Chapter 3 - Key issues
3.1
The vast majority of submissions and witnesses opposed
most aspects of the Bill, in particular the
proposed amendments to Division 102 of
the Criminal Code. Only one submission supported the Bill
in its entirety.[14] This chapter
discusses the key issues raised in the course of the Committee's inquiry.
Schedule 1 Foreign travel documents
3.2
Of the submissions concerning the proposed amendments
to the Passports Act in Schedule 1 of the Bill,
opinion was divided between the supportersthe Department of Foreign Affairs
and Trade (DFAT) and the Attorney-General's Departmentand the
detractorsrepresented by the balance of submissions received.
3.3
DFAT expressed confidence in the appropriateness of the
proposals and made the following observations:
-
the surrender powers for foreign travel
documents paralleled those introduced in 1979 for Australian passports
specifically to combat terrorism;
-
the proposals would prevent an individual with a
cancelled Australian passport from leaving Australia on a foreign passport;
-
the Australian Federal Police (AFP) and ASIO
were expected to be the 'competent authorities' under the Bill;
-
the Minister's power to list, by disallowable
instrument, conduct which might constitute an indictable offence against
Commonwealth law would allow for the inclusion of conduct which might not
otherwise qualify under the general provisions;
-
the administrative review regime for the new
provisions had worked well under existing provisions;
-
the increased penalties would constitute 'a greater
deterrence factor' and were consistent with existing legislation regarding the
use of false identity and citizenship documents.[15]
3.4
In contrast to DFAT's views, submissions from the
Castan Centre for Human Rights Law (Castan Centre), the Public Interest Advocacy
Centre (PIAC) and the Human Rights and Equal Opportunity Commission (HROEC)
identified what were described as quite serious shortcomings with key elements
of the Bill relating to:
-
whether there was a need for a power to
confiscate a person's foreign travel documents;
-
the matters on which the Minister's power to
issue an enforcement order were founded;
-
penalties, offences and the availability and
scope of the 'reasonable excuse' defence; and
-
the opportunities for administrative review and
review generally.
3.5
In its submission, the Attorney-General's Department
responded to a number of criticisms about the Bill.
3.6
The Committee will now discuss the new provisions
taking into account concerns raised in submissions and the Attorney-General's
Department's responses.
The need for a confiscation power
3.7
PIAC was concerned that the Bill
went further than was required to achieve its objectives. The PIAC questioned
why a confiscation power would be needed if an arrest warrant had been issued
either in Australia
or by a foreign country with which Australia
had an extradition treaty. In the first case, the PIAC argued that the arrest
itself would prevent a person from leaving Australia.
In the second case, the PIAC's view was that 'the effect of arresting someone
would be to prevent them from leaving Australia
until formal extradition is arranged.'[16]
3.8
Where no extradition treaty existed, the PIAC
considered it would be inconsistent with the principles of natural justice and
the separation of powers doctrine to empower a member of the executive to make
an order for the person's arrest or the surrender of documents.[17] The PIAC raised similar concerns about
proposed section 15. This section bases the confiscation power on a competent
authority's suspicion on reasonable grounds that a person is likely to engage
in conduct that might endanger Australia's security and so on if the person's
foreign travel documents are not surrendered.[18]
3.9
The Attorney-General's Department disputed the PIAC's
claims that a confiscation order would be unnecessary where an arrest warrant
had been issued. On this point, the Department said:
an 'enforcement officer' may demand the surrender of a person's
foreign passport where that person is the subject of an arrest warrant. The
'enforcement officer' may not have authority to make an arrest in the
circumstances. Accordingly, the enforcement officer must have the power to
seize the passport to prevent the person from leaving Australia.[19]
3.10
The Attorney-General's Department appeared not to share
the PIAC's broader concerns that the Minister's powers to issue confiscation
orders were inconsistent with the doctrine of the separation of powers and
commented that:
The circumstances and process for ordering the seizure of a
person's foreign passport are comparable with those for cancelling and not
issuing an Australian passport under the Passports Act.[20]
Matters underpinning the Minister's
power
3.11
HREOC argued that new sections 13, 14 and 15 under
which a competent authority will be able to ask the Minister for a confiscation
order, potentially infringed article 12 of the International Covenant on Civil and Political Rights (ICCPR)
regarding freedom of movement. In HREOC's view, the proposals went beyond the
minimum means to achieve the Bill's objectives
and, as such, failed to comply with the ICCPR.
3.12
Using proposed section 14 to highlight this point, HREOC
contended that the executive's power to make an order should not be predicated
on the existence of an arrest warrant issued by a foreign court without any
consideration of the reasons for, or the circumstances surrounding, the issue
of that arrest warrant. In this regard, HREOC argued that the individual
concerned should be permitted to make submissions before seizure was ordered.
3.13
HREOC saw a definite need for protections in the Bill:
to ensure that foreign arrest warrants or foreign court orders
preventing a person travelling internationally are not prima facie a sufficient
basis for ordering the surrender of a person's travel documents.[21]
3.14
In a similar vein, the Castan Centre proposed that
section 14 should only provide for confiscation of a foreign passport where a
foreign arrest warrant, court order, bail, or parole condition related to a
matter which would be a serious offence under Australian law. The Castan Centre
argued that the existing section should take into account that foreign
countries could have 'unjust legal systems and unreasonable laws' which opened
up scope for abuse.[22]
3.15
On this point, the Attorney-General's Department
disagreed and responded that:
The amendments include appropriate safeguards and limitations to
ensure the powers are used appropriately. For example, it would not be feasible
for a foreign government to compel Australian authorities to order the
surrender of a passport because the independent decision about the passport is
reviewable. The amendments specify the circumstances where a competent
authority can apply for an order. These safeguards complement existing
safeguards in other legislation. Under the Australian
Security Intelligence Organisation Act 1979 (ASIO Act), if an order is made
on the basis of advice of an adverse ASIO assessment, that person must be given
a copy of the assessment (section 38). The person may also apply to the
Administrative Appeals Tribunal for a review of ASIO's security assessment
(ASIO Act, section 54). In addition, new subsection 23(1) provides for appeals
against decisions under section 16 to order the surrender of a foreign
passport.[23]
Offences and the availability and
scope of the 'reasonable excuse' defence
3.16
HREOC argued that the offences in proposed sections 21
and 22 were in potential conflict with article 31 of the Convention Relating to the Status of Refugees, 1951 (1951
Convention) which states that:
States shall not impose penalties, on account of their illegal
entry or presence, on refugees whoenter or are present in their territory
without authorisation, provided they present themselves without delay to the
authorities and show good cause for their illegal entry or presence.[24]
3.17
HREOC noted that the drafters of the 1951 Convention
envisaged that a refugee fleeing his country of origin would rarely be able to
meet the requirements for legal entry into a country of refuge.
3.18
HREOC's view, if sections 21 and 22 applied to refugees
or asylum seekers 'who present themselves without delay to the authorities and
show good cause for their illegal entry or presence', this would be
inconsistent with the 1951 Convention. Furthermore, HREOC considered that the
defence of 'reasonable excuse' should be clearly defined in the Passports Act
and expressly include refugees and asylum seekers. HREOC proposed a definition
having 'an inclusive example such that a "reasonable excuse" would
include being a refugee or asylum seeker with a well-founded fear of
persecution'.
3.19
The Castan Centre echoed these sentiments in its
proposal that the 'reasonable excuse' defence, to ensure Australia's compliance
with its international obligations, should expressly apply to a person who
believed that his or her safety or wellbeing or that of his or her family
depended upon the use or possession of the false or cancelled foreign travel
documents.[25]
3.20
HREOC saw a need for the wider application of the
'reasonable excuse' defence for offences proposed in sections 18, 19 and 20 to
ensure consistency with article 31 of the 1951 Convention insofar as refugees
were concerned. It proposed that the amendments should include 'appropriately
worded defences' to the offences in sections 18, 19 and 20 to take into account
the special circumstances of refugees and asylum seekers. The following excerpt
from HREOC's evidence gives some insight into what these circumstances would
be:
The Commission submits that it is important to recognise that
people seeking asylum may be affected by various factors including culture,
language and interpretation, trauma and fear of authority figures. The United
Nations High Commissioner for Refugees has noted that refugees may distort or
conceal part of their stories out of fear for the safety of persons remaining
in their country of origin, out of fear of the authority figures questioning
them, or, and especially in the case of persons who have suffered sexual
violence, out of shame in respect of their past experiences. Women may also be
reluctant to discuss domestic violence. Such distortion or concealment may lead
to the impression that refugees are lying to or misleading authorities. Women
may also fail to corroborate claims by male relatives, leading to an adverse
assessment of credibility, when in fact such failure may be the result of information
not having been shared with them. Issues relating to language and
interpretation also have the potential to lead to misunderstandings. (UNHCR
Training Module RLD4: Interviewing Applicants for Refugee Status, 1995).[26]
3.21
The Bill's proposals to
increase the penalties for foreign passport offences attracted criticism from
the Castan Centre. The Castan Centre disagreed with claims in the Explanatory
Memorandum to the Bill that the penalties were consistent with those in related
legislation and argued that the new offences involved were 'far broader' and,
for example, applied to possession, without reasonable excuse of a false
foreign passport or a foreign passport issued to another.
