Alternative Law Journal
We must not pass laws that damage the same democratic freedoms we are seeking to protect from terrorism.
The law, and the notion that it should be strengthened against terrorist activity, has played a prominent role around the world in responses and reactions to September 11. This has been equally true in Australia where the Federal Parliament has considered new anti-terrorism laws. After September 11 and the recent attack in Bali, such laws are required from the perspective of community confidence and also to fulfill Australia’s international obligations. Before September 11, there were no laws in Australia (except in the Northern Territory) dealing specifically with terrorism.
While Australia needs a national legislative response to terrorism, any new laws must strike a balance between defence and national security, and important public values and fundamental human rights. We must not pass laws that damage the same democratic freedoms we are seeking to protect from terrorism.
This article examines the Security Legislation Amendment (Terrorism) Bill 2002 (Terrorism Bill), which has been enacted by Parliament, but only after being substantially amended to meet a number of objections, and the ASIO Legislation Amendment (Terrorism) Bill 2002 (ASIO Bill), which has yet to be passed. I ask whether the government’s legal response to September 11 has achieved the right balance, and find that it has failed to do so. In fact, the Bills pose as great a threat to Australian democracy as Prime Minister Robert Menzies’ attempt to ban communism in 1950. If passed in the form in which they were introduced, these bills could have done more to undermine the long-term health of our democratic system than any threat currently posed by terrorism.
The first package of anti-terrorism legislation, comprising five bills, was introduced into Parliament on 12 March 2002. This legislation failed to pass in its original form and was substantially amended after a highly critical, unanimous report by the Senate Legal and Constitutional Legislation Committee and advocacy by the legal and community sectors.
The most important of these first Bills was the Terrorism Bill. It sought to introduce a definition of ‘terrorist act’ into federal law. Under s.100.1, a ‘terrorist act’ was an act or threat done ‘with the intention of advancing a political, religious or ideological cause’ that:
(a) involves serious harm to a person;
(b) involves serious damage to property;
(c) endangers a person’s life, other than the life of the person taking the action;
(d) creates a serious risk to the health or safety of the public or a section of the public; or
(e) seriously interferes with, seriously disrupts, or destroys, an electronic system.
The section provided an exception only for industrial action and lawful advocacy, protest or dissent.
This definition lacked a focus on the ultimate intent of a terrorist act; that is, what distinguishes terrorist violence from other forms of violence. The definition was so wide that it would have criminalised many forms of unlawful civil protest (unlawful perhaps only due to a trespass) in which people, property or electronic systems are harmed or damaged. The section could have extended to protest by farmers, unionists, students, environmentalists and online protesters engaged in hacktivism. Moreover, under s.101.1, a penalty of ‘imprisonment for life’ applied where a person engages in a terrorist act.
This aspect of the Terrorism Bill was amended to add a new element to the definition of ‘terrorist act’:
the action is done or the threat is made with the intention of:
coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
intimidating the public or a section of the public.
In addition, advocacy, protest, dissent or industrial action (whether lawful or not) is now excluded so long as it is not intended to, among other things, cause serious physical harm to a person or create a serious risk to the health or safety of the public.
A second controversial element of the Terrorism Bill was the proposal to empower the federal Attorney General to proscribe (or ban) an organisation, followed thereafter by criminal offences, including 25 years gaol, for members and supporters of the banned organisation. Section 102.2 would have enabled the Attorney General to ban an organisation for reasons including that the organisation ‘has endangered, or is likely to endanger, the security or integrity of the Commonwealth or another country’. ‘Integrity’ could include the geographical, or territorial, integrity of a nation, and hence this power could have been applied to proscribe an organisation that supported non-violent independence movements within other nations. Over recent years, a good example would be bodies supporting independence for East Timor or a separate Palestinian state.
The power to ban organisations could have been exercised unilaterally by the Attorney General and not as part of a fair and accountable process. The Attorney General’s decision to ban would not have been subject to meaningful independent review. It was intended that a decision to proscribe an organisation be reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth). But this may not have always been available. The capacity to review a decision could have been removed by regulation made under s.19B of that Act (which itself would be subject to disallowance, but only when Parliament next sat). A judge might in any event have refused to review a decision made under s.102.2 where the decision related to a matter of national security. Such matters are usually seen by the courts as non-justiciable.
