Research Paper no.13 2001-02
Terrorism and The Law in Australia: Supporting Materials
Nathan Hancock
Law and Bills Digest Group
19 March 2002
Contents
Introduction
Document 1 What is Terrorism?
Document 2 Legislation in the United
Kingdom
Document 3 Legislation in the United
States
Document 4 Terrorism and the United Nations
Document 5 History of Australian Reviews
Document 6 Intelligence Agencies
Document 7 Law Enforcement Agencies
Document 8 Role of the Defence Force
Document 9 Crisis Management Issues and
Structure
Document 10 General Commonwealth Offences
Document 11 Extraterritorial Application
of Australian Laws
Document 12 International Cooperation
Document 13 Money Laundering
Introduction
This
project arose in response to the proposals put forward in the aftermath
of the events of 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 on terrorism.
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.
The project has been produced and presented in two parts.
This second part, Supporting Materials, comprises a series
of documents on specific issues related to legislative and administrative
arrangements. The first part, Legislation, Commentary and Constraints,
draws on those documents to provide more substantial commentary and analysis.
The purpose of this paper is to provide resource materials
in the context of prospective parliamentary debate over anti-terrorist
legislation. In light of the fairly extensive discussion in the related
paper, Legislation, Commentary and Constraints, this paper does
not seek to connect or analyse the linkages between the various legislative
and administrative arrangements it covers. The paper comprises a number
of documents compiled by the Information and Research Service dealing
with relatively discrete issues:
- Document 1 canvasses the various definitions of terrorism that have
been developed and points to the possible core elements of a definition
for the present context. It also contains a brief commentary on the
legal and political difficulties associated with these definitions.
- Document 2 provides an historical survey of anti-terrorist law in
the United Kingdom.
- Document 3 provides an historical survey of anti-terrorist law in
the United States.
- Document 4 lists the various anti-terrorism conventions and surveys
the key declarations under the auspices of the United Nations General
Assembly and Security Council.
- Document 5 provides a potted history of relevant Australian inquiries
and reviews.
- Document 6 contains a brief guide to intelligence agencies in Australia.
- Document 7 contains a brief guide to law enforcement agencies of the
Commonwealth.
- Document 8 describes briefly the counter-terrorist response role of
the defence forces.
- Document 9 describes briefly the counter-terrorist arrangements in
Australia.
- Document 10 describes some relevant offences at the Commonwealth level.
- Document 11 examines issues related to the power to enact extraterritorial
laws.
- Document 12 examines issues related to the exercise of jurisdiction
with other countries.
- Document 13 gives a brief overview of legal issues surrounding money
laundering.
Document
1 What is Terrorism?
International
The word 'terrorism' is said to derive 'from the era
of the French Revolution' describing 'state-directed policy of inflicting
terror to obtain political and social control'. Its more modern usage
is almost the reverse describing offences by individuals or individual
organisations against states in order to obtain discrete political objectives.(1)
The League of Nations defined terrorism as 'criminal
acts directed against a state intended or calculated to create a state
of terror in the minds of particular persons, or a group of persons or
the general public'.(2) The current United Nations definition
would seem to be: 'criminal acts [that are] intended or calculated to
provoke a state of terror in the general public, a group of persons or
particular persons for political purposes'.(3)
In the United States, it is defined variously as 'the
unlawful use of force or violence against persons or property to intimidate
or coerce a government, the civilian population, or any segment thereof,
in furtherance of political or social objectives' (Federal Bureau of Investigations),
'the calculated use of violence or the threat of violence to inculcate
fear, intended to coerce or intimidate governments or societies as to
the pursuit of goals that are generally political, religious or ideological'
(Department of Defence) and 'premeditated, politically-motivated violence
perpetrated against noncombatant targets by subnational or clandestine
agents, usually intended to influence an audience' (State Department).(4)
In the United States Code 'international terrorism' is
defined in more detail to include:
activities that involve violent acts or acts dangerous
to human life that are a violation of the criminal laws of the United
States or of any State, or that would be a criminal violation if committed
within the jurisdiction of the United States or of any State [which] appear
to be intended to intimidate or coerce a civilian population, to influence
the policy of a government by intimidation or coercion or to affect the
conduct of a government by mass destruction, assassination, or kidnapping
[and which] occur primarily outside the territorial jurisdiction of the
United States, or transcend national boundaries.(5)
Similarly, 'domestic terrorism' was recently defined
to include:
activities that involve acts dangerous to human life
that are a violation of the criminal laws of the United States or of any
State [and] appear to be intended to intimidate or coerce a civilian population,
to influence the policy of a government by intimidation or coercion, or
to affect the conduct of government by mass destruction, [etc.] [and which]
occur primarily within the territorial jurisdiction of the United States.(6)
There are also more specific definitions related to collective
offences such as 'federal terrorism crimes' and 'acts of terrorism transcending
national boundaries'.
In the United Kingdom 'terrorism' was defined as 'the
use of violence for political ends, and includes any use of violence for
the purpose of putting the public or any section of the public in fear'(7)and
as '[t]he use of serious violence against persons or property, or threat
to use such violence, to intimidate or coerce a government, the public
or any section of the public, in order to promote political, social or
ideological objectives'.(8)
In the Terrorism Act 2000 (UK) 'terrorism' is defined
as:
the use or threat of [serious violence, property damage,
threats to life, risk to health or safety or disruption of electronic
systems] where [it] is designed to influence the government or to intimidate
the public or a section of the public, and the use or threat is made for
the purpose of advancing a political, religious or ideological cause.(9)
The Australian Defence Force defines terrorism as '[t]he
use or threatened use of violence for political ends, or any use or threatened
use of violence for the purpose of putting the public or any section of
the public in fear'. A 1979 protective security review defined it as 'acts
of small groups of persons who use criminal violence to obtain publicity
for their political views, or to achieve or to break down resistance to
their political aims, by the intimidation of governments or of people'.(10)
A 1993 counter-terrorist review defined it as 'acts or threats of violence
of national concern, calculated to evoke extreme fear for the purpose
of achieving a political objective in Australia or in a foreign country'.(11)
The only statutory definition of terrorism in any Australian
jurisdiction is found in the Northern Territory where it is defined as
'the use or threatened use of violence to procure or attempt to procure
the alteration, cessation or doing of any matter or thing established
by a law of a legally constituted government or other political body'.
It includes such acts done 'for the purpose of putting the public or a
section of the public in fear' or 'for the purpose of preventing or dissuading
the public or a section of the public from carrying out, either generally
or at a particular place, an activity it is entitled to carry out'.(12)
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:
[T]he use, or threat of use, of violence by an individual
or a group, whether acting for or in opposition to established authority,
when such action is designed to create extreme anxiety and/or fear-inducing
effects in a target group larger than the immediate victims with the purpose
of coercing that group into acceding to political [etc.] demands.(13)
Thus, across the various definitions listed above, there
appear to be four 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.
- Terrorism is Multi-Faceted
Another aspect of the problem is the fact that 'terrorists
acts' are difficult to categorise at law. While the elements of criminality,
seriousness, motivation and intention may be identifiable, a terrorist
act does not fall neatly into legislative categories such as those that
'govern governmental conduct and powers during a national emergency crisis'
(war powers) 'apply to criminal conduct and government action' (rules
of personal liberty) or 'establish procedures for dealing with a cataclysmic
event' (disaster management):
Rather, it would fall into all three. A terrorist attack
is similar to other types of aggression, but it is not obviously characterized
as the kind of event justifying the use of the military and other expansive
governmental powers affiliated with international crisis, a civil war
or a foreign invasion of troops. An act of terrorism is like any other
heinous crime, but its impact may be too overwhelming to be contained
by the traditional rules of personal liberty. Terrorism is similar to
other crises, such as an earthquake or hurricane, but it has security
and criminal implications not usually seen in a natural disaster.(14)
The fact is that 'terrorism' is difficult to conceptualise
or operationalise:
It may be that the "rules of war" are too hard and permit
more governmental powers than are desired in a democratic state. It may
be that the "rules of personal liberty" are too soft and unduly tie the
hands of government actors trying to divert a crisis with no historical
antecedent. It may be that the "rules for disasters" are too vague and
assume a level of communication and preparation not possible in a biological
terrorism situation.(15)
One cause of the debate over definition may be the fact
that 'terrorism' is subjective. No single definition seems to meet the
expectations, perceptions and aspirations of all parties:
'what the multiple pages of definitions of terrorism
demonstrate is that, although it is fairly easy to get agreement on the
elements that constitute terrorism at the core, as one moves outwards
from the core, defining an act or incident as being 'terrorism' becomes
much more difficult. This problem is exacerbated by the facility of the
press and the community to attach the label to violence across a wide
and disparate spectrum.(16)
The truth may be that 'terrorism' is a label which is
'both political and perjorative'. The proliferation of definitions 'constitutes
evidence that the labelling process is a highly politicised one'. Moreover
'state identification of "terrorist" groups or individuals, and the legal
qualifications attributed to their activities, depends in the final analysis
on a high level of political control over the labelling process'.(17)
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'.(18)
So while the United Nations has sought to pursue a coherent and consensus
definition of 'terrorism':
Bridging the gap between the views of the developed and
developing countries on the one hand, and finding an acceptable compromise,
between legitimate acts of war carried out during liberation struggle,
and terrorist acts directed against civilians, non-combatants and non-military
targets on the other, continue to be difficult.(19)
Indeed, one commentator identified what may be (prior
to September 11) a 'narrowing consensus in the international community
as to what constitutes terrorism' evidenced by the fact that while there
are over 170 parties to the first key convention on terrorism, as at 10
September 2001 there were only 5 signatories to the latest convention.(20)
To acknowledge the political nature of the labelling
process is not to deny that a consensus may exist as to the core elements
of 'terrorism'. It is to acknowledge that there may be disputes as to
the penumbra that may change over context and time. Moreover, the differences
in definition may reflect differences in precision, emphasis or perspective.