3.22
Furthermore, claims in the Explanatory Memorandum that
higher penalties would deter identity document fraud were dismissed by the
Castan Centre as mere assertions. It considered this an insufficient basis on
which to increase penalties.[27]
3.23
The Attorney-General's Department disagreed:
The penalties for the new offences reflect the seriousness of
those offences. They have been set at a level that will help deter identity
document fraud, which has been identified as a serious national and
international problem. The penalties are also consistent with penalties for
like offences under other Commonwealth legislation, including offences in the Passports Act 1938 (Passports Act)
relating to Australian passports, as well as existing offences in the Criminal Code Act 1995 and the Migration Act 1958.[28]
Scope for review of orders
3.24
PIAC considered that a demand made under proposed
section 16 for the surrender of a person's foreign travel documents should be
accompanied by details of any arrest warrant or court order pursuant to which
the demand is based. The Castan Centre considered that individuals against whom
a confiscation order was made, should be provided with these details in the
event that they might wish to mount a challenge.[29]
3.25
PIAC argued that the limitations proposed by subsection
23(4) on the Administrative Appeals Tribunal's powers of review should be
removed, and a person against whom an order was made should be given a copy of
an adverse ASIO assessment if this was the basis for the order.[30]
3.26
The Attorney-General's Department's response to this
was that:
The amendments provide that a person can apply to the
Administrative Appeals Tribunal for review of a decision by the Minister to
order the surrender of foreign travel documents. The Minister will be able to
certify that a decision made in response to a request relating to potential for
harmful conduct involves matters of international relations or criminal
intelligence. Only where the Minister has certified that a decision involves
matters of international relations will provide the Tribunal be restricted to
affirming the decision or remitting it to the Minister for consideration. This
is both appropriate and consistent with the regime for review of decisions not
to issue or to cancel an Australian travel document.[31]
3.27
HREOC considered that the scope for review by the
Administrative Appeals Tribunal under proposed section 23 was too limited. It
proposed that the Minister's orders should be judicially reviewable under the Administrative Decisions (Judicial Review)
Act 1977 and that the limitation proposed in subsection 23(3) should be
removed.
The Commission submitted also that the Bill
should require a Ministerial review of the competent authority's retention of
confiscated documents at, say, three-monthly intervals.[32]
Miscellaneous
3.28
PIAC proposed amendments to paragraphs (iv) and (v) of
subsection 15(1) so that the conduct under suspicion 'would'rather than
'might'constitute an indictable offence against the Act or against a law of
the Commonwealth.
3.29
PIAC noted that the definitions of 'competent
authority' in the Bill were slightly different
in proposed sections 13, 14 and 15. It suggested that the Committee should
investigate the intended scope and coverage of the definitions and whether
particular agencies such as the AFP should be specified.[33]
3.30
The response of the Attorney-General's Department to
these proposals was:
The definition of 'competent authority' in the Bill
is limited to ensure suitable authorities are authorised to make requests. Only
an approved representative, an agency or an employee of the Australian
Government of a class specified in a Minister's determination can be a
competent authority.[34]
The Committee's views
3.31
The Committee is satisfied, on the basis of evidence
before it, that there is a need for amendments to the Passports Act to ensure
that, in certain circumstances relating to Australia's
national security, a person cannot use foreign travel documents for overseas
travel if that person's Australian passport has been cancelled.
3.32
The Committee notes the concerns of HREOC that
individuals cannot challenge confiscation orders before their issue
particularly where they are predicated on the existence of foreign country
documents. While the Committee appreciates these concerns, it envisages that
matters relating to national security can require urgent responses that would
preclude pre-confiscation order challenges.
3.33
In the circumstances, the Committee believes that any
potential for harm will be adequately dealt with by the administrative review
provisions.
3.34
Having said this, the Committee is concerned that the
'reasonable excuse' defence does not apply to offences created by sections 18,
19 and 20 and specifically notes the points made in this regard by HREOC.
Recommendation 1
3.35
The Committee recommends that the Commonwealth
Government review Schedule 1 of the Bill, with a
view to determining whether a defence for 'reasonable excuse' should be
included in proposed sections 18, 19 and 20, and report to the Parliament.
Schedule 2 Persons in relation to whom ASIO questioning warrants are
being sought
3.36
Schedule 2 of the Bill seeks to amend the ASIO Act to
provide that if the Director-General of ASIO asks the Attorney-General to
consent to request an issuing authority to issue a questioning warrant, the
person who is the subject of that request may be required to provide their
passport to an enforcement officer.[35]
In such circumstances, if the person has been informed of the effect of
proposed subsection 34JBB(1) and fails to supply their passport they face a
possible penalty of 5 years imprisonment.[36]
Background to the provisions
3.37
At the hearing a representative of ASIO argued that the
provisions of schedule 2 were needed to provide for circumstances where a
person was to be the subject of an application for a warrant, but intended to
flee the country:
this provision is designed
to deal with the situation where ASIO receives information which leads the
Director-General to conclude that a request should be made for the issuing of a
questioning warrant but then receives information before the warrant can be
issued that someone with vital information about a terrorist offence is set on
fleeing the country in a hurry. In that circumstance, we consider that it is
very important that the director-general should be able to trigger the tool
required to prevent the person leaving the country for enough time as is needed
to get the warrant up, which would be a very short space of time given the
request that would have to be made to the Attorney for him to consent to the
issuing of the warrant.[37]
3.38
This part of the Bill
attracted criticism from several submissions and witnesses. Those opposed to Schedule
2 argued that it would:
-
allow a person to have their passport taken away
without judicial or even Ministerial review and would undermine the current
protections regarding the issuing of ASIO warrants; and
-
infringe on a person's right to freedom of
movement.
Accountability measures
3.39
PIAC argued that the Bill
would require a person to surrender their travel documentation on the basis of
a request to the Minister, which means that the matter has not had Ministerial
or judicial scrutiny:
The role of ASIO is to
gather intelligence, not to have unconstrained powers to prevent a persons
freedom of movement, including leaving Australia. If a warrant for arrest exists then it is
consistent with the law that that person will be taken into custody for
questioning by the Australian Federal Police or ASIO. However, it is not
acceptable that the mere request to
the Minister for approval to seek the
issue of a warrant empowers the violation of the right to freedom of movement.[38]
3.40
The
Castan Centre also argued that, if enacted, Schedule 2 would undermine current
safeguards that exist for the issuing of an ASIO warrant.[39] At the hearing Mr Patrick Emerton from the Castan Centre explained:
In my submission I give
a list of things that have to happen before a warrant can be issued. You have
to give information about previous warrants; you have to give information about
times of detention and you have to be satisfied on reasonable grounds that the
person can provide the intelligence. The issuing authority as well as the
minister has to be satisfied of those matters and so on. If the schedule 2
amendments were passed all those issues would be circumvented in relation to
confiscating a passport. All that the Director-General of intelligence has to
do to activate those provisions is to write a request to the minister for the
issuing of a warrant. The issuing of the request is the first step in the
process so it is not subject to any of the safeguards. So that could be done
and then the passport would have to be forfeited, even if the matter
werefrivolous seems the wrong word. If there were no genuine intention to
detain and interrogate the person but, for example, ASIO wanted to keep them
under surveillance and therefore wanted to have their things confiscated so
that it could keep them under surveillance, even though it had no grounds for
thinking that a warrant would be issued.[40]
3.41
In the
hearing a representative of ASIO explained that in seeking the
Attorney-General's consent to the issuing of a warrant they must be satisfied
that the statutory criteria in section 34C of the ASIO Act have been met:
The important point
that has to be made is that the Director-General can only request the
Ministers consent to the issuing of a warrant if satisfied that the statutory
criteria in section 34C of the act have been metthat is, that there are
reasonable grounds for believing that issuing the warrant to be requested will
substantially assist the collection of intelligence that is important in
relation to a terrorism offence. He must have formed that state of
satisfaction to have made the request and that relying on other methods of
collecting that intelligence would be ineffectivethat is, it is a measure of
last resort. He would have to have that state of mind. In no circumstance could
the Director-General request the Ministers consent to the issuing of a warrant
and then, based on the fact of the person then surrendering his or her
passport, consider that the warrant is no longer required.[41]
3.42
The
Attorney-General's Department also argued that there is sufficient oversight
and accountability to ensure that the provisions would not be abused:
to ensure the conduct
of ASIO is appropriate in this and other aspects of its operations, there are a
range of significant accountability mechanisms and other safeguards designed to
avoid abuses of power. These include internal evaluations, audit and fraud
control measures. In addition, ASIO is subject to considerable external
scrutiny, including oversight by the Attorney-General, the Inspector-General of
Security and Intelligence (IGIS), and a Joint Committee on ASIO, ASIS and DSD.
