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Head, Michael --- "Counter-terrorism laws threaten fundamental democratic rights" [2002] AltLawJl 44; (2002) 27(3) Alternative Law Journal 121

Counter-terrorism laws threaten fundamental democratic rights

Michael Head[*]

The events of September 11 are being exploited to bring forward measures normally associated with totalitarian states.

In a far-reaching move against freedom of speech and political association, the Howard government has introduced a package of so-called counter-terrorism laws handing unprecedented powers to the government and its intelligence and police agencies. On the pretext of protecting the Australian people from terrorist violence in the wake of the September 11 events in the United States, the government is undermining basic protections against arbitrary detention, political persecution and police frame-up.

The legislation allows for detention without charge or trial and imposes life imprisonment for a range of ‘terrorism’ offences, which are defined in the widest possible terms. It also provides a general power for the government to outlaw political parties for the first time since the 1951 attempt to ban the Communist Party of Australia. In unveiling the legislative package, Attorney-General Daryl Williams provided no substantiated justification for these measures. He simply asserted that: ‘Since September 11, there’s been a profound shift in the international security environment. This has meant that Australia’s profile as a terrorist target has risen and our interests abroad face a higher level of terrorist threat.’[1] Yet, he admitted there was no specific terrorist threat to Australia, a fact the government has conceded repeatedly since September 11.[2]

The package has the bipartisan backing of the Labor Party. This was emphasised on 5 April 2002 when the leaders of the Australian states and territories, all currently run by Labor governments, agreed to formally refer their powers over terrorism to the federal government. Their decision has the potential to give the federal government substantially unfettered law-making and police enforcement power over politically related crime, for the first time since Federation in 1901. This could possibly free the Howard government of the need to find precise constitutional heads of legislative or executive power for its measures.

Detention and interrogation without charge

The most far-reaching provisions are contained in the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (ASIO Bill). It will enable the domestic spy agency, ASIO, to detain people in police custody without charge (ss.34C and 34D), hold them incommunicado (ss.34D(2) and 34F(8)), deny access to legal advice (s.34D(4), strip-search (s.34L) and interrogate them in detention for at least 48 hours (ss.34D and 34F). Detainees need not even be suspected of a terrorist offence, or any other criminal offence. The Attorney- General can simply certify that their interrogation ‘will substantially assist the collection of intelligence that is important in relation to a terrorism offence,’ even if no act of terrorism has occurred (s.34C(3)). This power could easily be used to detain journalists and political activists, as well as the children, relatives or acquaintances of supposed terrorism suspects. Any detainee who refuses to answer ASIO’s questions will be liable to five years imprisonment (s.34G) and the defence of self-incrimination will be removed (s.34G8).

The ASIO Bill fundamentally alters the existing legal framework in a number of crucial respects. ASIO already has an array of surveillance and search and entry powers, but no powers of arrest or interrogation. The state and federal police can detain people, but only on suspicion of committing a criminal offence. Those suspects must be either charged or released within a short period, usually four hours. Prisoners have the right to legal counsel and to remain silent.[3] With the notable exception of the detention of asylum seekers, detention without trial is generally regarded as unconstitutional.[4]

These rights and restrictions will substantially disappear under the ASIO legislation. In the first place, detainees, including children (s.34M discussed below), can be held in secret, barred from contacting anyone, including their families and lawyers. Secondly, detainees can be held for 48 hours from the time they are brought before a magistrate or tribunal member and new warrants can be issued (s.34F(7)). This will effectively allow ASIO to extend the detention indefinitely. The Bill specifically provides for continuous detention for up to six days (s.34C(5)), but there is no provision limiting further detention under consecutive warrants. As the explanatory memorandum attached to the Bill makes clear, a person may be subject to more than one detention warrant. Thirdly, if ASIO demands any information or thing from detainees, they must provide it or face five years jail (s.34G(3) and (6). Even if detainees do not have the information or thing, they must produce evidence proving so, reversing the traditional burden of proof on the prosecution in criminal trials. Giving false or misleading answers to ASIO questions can also result in five years jail (s.34G(5)). Finally, police officers can use ‘reasonable and necessary’ force to conduct strip-searches. This power also reveals the government’s intention to detain children. Detainees under 10 years of age are the only exception to the search power, while those aged up to 18 can be searched in the presence of a parent, guardian or ‘someone else who can represent the person’s interests’, even if that person is not acceptable to the detainee (s.34M). ASIO can seize and retain any items found or produced on its demand (s.34N).

