Chapter 2 - Background and overview
This Chapter provides a background to and overview of
the Bill. It also outlines concerns over the
need for the amendments contained in the Bill
and constitutional and international law issues raised in respect of those amendments.
Background to the Bill
The Bill is based on an
agreement between the Commonwealth, State and Territory Governments adopted at
the Council of Australian Government's (COAG) Terrorism Summit held in Canberra
on 27 September 2005. The
committee notes that it received a submission from the Tasmanian Government
stating that it was satisfied that the provisions of the Bill
reflect the terms of the Agreement.
The committee was also advised by the Chief Minister of the Australian
Capital Territory that his Government had agreed at
the COAG Summit to a package of anti-terrorism laws along 'the rough lines of
the Bill'. However, the Chief Minister stressed
to the committee that advice to his Government is that the Bill
is not fully compliant with the International Covenant on Civil and Political
Under the COAG Agreement, State Premiers and the Northern
Territory and ACT Chief Ministers agreed to introduce
complementary legislation for the purpose of introducing preventative detention
for a period of up to 14 days and search powers.
The Bill has many similar
features to the Australian Security Intelligence Organisation’s (ASIO)
compulsory questioning and detention regime. In particular, the Bill
envisages that the provisions of Division 105 preventative detention orders
will operate in conjunction with ASIO’s compulsory questioning and detention
powers. The committee notes that the operation and effectiveness of these
provisions (that is, Division 3 of Part III of the ASIO Act) is currently the
subject of an inquiry by the Parliamentary Joint
committee on ASIO, ASIS and DSD (PJCAAD). The report of that inquiry is
expected to be tabled in the Parliament before the end of 2005, but it is
unlikely the Senate will have the benefit of that report before considering the
The Bill proposes to
amend various federal laws with the stated aim of improving existing offences
and powers targeting terrorist acts and terrorist organisations. Key features of the Bill
the expansion of the grounds for the
proscription of terrorist organisations to include organisations that
'advocate' terrorism (Schedule 1 of the Bill);
a new offence of financing terrorism (Schedule 3);
a new regime to allow for 'control orders' to
authorise the overt close monitoring of terrorist suspects (Schedule 4);
a new police preventative detention regime to
allow detention without charge to prevent a terrorist act or to preserve
evidence of such an act (schedule 4);
wider police powers for warrantless search and
seizure in Commonwealth places and in 'prescribed security zones' (Schedule 5);
police powers to compel disclosure of commercial
and personal information (Schedule 6);
updated sedition offences (Schedule 7);
increased financial transaction reporting
obligations on individuals and businesses (Schedule 9); and
the expansion of information and intelligence
gathering powers available to police and ASIO (Schedules 8 and 10).
Rationale for the Bill – A necessary and
No witnesses questioned the responsibility of the
government to evaluate national security information and to make a judgment
about the actual level of threat to Australia.
However, many questioned whether the obligation to protect the community
justifies creating a separate system to deal with 'terrorist suspects' who may
otherwise be dealt with by the criminal justice system. As explained elsewhere
in this report, submitters and witnesses urged the committee to consider:
whether the current Bill is necessary to combat terrorism; whether existing
powers and offences are sufficient to deal with acts of terrorism and related
activity; and whether the removal of traditional safeguards is a proportionate
This inquiry is essentially a review of the provisions of
the Bill. However, it is also recognised that the
inquiry concerns the proposed introduction into Australian law of a completely
new scheme capable of depriving citizens and residents of their liberty and
allowing far reaching intrusions into other fundamental civil liberties. The rationale for doing so is the terrorist
threat currently facing Australia.
As the Director-General of ASIO advised the committee:
It is a matter of public record that Australian interests are at
threat from terrorists. It is also a matter of public record that ASIO has
assessed that a terrorist attack in Australia
is feasible and could well occur. ... the threat has not abated and that we need
to continue the work of identifying people intent on doing harm, whether they
are already in our community, seeking to come here from overseas or seeking to attack
Australian interests overseas. I would also point out that the nature of the
threat we face is not static. Just as terrorist organisations and groups learn
from past experience and adapt to counter the measures that governments
implement, so also do we need to continually revise the way we go about the
business of countering terrorist threats. Part of that process involves
ensuring that the legislative framework under which we operate is commensurate
with the threat we face.