On the other hand, they may reflect differences in the underlying phenomena.
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?
- Terrorism as Crime Terrorism as Warfare
The definition debate contains a tension between military
and criminal characterisation.
In general terms, 'terrorism' is an act of violence intended
to influence the government or intimidate or coerce the public. In classical
terms, 'war' is 'an act of violence intended to compel our opponent to
fulfil our will'.(21) These phenomena appear to be the same
thing or, at least, points on the same continuum with political violence
and armed conflict at the edges and 'irregular', 'non-conventional' or
'asymmetric' warfare in the middle.
A number of factors may help to distinguish war from
terrorism. These might include actor (state v non-state), motivation (public
v private), scale (global v local), cost (enduring v immediate) or target
(functional v symbolic). Few factors are sufficient and a combination
may be necessary. For example, large scale or ongoing violence sponsored
by a state actor may be viewed as terrorism. However state sponsored violence
that has a functional target and an enduring impact may be distinguishable
as an act of war.
Arguably, the key factor is the extent of a strategic
objective. In the classical view, 'war' is a duel or a wrestle in which
'each [party] endeavours to throw his adversary, and thus render him incapable
of further resistance'.(22) Similarly, a 'strategic mission'
is one which is 'directed against one or more of a selected series of
targets' with a view to the 'progressive destruction and disintegration
of the enemy's war making capacity'.(23) In general terms,
'terrorism' is an asymmetric wrestle in which one party seeks to antagonise
'his' adversary not so as to undermine 'his' capacity to resist but to
prompt fear or change.(24)
This is particularly significant in the post September
11 context where politicians and the media speaks of 'armed attack' and
a 'war on terrorism'. On the one hand it is possible to view the attacks
as a form of 'asymmetric' warfare. Thus, the attacks are considered by
some commentators to represent a form of armed conflict in which one participant
simply avoids the conventional military strengths of the other and focuses
on its civilian weaknesses. On the other hand, it is still valid to view
the attacks as criminal acts, distinguishable perhaps by their seriousness,
motivation or intention. Thus, they conform to the adage that 'terrorists
want a lot of people watching and not a lot of people dead'.(25)
Like previous terrorist acts, they focused on political rather than strategic
targets.
Moreover, it is also significant in terms of dictating
the form of response to terrorism.
Historically, the United States has fluctuated between
criminal and military responses to terrorist acts. So, for example, the
United States took a predominantly military approach prior to the Iran-Contra
affair in 1986, followed by a predominantly criminal justice approach
prior to the United States Embassy bombings in Nairobi and Dar es Salaam
in 1998. Arguably, the responses to the recent attacks revert to the military
approach. During the criminal characterisation phase, the dominant approach
'was to avoid direct discussion of the political aims of those standing
trial and, instead, to handle all aspects of the prosecution along strictly
criminal lines' (partly on the basis that attempts to punish the political
or ideological aspect of the crimes met with little success).(26)
In the current phase of military characterisation the dominant approach
has been to emphasise political, religious and strategic aims along with
the notion of state sponsorship (presumably on the basis that threat removal
and collective punishment are the more pressing issues and that attempts
to punish any aspect of the crimes will meet with limited success
until Al-Qa'ida is dismantled and the suspects, and issues of conspiracy
or complicity, are identified).
The difference in characterisation may reflect a change
in emphasis or perspective, driven by the apparent practical and political
need to identify the causes and respond quickly. Alternatively, it may
reflect a change in the underlying phenomenon. One commentator has suggested
that a comparison of modern terrorist incidents and more traditional incidents
demonstrates a shift in focus from motivations based on changing government
policy to motivations based on punishment and revenge or strategic considerations.(27)
Arguably, the bridge between these two perspectives is
the notion that if terrorism is a form of warfare, terrorist acts can
be treated as atrocities under the laws of armed conflict:
Some international lawyers see the laws of war as a possible
solution to the dilemma of definition. They suggest that rather than trying
to negotiate new treaties on terrorism that are not likely to be ratified
or enforced, nations should apply the laws of war, to which almost all
have agreed. Terrorists, they say, should be dealt with as soldiers who
commit atrocities Under the laws-of-war approach, terrorism would comprise
all acts committed in peacetime that, if committed during war, would constitute
war crimes All terrorist acts are crimes, many of which would also be
war crimes or 'grave breaches' of the rules of war if we accepted the
terrorists' assertion that they are waging war.(28)
It is worth noting that the United States has recently
taken measures to adopt a 'laws of war' approach to the September 11 attacks.
The Use
of Military Force Joint Resolution, signed by the President 18 on
September 2001 announced that those responsible for the attacks would
be tried before a military tribunal. However, it is significant that:
[A]lthough there are frequent references in the text
of the Joint Resolution to "terrorist acts" and "acts of international
terrorism", nowhere in the resolution, or in the presidential signing
statement, is there any mention or characterization of the attacks of
September 11th as acts of war. They are clearly denoted as terrorist acts.(29)
Document
2 Legislation in the United Kingdom
The principal piece of anti-terrorist legislation in
the United Kingdom is the Terrorism Act 2000. A number of other Acts deal
with other issues associated with terrorism, such as hoax offences, explosives,
internationally protected persons, aviation safety and security, hostages
and nuclear weapons.(30) The Terrorism Act 2000 is simply the
last in a long line of statutes designed to address perceived terrorist
emergencies.(31)
- Prevention of Terrorism Acts
The genesis of the anti-terrorist provisions was the
Prevention of Violence (Temporary Provisions) Act 1939. This Act was passed
in response to an intense period of bombings by the Irish Republican Army
in mid 1939. It was originally intended to last for two years, but was
extended annually by parliamentary review for 15 years until 1954.
The Prevention of Terrorism (Temporary Provisions) Act
1974 was modelled on the 1939 Act and on legislation that had been introduced
in Northern Ireland in 1973.(32) Similarly, it was introduced
in response to bombings by the Irish Republican Army. By mid November
1974 there had been at least 110 separate terrorist incidents in Britain
causing 21 deaths and 180 injuries. On 21 November a single incident,
involving bombs planted in two Birmingham public houses, caused a further
21 deaths and 184 injuries.(33) By 29 November the British
Parliament had passed the Prevention of Terrorism (Temporary Provisions)
Act 1974. It was drafted so as to expire within 6 months, but was extended
by review and later enactments until 2000.
This Act essentially focused on the situation in Northern
Ireland. It proscribed the IRA and made support for it illegal. It allowed
the exclusion of persons involved in terrorism from the United Kingdom.
It permitted the arrest and detention of any person whom the police reasonably
suspected was subject to an exclusion order, guilty of a related offence,
or 'concerned in the commission, preparation or instigation of acts of
terrorism'.(34) These persons could be detained for 48 hours
and the Secretary of State could extend this by a further 5 days.(35)
The Act also permitted the Secretary of State to issue orders allowing
police and immigration officers to stop and search persons at ports or
borders.(36)
Such detention was always reviewable by a writ of habeas
corpus (a legal action which compels authorities to bring someone in custody
before a court). However, despite the large number of detentions under
these provisions,(37) such writs were rare. Moreover, given
the short duration of detention, such action was practically unavailable
in most cases.(38)
Under the Prevention of Terrorism (Temporary Provisions)
Act 1974 an organisation could be proscribed either by legislative amendment
or by legislative instrument. The Secretary of State was empowered to
add any organisation 'that appears to him to be concerned in terrorism
or in promoting or encouraging it' (s. 1(3)). It was an offence
to 'belong or profess to belong to a proscribed organisation', to 'solicit
or invite financial or other support for a proscribed organisation or
knowingly make or receive any contribution in money or otherwise to the
resources of a proscribed organisation', or to 'arrange or assist in
or address, a meeting' in support or furtherance of a proscribed organisation
(paragraphs 1(1)(a)-(c)). It was even an offence to 'wear an item of dress
or carry any article' so as to 'arouse reasonable apprehension that
[the person] is a member or supporter' of an organisation (s. 2).