To provide a fig leaf of protection against torture, intimidation and frame-up, interrogation must be video- taped (s.34K) and conducted in the presence of a ‘prescribed authority,’ that is a magistrate or member of the Administrative Appeals Tribunal (s.34D(2)). Video-taping of police questioning, currently required in most Australian jurisdictions, is no guarantee against the planting of evidence and extraction of false confessions.[5] Also, a government can readily appoint magistrates or tribunal members, with no judicial tenure, who are amenable to its requirements. Another remarkable clause provides that detainees ‘must be treated with humanity and with some respect for human dignity, and must not be subjected to cruel, inhuman or degrading treatment’ (s.34J(2)). Apart from revealing that degrading treatment is in fact quite possible, this clause is largely meaningless. There is no penalty for its breach and it will be difficult to enforce by way of judicial review after the abusive treatment has already occurred. The only specific remedy provided by the Bill is the making of complaints to the Ombudsman and to the Inspector-General of Intelligence and Security, who is a high-ranking official within the security apparatus (s.34F(9)). In a media statement, Attorney-General Williams said the Bill contained ‘strict safeguards’ of individual freedom, including the need for ASIO to obtain his consent before seeking a detention warrant.[6] This proviso only underscores the power that will be concentrated in the hands of the government of the day, and the highly political character of the new measures.

To claim that ASIO needs more powers to detect terrorists is ludicrous. It already has the power to bug phones, install listening devices in offices and homes, intercept telecommunications, open people’s mail, monitor on-line discussion, break into computer files and databases, seize computers and use personal tracking devices.[7] The ASIO Director-General, or his or her delegated officers, can issue search and entry warrants, effectively giving officers a legal carte blanche to conduct operations against political activists and organisations.[8] Moreover, ASIO is part of an extensive security and intelligence network that incorporates the external Australian Secret Intelligence Service (ASIS), the Prime Minister’s Office of National Assessments (ONA), special state police units (formerly called Special Branches), the military’s Joint Intelligence Office (JIO) and an electronic eavesdropping agency, the Defence Signals Directorate (DSD).[9]

Terrorism and treason widely defined

The legislation’s sweeping definitions of terrorism and treason (both punishable by life imprisonment) will enhance the powers of the government and ASIO. Terrorism will cover any acts or threats, whether criminal or not, that advance ‘a political, religious or ideological cause’. It need not involve harm to a person; it can include serious damage to property, risk to public health or safety or interference with an information, telecommunications, financial, essential services or transport system.[10] Preparing, providing training for, or in any way assisting a terrorist act can lead to life imprisonment, as can possession of any object or document used to prepare or assist a terrorist act. Strict liability will apply to these offences, placing the onus on the defendant to prove that he or she did not know or was not reckless as to the terrorist purpose.[11]

Although the Bill exempts ‘lawful advocacy, protest or dissent’ and ‘industrial action’ it does not actually define ‘lawful’ or ‘industrial action’.[12] Many political protests, demonstrations and marches can be deemed ‘unlawful’ by police accusing participants of offences such as obstructing traffic, disorderly conduct, trespass and resisting arrest.[13] The courts have interpreted ‘industrial action’ to exclude picketing.[14] These provisions could thus cover a wide range of political activity, such as planning or participating in a protest outside government buildings or facilities where damage is alleged to have occurred. Workers who picket a workplace and demonstrators who block roads or entrances to financial institutions, such as the stock exchange, could be charged as terrorists, as could computer hackers. During questioning in a Senate Legal and Constitutional Committee hearing on 8 April 2002, the Attorney-General’s representatives admitted that someone who cut through a fence at the Easter 2002 protest at the Woomera refugee detention centre or who invaded the parliament building during a 1996 trade union rally could have been charged with terrorism.[15] The officials acknowledged that a picketing striker who caused ‘serious’ property damage or a person who possessed a mobile phone used to discuss a violent act could be prosecuted under the new provisions.[16]