The bombing of
the London Underground on 7 July 2005
and the realisation that the nature of the terrorist threat had changed from a
known threat from overseas to include a relatively unknown 'home grown' one has
been cited as rationale for the Bill. The nature of terrorist attacks elsewhere
the world (such as those in Madrid
in 2004 and in Indonesia
since 2002) were also referred to during the inquiry to illustrate that:
... terrorist attacks can occur in a number
of ways, including single attacks, coordinated attacks on multiple sites within
on city or across a number of cities, or as a campaign of attacks over an
extended period of time.
The Australian Federal Police (AFP) argued that the
clandestine nature of terrorism activity and its catastrophic consequences mean
that police and intelligence agencies must be better equipped to prevent an act
of terrorism from occurring:
Together, the proposals for control orders, preventative
detention and stop, search and seizure powers represent additional powers for
police to deal with situations that are not covered by the existing legal
framework. Since the events of 2001, the AFP and other agencies have been in
constant dialogue with the government on the appropriateness of the legal
framework for preventing and investigating terrorism as our understanding of
the terrorist environment has developed. ... The proposals in the bill ... address
limitations in that framework which have become apparent recently, in
particular the need for the AFP to be able to protect the community where there
is not enough evidence to arrest and charge suspected terrorists but law
enforcement has a reasonable suspicion that terrorist activities may be imminent
or where an act has occurred.
The covert nature of intelligence gathering means that law
enforcement agencies may be presented with information crucial to disrupting or
preventing a terrorist act, but which is 'unreliable' in that the information,
for example, cannot be revealed without jeopardising a source, is insufficient
to support a charge or may inadmissible in a court. On this view, the criminal
justice system is incapable of responding appropriately to the threat.
Additional measures are therefore needed to protect the community by disrupting
terrorist networks and monitoring people suspected of being involved in or
likely to be involved in terrorism related activity.
The additional measures proposed by the Bill
are controversial. Reliance on
intelligence information for a preventative detention or control order where
there is insufficient evidence to bring a criminal charge is a fundamental
change to Australia’s criminal justice system.
As explained elsewhere in this report, civil libertarians argue that a system
based on 'intelligence'
rather than 'evidence'
and which impinges on the right to fair trial, undermines the presumption of
innocence, institutionalises the risk of arbitrary deprivation of liberty and
is inconsistent with the rule of law.
Witnesses and submitters took issue with the claim that
the measures proposed by the Bill were an
appropriate response to the terrorist threat facing Australia.
The committee's attention was drawn to media reports that 15 of 25 security
experts interviewed believe the laws are not proportionate to the terrorist
threat in Australia
and would not deter or prevent terrorism in Australia. Mr
Allan Behm, a
former senior government advisor on security and counter terrorism, advised the
committee that, in his view, the Bill is ill-considered,
unnecessary and will almost certainly be ineffectual. In addition to expressing concern over the Bill's
implications for the exercise of constitutional, legal and other freedoms, he noted
that the government has not offered a detailed assessment of the terrorist
threat confronting Australia
to justify the law.
Much was made of
the fact that Australia's
threat alert has not changed despite recent events in the United Kingdom (UK).
As Mr Behm
It is significant that the terrorist alert level in Australia
has remained unchanged for four years, notwithstanding substantial increases in
the information gathering and analytical capacities of the national
intelligence, security and police agencies. At medium, the threat level simply
reflects the fact that an attack could or might occur. But the threat is not
differentiated any further than that.
Critics also argued that the Bill
reflects assumptions about the nature of global terrorism which do not appear
to be based on fact – especially the assumption that terrorist acts are
perpetrated by 'terrorist organisations'. Mr
Behm advised that:
The draft Bill also seems to assume that individual terrorists
will come to notice through their association with extremist groups, their
attendance at sermons by radical cleric, or their participation in overseas
terrorist training courses.....international experience suggests the greatest
danger to the public comes from those who ...have not received formal training in
terrorist techniques, are not members of identified groups...'cleanskins' who are
instructed not to draw attention to themselves and who have not come to the
notice of intelligence or law enforcement agencies.