The exclusion provisions permitted the Home Secretary to prohibit a person
from entering Great Britain if satisfied that s/he 'is concerned in the
commission, preparation or instigation of acts of terrorism' or 'is attempting
or may attempt to enter with a view to being concerned in the commission,
preparation or instigation of such acts' (s. 3(3)).(39)
An exemption operated over persons who had been ordinarily resident in
Great Britain (s. 3(4)).(40) Procedures for control of
entry and removal permitted the Secretary of State to issue orders providing
for arrest, detention and searches of persons, property and places (s. 8).
Subsequent enactments enlarged the focus beyond Northern
Ireland. The Prevention of Terrorism (Temporary Provisions) Act 1984 applied
the special arrest and detention powers to international terrorism (para
12(3)(a), and the Prevention
of Terrorism (Temporary Provisions) Act 1989 applied the financial
contributions provisions to a similarly wide subject matter (para 9(3)(b)).
The exclusion provisions were never enlarged in this manner.
Over time these measures were extended. For example,
the Prevention of Terrorism (Temporary Provisions) Act 1976 made it an
offence to contribute or solicit contributions towards acts of terrorism
(s. 10) or to withhold information relating to terrorism or terrorists
which a person 'knows or believes might be of material assistance' (s. 11).
The Prevention of Terrorism (Temporary Provisions) Act
1989 extended these provisions to encompass contributions to and solicitations
for proscribed organisations (s. 10), and the provision of assistance
in the management of terrorist funds by third parties (s. 11). It
permitted courts, having convicted someone of an offence, to issue forfeiture
orders and restraint orders(41) in respect of property reasonably
suspected of being made available for terrorist purposes or for the use
or benefit of prescribed organisations (s. 13). It permitted a person
to breach an obligation of confidentiality to allow the reporting of suspicious
transactions (s. 12). It also introduced a codified process for 'supervision
of detention and examination powers' (Sch. 3) and entrusted justices of
the peace with the power to issue search warrants (s. 15). And it
elaborated on port and border control provisions by clarifying that persons
could be examined without reasonable suspicion and by imposing time limits
on detention for that purpose (Sch. 5).
The Criminal Justice Act 1993 amended the 1989 Act with
an offence of failing to disclose information which leads a person to
know or suspect that another person is providing financial assistance
(s. 18A).(42) The Criminal Justice and Public Order Act
1994 introduced offences relating to the possession of offensive articles
(s. 16A), and unlawful collection of terrorist intelligence (s. 16B).
It also extended police powers to include the power to stop and search
any vehicles or person within a designated area (s. 13A),(43)
and to impose police cordons (s. 16C). The Prevention of Terrorism
(Additional Powers) Act 1996 extended the stop and search powers to cover
pedestrians (s. 13B). Thus, senior police officers were empowered
to authorise, for periods of up to 28 days at a time, police officers
within their area of responsibility to stop vehicles and pedestrians and
conduct 'ordinary' searches for 'articles of a kind which could be used
for a purpose connected with the commission, preparation or instigation
of acts of terrorism' (para 13A(3)(b) and s. 13B(2), whether or not the
police officers had reasonable grounds for suspicion regarding those articles
(paras 13A(4) and 13B(3)). The Criminal Justice (Terrorism and Conspiracy)
Act 1998 amended the proscribed organisations provisions to expressly
permit a court to draw adverse inferences from a person's failure to mention
a fact under questioning that the person subsequently relies on to deny
their membership, etc. (ss. 2A-2B). It also amended the principal statute,
the Criminal Justice Act 1977, to introduce an offence of conspiracy to
commit terrorist or other crimes abroad (s. 1A).
As the Northern Ireland situation stabilised, the emergency
powers became largely unused. From 1995 no new exclusion orders were issued,
the outstanding orders were revoked in 1997 and the exclusion provisions
were not incorporated into new legislation in 2000.(44)
In 2000, following the 1996 Inquiry into Legislation
Against Terrorism, the British Parliament passed the Terrorism
Act 2000. This Act essentially replicated most of the provisions in
the Prevention of Terrorism (Temporary Provisions) Acts. But, unlike its
predecessors, it is a permanent statute. Moreover, it introduced a new
definition of terrorism and applied that definition to acts, persons and
organisations whether or not they originate overseas or are connected
with the affairs of Northern Ireland. It introduced a general stop and
search power to complement the powers over vehicles and pedestrians. Thus,
police officers are empowered to stop and search any person that they
reasonably suspect to be a terrorist 'to discover whether he has in his
possession anything which may constitute evidence that he is a terrorist'
(s. 43). It also expanded the concept of terrorist funds to encompass
other forms of 'terrorist property'(45) and it introduced provisions
for seizure of cash at ports and borders (ss. 24-31). At the same time,
it introduced safeguards, by transferring the power to extend detention
from the Secretary of State to the judiciary, and by establishing a merits
review body and process relating to proscription decisions. Thus, a judicial
authority could only extend detention if satisfied that the further detention
of the person is reasonably necessary to obtain or preserve relevant evidence
and that the relevant investigation is being conducted diligently and
expeditiously.(46) The Proscribed Organisations Appeal Commission
could overturn a decision regarding proscription if it considered that
the decision was inconsistent with principles of judicial review (s. 5(3)).(47)
- Anti-Terrorism, Crime and Security Act 2001
Following the September 11 attacks on the United States,
the British Parliament enacted the Anti-Terrorism,
Crime and Security Act 2001. The Act amends provisions in the Terrorism
Act 2000 relating to seizure of cash, terrorist property and police powers
discussed above. It also contains measures complementing those provisions
dealing with freezing orders (Part 2), duties to disclose and indemnities
for disclosure (Part 3), immigration and asylum (Part 4), religious hate
speech and crimes (Part 5),(48) weapons of mass destruction
(Part 6), security of pathogens and toxins (Part 7), security of nuclear
infrastructure (Part 8), aviation security (Part 9), law enforcement powers
(Part 10), retention of data by postal and telecommunications service
providers (Part 11), and miscellaneous issues such as offences for anthrax-type
scares or hoaxes.
There are at least five key sets of amendments to provisions
of the Terrorism Act 2000.
Part 13 makes it an offence to use a noxious substance
so as to create public fear with the intention of influencing the government
or intimidating the public or a section of the public (s. 111). It
is also an offence to send a benign substance or to communicate false
information with the intention of inducing a person to believe that a
noxious substance is present that will 'endanger human life or create
a serious risk to human health' (s. 112).
Part 14 introduces a general obligation to disclose information
which a person 'knows or believes might be of material assistance in preventing
the commission of an act of terrorism or in securing the apprehension,
prosecution or conviction of a [terrorist]' (s. 115).(49)
Schedule 1 replaces the seizure of cash provisions with
more general provisions permitting the seizure of cash anywhere in the
United Kingdom where an officer has a reasonable suspicion that it is
'terrorist cash'.(50) Cash may be seized for a period of 28
days with extensions by magistrates or justices of the peace in intervals
of up to 3 months for a total of 2 years (item 3). Extensions may be given
if justified while an offence is being investigated or assessed for prosecution
or where proceedings have been started but not concluded. It provides
for judicial proceedings in relation to forfeiture of detained cash (item
6), and for earmarking and tracing of terrorist cash in transactions with
associated persons or entities.
Schedule 2 amends the terrorist property provisions to
include account monitoring orders (item 1),(51) to bring forward
the power to make asset freezing orders so that they can be made during
criminal investigations rather than during criminal proceedings (item
2), and to impose a duty to inquire on persons in a 'regulated sector',
complementing the disclosure obligations originally introduced by the
Criminal Justice Act 1993. Thus, it would be an offence for a person
in a financial institution not to disclose information that would lead
a reasonable person to know or suspect that a person is providing
financial assistance (item 5).(52)
Part 2 supplements the forfeiture provisions with provision
for freezing orders. These prohibit financial institutions from providing
funds to persons or corporations over which the United Kingdom has a physical
or personal jurisdiction.(53) They may be issued by the Treasury
where it reasonably believes that persons have taken or are likely to
take action which causes a detriment to the national economy or poses
a threat to life or property, provided that one of the persons involved
is a foreign resident or foreign government.(54) Attached to
these orders may be orders containing disclosure obligations and offences.(55)
Document
3 Legislation in the United States
The principal statute in the United States is the USA
PATRIOT Act of 2001. Like the Terrorism Act 2000 (UK) this statute is
the latest of a number of statutes.