All ASIO operational activity must also comply with the Attorney-Generals Guidelines for the Collection of Intelligence, which requires the use of methods
commensurate with the assessed risk. ASIO is also subject to judicial and
administrative review of its decisions.[42]
Restriction on the right to freedom
of movement
3.43
The Castan Centre also voiced concern over the impact
that Schedule 2 of the Bill would have on
freedom of movement, and the possibility that the Director-General could make
serial requests to prevent a person leaving the country on an ongoing basis:
It subjects individuals
to the risk of arbitrary interference with their right to freedom of movement,
a right which Australia is bound
to protect, pursuant to article 12 of the International Covenant on Civil and Political Rights. Furthermore, it is open to significant
abuse, including the issuing by the Director-General of serial requests to the
Minister where there is no reasonable basis for supposing that the request will
be consented to, or that an issuing authority will issue the warrant requested,
simply for the purposes of invoking these provisions.[43]
3.44
A representative of ASIO addressed the issue of serial
requests, and explained that in addition to the Director-General being required
to satisfy the elements of section 34C of the ASIO Act as described above,
additional requests could only arise where new or additional information has
arisen:
it would only be
where additional information has been obtained that the Director-General could
consider making a further request for the issuing of a warrant. In the absence
of any further information, it is just not conceivable that a further request
would be made, particularly given that oversight that has been mentioned.[44]
3.45
The Attorney-General's Department also addressed this
issue in a submission to the Committee following the hearing:
Where the
Director-General makes a request to the Attorney-General, the persons
passports can only be retained until the Attorney-General refuses consent to
apply for a questioning warrant, an issuing authority refuses to issue a
questioning warrant, or, if a questioning warrant is issued, until the time
specified in the warrant ends. Once the Director-General commences the process
for obtaining a questioning warrant, the process is conducted as expeditiously
as possible for operational reasons.[45]
The Committee's view
3.46
Whilst the Committee appreciates the serious
implications that are involved in restricting a person's right to freedom of
movement, the Committee is of the view that there may be circumstances where in
an emergency it is necessary to prevent a party from leaving the country before
it has been possible to obtain a warrant.
3.47
The Committee notes the point made by ASIO that where
the Director-General would seek the consent of the Attorney-General to issue a
warrant, the Director-General would have to be satisfied that the criteria of
section 34C of the ASIO Act had been met.
3.48
The Committee also notes the comments of the
Attorney-General's Department that the provisions of Schedule 2 would provide
that a person's passport can only be held until the Attorney-General refuses
consent to apply for a questioning warrant, an issuing authority refuses to
issue a questioning warrant, or if a warrant is issued, until the time
specified in the warrant ends.
3.49
The Committee recommends that Schedule 2 of the Bill
proceed.
Recommendation 2
3.50
The Committee recommends that Schedule 2 of the Bill
proceed.
Schedule 3 Associating with terrorist organisations
3.51
Most of the evidence received by the Committee was in
relation to the proposed amendments to Division 102 of the Criminal Code. Serious
concerns and strong opposition were expressed by all those who commented on the
proposed 'Association with a Terrorist Organisation' offence, excluding the
AFP. Some of the issues raised were:
-
concerns relating to the breadth of the offence;
-
the narrowness of the exceptions to the offence
which may adversely impact on family, religious and community life,
particularly for the Muslim community; and
-
the potential threat to other legitimate
activities, including legal and other professional assistance and the freedom
of political association.
3.52
These issues are discussed further below.
The breadth of the offence
3.53
The Committee received evidence objecting to the
broad and uncertain scope of the proposed offence. For example, the Castan
Centre argued that the offence 'significantly widens the scope of criminal
liability under a regime of criminal law that is already too broad in its
application'[46] by further expanding
the scope of existing 'guilt by association' offences.[47] Dr
Waleed
Kadous of the Australian Muslim Civil Rights
Advocacy Network (AMCRAN) told the Committee that:
Ironically, the breadth
of the association crime is matched only by the narrowness of the defences
which are, by and large, very strictly defined.[48]
3.54
The Castan Centre also argued that, putting
aside concerns about the scope of 'terrorism' in Australian law, the offence
does not require any intention that the 'association' support the relevant
organisation in the pursuit of criminal activity.[49] Arguably, therefore, the purported
purpose of Schedule 3 to 'suffocate those organisations by making recruitment
more difficult'[50] is frustrated:
It is important to
emphasise that proposed section 102.8 would not target terrorist violence,
nor terrorists (who, under Australian law, need not be violent, but merely
creators of risks to public health or safety), nor terrorist organisations
(which under Australian law, need not be directly engaged in terrorist acts)
The section would target those who associate with members, leaders or promoters
of banned organisations regardless of their views about, and their support
for or opposition to, political violence, terrorism or the violent or terrorist
activities of any organisation.[51]
3.55
The Law
Council of Australia held a similar view:
The offence would be
constituted wherever a person intended the association to support an
organisation to expand or exist. But the association does not necessarily need
to relate to a specific act of terrorism or any other criminal act for that
matter.[52]
3.56
In
addition to objections to the offence on the grounds of its breadth, the
Committee received evidence relating to potential problems with definitions in
Schedule 3. For instance, Mr Patrick Emerton from the Castan Centre argued that the offence is poorly defined:
Under division 102 of
the Criminal Code member is defined to include an informal member, whatever
that is, and a person who has taken steps to become a member of an
organisation. The vagueness of the concepts member, informal member and
the taking of steps to become a member make it extremely difficult for an
individual to know whether or not he or she is committing an offence. One
possible consequence of this vagueness could be a general undermining of the
community among Muslim Australians. If the bill is passed it is probably more
likely that Muslims will go about their business as usual but the vagueness of
the offence would then be used as the basis for selective arrests and for
prosecution of selected individuals which would be a further example of the arbitrary
character of the offence.[53]
3.57
Mr Emerton also noted that the word 'communicates' in Schedule 3 is not defined.
This could be problematic:
One example which was
offered in a second reading speech by the member for Kooyong raised the
possibility that publication in a newspaper of a letter of support could be
construed as communication with an individual. In addition to that possibility
one wonders about posting a reply, for example, on a public Internet message
board where replies are public but hang in response to another posted message.
So there is the general question of when a public message of sympathy or
solidarity becomes communication and therefore criminal communication with
another person.[54]
3.58
PIAC
also noted some definitional difficulties with the word 'associate', arguing
that the definition is too broad.[55]
3.59
HREOC
articulated concerns with the width of the term 'assist' and the range of
activities that may fall within it. HREOC's key submission was that the term
must be defined with sufficient detail in order to conform to the principle of
proportionality:
The Commission submits
that in order to conform with the principle of proportionality the offence must be defined with
precision in order to identify the nature and extent of the risk that the offence
is intended to address. The Commission submits that the
term could be defined with reference to particular examples. In the United States, for example, the legislation
lists specific examples including, the provision of financial services,
weapons, expert advice, safe houses, false documentation, or personnel.[56]
3.60
HREOC continued:
The Commission,
however, notes with concern that it appears to be the very intention of the
amendment that the term assist be wide ranging. It is stated in the
Explanatory Memorandum that the amendment is by necessity wideranging in terms
of the types of activities or persons who might be subject to it. The
Commission questions the necessity for such a wide ranging provision. This is
particularly the case when a range of activities that could fall within its scope
are already proscribed under the Criminal Code.[57]
3.61
Dr Waleed Kadous for AMCRAN argued that:
the definitions used
in the legislation should be tightened and refined to provide clarity. In
particular, the amendments should clearly define the notions of promotion, the
concept of support and the concepts of humanitarian aid and they should further
clarify the original 2002 bill with regard to the definition of 'membership'.[58]
3.62
The AFP
expressed support for wide definition of the term 'assists' since a specific
definition:
would allow terrorist
organisations to rearrange the way that they garner assistance from outside
their organisation. Any specific definition of 'assists' could have the effect
that terrorists and their associates may avoid legal consequence while
continuing to receive assistance from outside a listed terrorist organisation.[59]
3.63
The
Attorney-General's Department informed the Committee that the term 'assist'
has:
... an ordinary meaning
capable of being understood by the community. The primary meaning is to
provide help to the organisation.[60]
3.64
In
relation to the term 'support', the Department stated that:
The concept of
support is taken from existing terrorism offences at section 102.7 of the
Criminal Code (Providing Support to a Terrorist Organisation). While it has not
been defined in this offence, or for the purposes of section 102.7, it is not
vague. It has an ordinary meaning capable of being understood by the community.