What makes the present day form of terrorism so difficult to
deal with is its amorphous nature and the fact that its ideological base is so
powerful that individuals are prepared to kill themselves in order to conduct a
Witnesses and submitters also expressed concern that,
while the Bill was not intended to single out
any particular individuals or communities for special legal attention, an
unintended consequence of the Bill has been
heightened concern within the Australian Islamic community that it will be
subject to discrimination and abuse of power without effective opportunity to
Specific concerns of the Muslim community
After the London
bombings, which highlighted the threat of domestic terrorism, the Prime
Minister met with members of the Muslim community on 26 August 2005. A Muslim Community Reference
Group (the Reference Group) was subsequently formed that would work 'with the
Australian Government, and with their respective community groups in creating
communication and support networks that will promote understanding between the
Muslim community and the wider Australian community'. The Australian Muslim Civil Rights
Advocacy Network (AMCRAN) advised the committee that media reports that members
of the Reference Group had endorsed the proposed laws were incorrect and that the
majority of the Muslim community was opposed to them.
The committee was advised that the broad offences and powers
proposed in the Bill will create a risk that innocent people will be caught up
in the system and that the laws will further alienate and radicalise
disaffected people, especially Muslim youth who may be more vulnerable to the
extremist ideology of terrorists. 
There was lengthy discussion during the hearings about
the impact of anti-terrorist legislation on the community and the difficulty of
ensuring that clear, up to date and comprehensive information is available to
the Australian Muslim community who feel most effected by the new laws.
Representatives from the Muslim community advised the committee that they face
considerable difficulties in keeping their community full informed of
developments in anti-terrorism laws, both in terms of the rationale for such
laws and their requirements. The committee considers that the Government has a
role to play in this regard.
The committee recommends that the Government continue
to fund its terrorism related information campaign directed at the Australian
community and, further, that the Government also develop and fund a specific information
campaign – in conjunction with leaders of the Australian Muslim community –
which is directed at informing that community of the rationale for and
requirements of Australia's terrorism legislation.
Adequacy of existing criminal law
Submitters and witnesses also argued that Australia's
current criminal laws were adequate to deal with the terrorist threat. They
pointed to the breadth of existing Australian criminal law, which already
provides offences for conduct antecedent to the doing of a terrorist act. The Criminal Code already criminalises
the following conduct:
providing or receiving training connected with
terrorist acts (section.101.2);
possessing things connected with terrorist acts
collecting or making documents likely to
facilitate terrorist acts (section.101.5); and
any act in preparation for, or planning, a
terrorist act (section.101.6).
These offence provisions were amended by the Anti-Terrorism
Bill 2005 passed on 3 November 2005.
That Bill amended the Criminal Code to clarify that conduct antecedent to doing
a terrorist act is an offence even: if a terrorist act does not occur; or if the
training, the thing, the document or act is not connected to a specific
terrorist act, or is connected to one or more terrorist acts.
The Criminal Code also currently criminalises conduct
which involves a connection to a terrorist organisation, whether or not it is
directly linked to the preparation or doing a terrorist act or whether a
terrorist occurs. The proscribed conduct includes:
directing the activities of a terrorist
organisations (section 102.2);
membership of a terrorist organisation (section102.3);
recruiting for a terrorist organisation (section
training or receiving training from a terrorist
organisation (section 102.5);
getting funds to or from a terrorist
organisation (section 102.6);
providing support to a terrorist organisation
(section 102.7); and
associating with terrorist organisations
The Criminal Code also includes ancillary offences such
as attempt, complicity (aid, abet, counsel or procure a criminal offence)
incitement and conspiracy. All these ancillary offences apply to terrorism and
In light of the above, some submitters argued that it
is difficult to envisage a situation in which the grounds for a preventative
detention order would be satisfied, but there would not be a sufficient basis
to arrest the person in question for an offence already established by the
International law issues
As noted above, the Chief Minister of the Australian
Capital Territory informed the committee that advice
to his Government was that the Bill is not fully
compliant with Australia's
obligations under international law.
International law permits restrictions on fundamental
rights, over and above those normally accepted in democratic societies in peace
time, in relation to many (but not all) human rights where there exists a 'threat
to the life of the nation'. The
state of emergency exception permitted under article 4 of ICCPR allows for
derogation from certain provisions of that Covenant, including article 9
(deprivation of liberty), 10 (humane treatment) and 14 (fair trial). However, for
such a derogation to occur, strict conditions must be met. In states of emergency the requirement for 'proportionality'
continues to operate to ensure that limitations or derogations of rights do not
exceed those strictly necessary to achieve a legitimate objective. As was
explained to the committee:
'Governments enjoy a margin of appreciation in evaluating the
necessity of restricting or suspending rights, though they must precisely
specify the nature of the threat and the reasons for restrictions.'