- Early Anti-Terrorist Legislation
The Act to Combat International Terrorism of 1984 established
a rewards system for the provision of information leading to the 'prevention,
frustration or favourable resolution' of an act of terrorism or the arrest
or conviction of a person for an act of terrorism.(56) The
Diplomatic Security and Antiterrorism Act of 1986 bolstered these provisions
and introduced fines for foreign incursion and controls on exports to
state sponsors of terrorism. It made it an offence to commit murder or
to cause serious injury to an American overseas if the Attorney General
was of the opinion that the offence was 'intended to coerce, intimidate
or retaliate against a government or civilian population'.(57)
The Violent Crime Control and Law Enforcement Act of
1994 made it an offence to knowingly or intentionally provide 'material
support or resources' or conceal the nature, location, source, or ownership
of such property for the purposes of terrorist offences.(58)
In the aftermath of the Oklahoma City bombing in April
1995, the Senate and the House of Representatives passed separate bills
dealing with terrorism. The consequent Anti-terrorism and Effective Death
Penalty Act of 1996 empowered the Secretary of State, subject to judicial
review and disallowance by an Act of Congress, to designate foreign organisations
which, in his opinion, engage in terrorist activity.(59) The
Secretary of Treasury could then require financial institutions to freeze
any financial assets held by 'foreign terrorist organisations'.(60)
Moreover, the Act made it an offence to provide 'material support or resources'
to 'foreign terrorist organisations'(61) and it made it an
offence for a financial institution not to report the existence of any
funds held for the benefit of such organisations.(62) It also
made it an offence to engage in financial transactions with governments
of countries designated as countries that support terrorism.(63)
And it applied money-laundering provisions, which among other things prohibit
assistance in the management of terrorist funds, to proceeds of terrorist
crime.(64)
The Act established extraterritorial jurisdiction over
terrorist acts (killing, kidnapping, maiming, assault with a dangerous
weapon, attack on property, or attack against government employees), and
related conspiracies, that transcend national boundaries.(65)
It also dealt with victims by expanding the compensation and assistance
provisions for victims of crime,(66) and by extending private
standing to sue 'state sponsors of terrorism' for damages in respect of
personal injury or death arising from terrorist acts.(67)
The Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act
of 2001 largely follows the model for anti-terrorist laws discussed above,
focusing on 'proscribed organisations', associated offences and law enforcement
powers. However, it also deals with the detention of aliens who are suspected
of having some involvement in terrorist activity.
The Act extends the 'material support or resources' offences
so that they apply extraterritorially(68) and makes it an offence
to engage in a transaction knowing that it involves the proceeds of 'material
support or resources'.(69) It makes it an offence to import
or export bulk cash into the United States and provides for seizure of
the cash and any related property.(70) It extends offences
related to operation of an 'unlicensed money transmitting business' to
include businesses that knowingly involve or support proceeds from criminal
activity.(71) It makes it an offence to harbour or conceal
persons who have committed or intend to commit a specified terrorist offence.(72)
It includes various terrorist offences within the provisions dealing with
organised crime.(73)
It empowers the Secretary of Treasury to take a range
of special measures where he or she finds that reasonable grounds exist
for concluding that a jurisdiction or a financial institution, account
or transaction is of 'primary money laundering concern'.(74)
These include orders in the nature of account monitoring orders,(75)
orders relating to beneficial ownership(76) and orders relating
to account establishment and customer identity.(77) It imposes
specific 'due diligence' requirements on financial institutions which
operate certain types of foreign customer accounts.(78) It
permits financial institutions to breach an obligation of confidentiality
to allow the reporting of not only suspicious transactions but suspicious
activity generally.(79) It also gives domestic courts jurisdiction
over non-citizens charged with money laundering offences under United
States law.(80)
It expands surveillance procedures relating to terrorism.(81)
It permits wire, oral and electronic communication intercept warrants
where interception 'may provide or has provided evidence of' various terrorist
offences such as the production, use, etc. of chemical weapons (18 U.S.C.
229), or weapons of mass destruction (18 U.S.C. 2332a), murder, serious
assault or related inchoate offences (18 U.S.C. 2332), terrorist acts
that transcend national boundaries (18 U.S.C. 2332b), financial transactions
with state sponsors (18 U.S.C. 2332d), and providing material support
or resources to terrorists (18 U.S.C. 2339A) or terrorist organisations
(18 U.S.C. 2339B). It permits information sharing among law enforcement,
immigration, intelligence, or national security agencies of criminal investigative
information,(82) and foreign intelligence or counterintelligence
or 'foreign intelligence information',(83) or information that
'relates to the ability of the United States to protect against actual
or potential attack', 'sabotage or international terrorism', or 'clandestine
intelligence activities' perpetrated by a foreign power or foreign agent.(84)
The Act expands the scope for foreign intelligence services
to target domestic citizens. It brings 'international terrorist activities'
within the ambit of 'foreign intelligence'(85) and permits
foreign intelligence agencies to undertake domestic surveillance where
the gathering of such information is only 'a significant purpose'
of the activity.(86) It extends the duration for which emergency
surveillance and physical searches may be conducted by foreign intelligence
services on non-citizens.(87) It permits intelligence authorities
to issue notices compelling the production of telephone toll and transaction
records,(88) permits intelligence authorities to require, by
subpoena, the production of any tangible things,(89)
and enlarges the scope of 'pen register' and 'trap-and-trace' orders(90)
to include a wider range of 'non-content information'(91) in
connection with various activities to 'investigate' or 'protect against'
international terrorism. Use of the foreign intelligence powers, which
are essentially based on administrative discretion, arguably allows foreign
intelligence agencies, in relation to international terrorism, to avoid
limitations such as the requirement to show 'probable cause'(92)
and restrictions on the range of records that may be targeted.(93)
The Act expands the scope for surreptitious execution
of search and seizure warrants. Generally, officers executing a search
warrant must announce themselves to the occupier of premises and the occupier
must be notified before any property is searched or seized.(94)
However, courts have permitted unannounced entry, or 'no-knock entry',
where officers reasonably suspect that it would be dangerous or futile
or would inhibit the effective conduct of an investigation,(95)
and delayed notification, or 'sneak and peek warrants', particularly in
drug related investigations, where the warrant 'provide[s] explicitly
for notice within a reasonable, but short, time subsequent to the surreptitious
entry'.(96)
Under the Act, a court may permit notice to the occupier
to be delayed, allowing law enforcement officers to 'search and seize
property or material that constitutes evidence of a criminal offence'
if the court finds that immediate notification may have an 'adverse result'
(such as jeopardising the investigation),(97) if the warrant
prohibits seizure of property, or if the warrant permits the giving of
notice 'within a reasonable period of its execution'.(98) While
the caselaw is not settled, this period may be anywhere from 7 days(99)
to 60 days.(100)
The Act provides for the mandatory detention of any alien
whom the Attorney-General has reasonable grounds to believe is an 'inadmissible
alien' or 'is engaged in any other activity that endangers the national
security of the United States'.(101) The Attorney-General must
review the situation every six months, but aliens may continue to be detained
if their release will threaten national security or the safety of the
community or any person.(102) An 'inadmissible alien' was defined
to include persons who have incited or engaged in terrorist activity(103)
and members or representatives of a foreign terrorist organisation.(104)
The Act extends the definition to cover persons who use a position of
prominence to endorse or espouse terrorism, or belong to a group that
endorses terrorism, in a way that 'undermines United States efforts to
reduce or eliminate terrorist activities'. It broadens the definition
of 'engaging in terrorist activity' to include incitement, preparation,
information gathering, planning and soliciting funds or members for terrorist
activities or organisations.(105)
The Act provides decisions by the Attorney-General may
only be reviewed by a writ of habeas corpus.(106) Thus, there
are no administrative review, although it has been said that the habeas
corpus review grounds closely parallel some of the judicial review grounds.(107)
Document
4 Terrorism and the United Nations
The United Nations has been proactive in pursuing a coherent
and consensus definition of 'terrorism' and developing international law
standards on the prevention of terrorism throughout the world. Relevant
conventions in the area of terrorism include
The United Nations General Assembly passed a number of
resolutions in response to the September 11 attacks on the United States.
Resolution
56/1 urgently called for international cooperation 'to prevent and
eradicate acts of terrorism'.(108) This followed calls over
the last three decades for states to enact legislation dealing with terrorism.(109)
In the first decade those calls described terrorism in the context of
attacks on independence, self-determination and 'other forms of alien
domination' under 'colonial and racist regimes'.(110) In the
second decade the focus widened to include the criminality of terrorist
acts,(111) state sponsorship of or acquiescence in terrorist
activities within their territory,(112) and the nexus between
terrorism and organised or transnational crime.(113) In the
third decade, interest grew in the impacts and human rights implications
of terrorism.(114)
The Security Council has also passed various resolutions.
Resolution 1214
demanded that the Taliban 'stop providing sanctuary and training for international
terrorists and their organizations'.(115) Similarly, Resolution
1267 demanded that the Taliban 'turn over Osama bin Laden without
further delay' and required states to 'freeze funds and other financial
resources including funds derived or generated from property owned or
controlled directly or indirectly by the Taliban'.(116) Resolution
1333 reiterated the demands in Resolution 1267 and further required
states to 'prevent the direct or indirect supply, sale or transfer' to
Afghanistan of 'arms and related materiel' or 'technical advice, assistance
or training'.
Resolution
1368 called on states to 'redouble their efforts to prevent and suppress
terrorist acts including by increased cooperation and full implementation
of the relevant international anti-terrorist conventions and Security
Council resolutions'.(117) Resolution
1373 called for all states to 'prevent and suppress the financing
of terrorism', to 'criminalize the wilful provision or collection of funds
for such acts' and to '[f]reeze without delay funds and other financial
assets or economic resources of persons [or associated entities] who commit,
or attempt to commit, terrorist acts or participate in or facilitate the
commission of terrorist acts'.(118)
Document
5 History of Australian Reviews
To understand present counter-terrorism arrangements,
it is useful to consider the history of administrative and quasi-judicial
reviews over the last 25 years which have examined Australia's counter-terrorist
and protective security laws and agencies.