Whilst citing the September 11 attacks in the United States as its justification, the government has adopted a definition of terrorism that goes well beyond the Bush administration’s US Patriot Act, which covers activities that are dangerous to human life and violate existing criminal laws. The Howard government’s version is based on the British Blair government’s Terrorism Act 2000. It goes further than the British, US, Canadian and proposed New Zealand legislation, however, by not requiring an intention to intimidate the population and/or coerce the government, which is widely regarded as an essential attribute of terrorism. Section 1 of the British Act specifies that ‘the use or threat is designed to influence the government or to intimidate the public or a section of the public’.[17] The Senate Legal and Constitutional Committee has recommended an amendment to match the British requirement, but this would still provide the authorities with enormous scope to suppress political dissent, for example by accusing protesters of intimidating people.

Equally ominous is the extension of the definition of treason, regarded as one of the most serious political crimes. It will now include assistance to an enemy, regardless of whether war has been declared, or to any organisation ‘engaged in armed hostilities’ against the Australian military.[18] If made retrospective, this amendment could be used against David Hicks, currently held by the US government at Guantanamo Bay, Cuba for allegedly fighting with Afghanistan’s Taliban government against US and allied forces. More generally, it could be invoked against anyone who aids resistance to an Australian military intervention, such as the current involvement in Afghanistan and the Persian Gulf. A person who knows of any planned act of treason and does not notify the police, or fails to attempt to prevent the treason, could face life imprisonment.[19] In the Senate hearing, the Attorney-General’s officials admitted they knew of no other country with a specific provision punishing failure to report or prevent treason.[20]

These sweeping measures indicate that the legislation is meant for political use. The government admits that no discernible terrorist threat exists in Australia. Moreover, no major terrorist acts have been recorded since the single 1978 bomb blast outside a British Commonwealth leaders meeting at Sydney’s Hilton Hotel, an incident that bore all the hallmarks of a state provocation.[21] In any case, as a parliamentary library report issued in March 2002 pointed out, the security and police agencies already have all the powers they need to investigate, prevent and punish genuine acts of terrorism, which are fully covered by existing criminal law.[22]

Espionage extended

Another part of the counter-terrorism package, the Criminal Code Amendment (Espionage and Related Offences) Bill 2002, was originally intended to extend and toughen two sets of laws. One against alleged espionage and the other against the leaking of government information. Faced with considerable opposition from media proprietors, Attorney- General Williams dropped the provisions relating to the unauthorised release of official secrets, but the espionage measures have equally serious implications for democratic rights.

As well as more than trebling the potential jail term for espionage from 7 to 25 years, the Bill widens the Crimes Act, which protects information on Australia’s ‘safety or defence’. The new term ‘security or defence’ is defined to include ‘the operations, capabilities and technologies of, and methods and sources used by, the country’s intelligence or security agencies’.[23] Anyone convicted of disclosing information about national ‘security or defence’ and ‘with the intention to prejudice’ that security could be imprisoned for 25 years, as could anyone who releases information that is in Australia’s control relating to the security or defence of another country.[24] This means it will be espionage to reveal or publish official material about the operations of Australian security agencies, including the armed forces, DIO, ASIO, ASIS, DSD and the ONA. Currently, the ASIO Act and other measures prohibit revealing the identities of intelligence officers, but the new provision is far more general and carries a much heavier penalty. It could apply to the revelation that the Howard government used the DSD to monitor communications with the Norwegian freighter the Tampa during the August-September 2001 confrontation over the government’s refusal to allow the ship’s rescued refugees to enter Australia. According to media reports, details of the use of DSD intelligence for domestic political purposes came from ‘a senior government source close to Cabinet’.[25]