Extraordinary laws may be justifiable but they must also
be temporary in nature. Sunset provisions ensure that such laws expire on a certain
date. This mechanism ensures that extraordinary
executive powers legislated during times of emergency are not integrated as the
norm and that the case for continued use of extraordinary executive powers is
publicly made out by the Government of the day. Witnesses noted that clause 4
of the Bill provides for a review of the Bill
at the end of five year period. They argued, however, that the Bill's
provision for a sun-set at the expiry of 10 years is grossly disproportionate
to any 'emergency' that Australia
may be facing:
Expiry clauses of ten years’ duration do not qualify as genuine
sunset clauses. The nature and extent of the terrorist threat cannot possibly
be predicted over the forthcoming ten year period, and the government has not
presented evidence to suggest that the threat to Australia
will be remain constant or will increase over that period. The uncertainty and
speculation involved in such predictions point to the need for sunset clauses
of reasonably short periods.
This committee has taken the position in previous
inquiries into proposed terrorism laws that:
A sunset clause in legislation can be used as a guarantee of
parliamentary scrutiny and opportunity to review. It can help to ensure that
the survival of the legislation is made to depend on upon a continuing
demonstrated threat of terrorism.
The committee also notes that it is unaware of any
other legislation imposing a 10 year sunset period.
Submitters noted that there is nothing in the Bill,
as currently drafted, which links the operation of the proposed laws to a
proclaimed state of emergency consistent with the terms of article 4 of the ICCPR.
A number of witnesses took issue with the lack of any
formal derogation from Australian human rights obligations under the ICCPR.
It has been pointed out that the Commonwealth government is not claiming
to be at war or dealing with a public emergency that threatens the life of the
nation or circumstances that may justify formal derogation under article 4 of
the ICCPR from certain fundamental civil rights. It is argued that this absence of formal derogation
affects the degree of comparison between the Bill
and the anti-terrorism legislation in the UK
on which it is reportedly modelled. Only the UK
has derogated from the right to liberty under article 9 of the ICCPR and
article 5 of the European Convention of Human Rights.
Bill of Rights
Many witnesses also noted that, unlike other western
democratic common law countries, the Bill's
operation will not be tempered by a Bill of Rights.
That is, the absence of a constitutional or statutory bill of rights in Australia
means that Australian judges do not have a coherent statement of minimum human
rights standards against which to interpret law that prima facie infringe civil rights and fundamental freedoms. In
contrast, the UK
Human Rights Act 1998 (HRA), sets out
a range of such standards and requires judges to interpret UK
law consistently with these, so far as it is possible to do so. This allows
laws to be read down to ensure consistency wherever possible.
The HRA provides that legislative provisions, which cannot
be interpreted consistently with that Act, may be declared incompatible. A
declaration of incompatibility does not invalidate the law, but signals to the
legislature that amendments are necessary. The UK Government is not compelled
to alter the law and the Parliament remains the final decision maker. This
reflects the fact that the HRA is based on a 'dialogue' model and is intended
to foster wider and better informed debate on fundamental human rights issues.
The HRA also requires that public authorities must act
consistently with the HRA and provides grounds for review of executive action
and remedies, including damages if appropriate.
Reference of power
The Constitution does not grant the Commonwealth express
power over 'criminal activity'. However,
there is no doubt that the Parliament can validly make laws which create
criminal offences and provide for their investigation, prosecution and
punishment, provided that the offences fall within, or are incidental to the
exercise of a constitutional head of power'.
In other words, Commonwealth criminal law is ancillary to the performance of
the Commonwealth of its powers to protect itself, the Constitution, its
institutions and to enforce its own laws.
The primary heads of constitutional power which could
support Commonwealth anti-terrorist legislation are the defence power; external affairs power, incidental power, executive power and the implied nationhood power. The States referred powers to the
Commonwealth to enable the Commonwealth Criminal Code to be extended to
introduce the federal terrorism offences and related provisions.
Executive imposition of punitive
The constitutional separation of powers between the
executive and the judiciary at the Commonwealth level prevents the executive
from imposing punitive sanctions without trial or conviction by the courts. Recent authority suggests the law in
this area is developing and it is now unclear whether a majority of High Court
justices would find that involuntary preventative detention is per se punitive.