Following the bombing of Sydney's Hilton Hotel in March
1978, former London Metropolitan Police Commissioner, Sir Robert Mark,
was appointed to examine policing resources, protective security and counter-terrorism.
While Mark commented that the existing anti-terrorist planning documentation
appeared to be 'well conceived and defined', he noted a few issues of
concern. First, there was no clear relationship between the law enforcement
bodies and the defence forces, despite his opinion that 'the availability
of military aid is a vital component of counter terrorist plans and the
arrangements for invoking it should be laid down now, not when a crisis
arises'. Mark recommended that the Commonwealth Police and Defence Force
enter into discussions 'about the availability and the deployment to specially
trained troops, both for attack and deterrence'. Second, there was no
specialist team within the (then) Commonwealth Police. Mark recommended
that an Australian Federal Police service establish an anti-terrorist
squad with response and forensic capabilities 'as an emergency measure'.(119)
Among other things, Mark recommended the amalgamation
of the Commonwealth and Australian Capital Territory police forces. This
was given statutory force in the Australian Federal Police Act 1979.
Conversely, he recommended the separation of protective service and law
enforcement functions on the basis that '[f]ormal security duties are
a wasteful use of police manpower, a disincentive to the better type of
policeman, [and] a cause of excessive overtime and premature wastage'.(120)
In 1984 the protective service functions were removed from the AFP to
the Australian Protective Service, under the Australian Federal Police
Amendment Act 1984, and a separate Australian Protective Service (APS)
was established ultimately under the Australia Protective Service Act
1987.
In the same period, the Commonwealth appointed Justice
Robert Hope to conduct a review of protective security powers and arrangements.
The terms of reference required Justice Hope to review coordination arrangements
between law enforcement, intelligence and other civilian authorities at
the Commonwealth, State and Territory level. In particular they required
him to review the relationship between the Australian Defence Force (ADF)
and civilian authorities.(121) The Protective Security Review
Report was tabled in May 1979.
Hope concluded that domestic intelligence gathering and
law enforcement bodies were given adequate powers under existing legislation,
subject to 'one possible qualification' relating to 'random powers to
stop and interrogate people, to stop and search vehicles, and to search
private property without reference to any suspicion of danger'. He concluded
that such powers were not necessary for the Commonwealth, States or Territories.(122)
In December 1986, following an 'upsurge of terrorism
in Europe and the Middle East during 1984 and 1985',(123) the
Special Minister of State appointed Roger Holdich, Deputy Secretary of
the Department of The Prime Minister and Cabinet, to 'review Australia's
counter-terrorism capabilities and the administrative and financial arrangements
that underpinned them'.(124) The resulting report, Counter
Terrorism Capabilities in Australia, was not made public. However,
subsequent reports indicate that the review 'emphasised that the single
most important preventive measure against terrorism is the capability
to produce timely and accurate intelligence'. It reported 'general satisfaction
with co-operation between [intelligence and law enforcement] agencies
in Australia' but 'pointed to the need for some improvement in the information
flow to Commonwealth Ministers during a terrorist incident'. It 'emphasised
the importance of the security-checking mechanisms' and recommended that
migration control procedures be maintained. It 'canvassed the options
of a special airport branch of the AFP but favoured rather the transfer
of the counter-terrorism protective function to the States'.(125)
It 'highlighted the need to prepare for a greater range of terrorist incidents
and the need for enhanced VIP protection' in the aftermath of assassinations
and bombings in the early 1980s. It also recommended there be another
review 'in about four years'.(126) The further (external) review
was postponed after various internal reviews but was eventually undertaken
in 1993 following the events leading to the Codd Review in 1992.
In 1987, the Attorney-General established a committee
to review federal criminal law. The committee, chaired by the former Chief
Justice of Australia, Sir Harry Gibbs, issued a number of reports dealing
with a range of issues including computer crime,(127) detention
before charge,(128) principles of criminal responsibility,
secondary offences, attempts and conspiracy,(129) property
offences against the government, bribery and corruption,(130)
and forgery.(131) The final report of the Gibbs Committee was
produced in December 1991.(132)
The Gibbs Committee recommended the consolidation of
offences relating to federal property or money, the repeal of provisions
relating to unlawful or proscribed associations and the amendment of provisions
dealing with treason and sabotage. It concluded that the unlawful associations
provisions should be repealed because, among other things, 'the activities
at which these provisions are aimed can best be dealt with by existing
laws creating such offences as murder, assault, abduction, damage to property
and conspiracy'.(133) It recommended that the offence of treason
should be reformed, that the offences of treachery(134) and
sedition(135) should be abolished and that there should be
a separate offence of killing or injuring the Sovereign or the Sovereign's
consort or heir.
Under the Gibbs Committee's draft Crimes Amendment Bill
1991, existing law which criminalises a person's intent to do a treasonable
act (eg levying of war against the Commonwealth) manifested by an 'overt
act' would have been repealed.
However, in other ways, it would have widened the offence
of treason, for example by defining as treason an act that assisted or
encouraged a foreign country or foreign force to make an armed invasion
or attack on the Commonwealth. At present the offence is only of instigating
a foreigner to make an 'armed invasion' of the Commonwealth. Its proposed
treason offence would have applied to acts done by Australian citizens
irrespective of where they occurred and to acts carried out in Australia
by non-citizens.
Following attacks by demonstrators on the Iranian Embassy
in April 1992, the Government appointed Michael Codd, former head of the
Department of The Prime Minister and Cabinet, to conduct a limited review
of the plans and arrangements relating to counter-terrorism. The review
focused particularly on the protection of diplomatic and consular representatives.
He noted that the bombing and subsequent review pointed to 'serious weaknesses
in Australia's plans and arrangements at the Commonwealth level in the
period prior to an incident'.(136) The key weaknesses in
the prevention area were 'in structures and in lines of responsibility
or command' as well as 'in the flow of intelligence and information, and
in training'.(137) He identified possible problems arising
out of the fact that the Australian Protective Service (APS) had been
placed on a user-pays commercial footing. Financial considerations could
affect a client organisation's 'judgement about first response to a threat
or possible threat'. They could also 'lead to a reduced resource base
for the APS to the point where inadequate training may be provided and
inadequate resources available to deal with an unpredictable surge in
requirements arising from an incident or potential incident'.(138)
Codd identified 'some operational inefficiencies' arising from the division
of responsibilities between the AFP and APS. He recommended that the AFP
Commissioner be able to delegate 'police-type' functions,(139)
on a case by case basis, to APS officers.
- Honan and Thompson Review
In 1993 the Standing Advisory Committee on Commonwealth/State
Cooperation for Protection Against Violence (SAC-PAV) commissioned Frank
Honan and Alan Thompson to review the SAC-PAV Terms of Reference and Program,
including its own effectiveness and the effectiveness of its activities
and its relationship with other counter terrorism, intelligence and law
enforcement activities.(140) A public version of the report
was tabled in June 1994. In general, it concluded that 'the effectiveness
of the SAC-PAV arrangements is high', underpinned in part by 'an extremely
high level of goodwill and cooperation between the Commonwealth and the
States', 'soundness and flexibility in the response capabilities' and
'initiative and creativity within the Committee'. Concerns were expressed
in relation to the coordinated oversight of counter-terrorist strategy
and policy and the direct involvement of various Commonwealth Ministers
'having regard to the governmental policy aspects of the counter terrorism
arrangements'.(141)
- Model Criminal Code Officers Committee
In general, the question of crimes against government
and the constitution were not part of the terms of reference of the Model
Criminal Code Officers Committee (MCCOC). However, the Committee did consider
the issue of sabotage.(142)
The sabotage offences recommended by MCCOC are based,
to some extent, on the Convention on the Suppression of Terrorist Bombing.
In its report, MCCOC commented:
[T]he substance of the Convention suggests the existence
of a significant gap in Australian law. In most jurisdictions, property
damage offences are directed at relatively minor forms of criminality
they are ill-adapted for use against terrorists. Though existing state
and federal legislation would impose some form of criminal liability for
any instance of terrorist attack on public facilities, many of these offences
are not punishable with penalties of appropriate severity.
MCCOC suggested two offences, one of sabotage and the
other of threatened sabotage. Sabotage would be committed if a person
damaged a public facility by committing a property offence or by causing
an unauthorised computer function, intending to bring about major disruption
to government functions, major disruption to public services or major
economic loss. The maximum penalties would be 25 years imprisonment for
sabotage and 15 years imprisonment for threatening sabotage.(143)
On the broader applicability of the Convention, MCCOC
made the following comment:
The directly applicable requirements of the Convention
would only have a marginal effect on domestic law. It is limited in
its application to terrorism which crosses international borders or involves
foreign nationals and limited to acts of terrorism which involve the use
of an explosive or other lethal device.
