assuming that the definitions deal with a common phenomenon, the following may be representative:

Thus, across the various definitions in current use, there appear to be a few core elements: acts or threats of violence or criminality that are significant in seriousness or magnitude which are motivated by political, social or ideological objectives and/or 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 such as war powers, criminal laws or rules of personal liberty, or disaster management laws.

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'.⁽¹²³⁾ 'One person's terrorist is another person's freedom fighter'.

These tensions are particularly evident in the competition between the criminal and military characterisation of terrorist acts. One side views terrorism as a form of 'asymmetric' warfare in which one participant to a conflict simply avoids the conventional military strengths of the other and focuses on its civilian weaknesses. The other side views it as a crime, distinguishable perhaps by its seriousness, motivation or intention.

These observations have equal relevance in relation to Australia. Having canvassed some of the issues above, an official report 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'.⁽¹²⁴⁾ For this reason perhaps, 'defining the term itself creates more problems than it solves'.⁽¹²⁵⁾

For further information on definitional issues see Supporting Materials, 'Document 1: What is Terrorism?'

2.3.2 The Threat in Australia

Clearly, Australia has not had the same exposure to terrorism or experience with anti-terrorism laws as the United Kingdom or United States. And there does not seem to be any public awareness of the threat, or possible threat, of international terrorism in Australia.

Possibly our first and only exposure to international terrorism was the bombing of the Sydney Hilton Hotel in March 1978. Since then we have been exposed to possible terrorist threats particularly in the context of the Commonwealth Games in 1982, the Sydney Olympics in 2000 and the Commonwealth Heads of Government Meeting in 2002.

Total International Terrorist Attacks (1981-2000)

US Department of State, Patterns of Global Terrorism 2000, April 30 2000, Appendix C

International Terrorist Attacks x Deaths (1993-2000)

US Department of State, Patterns of Global Terrorism 2000, April 30 2000

2.3.3 Legislative and Administrative Preparedness

At an international level there is a wealth of literature on the issue of 'preparedness'. In the United States there are public and private institutes dedicated solely to the examination of legislative and administrative preparedness in the event of a mainland terrorist incident. However, that level of discussion, at least in the public arena, is absent from Australia.

There may be strong arguments in favour of our administrative preparedness. One of the obligations flowing from Resolution 1373 is a requirement that States submit implementation reports to the Counter-Terrorism Committee of the UNSC. In its report Australia stated that it had 'a highly coordinated domestic counter-terrorism response strategy incorporating law enforcement, security and defence agencies'. The report stated that Australia 'already had in place extensive measures to prevent in Australia the financing of, preparations for and basing from Australia of terrorist attacks on other countries' and that it had 'an extensive network of ... law enforcement liaison officers and bilateral treaties on extradition and mutual legal assistance ... to facilitate cooperation with other countries in the prevention, investigation and prosecution of terrorist acts'.⁽¹²⁶⁾

Moreover, there is a wealth of evidence to argue in favour of our legislative preparedness. Assuming that terrorism is a crime, distinguishable perhaps by its seriousness, motivation or intention, there are a wide range of laws which address the four core elements above. We have laws dealing with intelligence, prevention, crisis management and investigation. In terms of investigation, we have laws which deal in some detail with law enforcement agencies and law enforcement methods, offences and cooperation with foreign countries.

At the same time, there is some acceptance of the limitations in that preparedness. In its report, Australia acknowledged that there were gaps in its 'systemic and legislative preparedness to prevent or to respond to [terrorist attacks] and to freeze [terrorist assets].⁽¹²⁷⁾ In theory, these gaps could relate to a range of issues including the extraterritorial reach of our laws, the absence of specific terrorist offences or terrorist financing provisions or, simply, the disjunction between the terrorist phenomena and the various existing laws. This disjunction may raise no more than drafting concerns, acknowledging the limits that any laws may have in dealing with the breadth of human behaviour. Questions of coverage in terms of extraterritorial operation, specific offences and terrorist financing raise more significant concerns requiring close examination.

2.3.4 Gaps in Legislative Preparedness

It was noted that terrorism does not fit neatly into existing legislative categories such as war powers, rules of personal liberty or disaster management. To the extent that 'terrorism' is seen as distinct from other heinous crimes, this observation is true in Australia. So, while a range of Commonwealth legislation may be relevant to 'terrorism', it may not fit neatly into present conceptions of 'politically motivated violence' and the like.

For example, under the Australian Security Intelligence Organisation Act 1979 ASIO may gather intelligence and make assessments on matters relevant to 'security'. But a terrorist act may not meet the criteria for a relevant matter of security concern. The matters covered are espionage, sabotage, politically motivated violence, communal violence, attacks on defence systems, or foreign interference. In particular, while ASIO may focus its attention on 'politically motivated violence' it could be argued that it may be forbidden from focusing its resources on non-violent political crimes, on violence which has a social or ideological motivation, or on violent political crimes that are directed not at 'influencing or overthrowing or destroying' a government but at intimidating the public, for example.

Perhaps of equal concern, while the Federal Court may declare an association to be unlawful, a terrorist organisation may not fit within the existing legislative definitions. In particular, the Court may not be empowered to declare an association to be unlawful if it advocates violence which is directed not at the overthrow but the impairment, extortion or punishment of a government or if it advocates the destruction of property that is owned by a State government or is not involved in interstate or international trade and commerce. (The Banking (Foreign Exchange) Regulations and the recent Charter of the United Nations (Anti-terrorism Measures) Regulations 2001 indicate that, at least in financial terms, it is possible to achieve results without using the unlawful association provisions by relying on the external affairs power and associated domestic implementation legislation.)

Conversely the AFP may conduct a controlled operation over a wide range of terrorist activities precisely because 'terrorism' is not defined for the purposes of the Crimes Act 1914. Similarly, the Minister for Industry Tourism and Resources may declare a state of emergency in relation to various offshore acts because 'terrorist activities' are not defined in the Petroleum (Submerged Lands) Act 1967 other than to include 'extortion'.

Similarly, under the Crimes (Foreign Incursions and Recruitment) Act 1978 a person may be charged with an offence if they seek to conduct hostilities at home or abroad. But a state sponsored terrorist act may not meet the criteria for a relevant aspect of the offence. The offence of foreign incursion covers 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. But it does not cover activities undertaken in the service of a foreign power's armed forces. Thus, while David Hicks, the Australian volunteer in Afghanistan currently detained by the United States, has allegedly been engaged in armed hostilities or acts which place a foreign public in fear, he may also have been in the service of the Taliban and therefore beyond the Act.

2.3.5 A Specific Terrorist Offence?

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'.⁽¹²⁹⁾

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'.⁽¹³⁰⁾ 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.⁽¹³¹⁾ 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'.⁽¹³²⁾ T