The primary meaning here is to lend assistance and countenance; to back up
(see Macquarie Dictionary, 3rd Edition, p.2126).
Support has an ordinary meaning that is well understood in the community. The
meaning of the word is informed by the conduct, in this case communicating or
meeting, and the purpose of the support, in this case assisting a terrorist
organisation to expand or continue to exist.
The word has been used
in legislation before and in each case it has not been defined.[61]
3.65
In evidence at the public hearing, Mr Bret Walker SC, Past
President of the Law Council of Australia and Past President of the New South
Wales Bar Association acknowledged the 'very serious effort to do things
properly'[62] in Schedule 3. However, he
expressed some concern about the terminology used in proposed section 102.8,
along with views relating to possible difficulties in prosecution of the
offence:
The fact is, when we
are talking about the two abstract nouns 'association' and 'support' and we
know that that is not to do with what is well and truly already
criminalisedthat is, actually taking part in the organisation of terrorist
actsthen I think that it casts a wide net. That is cause for concern, but the
concern is as much aimed at the fuzziness of the law in terms of being able to
prosecute and prosecute successfully.
it seems to be that there is a genuine, important social
interest to make sure that we devise laws, particularly for lower order
involvement which might be thought to be more abundant than that of the
kingpins, where the prosecutions succeed and you can get a conviction. The more
fuzziness we have, obviously the more scope there will be for powerful,
legitimate arguments in defence giving the benefit of the doubt to the accused.[63]
3.66
Mr Walker
also questioned the need for the offence in Schedule 3, given that 'real
support'[64] for terrorist organisations
has already been 'well and truly criminalised at the higher level.'[65] He argued that:
Personally, I see merit
in resisting the creation of too many graded steps of criminalising support for
terrorist organisations. Leave that to the sentencing discretion. Some will be
20-year cases and others will be two-year or five-year cases. Let that emerge
from the facts of a particular case rather than, as it were, accidentally start
introducing charges of wildly different seriousness for very similar conduct
expressed in conceptual terms...[66]
3.67
AMCRAN
also argued that existing legislation is sufficient to cover the type of
behaviour that the association offence seeks to prohibit:
existing ancillary
offences such as aiding and abetting, counselling, procuring or facilitating
the commission of an offence under the Criminal
Code are more than sufficient to cover the type
of behaviour that is proposed to be prohibited by the introduction of the
association offence. The government tries to justify the introduction of the
offence by stating that these existing offences are more difficult to prove
because they contain a causal element that is linked to the commission of a
terrorist act, whereas the proposed offence will be much easier to prove. This
justification defies logic. Since the introduction of the terrorism offences
under Part 5.3 of the Criminal Code,
not one person has been charged, successfully or otherwise, with aiding and
abetting, counselling, or procuring the commissions of a terrorist act. Hence
there is no evidence to suggest that the existing ancillary offences are
inadequate in any way such as to justify the introduction of the new
association offence.
3.68
There
was other support for this position. For example, Mr Patrick Emerton from the Castan Centre argued that the examples offered by the AFP in
evidence at the public hearing[67] in
support of the offence 'are in many ways beside the point'[68] because they would already appear to
fall within the scope of section 102.7 of the Criminal Code.[69]
3.69
The
Attorney-General's Department did not agree:
The principal
difference between the proposed offence and section 102.7 Providing Support to
a Terrorist Organisation is the causal link to a terrorist act. The offence
at section 102.7 targets the provision of support or resources that would help
the organisation prepare, plan, assist in or foster the doing of a terrorist act. This feature of the
section 102.7 offence creates a significant burden for the prosecution to bear.
If evidence cannot be
adduced demonstrating a link to such a terrorist act then the offence cannot
be made out. The proposed association offence would target conduct that is more
remote to the planning, preparing, assisting in or fostering the doing of a
terrorist act. For example, the preliminary stages of recruiting a person into
a terrorist organisation, or the lending of public support to a terrorist
organisation in an effort to lend credibility to that organisation. Although
more remote, such conduct can play an important part in the life and growth of
terrorist organisations. In recognition of the fact that the relevant conduct
is more remote, lower maximum penalties of imprisonment for 3 years apply.[70]
3.70
The
Department argued further that existing ancillary offences or state and
territory consorting offences would not provide a prosecutorial avenue in the
association scenarios that are intended to be caught by the new offence. Unlike
some existing offences, the proposed association offence does not require proof
that the support actually assisted the organisation or that the associate is
somehow connected to another person having committed an offence. It is the
intention of the associate that is important in the proposed offence.[71]
3.71
The AFP was the sole supporter of the proposed offence,
arguing that it 'provides an earlier intervention point before any substantive
terrorist offence may have been committed.[72]
The AFP stressed the importance of 'disrupting support networks [which] may
disrupt planning and preparation for terrorist attacks'[73] and supported the view that, since
membership of terrorist organisations is illegal, activity supporting the
existence or expansion of an illegal organisation should also be a crime.[74]
3.72
These arguments were contested by Mr
Patrick Emerton
from the Castan Centre:
In the context of the
proposed offence 'disrupting support networks' seems to me to mean convicting,
in many cases, fundamentally innocent people of an offence that would make them
liable for three years imprisonment. I just note that collective punishment and
also the fighting of crime by disruption of the community to which the alleged
criminals belong are both, so far as I can see, quite contrary to the rule of
the law.[75]
3.73
With respect to making support of the existence of
expansion of an illegal organisation a crime, Mr
Emerton argued that:
That strikes me as
being a non sequitur. It would exclude any attempts to reform an organisation,
to persuade the government to delist it, or simply to express sympathy for the
circumstances in which ones friends or family have found themselves. It seems
to me that a free country does not need this sort of illiberal or even
totalitarian law.[76]
3.74
However, in evidence at the public hearing, Commissioner
Mick Keelty
reiterated the AFP's viewpoint:
Terrorist organisations
rely on support and assistance from outside their membership structures to
exist. Importantly, our experience has shown that their capacity to use modern
and emerging technologies is frightening. The proposed offence will help close
the gap through which listed terrorist organisations use people outside their
membership structure as a means of support and assistance. Many states and
territories have consorting offences that are intended to inhibit organised
crime. The Commonwealth does not have a similar offence which can be applied to
prevent terrorist organisations securing their ongoing support. Without an
appropriate provision, law enforcements capacity to prevent the provision of
support to listed terrorist organisations is limited. The gap allows people to
knowingly assist terrorist organisations without the risk of prosecution.[77]
3.75
Indeed, Commissioner Keelty
argued that the proposed new offence does not go far enough:
I think the reality is
that I do not think this bill goes far enough, to be honest with you. The
reality is that it comes back to inchoate crimes and that it comes back to the
very embryonic stage of a crime being committed. As Mr Ashton said, often at that point the substantive crime is going to be unknown.
It really is taking a shift in our criminal justice system to understand this,
but I have to say that this is the nature of terrorism.[78]
3.76
Commissioner Keelty also emphasised that there are significant
safety nets in place to counter the potential wide ambit of the offence:
There are safety nets
in the sense that we have not got the resources to investigate each and every
person in the community who may be a member of something for an innocent
reason. Hopefully, our resources are being placed at the critical level, based
on intelligence received from the intelligence community and from our own
operations. That is the first safety net.