Australia has not yet become a party to the Convention
but the Government announced in September 2001 that 'drafting instructions
are with the Office of Parliamentary Counsel to enable legislation with
a view to Australia becoming a party to the Convention'.(144)
Document
6 Intelligence Agencies
The Office of National Assessments Act 1977 does
little more than define and delimit the roles and responsibilities of
ONA. One of the functions of ONA is to 'assemble and correlate information
relating to international matters that are of political, strategic or
economic significance to Australia' (para 5(1)(a)). ONA may provide reports
and assessments to 'appropriate Ministers and other appropriate persons'
(para 5(1)(b) and, on request, may prepare and provide these to 'a Minister
or prescribed Commonwealth officer' (s. 5(2)). The Minister may not
issue directions regarding 'the content of, or any conclusions to be reached
in, any report or assessment' (s. 5(4)). The Director-General of
ONA is 'entitled to full access to all information relating to international
matters that are of political, strategic or economic significance to Australia,
being information in the possession of any Commonwealth agency' (s. 9).
The Australian Security Intelligence Organisation
Act 1979 defines the roles, functions and powers of ASIO. One of the
functions of ASIO is to 'obtain, correlate and evaluate intelligence relevant
to security' (para 17(1)(a)). Another is to supply security assessments
to Commonwealth agencies. Security assessments contain advice about whether
a 'prescribed administrative action' should be taken regarding an individual
on security grounds, such as denying them entry to Australia or access
to sensitive information. ASIO may communicate intelligence to appropriate
persons or authorities (para 17(1)(b)) and provide advice to Ministers,
authorities and other prescribed persons (para 17(1)(c)). Specifically,
it may communicate intelligence to State authorities in response to a
proposed 'prescribed administrative action' in that State that would affect
security for the purposes of the Commonwealth (s. 40).(145)
The Minister may not override the opinion of the Director-General 'concerning
the nature of the advice that should be given' (s. 8(4)). Nor may
s/he override the Director-General's opinion concerning the appropriateness
of targeting a particular person without a written direction containing
reasons, which is copied to the Inspector-General and the Prime Minister
(s. 8(5)). The Act does not give ASIO any guarantee of access to
information held by other agencies, but other legislation permits relevant
authorities to disclose to ASIO certain restricted information, such as
that relating to taxation(146) or financial transactions.(147)
The ASIO Act requires the Director-General to take all
reasonable steps to ensure that nothing is done beyond what is 'necessary
for the purposes of the discharge of its functions' and that the organisation
is 'kept free from any influences or considerations not relevant to its
functions' and that nothing is done that might support a suggestion that
the organisation is 'concerned to further or protect the interests of
any particular section of the community' or is concerned 'with any matters
other than the discharge of its functions'. Even in the absence of a statutory
requirement for 'proper performance', such a limitation could probably
be implied into the role and function of the Director-General.(148)
The Intelligence Services Act 2001 defines the
roles, functions and powers of the Australian Secret Intelligence Service
and the Defence Signals Directorate. A key function of ASIS is to 'obtain
intelligence about the capabilities, intentions or activities of people
or organisations outside Australia' and, by logical extension, to 'communicate
such intelligence' and to 'liaise with intelligence or security services
or other authorities of other countries'. Another is to 'conduct counter-intelligence
activities' (s. 6). Similarly, DSD is to obtain intelligence information
in the form of '[guided or unguided] electromagnetic energy [or] electrical,
magnetic or acoustic energy' and to 'communicate such intelligence'. It
may also assist Commonwealth and State authorities in relation to the
'security and integrity of information [in electronic form]', and in relation
to cryptography and communications technologies (s. 7). These agencies
may only perform functions in the interests 'national security', 'foreign
relations' or 'national economic well-being' to the extent they are affected
by 'the capabilities, intentions or activities of people or organisations
outside Australia' (s. 11(1)). Nor may they 'undertake any activity'
that is not 'necessary for the proper performance of [their] functions'
or 'authorised under or required by another Act' (s. 12).
On 17 May 1983 the Hawke Government reappointed Justice
Hope to conduct a second Royal Commission into intelligence service agencies.
The inquiry was to examine progress in implementing the previous recommendations;
arrangements for developing policies, assessing priorities and coordinating
activities among the organisations; ministerial and parliamentary accountability;
complaints procedures; financial oversight and the agencies' compliance
with the law.
Following the Second Hope Royal Commission, the Hawke
Government created the office of the Inspector-General of Intelligence
and Security (IGIS). Hope had recommended that the IGIS primarily monitor
ASIO's (and ASIS's) 'compliance with the law, the propriety of its actions
and the appropriateness and effectiveness of its internal procedures',(149)
and, secondarily, look into complaints. The IGIS was intended to 'protect
the rights of Australian citizens and residents against possible errors
or excesses by the intelligence and security agencies and to guard against
breaches of Australian law'. It was not meant to 'check on the
general effectiveness and appropriateness of the agencies' operations'.(150)
The Inspector-General of Intelligence and Security
Act 1986 (IGIS Act) gives the IGIS power to inquire into the compliance
of ASIO, ASIS and DSD with the law, ministerial directions or guidelines,
or human rights and the propriety of particular activities undertaken
by them. But, the IGIS may not do so without ministerial approval except
to the extent that Australians are affected or Australian laws may be
violated (s. 8(4)).
Document
7 Law Enforcement Agencies
The Australian Federal Police Act 1979 describes
the powers and functions of the AFP.
AFP functions include the provision of 'police services'
for the Australian Capital Territory and in relation to Commonwealth laws,
property and places. 'Police services' are services involved in crime
prevention, protection of persons against injury or death and protection
of property from damage (s. 4(1)). In 1999-2001 the special areas
of focus were:
countering and otherwise investigating illicit drug trafficking,
organised crime, serious fraud against the Commonwealth, money laundering
and the interception of assets involved in or derived from these activities
continuing to develop a capacity to deal with new forms of criminal
activity requiring special attention to be directed at the investigation
of economic crime, in all its forms, transnational crime and crime involving
information technology and communications (including electronic commerce).(151)
The National Crime Authority Act 1984 describes
the powers and functions of the NCA. Along with earlier legislation,(152)
it was passed in response to a number of Royal Commissions in the 1970s
and 1980s that drew attention to the existence, nature and magnitude of
organised crime in Australia.(153) In particular it was a response
to the perceived need for 'a new law enforcement agency at the national
level, equipped with coercive powers, skills and resources to deal the
fight against organised crime.'(154)
In 1998-99 the most commonly investigated offences included
drug importation, cultivation, manufacture and trafficking, money laundering,
theft, fraud, tax evasion, bribery, extortion and violence.(155)
In 2000-2001 the main priorities for investigation were:
South-East Asian organised crime, principally the importation
and trafficking of heroin, fraud against the Commonwealth and money laundering
associated with organised criminal activities and the investigation of
established criminal networks involved in the importation and trafficking
of illicit drugs and the corruption of officials.(156)
On 21 December 2001 the Government 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.(157) According to media reports, the
review was a pretext for the NCA to be scrapped and either replaced by
a new agency (the 'Australian Crime Commission') or merged with the AFP.(158)
Moreover, some suggested that the review was part of a 'sustained six-month
campaign' by the Prime Minister to 'demolish the agency', based in part
on its support for public heroin trials.(159)
The review was completed in early 2002 and, while the
report is confidential, it apparently recommended that the AFP take over
many of the NCA's duties.(160) On 10 March 2002 the Minister
for Justice and Customs 'ruled out' a merger between the NCA and AFP.
He stated that the Government 'does not believe that such a merger is
in the best interest of law enforcement', but left some scope to reconsider
noting that '[a]ny decision on the future of the NCA is of course a matter
to be decided by the Commonwealth, State and Territory leaders at the
upcoming Leaders Summit' [suggested by the Prime Minister].(161)
The Australian Protective Service Act 1987 describes
the roles and functions of the APS.
The functions of the APS include protection of property
in which the Commonwealth or a foreign power or organisation has an interest,
protection of Commonwealth office holders and internationally protected
persons and the provision of detention services under the Migration
Act 1958.(162) In common parlance, its role is generally
to provide a 'highly visible deterrent' and 'an immediate response to
a potential or actual incident'.(163)
More generally, the APS may provide 'such protective
and custodial services for or on behalf of the Commonwealth as the Minister
directs' (s. 6(1)). In performing these functions APS officers
have powers of arrest without warrant (s. 13) and search (s. 16),
and may use reasonable force ranging up to the use of lethal force where
reasonably necessary to 'protect life or prevent serious injury to the
officer or any other person' (s. 14).
On 14 February 2002, the Government announced that, from
1 July 2002, the APS would be merged to become a division of the AFP.
This would 'ensure greater coordination between the AFP's close personal
protection function and the APS's guarding function' strengthening the
ability of each to 'fulfil their counter-terrorism responsibilities'.(164)
The Australian Transaction Reports and Analysis Centre
was established by Financial Transaction Reports Act 1988. The
Act requires cash dealers including banks to report instructions for the
transfer of funds into or out of Australia electronically on behalf of
their customers. AUSTRAC is principally charged with preventing money-laundering
it but it also provides an intelligence role to Commonwealth, State and
Territory law enforcement and revenue agencies by providing financial
transaction reports information.