For the first time, anyone who exposes the intelligence activities of the government’s security partners, the chief ones being the US and Britain, whose agencies include the CIA, FBI and MI5, can be charged with espionage. These provisions provide considerable scope for persecuting those accused of opposing the ‘war against terrorism’ or any other military intervention. For instance, they will outlaw revelations about the operations of the SAS Special Forces in Afghanistan or the navy’s participation in the naval blockade of Iraq, or the bombing activities of the American military and its other allies. If this legislation had been enacted in 1999 it could have been used against the leaking of DSD and other intelligence information showing the Howard government’s prior knowledge of Indonesian-backed violence in East Timor.[26]

Any charges under the legislation, whether of ‘spying’ or ‘leaking,’ can be heard behind closed doors. Courts or tribunals may exclude members of the public from the whole or part of a hearing and ban publication of any or all of the proceedings in ‘the interests of national security or defence’. This provision, which already exists in the Crimes Act, will be extended to include the new definition of ‘security or defence’.[27]

Power to outlaw organisations

Under the Security Legislation Amendment (Terrorism) Bill (No.2) 2002, the Attorney-General can proscribe any organisation on a number of extremely broad and vague grounds. They include a belief that the organisation, or any of its members, is committing an offence related to treason or terrorism under the legislation. It is not necessary for the organisation, or a member, to be convicted of, or even charged with, an offence. It is sufficient for the Attorney- General to be ‘satisfied’ an offence is being committed.[28] These offences include planning, preparing, training and assisting acts of treason and terrorism, so it will be enough for the Attorney-General to assert that such an act is being prepared.

The Bill’s scope is extended further in that membership of an organisation is defined to include ‘informal’ membership and the taking of any steps to join an organisation.[29] This opens the door for the use of intelligence infiltrators and provocateurs to set up an organisation for proscription. To ban an organisation, it will be enough for an alleged terrorist to attempt to join the organisation. The history of ASIO and its fellow intelligence agencies is full of examples of its agents joining targeted organisations. Indeed, police spies and provocateurs joined the Ananda Marga sect in the lead-up to the 1978 Sydney Hilton Hotel bomb blast, Australia’s only alleged major terrorist crime, for which sect members were later framed-up by police.[30]

Of even greater scope is the Attorney-General’s power to outlaw an organisation that ‘has endangered, or is likely to endanger, the security or integrity’ of Australia or another country.[31] The use of the past tense makes retrospective proscription possible. In light of the notoriously wide meanings that can be given to the term ‘national security’ and the well-known difficulties of obtaining judicial review of its use by government and intelligence agencies,[32] the word ‘security’ opens up wide scope for political abuse. ‘Integrity’ has no known legal meaning; its dictionary definitions include ‘unity’ and ‘adherence to moral principles’.[33] This provision is so wide that it could apply to any political party deemed to be a threat to domestic political stability, as well as to any group supporting opponents of another government. In the past, it would have applied to supporters of the African National Congress, Fretilin, the Liberation Tigers of Tamil Eelam and the Palestine Liberation Organisation. At present, it could easily be used against a range of causes, from West Papuan, Kashmiri and Tibetan secession to opposition to Israeli or US military aggression in the Middle East.

Anyone who is a member of (including ‘informal’ member and applicant), or in any way assists, an outlawed organisation can be jailed for 25 years. As the Uniting Church submission to the Senate Legal and Constitutional Committee inquiry on the Bills pointed out, ‘assists’ could cover anyone who simply expresses public support for a banned organisation.[34] The government does not have to prove that defendants knew the group was banned. Again, the burden of proof is reversed; defendants must show that they did not know and could not have known about the ban. As the New South Wales Council for Civil Liberties stated in its submission, anyone who gives a donation to a political or charitable group with links to a proscribed organisation could be jailed, even if the group has an innocent-sounding name, obscuring its connection to the outlawed organisation.[35] In the Senate Committee hearing on the legislation, senior officers of the Attorney-General’s department initially refused to rule out the possibility of a lawyer being charged for helping a banned organisation to appeal against its proscription.[36]Such a precedent has recently been set in the United States, where charges have been laid against a prominent attorney for assisting clients who are alleged terrorists.[37]