The second one is that
we are not about to investigate innocent people, the same as applies for any
offence the safety net of police discretion is a strong one I would like
to think that the Commonwealth Director of Public Prosecutions, like me,
operates independently of the government of the day and operates in favour of
the criminal justice system.[79]
3.77
Commissioner Keelty continued:
The next safety net is
the court itselfif the court is not satisfied that the intent is a criminal
intent or that the involvement, the association or the promotion is of a
criminal nature We have to rely on our court, our prosecution and our defence
counsel to elicit the veracity of the evidence that is before them and decide
the issue as a matter of fact and as a matter of law.[80]
Effect of exemptions to the offence
Possible discriminatory application
to the Muslim community
3.78
Many submissions were form letters from members of the
Muslim community, expressing concern that the creation of such an offence depends
upon executive discretion in declaring an organisation to be a 'terrorist
organisation' which may be selectively exercised. This may disproportionately
and unjustly impact on the Muslim community.[81]
This was also a common argument raised in many other submissions. Both the
Attorney-General's Department and the AFP stated that this was emphatically not
the purpose of the Bill, nor of the
anti-terrorism measures of the Commonwealth Government.
3.79
For example, Mr Joo-Cheong
Tham argued that:
The breadth of this
offence also means that broad executive discretion will be conferred in terms
of who is investigated and who is prosecuted. This discretion is laid upon the
significant discretion conferred upon the Attorney-General in terms of which
organisation is prescribed as a terrorist organisation. The danger with such
discretion has always been selective and arbitrary application. There is no good
evidence that this danger has been realised. The parliamentary joint committee
on ASIO, ASIS and DSD, in its review of the listing of Palestinian Islamic
Jihad urged 'a more considered process in the prescription of terrorist
organisations.'
The Parliamentary
Library recently released an excellent research note entitled, The Politics of
Proscription in Australia. Its key thesis is that the proscription
power to date has been exercised on an inconsistent basis.[82]
3.80
In his
supplementary submission, Mr Tham argued further:
there is evidence
that the anti-terrorism laws have been disproportionately applied to Muslim
members of the Australian community. So far, all persons charged with either a
'terrorist act' or a 'terrorist organisation' offence have been Muslim.
Moreover, the overwhelming majority of individuals and organisations proscribed
under the Criminal Code Act and Charter of United Nations Act 1945 Cth) appear
to be Muslim. There is then some reason to suspect that
this proposed offence, if enacted, will be directed at Muslim individuals and
groups. If so, this will undermine a key tenet of the rule of law, equality
before the law. It will also erode the multicultural fabric of Australian
society.[83]
3.81
AMCRAN
expressed similar apprehension:
for whatever reasons,
all proscribed organisations are Muslim organisations, hence, the 'associating
with terrorist organisations' offence at the current time applies to
associating exclusively with Muslims. For these reasons, the impact of this
legislation on the Muslim community must be considered.
The Muslim community
has, as a result of terrorist acts committed by those who claim to be Muslim,
compounded by the anti-terrorism legislation, and the "Be Alert, but not
Alarmed," campaign, suffered unprecedented levels of racism and
discrimination26. One of the main effects of this Bill is
that it will create two further levels of isolation: it will create isolation
between the Muslim community and the wider Australian community, since
non-Muslim Australians will fear, rationally or irrationally, that they may be
talking to a member of a terrorist organisation and will thus shun Muslims, and
likewise within the Muslim community, it will lead to people not wanting to
talk to one another, again, for fear of falling foul of this legislation. This
is at a time when both Muslim and non-Muslim Australians need to work together
closely to prevent terrorism.[84]
3.82
The
Attorney-General's Department rejected these arguments:
Organisations cannot be
listed arbitrarily by the Australian Government. Strict legislative criteria
must be met before an organisation may be listed in regulations as a terrorist
organisation.[85]
3.83
The Law
Council of Australia agreed that Schedule 3 of the Bill has 'the potential to operate harshly and
will unfairly target members of minority groups, especially those of the
Islamic faith.'[86] The Castan Centre
expressed similar sentiments, noting the:
arbitrary character
of criminal liability which turns upon the exercise of discretion by the
political arms of government [which] is doubly so when the effect of such
discretion is not just arbitrary but discriminatory in its application to one
segment of the community, namely, the Muslim community in Australia given
that it is only Islamic organisation which have been proscribed.[87]
3.84
There
are fears in the Muslim community that the creation of the new offence will have
a negative effect on many legitimate Muslim activities, such as certain
religious festivals and gatherings, as well as education classes and study
groups.[88] Dr Waleed Kadous from AMCRAN told the Committee that:
there is the
uncertainty surrounding the legislation. Because of the definitions of these
terms on which I elaborated there is a lack of clarity as to exactly what constitutes
a crime under this legislation. This effectively leads to every interaction
being questionable and uncertain. I can give you real-world examples of that to
illustrate this problem. It will have a huge impact on what I believe to be
quite legitimate activities of Muslim organisations.[89]
3.85
The
impact on Muslim families was also raised in the form letters received by the
Committee:
Muslim communities are
closely-knit, and the religion of Islam actively encourages the provision of
support to others in need, even if they are not related, indeed, even if they
are strangers. There is no appropriate regard to this under the Bill. It would be extremely easy for this kind
of general support offered by a Muslim to be misinterpreted as a crime under
this new amendment.
Specifically, only
close family members are excluded from the application of the offence. It is
not unusual for Muslims to be close to their extended family also, yet under
this Bill, an uncle of a cousin cannot communicated with a person who may have
some connection to an organisation that the government proscribes as a
terrorist organisation.[90]
3.86
Dr Kadous
argued that the exemption for an association with a 'close family member', if considered
necessary, 'should be extended to include extended families, which includes
cousins, aunts, uncles, nieces, in-laws and nephews.'[91]
3.87
The AFP
explicitly rejected any expansion of the exemptions as currently drafted in
Schedule 3, arguing that they are already too extensive:
The exceptions
potentially leave a loophole that terrorist organisations may exploit, for
example, by having their members associate with other family members for the
purpose of sustaining or expanding the organisation. The Australian Federal
Police respects the need for certain exceptions where the relationships are not
criminal, and considers that the proposed amendments represent an appropriate
balance between the rights of association and law enforcement's requirement to
protect the public interest.[92]
3.88
The AFP argued that exemptions would only be required
where a person has the intention that their assistance will help the terrorist
organisation to continue to exist or expand:
The only circumstances where a legal practitioner or close family
member will need to rely on the exemption is where they are intertwined in the
terrorist activity to the extent that they have the required intent to assist
the listed organisation to continue to exist or expand.[93]
3.89
The Attorney-Generals Department also strongly rejected
that the Bill is in any way discriminatory
towards the Muslim community. A representative from the Department told the
Committee that '(t)he targeting of terrorist groups is based on their violence
not their ethnic or religious origins.'[94]
3.90
In answering a question on notice from the Committee in
relation to this issue the Department elaborated:
The offence is not
directed at the Muslim population. There is a broad range of religious beliefs
in Australia and the Government has said on many
occasions it is committed to maintaining the Australian traditions of tolerance
and respect, which are fundamental to a free and democratic society. There is a
strong commitment in Australia to maintaining the right of people of all religions
to practise their religion, within the scope of the law, without intimidation
or harassment The counter-terrorism laws target terrorists regardless of
their religious, ideological or political motivation. Terrorist organisations
listed for the purposes of the criminal law have been shown to be directly or
indirectly engaged in, preparing, planning, assisting in or fostering the doing
of a terrorist act and the Governments counterterrorism laws target terrorists
and those assisting them, not persons of a particular religious or racial
persuasion.[95]
3.91
The Department also commented on the suggestion by AMCRAN
that the exception for an association with a 'close family member' be amended
to include a greater number of family relationships to account for the nature
of family relationships in Muslim communities:
The importance of
extended families is not limited to Arab and Islamic cultures. It is common to cultures
throughout the world, whether it be elsewhere in Asia and Africa, the Americas, much of Europe and in the Pacific. However, the exception
is not unfair to any of these cultures.
The exception does not
come into play until the prosecution can prove beyond reasonable doubt the stringent
fault elements of the offence.