The Act provides that the Attorney-General is entitled
to access information for the purpose of dealing with a request made by
a foreign country for international assistance in a criminal matter. The
Government has committed AUSTRAC to supporting the work of Financial Crimes
Enforcement Network (finCEN), an agency of the US Treasury.
The Australian Bureau of Criminal Intelligence is not
a creation of statute. It was established by an inter-governmental agreement
on 6 February 1981. Its function is to 'provide a cooperative national
criminal intelligence service for law enforcement agencies in Australia'
in part by 'combining effective intelligence skills and utilisation of
leading-edge information technology'.(165) It relies on Commonwealth
and State and Territory police to collect information while it facilitates
the exchange of that information and intelligence.
The Office of Strategic Crime Assessments was established
in 1995 to provide the Commonwealth with 'strategic assessments of significant
crime trends and criminal threats to Australia likely to emerge within
5 years' and to 'facilitate coordination of intelligence assessment activities
within the Commonwealth law enforcement system'. In relation to assessments,
its focus is on whole of government 'policy-relevant strategic analysis'.(166)
- Weapons Specific Agencies
In addition to these general law enforcement agencies,
other agencies responsible for monitoring and controlling aviation safety
and the development, production, storage, use, etc. of particular chemicals
and toxins have certain relevant investigatory powers. So, for example,
the Chemical Weapons (Prohibition) Act 1994 provides for inspections,
warrants and search and seizure in relation to chemical weapons and weapons
related chemicals.
Document 8 Role of the Defence Force
As indicated in the Legislation, Commentary and Constraints
paper at section 1.5.3, the Australian Defence Force may provide either
Defence Assistance to the Civil Community (DACC)(167) or Defence
Aid to the Civil Power (DACP).(168)
In theory, there are few significant legal issues associated
with DACC. One author, in a seminal text on emergency powers, states,
perhaps too confidently, that '[n]o significant legal problems are posed
when the Defence Force is used for relief operations'.(169)
On the other hand, it has been pointed out that there is no specific provision
in the Constitution or any Commonwealth law that may be called into operation
in crisis management.(170) The truth may be that legal authority
could be derived from various sources.(171) The issue has simply
never been fully raised or resolved probably because attention has been
focused on DACP. Thus, the key issue is that DACC, unlike DACP, relates
to 'support to civil authorities in the performance of non-emergency law
enforcement related tasks where there is no likelihood that Defence
personnel will be required to use force'.(172) Once it is accepted
that DACP may involve the use of force (see below) 'then it seems rather
farcical that the Constitution authorises use of the defence forces in
civil situations where force is likely, but not in civil situations where
force is not contemplated'.(173)
It seems clear that the Commonwealth may use military
personnel to protect itself. But it is unclear how far the Commonwealth
may use military personnel to protect its 'interests'. Sir Victor Windeyer,
a former High Court judge, suggested that '[t]he ultimate constitutional
authority [for the intervention during the 'Siege of Bowral' in 1978(174)]
was the power and the duty of the Commonwealth Government to protect the
national interest and to uphold the laws of the Commonwealth'.(175)
He argued that the power 'arises fundamentally, I think, because the Constitution
created a sovereign body politic with the attributes that are inherent
in such a body. The Commonwealth of Australia is not only a federation
of States. It is a nation.'(176)
So, it is widely accepted that the Commonwealth can use
the ADF to enforce its laws and to protect its interests and property
and thereby suppress domestic violence in a State. It is acknowledged
that 'it is not within the province of the Commonwealth to protect a State
against domestic violence [in the absence of a request]',(177)
but it has been said that where domestic violence 'is of such a character
as to interfere with the operations of the Federal government, or with
the rights and privileges of Federal citizenship, the Federal government
may clearly, without a summons from the State, interfere to restore order'.(178)
Recent amendments to the Defence Act 1903 reflect
the argument in favour of this power. The Governor-General may call out
the ADF where the Prime Minister, the Defence Minister and the Attorney-General
are satisfied that 'domestic violence' is occurring or is likely to occur
and a State or Territory is not, or is unlikely to be, able to protect
Commonwealth interests (s. 51A). The Governor-General may also call
out Permanent Forces, and such Emergency and Reserve Forces as may be
necessary, for the protection of a State against domestic violence, provided
they are not 'called out or utilized in connexion with an industrial dispute'
(s. 51B). The order must specify the powers to be held by the ADF.
One commentator has suggested, 'the functions of the
Commonwealth Government are so many and its agencies and instrumentalities
so far reaching, that internal disorder on any large scale could hardly
leave them unaffected'.(179) More recently another commentator
has suggested that 'any social controversy can nowadays be injected with
'national security' implications' and that, as a result, the Commonwealth
can circumvent any requirement in section 119 to intervene in State affairs
'whenever the Commonwealth chooses'.(180)
More pressing perhaps is the issue of domestic violence
motivated or directed at issues or people of international concern. Such
violence would undoubtedly affect the Commonwealth in its position as
Australia's representative in the international community. As indicated,
one of the stated purposes of the call out in 1978 was the protection
of the 'national and international interests' of the Commonwealth. The
common view at the time was that the call out was not made under
s 119 of the Constitution but was 'initiated by the Commonwealth to protect
Commonwealth interests'.(181) The Attorney-General's opinion
was that the Commonwealth had intervened 'not to protect the State but
to protect itself'.(182)
At common law, ADF personnel who are called out do not
acquire any special powers or responsibilities and remain subject to the
law and jurisdiction of the state. A call out 'is not like a declaration
of martial law' in which the military acquires complete control. On the
contrary, 'the civil power remains paramount throughout and the civil
law supreme'.(183) In other words, '[m]embers of the Defence
Force are called out to be in readiness to uphold the law. They remain
subject to it, and liable to its penalties, except insofar as in some
circumstances any one of them may be exculpated by his orders'.(184)
Similarly, a call out, without more, does not impose active duties to
be immediately performed. It is simply 'a warning order to those parts
of the ADF to which it was communicated to be ready for duty for the purpose
specified'.(185) In order to be used, there must be a 'requisition
of civil authority', that is a written authorisation from the Minister,
Chief of Police, etc.
Once called out, military personnel stand in the same
position as ordinary citizens. Thus, while they are able to detain offenders
using reasonable force, they have no power to question, stop and search
persons nor do they have powers of arrest. Moreover, they are subject
to investigation in the ordinary court system.(186) At the
same time, personnel may be obliged, in accordance with orders, to place
themselves in danger and may be able to claim a defence based on
a reasonable belief that those orders were lawful.(187)
Under the Defence Act 1903, ADF personnel may
use 'such force against persons and things as is reasonable and necessary
in the circumstances' but may not 'do anything that is likely to cause
the death of, or grievous bodily harm to, the person' unless it is reasonably
necessary 'to protect the life of, or to prevent serious injury to, another
person' (para 51T(2)(a)). Nor may they subject a person 'to greater indignity
than is reasonable and necessary' (para 51T(2)(b)).
As far as practicable, ADF personnel must cooperate with
State/Territory police and, while command ultimately remains with the
ADF, ADF personnel must not be utilised for specific tasks unless responding
to a written request from the police force (s. 51F). The ADF 'is
there to assist civilian authorities such as the police force, and not
[to] replace them'.(188) Also, ADF cannot be used to stop or
restrict any protest, dissent, assembly or industrial action unless there
is a likelihood of death, serious injury or serious property damage (s. 51G(a)).
Document 9 Crisis Management Issues and Structure
Command and control of a terrorist threat or incident
is a critical function that demands a unified framework for the preparation
and execution of plans and orders. Emergency response organisations at
all levels of government may manage command and control activities differently
depending on the organisation's history, the complexity of the crisis,
and their capabilities and resources. Management of Federal, State and
local government response actions should reflect an inherent flexibility
in order to effectively address the entire spectrum of capabilities and
resources across Australia. The challenge for emergency response agencies
is to integrate the different types of management systems and approaches
utilised by all levels of government into a comprehensive and unified
response to meet the unique needs and requirements of each incident.
There is a large body of literature dealing with crisis
management. While there may be significant intersections between this
literature and literature on terrorism preparedness, most if not all of
the discussion does not focus on legal issues. However, for completeness,
the following brief overview is given of the key institutional
arrangements in Australia.
- The National Security Committee
The National
Security Committee is a cabinet sub-committee, which meets on an irregular
and ad-hoc basis. The Committee consists of the Prime Minister (Chairperson),
the Deputy Prime Minister, the Treasurer, the Minister for Foreign Affairs,
the Minister for Defence and the Attorney-General. Other Ministers are
seconded to the Committee when specific issues relevant to their portfolios
are being addressed.
The National Security Committee is at the head of the
decision making tree on national security. It meets when necessary to
consider strategic developments and major issues of medium to long term
relevance to Australia's national security interests.