This Bill is the first major bid to outlaw political organisations since 1951, when the High Court declared Menzies’ legislation to ban the Communist Party unconstitutional.[38] In a significant popular victory for free speech, the government’s subsequent referendum to amend the Constitution was defeated. The current legislation could also be challenged in the High Court. The states’ referral of their law enforcement powers to the federal government, however, may help provide Canberra with sufficient constitutional jurisdiction to make the legislation legally valid. Under the existing provisions of the Crimes Act, the federal government already has the power to declare unlawful any association that advocates or encourages the overthrow of the Constitution or any government by revolution, sabotage, force or violence, or the destruction of government property or seditious conduct.[39] These provisions, however, expanded in 1917 to combat support for the Russian Revolution,[40] require the Attorney-General to seek a Federal Court order declaring an association unlawful[41] and have never been used. Government leaders now evidently hope to exploit the fear of terrorist violence to allow the Attorney-General to unilaterally outlaw groups seen as a political threat. The Attorney-General’s decisions will be subject to judicial review, but only on the narrow grounds of ultra vires under the Administrative Decisions (Judicial Review) Act and even that review can be precluded by regulation.[42] By the time a proscribed organisation challenges its banning in court, a process that could take many months, it may have already suffered irreparable political damage.

Other provisions

It is not possible in this article to review the full range of measures in the legislative package and other government initiatives. Other provisions with extensive implications for political liberty include:

• Strengthening the surveillance powers of ASIO, federal and state police and other security agencies. The use of telecommunications intercept warrants will be broadened to permit phone tapping and the interception of email and mobile phone messaging services (even before they are received by the addressee) on the pretext of investigating terrorism, arson and child pornography. The warrants will be easier to obtain from federal magistrates and will permit secret entry onto premises.[43]

The Suppression of the Financing of Terrorism Bill, which will allow funds and property to be seized from individuals and organisations on the grounds that they are the proceeds of terrorist activity or are intended to be used for terrorism.[44] Without waiting for legislation, the government invoked a UN Security Council resolution to announce financing of terrorism regulations on 15 October 2001 and has since gazetted three lists of organisations whose assets must be frozen.[45]

Providing customs officers and federal protective service officers with weapons and greater powers to arrest, remove or seize goods from people at airports and ports, together with access to airline and ship passenger lists.[46]

New ‘anti-hoax’ provisions imposing punishment of up to 10 years imprisonment for inducing a false belief that an article sent by post or placed somewhere contains dangerous or explosive substances, with retrospective application to 16 October 2001.[47]

Doubling the Australian Federal Police’s Strike Team to target terrorism and ‘politically motivated violence’ and also doubling the military’s Special Forces, including the SAS Tactical Assault Group (mobilised against the Tampa refugees).[48] Under the military call-out legislation, pushed through Parliament just before the Olympics, the government can use troops against civilian targets in order to suppress ‘domestic violence’.[49]

The random placement of over 100 armed plainclothes police on selected domestic and international flights.[50]

Just before September 11, the government had already strengthened the hand of the intelligence agencies. Under the Intelligence Services Act 2001, ASIS and DSD officers were given extensive criminal and civil immunity for their activities and the public naming of officers was outlawed, matching protections enjoyed by ASIO. In effect, ASIS and DSD were authorised to conduct surveillance against Australian citizens overseas.[51]

ASIO raids

In the wake of the 11 September 2001 attacks, the government, assisted by ASIO and a compliant media, sought to create the climate for its raft of measures by declaring that terror groups linked to Osama bin Laden were active in Australia. Without advancing any evidence to substantiate these claims, large-scale police raids were conducted in Sydney’s Arabic community. In one operation, an estimated 70 heavily-armed state and federal police, detectives and ASIO officers searched at least five homes in the working class suburbs of Campsie and Lakemba. They interrogated people and seized passports, financial records and other documents. Media outlets played their part by splashing news of the raids across the front pages of weekend tabloid newspapers.[52] One woman told reporters that officers had held her face down at gunpoint, interrogated her in front of her two young children and turned the residence ‘upside down’. Outside Sydney, police and ASIO officers raided two holiday camps run by an Islamic youth organisation. Outraged members and parents gave television stations video footage showing that the camps were used for children’s games, including soccer and water sports.