The committee is aware of legal opinion that both the
preventative detention and control order regimes may fail a constitutional
challenge. That is, that preventative
detention and control orders may be unconstitutional if characterised as being punitive
or because the prescribed procedures are inconsistent with the exercise of the
judicial power of a court subject to Chapter III of the Constitution.
Infringement of implied
A broader constitutional question may be whether the
available heads of powers could support the Bill
due to the constitutional requirement that laws be reasonably appropriate and
adapted to their purpose. The High Court has made it clear that a law may fail
this test if, for example, it unduly infringes upon basic rights, such as:
freedom of speech and political communication;
implied right to freedom of movement and
association arising from the constitutional system of representative and
responsible government; and
retrospective criminal sanctions.
Witnesses noted that Item 22 of Schedule 1 of the Bill
may also raise a constitutional issue.
Item 22 inserts clause 106.3 into the Criminal Code, which
provides that the amendments made by Schedule 1 to the Anti-Terrorism Act 2005 (Cth) apply to offences
committed whether before or after the commencement of this section. Schedule 1
of that Act expanded existing terrorism offences relating to training,
possessing a thing or document, and financing terrorism by providing that it is
not necessary for the prosecution to identify a specific terrorist act. It will
be sufficient for the prosecution to prove that the particular conduct was
related to 'a' terrorist act (ie, as opposed to 'the' terrorist act).
The Bill's Explanatory
Memorandum explains the rationale for the amendment in Item 22 as follows:
This is justified because the provision merely clarifies what
was originally intended. It is necessary because it will otherwise create an
The Senate Scrutiny of Bills Committee expressed the
view that the amendment may constitute a substantive expansion of the present
offences, not just a clarification. That
is, 'the retrospective operation of the offences would clearly trespass on
personal rights and liberties' in that conduct which was not criminalised
before may be now. However, that committee left it to for the Senate to
determine whether it trespasses on those rights unduly. It also noted that the need for any
retrospective provisions to be clearly justified.
Witnesses noted the prospect of a constitutional
challenge to amendments having retrospective effect. Dr
Lynch of the Gilbert
and Tobin Centre of Public Law advised this committee as follows:
The final point I want to raise relates to the potential
retrospective operation of the first Anti-Terrorism
Act, adopted recently, in relation to the ‘the’ or ‘a’ question. We make the
point that the High Court in Polyukhovich v Commonwealth in 1991 accepted that
the retrospective operation of law is constitutional in some circumstances.
That decision was, however, a very narrow majority of four judges to three, and
the fourth judge was split in a very slim way on the question of retrospectivity.
So the High Court may reopen the question.
Other witnesses pointed to the potential unfairness of
retrospective laws. It was put to this committee, for example, that 'it is a
very basic unfairness to say that one thing is lawful at a particular stage and
then later to recast the same conduct as unlawful'. 
In its evidence to this committee, the Department
confirmed the retrospective effect of Item 22. It advised that the amendments
was intended to catch 'conduct that has occurred before the commencement of
this Bill about which we are not aware, which is
conduct that has not yet been discovered'. It also advised that:
The interpretive provision was put in on the recommendation of
the Director of Public Prosecutions with a view to making it clear that the
terrorist act offences operated in the way they were intended to operate in the
first place—and that is that you could prove that the person was intending to
commit a terrorist act, not the
absolute specific details of the
terrorist act [emphasis added]. This
is important for them, because quite often the person may not even select a
target until the last minute, particularly with suicide bombers.
The Department representative therefore argued that the
provision was justified.
It is absolutely at the margins in its impact on the culpable
nature of the [proscribed] behaviour
and that it was basically what I am sure everyone would have thought was the
intention of the legislation in the first place.
The Government's response
The Department explained that legal advice to the
Government was that the Bill would withstand any
constitutional challenge and was consistent with international law. The committee was advised that:
The Government’s view is that the
legislation, including the measures relating to preventative detention, control
orders and sedition, are consistent with Australia’s
obligations under international law, including international human rights law.
The Government is satisfied that not only are the measures consistent with
those obligations, the legislation contains sufficient safeguards to ensure
that its implementation in individual cases will also be consistent.
Navigation: Previous Page | Contents | Next page