In 1978, following the Hilton bombing, the then Prime
Minister, Malcolm Fraser, announced the establishment of a committee which
would include both Commonwealth and State agencies, whose principal aim
would be to achieve a set of national arrangements and agreements to respond
to threats or acts of politically motivated violence. The Standing Advisory
Committee on Commonwealth/State Cooperation for Protection Against Violence
(SAC-PAV) held its first meeting in February 1979.
The Director of the Protective Security Coordination
Centre (PSCC) of the Commonwealth Attorney-General's Department serves
as Executive Deputy Chairman to SAC-PAV.
SAC-PAV
is comprised of representatives from both the Commonwealth and the States.
Representatives from the Commonwealth include the Departments of the Attorney-General,
the Prime Minister and Cabinet, Transport and Regional Services, Australian
Federal Police, Australian Defence Force, Australian Security Intelligence
Organisation and the Australian Protective Service. The Department of
Finance and Administration attends in the capacity of an adviser. State/Territory
representatives include officials from Premier's and Chief Minister's
Departments and the Police Services. The Department of Foreign Affairs
and Trade, the New Zealand Department of the Prime Minister and Cabinet
and the New Zealand Police have observer status.
SAC-PAV is based upon national cooperation and it has
established nation-wide capabilities in such areas as crisis management,
command and control, intelligence, investigation, bomb response, technical
support, bomb scene examination, negotiation, VIP protection, police tactical
response and media cooperation.
SAC-PAV aims to ensure that Australia has a nation-wide
counter terrorism capability by fostering cooperation between all relevant
agencies in the Commonwealth and the State Governments.
The Protective Security Coordination Centre (PSCC) is
a Division of the Commonwealth Attorney-General's Department. The PSCC
was established in 1976 to ensure security arrangements for holders of
high office are appropriately coordinated between the Commonwealth and
States. In 1977, the PSCC was also given responsibility for coordinating
counter terrorism planning. In addition, in 1992 the PSCC was given responsibility
for coordinating and managing protection arrangements for foreign diplomatic
and consular personnel and premises.
Today the PSCC
performs the following functions:
- supports both the Attorney-General and the Minister for Justice and
Customs by providing policy advice on protective security. It also implements
Government decisions in the field of protective security
- develops and maintains national standards, and coordinates and managing
the implementation of these standards
- provides executive and secretariat support for the Special Inter-Departmental
Committee on Protection Against Violence (SIDC-PAV). This Committee
is made up of representatives from Commonwealth Agencies and meets every
month to exchange information, consider policy issues on counter terrorism
and dignitary protection, to consider the threat from politically motivated
violence and to determine the level of national counter terrorism alert
in Australia
- provides executive and secretariat support for the Standing Advisory
Committee on Commonwealth State Cooperation for Protection Against Violence
(SAC-PAV). This includes coordinating the SAC-PAV equipment procurement,
training and exercise programs and maintaining the National Anti-Terrorist
Plan. The Director of the PSCC is the Executive Deputy Chair of SAC-PAV
- on behalf of the SAC-PAV, coordinates training exercises and courses
annually
- the PSCC maintains a dedicated crisis management facility known as
the Watch Office. The Watch Office is activated in response to significant
incidents or threats of politically motivated violence, or during periods
of heightened alert, to monitor and coordinate the Commonwealth response.
When activated, the Watch Office maintains a close liaison with all
appropriate Commonwealth, State and Territory agencies involved in responding
to the threat or incident
- the PSCC is responsible for developing protective security policy.
The PSCC provides policy advice to the Government on protective security
issues and is responsible for producing government standards and guidelines
to help Commonwealth agencies to create and foster a secure environment
- the PSCC provides an advisory service to Agency Security Advisers
(ASAs) and Information Technology Security Advisers (ITSAs) on issues
relating to protective security policy and practices. Regular ASA/ITSA
Forums are held on a quarterly basis in order to highlight issues of
interest
- the PSCC also chairs and provides secretariat and research services
for the Protective Security Policy Committee (PSPC), an interdepartmental
committee which coordinates the development of Government security policy
- the PSCC is responsible for the provision of protective security training,
including physical, computer and personnel security, for personnel in
Commonwealth agencies and
- the PSCC is also responsible for the Australian Security Vetting Service
(ASVS). The ASVS is a security clearance advisory service available
for use by all Commonwealth agencies on a fee for service basis.
Document
10 General Commonwealth Offences
- Offences Against Commonwealth Property
Under the Public Order (Protection of Persons and
Property) Act 1971 it is an offence to trespass, commit an act of
violence or property damage or cause an unreasonable obstruction on Commonwealth
premises (ss. 6-12). The Act provides for similar offences in relation
to diplomatic and consular premises and their staff (ss. 15-20).
Commonwealth law dealing with computer crime is largely
a result of reviews by the Gibbs Committee in 1988(189) and
the Model Criminal Code Officers Committee in 2001.(190) While
the Commonwealth has no direct constitutional power over computer crime,
it may legislate with respect to Commonwealth facilities, property or
activities and with respect to 'postal, telegraphic, telephonic, and other
like services'. It may therefore deal with federal computers, data and
networks and other public and private computer networks.
The Criminal Code (Cth) deals with a range of
computer crimes such as hacking, denial of service attacks, spreading
computer viruses and website vandalism. It is an offence to access or
modify data in a computer or impair electronic communications between
computers without authorisation and with the intention to commit a 'serious
offence' (s. 477.1). Access, modification or impairment must be caused
'by means of a telecommunications service' which is defined broadly to
include any form of electronic communication. (A 'serious offence' is
one that is subject to 5 or more years imprisonment.) It is an offence
to modify data so as to impair a computer system (where it involves federal
computers or data or a telecommunications services) (s. 477.2) or
to impair an electronic communication (s. 477.3).
However, ASIS and DSD officers are not subject to any
civil or criminal liability for 'computer related acts' if done in the
proper performance of the agency's functions (s. 476.5).
- Postal and Telecommunications Services
Under the Crimes Act 1914 it is an offence to
intentionally send an article by post which consists of, encloses or contains
a 'totally prohibited substance or thing' (s. 85X). This includes
explosives and a range of 'dangerous or deleterious substances or things'
listed in regulations, including toxic gases, substances likely to cause
harm if swallowed, inhaled or exposed to skin and those containing pathogens
that can cause human or animal disease.(191)
It is also an offence to interfere with telecommunications
carriage services (s. 85ZG) or carrier facilities (s. 85ZJ)
or to use equipment for unlawful purposes (s. 85ZK).
The Crimes (Hostages) Act 1989 essentially implements
the International Convention Against the Taking of Hostages of
1979. It is an offence to seize or detain another person and threaten
to kill, injure or continue to detain that hostage with the intention
of compelling a domestic or international government institution or organisation
to do or abstain from doing any act as a condition for release (ss. 7
& 8). The Act applies to offences committed in Australia, on board
Australian ships or aircraft or by Australians (s. 8). Proceedings
may not commence unless the Attorney-General has given his or her consent.
Pending this, a person may be arrested, charged or remanded in custody
or on bail (s. 10).
- Internationally Protected Persons
The Crimes (Internationally Protected Persons) Act
1976 implements the Convention on the Prevention and Punishment
of Crimes against Internationally Protected Persons, including Diplomatic
Agents of 1973. It is an offence to murder, kidnap or cause bodily
harm to or to intentionally destroy or damage premises or property used
or occupied by an 'internationally protected person' (s. 8). 'Internationally
protected persons' include heads of state, heads of government, prescribed
officials or representatives of countries, international organisations,
overseas missions and their family members (s. 3A). Proceedings may
not commence unless the Attorney-General has given his or her consent.
Pending this, a person may be arrested, charged or remanded in custody
or on bail (s. 12).
Under the Public Order (Protection of Persons and
Property) Act 1971 it is an offence to assault, harass, obstruct or
behave offensively, threateningly or insultingly to diplomatic staff,
staff of special missions, prescribed staff of an overseas mission, or
a high officer or representative of an international organisation (s. 18).
It is an offence to take part in a violent assembly (s. 15), to trespass
or unreasonably cause an obstruction (s. 20) or to carry, discharge,
throw or deposit an offensive weapon or object (s. 19) in relation
to protected premises.
Legislation dealing with aviation security and aviation
terrorist-related matters can be divided into two groups. The first is
the Crimes (Aviation) Act 1991. This Act implements Australia's
obligations under a number of international conventions that cover specific
types of violent or dangerous acts directed against international civil
aircraft, their passengers and crew and civil airports and airport installations.
The second group, covering aviation safety, consists of the Air Navigation
Act 1920 and Regulations.
Under the Crimes (Aviation) Act 1991 it is an
offence to hijack an aircraft in flight (s. 13) or to commit an act
of criminal violence against passengers or crew (s. 15), where a
relevant jurisdictional connection is established with the aircraft, the
flight or the incident.(192) It is an offence to do any ordinarily
criminal act aboard a 'division 2 aircraft' (s. 15). Moreover, it
is an offence to exercise control over (s. 16), destroy (s. 17)
or prejudice the safe operation (s. 19), assault the crew (s. 21),
or endanger the safety of (s. 22), or place dangerous goods on (s. 23)
a 'division 3 aircraft'. 'Division 2 ai | 