No arrests were made during or after the September 2001 raids, indicating that they produced no evidence of terrorist links. The only purpose for the raids was to intimidate the Arabic and Islamic community and boost the government’s security crackdown. The government refused requests by the New South Wales Council for Civil Liberties to produce information justifying the raids. Council president Cameron Murphy told this author:

The past few days have seen Sydney’s Arabic community terrorised. People have been held on the floor at gunpoint. ASIO is conducting investigations without any basis, seemingly operating on anonymous tip-offs. We have no way of knowing whether the raids are lawful or not. We have been trying to obtain the necessary information, and so has the media, but the government has refused to hand it over.[53]

The raids provided an early warning of how the intelligence apparatus may be used to harass and vilify innocent people in ways that could lead to terrorism-related prosecutions and proscriptions.

Bipartisan support

Not only have the state Labor leaders agreed to refer their counter-terrorism powers to the Howard government, but the federal Labor leadership has pledged its basic support for the legislation. In opening the debate on the legislation, Labor leader Simon Crean told Parliament: ‘Labor believes that as a nation we must be tough on terrorism’. Civil liberties groups, lawyers’ associations and legal academics have criticised the laws as draconian and insidious but Crean and his colleagues are anxious to head off wider public opposition. Crean stated further: ‘We do not oppose these bills. Our national security agencies must have the power to tackle terrorism but with clear laws and without political interference. It is crucial that we get these bills right and that they have broad community support.’[54] The Labor leader criticised the government for delaying the legislation for so long after the events of September 11, declaring that ‘we could have put this legislation through in the last Parliament’ six months earlier.[55] He appealed for a cooperative approach to allow Labor to ease the passage of the laws, as it did with the military call-out legislation in 2000.[56]

Senate Committee review of the legislation may give the government the opportunity to incorporate modifications proposed by Labor. At the time of writing, intense public opposition, an unfavourable report by the Senate Legal and Constitutional Committee and an unprecedented revolt on the government’s own backbench had forced the government to temporarily withdraw and redraft the Bills.[57] Whatever cosmetic amendments are made to the Bills, however, the central thrust will remain: the introduction of unprecedented powers to outlaw, interrogate and jail opponents of the ruling political establishment. As several submissions to the Senate Committee stated, the legislation is likely to be used to further harass and victimise members of the Islamic and Arab communities and could breach international human rights standards, notably the International Covenant on Civil and Political Rights, which protects freedom of expression, assembly and association and prohibits arbitrary arrest and detention.[58]

Conclusion

It is sheer chicanery for the government to argue that the legislation is needed to fight terrorism. As the Law Council of Australia noted, in its submission to the Senate Committee, at least 24 Acts of Parliament already specifically punish every conceivable terrorist crime, such as murder, grievous bodily harm, criminal damage, arson, conspiracy and attempt.[59] Equally false is the government’s claim that the legislation is needed to comply with UN Security Council Resolution 1373, adopted last September 28 to insist that member states take ‘serious’ punitive action against terrorists. As the Law Council also observed, the government’s first report to the UN Counter-Terrorism Committee on implementing Resolution 1373 stated that Australia already had ‘a highly coordinated domestic counter-terrorism response strategy incorporating law enforcement, security and defence agencies’ with ‘extensive measures’ to combat terrorist acts.[60]

Even as fresh evidence comes to light and new doubts are raised about the Bush administration’s forewarning of the terrorist attacks,[61] the government is pushing ahead with measures that will, in the name of protecting liberty, overturn long-standing legal and democratic principles. In the eloquent words of one of the 431 submissions to the Senate Legal and Constitutional Committee protesting against the legislation:

Basic safeguards of freedom from arbitrary arrest should not be compromised in this way, or the state itself becomes a terrorist. To quote Benjamin Franklin in his Historical Review of Pennsylvania, 1759: ‘They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety’.[62]

One can only draw the conclusion that the events of September 11 are being exploited to bring forward measures normally associated with totalitarian states and military juntas.