3.92
Further,
the Department pointed out that:
Even if the close
relative was culpable [by satisfying all the elements of the offence set out in
proposed paragraph 102.8(4)(a)], there is an exception from the offence if the
association relates to a matter of family or domestic concern. In practical
terms a mother could know she is providing support to a terrorist organisation
by providing food and lodging for her son for that reason as well as her love
of the son. The Government has taken the view that it should not intrude on
families to that extent. However, to extend the exception to the whole extended
family would open a loop hole that would significantly reduce the effectiveness
of the offence.[96]
3.93
The
Department also stated that family members such as uncles, aunts and cousins
are not exempted as they do not fall within the definition of close family:
The current exemption
is generous when consideration is given to the knowledge requirements that must
be met before a person can commit an offence. It is consistent with the
definition of close family under section 100A of the NSW Crimes (Sentencing and
Procedures) Act 1999.[97]
3.94
In
relation to the 'public religious worship' exception set out in paragraph 102.8(4)(b),
the Department stated that:
Public worship is
intended to cover churches and places set aside for religious purposes; for
example school halls, parks or stadiums. The intention of all the exemptions is
to focus on the activities of the organisation. Exceptions based on location or
residential contexts would provide a loophole that could quickly be abused by
terrorists.[98]
3.95
The
Department noted the concerns raised by the Australian Muslim Civil Rights
Advocacy Network's submission to the Committee in relation to classes and study
groups being frequently conducted in people's homes:
The Department will
provide advice to Government on this submission. While the exception could
apply to these activities if the particular home is open to the public for
worship, there will be other circumstances where it will not. However, if the
classes and study groups are focused on religious worship it will be very
unlikely that the prosecution would be able to prove that the association was
intended to assist the terrorist organisation to exist or expand.[99]
3.96
The
Department advised that such a study group or class conducted in a private home
or other place not open to the public would not constitute 'public religious
worship' within the meaning of those words in paragraph 108(4)(b) of the Bill,
as currently drafted.[100] However, the
Department stated that '(i)t is not the purpose of the proposed offence to
prohibit the free exercise of religion.'[101]
Rather, 'the purpose of the offence is to prevent support that would assist
terrorist organisations from continuing to exist or expand.'[102]
3.97
As to
whether the exception might be amended to include religious practice or study
taking place in a private home or other place not open to the public, the
Department stated that:
An amendment of this
nature would be a matter for Government. However, in some cases these type of
activities could be a front for associations with members of terrorist
organisations and a blanket exemption could undermine the objectives of the
offence. It is not the intention of the legislation to prevent people
practising religion in their own home. For such meetings to constitute an
offence the prosecution would need to prove beyond reasonable doubt that such
meetings involved associations with the intention of providing support to the
organisation to continue to exist or expand.[103]
Other potential incursions on
legitimate activities
3.98
The Committee received evidence that the Bill
potentially criminalises a wide range of legitimate activities, including
possible infringement of the right to freedom of association,[104] the implied freedom of political communication,[105] the provision of legitimate legal
advice and legal representation,[106]
and the provision of humanitarian aid.[107]
3.99
Mr Craig
Lenehan from HREOC told the Committee that:
The proposed offence
potentially infringes the rights prescribed in article 19 of the International
Covenant on Civil and Political Rightsthat is the right to freedom of
expressionand article 22 of that covenant, which is the right to freedom of
association. The commission submits that such infringements are permissible
only if the proposed offence conforms to the principle of proportionality and
is the least intrusive means of achieving that stated aim. The commission is
concerned that, in view of the width of the offence and the lack of precision
in its terms, those requirements are not met.[108]
3.100
HREOC submitted further that the exemption relating to
political communications is not clear and does 'not provide any certainty for
journalists as to whether their opinion pieces on proscribed organisations
would fall within the ambit of implied freedom of political communication.'[109]
3.101
The New South Wales Council for Civil Liberties agreed,
arguing that Schedule 3 'would have a particularly harsh effect in respect of
journalists who are seeking to investigate terrorism matters.'[110] Further:
the legislation would provide further inroads and attacks on
the right of free speech and dissemination of information and further
constraints on the operation of the news media. Such legislation could be used
as a threat by the authorities to stop investigative journalists carrying out
exposes of corrupt or abuse of power by law enforcement bodies.[111]
3.102
The Attorney-General's Department advised the Committee
that the offence would not cover bona fide investigative journalists or the
reporting of news and current affairs. If the prosecution is able to prove the
requirements in proposed paragraph 102.8(4)(a) then the journalist may be able
to rely on the implied freedom of political communication exemption. The journalist
bears the evidential but not the legal burden of proof in relation to whether
the exemption applies. The defendant would have to point to some evidence to
show that the exemption applies but it would then be for the prosecution to
prove beyond reasonable doubt that it does not apply.[112]
3.103
The Committee received considerable evidence arguing that
the exemption in relation to legal advice or representation is too narrow. For
example, Dr Greg
Carne from the University
of Tasmania submitted that
paragraph 102.8(4)(d) 'strips away basic and fundamental rights of legal advice
and representation by criminalising that meeting and communication conduct by
legal advisers and legal representatives.'[113]
Dr Carne
also suggested that, amongst other things, the provision could be open to
abuse.[114]
3.104
HREOC also argued that the exemption is too limited
since 'it applies only to legal advice and representation in connection with
actual or contemplated proceedings, or proceedings relating to whether the
organisation is a terrorist organisation'[115]
and does not include, for example, 'legal advice to the organisation to have
its declaration as a terrorist organisation revoked'.[116] HREOC submitted further that there
should be no restriction on a person's ability to seek legal advice or
representation, regardless of whether that person is a member of, or a person
who promoted or directs the activities of, a proscribed terrorist organisation.[117]
3.105
In
response to this issue, the Attorney-General's Department stated the following:
The aim of the offence
is to isolate terrorist organisations. To cut the access of these organisations
to commercial and other freedoms that can be used to make an organisation
prosper in a democratic society. Many commercial activities require the
provision of legal advice, such as on conveyancing or drafting of contracts.
Further, some lawyers in the past have used their professional status to
involve themselves in organised crime. It is not inconceivable that the same
could occur in the context of relationships with terrorist organisations. It
was considered necessary to carefully circumscribe the exception in a way which
would at the same time not impact on the ability of those accused of terrorist
related activity from being able to defend themselves against those
allegations.[118]
3.106
The Department
also pointed out that the exception regarding legal assistance would not cover
situations where the assistance was provided by a person not legally qualified,
including financial assistance with legal expenses. However, for such support
to be an offence the prosecution would have to prove beyond reasonable doubt
that the service provided intended that the provision of their services would
assist the terrorist organisation to expand or continue to exist.[119]
3.107
In relation to
fundraising activities to assist in legal proceedings, the Department advised
that:
The prosecution would
need to prove that the purpose of the fundraising was intended to assist the
organisation to continue to exist or expand, not just to save the hide of an
individual. An exemption of this type could be abused. It has been suggested in
the past in the context of Proceeds of Crime legislation that extravagant
estimates of legal fees have been used to shield the siphoning off of money for
other purposes.[120]
Interaction with existing
legislation
3.108
Some submissions raised issues relating to the
interaction of Schedule 3 with existing legislation. PIAC and AMCRAN raised the
issue of the combined effect of the provision with the recently introduced
presumption against bail and setting of minimum non-parole periods in relation
to terrorism offences. According to PIAC this would mean that:
a suspect could be
detained without charge for an investigation period of up to 24 hours (which
can be suspended or delayed for various reasons), charged with
"intentionally associating" with a member of a proscribed terrorist
organisation, denied bail, and, if found guilty, subject potentially to a
nonparole period of 3/4 of the three-year sentence. Together, such measures
seem extreme and excessive.[121]
3.109
AMCRAN pointed out that 'Article 9 of the ICCPR states
that it shall not be a general rule that persons awaiting trial shall be
detained in custody'[122] and the
combined effect of the new offence and the bail provisions 'constitutes an
unacceptable infringement of a person's civil liberties in view of the
objective seriousness of the offence.'[123]
3.110
The Attorney-General's Department informed the
Committee that the bail reforms were in part justified by the seriousness of
other terrorism offences so there is some incongruity with applying them to the
offence in Schedule 3. However, the Department argued that 'it is open to
conclude that the fact the offence is concerned with preventing terrorism is
justification in itself for applying the bail reforms to this offence.'[124]
3.111
AMCRAN also expressed concern about interaction of the
offence with the Telecommunications
(Interception) Act 1979 which 'would expand the surveillance powers of ASIO
and the police subtly, but also immensely, since the scope for this particular
crime is much greater than that of any of the other terrorism-related crimes
and carries a much lower barrier for suspicion.'[125]
3.112
Dr Greg
Carne also noted that the Bill
potentially undermines the statutory provisions of access to legal advice as
set out in the ASIO Act.[126]
The Committee's view
3.113
The Committee is concerned about the proposed
association offence. The evidence does not persuade the Committee of the need
for the offence in the first place, given the already wide ambit of terrorism
offences under current law in Australia, the breadth of the definition of
'terrorist organisation' contained in the Criminal Code, and other existing
laws such as the law of conspiracy and accessory liability. The Committee notes
with apprehension the tendency towards 'legislative overreach' in relation to
counter-terrorism measures in Australia.