[*] Michael Head teaches law at the University of Western Sydney.

This article draws in part on material that the author previously wrote for the World Socialist website <www.wsws.org>.email: m.head@uws.edu.au©2002 Michael Head (text)

©2002 Stuart Roth (cartoon)

[1] Australian Broadcasting Corporation, 13 March 2002 at <http://www. abc.net.au/news/politics/2002/03/item20020312235919_1.html> accessed 13M arch 2002.

[2] Slipper, P., Parliamentary Secretary to the Minister for Finance and Administration, Commonwealth, Parliamentary Debates, House of Representatives, 13 March 2002, p.1042 and Williams, D., press releases, ‘Australia’s National Security, 18 September 2001, ‘Australia Well Prepared, 2 November 2001, ‘Upgrading Australia’s Counter- Terrorism Capabilities, 18 December 2001, ‘Indian Authorities’, 7 February 2002.

[3] See generally, Bronitt, S. and Ayers, M., ‘Criminal Law and Human Rights’, in Kinley, D. (ed.), Human Rights in Australian Law, Federation Press, Sydney, 1998.

[4] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.

[5] See Chaaya, M., ‘The Right to Silence Reignited: Vulnerable Suspects, Police Questioning and Law and Order in NSW’, (1998) 22 Criminal Law Journal 82.

[6] Williams, D., ‘ASIO Legislation Amendment Bill introduced’, news release, 21 March 2002, <http://www.ag.gov.au/aghome/agnews/ 2002newsag/32_02.htm> accessed 22 March 2002.

[7] See generally, Australian Security Intelligence Organisation Act 1979 (Cth).

[8] See, Hocking, J., Beyond Terrorism, The Development of the Australian Security State, Allen & Unwin, Sydney 1993, Chapter 8.

[9] Hocking, J., above, ref 8; Lee, H., Hanks P. and Morabito, V., In the Name of National Security, The Legal Dimensions, LBC, Sydney, 1995, Chapter 3.

[10] Proposed Criminal Code Act 1995, s.100.1 (Cth).

[11] Criminal Code ss.101.2, 101.4, 101.5, 101.6.

[12] Criminal Code s.100.1

[13] See, Bailey, P., Human Rights: Australia in an International Context, Butterworths, Sydney, 1990, pp.296-7 and Hiller, A., Public Order and the Law, LBC, Sydney, 1983.

[14] See, Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 165 ALR 550 and Howe, J., ‘Picketing and the Statutory Definition of “Industrial Action”’, (2000) 13 Australian Journal of Labour Law, pp.84-91.

[15] Commonwealth, Parliamentary Debates, Senate Legal and Constitutional Committee, Reference: Security Legislation Amendment (Terrorism) Bill and related bills, 8 April 2002, p.19.

[16] Commonwealth, Parliamentary Debates, above, ref 15, pp.14-15.

[17] See, Senate Legal and Constitutional Committee, Report on Security Legislation Amendment (Terrorism) Bill 2002 [No. 2] and Related Bills, May 2002, p.34. For a further comparison of the US and British legislation, see Hancock, N., Terrorism and the Law in Australia: Supporting Materials, Parliament of Australia, Department of Parliamentary Library, Research Paper No.13, 2001–2002, pp.2-8.

[18] Criminal Code s.80.1.

[19] Criminal Code s.80.1 (2).

[20] Senate Legal and Constitutional Committee, above, ref 15, p.12.

[21] See, Molomby, T., Spies, Bombs and the Path of Bliss, Potoroo Press, Sydney, 1986, and Hocking, J., above, ref 8, Chapters 5-7.

[22] Hancock, N., above, ref 17, Note 42, p.16.

[23] Criminal Code s.90.1.

[24] Criminal Code s.91.1.

[25] See, Head, M., ‘Australian government launches new attacks on free speech’, <http://www.wsws.org/articles/2002/feb2002/law-f15.shtml> accessed 19 April 2002.

[26] See, Head, M., ‘Leaked spy intercepts prove Australian complicity in Timor massacre’, <http://www.wsws.org/articles/2002/mar2002/ timo-m25.shtml> accessed 19 April 2002.