3.114
Further, the Committee is of the view that the drafting
of the offence provision results in it lacking certainty and clarity. The
breadth of the offence, its lack of detail and certainty, along with the
narrowness of its exemptions lead the Committee to conclude that serious
difficulties would result in it practical application. Some of these
difficulties include the offence's potential capture of a wide range of
legitimate activities, such as some social and religious festivals and
gatherings, investigative journalism, and the provision of legal advice and
legal representation. Evidence received also shows that it is likely to result
in significant prosecutorial complications. Further, the Committee is not
satisfied by the Attorney-General Department's justification for the offence,
in particular its argument that prosecutorial discretion is in effect its only
safeguard against misuse.
3.115
The Committee considers that the offence provision
could be significantly amended to make it less opaque and that the exemptions
to the offence could also be expanded.
Recommendation 3
3.116
The Committee recommends that the terms 'membership',
'associates', 'support', 'assist', 'promotes' and 'family or domestic concern'
contained in Schedule 3 of the Bill be defined.
Recommendation 4
3.117
The Committee recommends that provisions relating to
the presumption against bail in the Anti-Terrorism Act 2004 not apply to the
proposed offence in Schedule 3.
Recommendation 5
3.118
The Committee recommends that the exemption in proposed
paragraph 102.8(4)(b) of Schedule 3 of the Bill
be extended to cover religious practice in places other than public places
being used for religious worship.
Recommendation 6
3.119
The Committee recommends that the Commonwealth
Government report to the Parliament on the types of aid contemplated by the
phrase 'providing aid of a humanitarian nature' in paragraph 102.8(4)(c) of Schedule
3 of the Bill.
Recommendation 7
3.120
The Committee recommends that the exemption in proposed
paragraph 102.8(4)(d) of Schedule 3 of the Bill
be amended to ensure that access to legal advice required to meet the
obligations and exercise the rights in broader anti-terrorism legislation is
permitted.
Recommendation 8
3.121
The Committee recommends that the operation of the
proposed offence in Schedule 3 of the Bill be
subject to independent review after three years.
Schedule 4 - Transfer of Prisoners
3.122
The Committee received evidence expressing concerns in
relation to various aspects of Schedule 4 of the Bill.
3.123
The Law Council of Australia argued that the proposed
provisions:
will allow for the transfer of remand prisoners without notice
and without regard for the personal circumstances of the detainee, including
their prospective distance from family or other support networks as a result of
a decision of the Attorney-General under this legislation. Moreover, any
transfer based on "security grounds" may in itself jeopardise a
remand prisoner's right to a fair trial unless news of the transfer is in some
way suppressed (an unlikely prospect). In our view, such decision in respect of
remanded detainees should require the approval of a court.[127]
3.124
The Law Council of Australia also expressed
apprehension in relation to decisions of the Attorney-General under the new
provisions not being subject to judicial review, meaning that there will be no
opportunity for detainees or prisoners to request a court to examine the
security grounds upon which a decision of the Attorney-General is based. The
Law Council of Australia noted that '(t)his is part of a recent trend by the
Federal Government toward exempting judicial review in sensitive administrative
areas, which is of great concern to the Law Council.'[128]
3.125
Mr Craig
Lenehan from HREOC raised similar issues at
the hearing:
The commissions
principal concern in relation to this issue is that the security transfer
orders create the possibility for delay in bringing a remand prisoner to trial
and, accordingly, the possibility for prolonged pretrial detention which may
contravene article 9 of the International Covenant on Civil and Political
Rights. The commission submits that issues of national security should not be
decisive in determining the length of time a person charged with a criminal
offence must await trial. Rather, a person should be brought to trial as soon
as is reasonably practicable, having regard to the criteria set out by the
European Court of Human Rights.[129]
3.126
Mr Lenehan continued:
The proposed amendments
to this act create the risk that security transfer orders could operate so as
to delay trial in a manner that would breach international standards. The
commission also submits that the power to order a prisoner or a remand prisoner
to be brought before the court should remain with the judiciary. The bill seeks
to transfer that power to the executive. The commission acknowledges that some
measure of judicial control is retained in the act in respect of remand
prisoners. However, the procedure by which judicial input is received is not at
all clear. For example, it is not at all clear whether the court would seek
submissions from the remand prisoner. One might also expect that there may be
some degree of judicial difference when the court is informed that the Attorney
considers that it is essential, in the interests of national security, that a remand
prisoner remain in custody.[130]
3.127
Mr Lenehan
also argued that the Attorney-General's decisions under the new provisions
should be subject to judicial review:
The individual must be
able to challenge the executives assertion that national security is at stake
in the more simple procedures provided for under the Administrative Decisions
(Judicial Review) Act. Courts must be able to react in cases where invoking
that concept has no reasonable basis or reveals an interpretation of national
security that is unlawful or arbitrary.[131]
3.128
The Attorney-General's Department was dismissive of
such arguments and responded to them in the following way:
The Attorney-General is
not required to make the order for transfer if he or she believes on reasonable
grounds that it is essential in the interests of security that the order
transferring the prisoner not be made. This is a high test and could only be
met in exceptional circumstances. The provisions also require the agreement of
the court that remanded the prisoner in custody to the prisoners continued
detention (proposed s.16E(2)(a)(ii)).
Access to legal
counsel, family and friends will be in accordance with corrective service administration
arrangements in the State or Territory in which the prisoner is held. The draft
National Custodial Management Guidelines address some of these issues. Access
to legal counsel would need to be facilitated to allow the remand prisoner to
adequately prepare for proceedings relating to the remand offence. These issues
require balancing the interests of the administration of justice and the
prisoners welfare against the interests of security.[132]
3.129
The Department also maintained the Commonwealth
Government's commitment to its human rights obligations under the ICCPR.[133]
3.130
The Committee received evidence from the Hon John
Hatzistergos MLC, New South Wales Minister for Justice, which was critical of
the lack of consultation by the Commonwealth Government with the states and
territories in developing the amendments.[134]
The Attorney-General's Department did not agree with this criticism, arguing
that '(a)ttempts were made by Australian Government officials to discuss the
issue with NSW on 5 occasions during subsequent months [after a meeting in
December 2003] and no information was forthcoming.'[135]
3.131
While admitting that including these particular provisions
in the Bill did not allow time for consultation,
the Department noted that the states and territories were consulted promptly after
introduction of the Bill.[136] The Department also noted that the
amendments are a response to the states' request for changes to prisoner
transfer laws to allow transfer on national security grounds.[137] The Department stated further:
In the public hearing the
NSW Minister for Justice noted that he had written to the Australian Government
Attorney-General in a letter of 23 June 2004 about the Bill. The Minister for Justice and Customs
responded to the issues raised in that letter at the Corrective Services Ministers
Conference on 29 June 2004. Minister Hatzistergos was present at that conference.[138]
3.132
The New South Wales Minister for Justice outlined his
main concerns relating to Schedule 4:
The first is that the definition
of security grounds for the transfer of these inmates is essentially borrowed
from the ASIO legislation and is based on national security. In our view, it
does not encompass the operational security issues which may also require a
transfer to take place. You would be aware that there are limited facilities in
a country the size of Australia for the incarceration of extremely high
risk terrorist inmates who may need to be moved. The grounds upon which they
may need to be moved may encompass grounds broader than simply issues of
national security. They may also include grounds of operational security.[139]
3.133
Further, the Minister argued that:
The second issue is the
mechanism by which these transfers are to take place. You would be aware that
under the existing transfer legislation there are essentially two grounds upon
which prisoners can be moved from state to state. One is welfare and the other
one is on the grounds of trial. The ground of security transfer is different to
those two because it may require very rapid movement of an inmate. If intelligence
is received that requires an offender to be moved interstate, bearing in mind,
as I have indicated, that there are limited facilities across Australia which
may be appropriate to contain an inmate of that nature, there is a need to act
swiftly.[140]
3.134
The Minister
continued:
What the legislation
proposes is essentially that the decision is going to be made by the federal
Attorney-General, who will then seek to obtain the concurrence of the state
ministersthat is, the state minister to whose jurisdiction the prisoner is to
go and the state minister in whose jurisdiction the inmate is presently
incarcerated. In our view, that will slow the process up. There is nothing that
I can see that is being added by the Commonwealth involvement at that level. At
present a Commonwealth inmate can be transferred intrastate whether they are a
federal or a state offender. If they are a federal offender, the Commonwealth
will simply need to be notified of that move. There is no reason, in our view,
why a similar arrangement cannot operate interstate in relation to this very
small group of troublesome inmates [141]
3.135
The
Minister also expressed reservations about the requirement for written
documentation in Schedule 5 which might also unduly delay the transfer of
prisoners:
The legislation also
sets up a process whereby this regime applies not just to Commonwealth
offenders but also to purely state offenders who may be in a similar category.
Again the Commonwealth is involved and the Commonwealth will need to give its
approval for this transfer as well. All of this is, of course, backed up by a
process which requires writing. The decisions have to be documented in writing
before they are activated, whereas the process that involves the chief
executive officers allows for verbal approval which is recorded.[142]
3.136
The Attorney-General's Department did not accept the
concerns raised by the Minister. In relation to operational security matters,
the Department pointed out that the definition of 'security' is directed at
national security and is consistent with the ASIO Act since the focus of the
amendments in Schedule 4 is national security. However, the Department stated
that possible amendments to transfer of prisoner legislation to deal with
transfers on the basis of operational security matters are on the agenda of
relevant ministerial councils and is scheduled to be dealt with at a later
date.[143]
3.137
The Department also argued that, since the proposed
amendments are aimed at prisoners who pose a risk to the national security of Australia
who can be transferred between jurisdictions without their consent, the
amendments specify that written consent is required from the Attorney-General:
Due to the impact these
orders can have on a prisoner, it is appropriate that the decisions be recorded
for accountability purposes. The timeliness of the approval process can be
addressed through the development of effective administrative procedures in
consultation with the States and Territories.
From a security
perspective informing the Attorney-General of a transfer after the event will
be too late. He could be aware of additional information or have a different
perspective about the same information because of national rather than local
interest considerations.[144]
3.138
In relation to queries by the New South Wales Minister about
the appropriateness of the requirement in Schedule 4 for involvement by the
Attorney-General, the Department argued that the Commonwealth Government should
be involved in the transfer of prisoners on national security grounds, even if
the transfer relates to a prisoner convicted or charged with a state offence:
National security is the responsibility of the Australian
Government and State and Territory Governments working collaboratively. If
there is a national security risk the Australian Government should know.[145]
3.139
The states have recommended some changes to Schedule 5.
These are:
A.
That the definition of security be amended to include
matters significant to the operational security of correctional systems.
B.
That approval for an inter-state transfer of an inmate
on security grounds be changed to require only that verbal approval of the two
state ministers be obtained and the Commonwealth Attorney General be informed.
C.
That the state ministers have the power to initiate as
well as reject an interstate transfer under this legislation.[146]
3.140
The Department argued that, in relation to
Recommendation C, the proposed amendments do not prevent this from occurring.[147]
3.141
The states have also developed a set of draft 'National
Guidelines for Interstate Transfer of Inmates National Security' which were
provided to the Committee. The Department informed the Committee that it was
not invited to participate in the development of the guidelines. The Department
also argued that, consistent with the Bill, the
guidelines anticipate a central role for the Attorney-General who would make a
written order before the security transfer took place.[148]
3.142
Responding to concerns raised by a number of
submissions and witness in relation to the exclusion of the application of the
ADJR Act to decisions of the Attorney-General under Schedule 5, the Department
argued that:
It is inappropriate for
the decisions of the Australian Government Attorney-General about transfers on
security grounds to be subject to review under the Administrative Decisions
(Judicial Review) Act 1977 (ADJR Act). The decisions by the
Attorney-General will require consideration of national security issues and are
likely to be of a sensitive nature. The threat to security may arise not from
the prisoner or remand prisoner but from someone who wishes to harm that
prisoner or remand prisoner (eg. because they are going to give certain
evidence in court). Disclosure of such information in proceedings may alert
suspects to necessarily covert activities of investigative authorities.
Exclusion of decisions
of this type from ADJR review is consistent with the exemption in Schedule 1 of
the ADJR Act of other decisions involving national security considerations (for
example, decisions made by the Attorney-General under the ASIO Act, the Intelligence
Services Act 2001 and the Telecommunications (Interception) Act 1979).[149]
3.143
The Department also argued that sufficient
accountability mechanisms are included in Schedule 5 and, further, decisions of
the Attorney-General are reviewable under section 39B of the Judiciary Act 1903.[150]
3.144
The Department also raised a pertinent point:
The submission of the
NSW Minister for Justice states that the interstate transfer of an inmate on
security grounds should be able to occur following the verbal approval of the
two State Ministers. This process contrasts starkly with the criticisms from
those who do not think that review of the Attorney-Generals decisions under
the ADJR Act should be excluded. A balance needs to be struck between the need
for speed and accountability. The Bill
attempts to strike this balance.[151]
The Committee's view
3.145
The Committee is of the view that greater consultation
between the Commonwealth Government and the states and territories in relation
to the transfer of prisoners issue is required in order to achieve a fully
effective cooperative scheme. It is apparent from the conflicting evidence
received that inadequate consultation between the states and territories and
the Commonwealth has occurred. The Committee encourages the Commonwealth
Government and the Attorney-General's Department to continue to consult with
the states and territories in an endeavour to address the differences raised in
the inquiry.
Recommendation 9
3.146
The Committee recommends that Schedule 4 of the Bill,
or any other legislative or procedural arrangements relating to the transfer of
prisoners which involve or impact upon the states and territories, not proceed
until further consultation between the states and territories and the
Commonwealth Government is pursued.
Schedule 5 Forensic procedures
3.147
The proposed amendments contained in Schedule 5 of the Bill
extend the coverage of existing forensic procedure laws in Division 11A of Part
1D of the Crimes Act so that they apply if a mass-casualty disaster occurs
within Australia.
The Committee received little evidence relating to these proposed amendments.
3.148
Three submissions argued against them, briefly commenting
that they would 'intrude into the privacy of citizens by allowing investigators
to access the National Criminal Investigation DNA database in the event of a
domestic mass casualty incident.'[152]
3.149
However, the Office of the Federal Privacy Commissioner
expressed its support for these amendments:
The Office is
represented on the committee undertaking the review of Division 11A of the Crimes Act 1914, which was enacted to
facilitate disaster victim identification and the criminal investigation of the
Bali bomb incident. This committee recommended
the domestic mass casualty incidents amendment to the Minister for
Justice and Customs in April 2004, ahead of the finalisation of the review, as
it had been raised in submissions by several organisations, and the committee
considered that the need was important and urgent, particularly in light of the
recent bombing incident in Madrid. For these reasons, the Office supports the amendments to the forensic
procedures provisions in the Crimes Act
1914.[153]
3.150
The AFP
was also supportive of the proposed amendments:
Existing DNA provisions in Division 11A of the Crimes Act 1914 have been very effective
in resolving the identity of victims quickly. This has provided a great deal of
comfort to the families of victims involved in tragedies such as the Bali
bombings.
The extension of these provisions to incidents that may occur in
Australia
carries with it the comprehensive privacy protections set out in existing
provisions.[154]
3.151
The Attorney-General's Department informed the
Committee that the proposed amendments contain certain safeguards:
The legislative
safeguards that applied to the Bali
disaster victim identification processes remain unchanged and will apply to the
new range of incidents falling within Division 11A. Those safeguards
appropriately constrain the way that information held on the national DNA
database can be accessed, used and disclosed. The amended Division 11A would
only permit the national DNA database to be accessed and used for the purpose
of identifying victims of the mass-casualty incident, or conducting a criminal
investigation into the incident. Information obtained from the database for
those purposes could only be disclosed to a limited range of people, including
the relatives of a victim who has been identified, or to law enforcement bodies
that are involved in the criminal investigation.[155]
The Committee's view
3.152
The Committee supports the proposed amendments
contained in Schedule 5 of the Bill. The
Committee is satisfied that sufficient safeguards will protect against
unwarranted invasions of privacy and that the amendments will establish an
effective cooperative scheme to facilitate effective disaster victim
identification in relation to any domestic mass casualty incidents. In this
context, the Committee notes the successful identification of victims of the
Bali bombings that was facilitated under Division 11A of Part 1D of the Crimes
Act and that there may be limitations in the current legislation and
inter-jurisdictional arrangements that may hinder the ability of Commonwealth
and state agencies to cooperate effectively in the event of a similar disaster
in Australia.
Recommendation 10
3.153
The Committee recommends that Schedule 5 of the Bill
proceed.
Senator
Marise Payne
Chair