[27] Criminal Code s.93.2.

[28] Criminal Code s.102.2(1) (a) and (b).

[29] Criminal Code s.102.1

[30] See, Hocking, J., above, ref 8, Chapters 5-7.

[31] Criminal Code s.102.2(1) (d).

[32] See, Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25 and Lee, Hanks and Morabito, above, ref 9, Chapters 1-2.

[33] The Collins English Dictionary, 2nd edn, Sydney, 2001.

[34] Submissions to the Senate Legal and Constitutional Committee for the Committee’s Inquiry into the Security Legislation Amendment (Terrorism) Bill and Related Bills, Vol. 1, p.37.

[35] Submissions, above, ref 34, p.162.

[36] Senate Legal and Constitutional Committee, above, ref 15, pp.18-19.

[37] Andrews, J., ‘US indicts Sheik Rahman’s lawyer, escalating government attack on democratic rights’, <http://www.wsws.org/ articles/2002/apr2002/stew-a11.shtml> accessed 19 April 2002.

[38] Australian Communist Party v Commonwealth [1951] HCA 5; (1950) 83 CLR 1.

[39] Crimes Act 1914 (Cth) s.30A.

[40] Hancock, N., Terrorism and the Law in Australia: Legislation, Commentary and Constraints, Parliament of Australia, Department of Parliamentary Library, Research Paper No. 12 2001-2002, p.7.

[41] Crimes Act s.30AA.

[42] Administrative Decisions (Judicial Review) Act 1977 (Cth), s.19B.

[43] See generally, Telecommunications Interception Legislation Amendment Bill 2002 (Cth).

[44] See generally, Suppression of the Financing of Terrorism Bill 2002 (Cth).

[45] Charter of the United Nations (Anti-Terrorism Measures) Regulations 2001 and Downer, A. and Williams, D., Joint Media Release, ‘Further Steps to Prevent the Financing of Terrorism’, 18 April 2002.

[46] See generally, Border Security Legislation Amendment Bill 2002 (Cth).

[47] Criminal Code Amendment (Anti-hoax and Other Measures) Act 2002 (Cth).

[48] See, Williams, D. and Ellison, C., Joint News Release, ‘2002–03 Budget: Law and Justice Overview’, <http://law.gov.au/publications/ budget2003/mediareleases/budgetoverview.htm> accessed 16 May 2002. See also, Lawson, D., ‘The Government Goes to War’, (2001) 55 Arena Magazine, pp.43-4.

[49] See, Head, M., ‘The Military Call-out Legislation — Some Legal and Constitutional Questions’, (2001) 29 Federal Law Review, pp.273-94.

[50] Williams, D., News Release, ‘Air Security Officers’, 18 December 2001.

[51] See, Intelligence Services Act 2000, ss.14, 15.

[52] See, Sun-Herald, 30 September 2001, p.1.

[53] See, Head, M., ‘US terror attacks used to introduce sweeping police powers’, World Socialist Web Site, <http://www.wsws.org/articles/ 2001/oct2001/how-o04_prn.shtml> accessed 15 April 2002.

[54] Senate Legal and Constitutional Committee, Information Package for the Committee’s Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 [No. 2] and Related Bills, p.46.

[55] Senate Legal and Constitutional Committee, above, ref 54, p.48.

[56] See, Head, M., ‘Military Call-out Legislation’.

[57] See, Banham, C., ‘Stalemate on revised terrorism package’, Sydney Morning Herald, 17 May 2002, p.4.

[58] Senate Legal and Constitutional Committee, Report, above, ref 17, note 52, pp.26-8.

[59] Senate Legal and Constitutional Committee, Report, above, ref 17, pp.20-1.

[60] Senate Legal and Constitutional Committee, Report, above, ref 17, p.20.

[61] See, World Socialist Web Site Editorial Board, ‘Cover-up and conspiracy: The Bush administration and September 11’, <http://www.wsws.org/articles/2002/may2002/bush-m18.shtml> accessed 20 May 2002.

[62] See, Submissions, above, ref 34, p.245.


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