Even if a judge were to proceed to review a decision made under s.102.2, the grounds of review under the Administrative Decisions (Judicial Review) Act are narrow and procedural. There would be no scope for review on broader proportionality grounds. In other words, it could not be argued that a decision was wrongly made because it was not ‘reasonably appropriate and adapted’ to the relevant purpose or object. This is a serious limitation on the scope of review under the Act.
If a wrongfully proscribed organisation was somehow successful in having a decision under s.102.2 overturned, the process of review could take a considerable period during which its reputation and standing in the community could be tarnished irrevocably. Retrospective judicial remedies provide an insufficient means of controlling a power like that under s.102.2.
This aspect of the Terrorism Bill was similar in design to the Communist Party Dissolution Act 1950 (Cth). That Act granted the Governor General the power to declare an organisation to be unlawful and a person to be a communist. The Act was struck down by the High Court in the Communist Party case  HCA 5; (1951) 83 CLR 1 because it granted the Governor General an unreviewable and unfettered power. The Terrorism Bill may not have suffered from the same constitutional defect as the Communist Party Dissolution Act because review of a decision by the Attorney General would have been theoretically available. Despite this, its similarity with the Dissolution Act is of grave concern. Both give a broad power to a member of the executive to ban an organisation. The separation of powers, including the notion that power must not be concentrated in any one arm of government, suggests that any proscription power should be vested in a court, or at least must be subject to a more strict form of scrutiny by a court. The dangers of not doing so were expressed by Dixon J in the Communist Party case at 187:
History and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power. Forms of government may need protection from dangers likely to arise from within the institutions to be protected.
The Terrorism Bill was amended to remove its proscription element. The legislation as enacted does not vest any general power in the Attorney General to proscribe organisations and to criminalise their members. Instead, it contains criminal sanctions for involvement with a terrorist organisation, including for recruiting members, providing support or funding, directing their activities or being a member. Section 102.1 of the Act defines a terrorist organisation to be ‘an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act occurs)’.. Under a very limited form of proscription, an organisation will also be a terrorist organisation where the Attorney General is satisfied that the Security Council of the United Nations has made a decision about terrorism identifying the organisation, and the organisation is a terrorist organisation under s.102.1.
The ASIO Bill as introduced into Parliament on 21 March 2002 would allow adults, and even children, to be detained and strip searched, and to be held by ASIO for rolling two-day periods that could be extended indefinitely. This is in contrast to the current eight-hour maximum period of detention without charge for suspects provided for by ss.23C and 23D of the Crimes Act 1914 (Cth). While detained under the ASIO Bill, Australians could be denied access to people outside of ASIO, and could not inform family members, their employer or even a lawyer of their detention. Section 34F(8) states: ‘A person who has been taken into custody, or detained, under this Division is not permitted to contact, and may be prevented from contacting, anyone at any time while in custody or detention.’
ASIO would require a warrant from a ‘prescribed authority’ to detain a person. The Bill enables a warrant to be granted by a federal magistrate or member of the Administrative Appeals Tribunal (AAT). The AAT is an administrative body whose officers are members of the executive. Moreover, members of the AAT, other than Presidential members, are now appointed for fixed periods and lack entrenched independence or tenure. They are dependent on the favour of the executive if they wish to be reappointed.
The ASIO Bill would authorise the detention of Australians without charges being laid, or even the possibility that they might be laid. Under s.34C(3) of the Bill, Australians could be held not because they have engaged in terrorism or are likely to do so, but because they may ‘substantially assist the collection of intelligence that is important in relation to a terrorism offence’.. People could be held without access to legal advice and without the normal rights to silence and to avoid self-incrimination. Under s.34G, a person is liable to a five-year jail term for refusing to answer a question, and any information obtained from the questioning may be used in the prosecution of a terrorism offence.
While the Bill states in s.34J that detainees ‘must be treated with humanity and with respect for human dignity’, there is no penalty for ASIO officers who subject detainees to cruel, inhuman or degrading punishment. In fact, s.92 of the Australian Security Intelligence Organisation Act 1979 (Cth) provides that it is an offence (punishable by imprisonment for one year) to even publish the identity of an ASIO officer.
The Parliamentary Joint Committee on ASIO, ASIS and DSD reported on the ASIO Bill in May 2002. The Committee unanimously found that the ASIO Bill ‘would undermine key legal rights and erode the civil liberties that make Australia a leading democracy’. Despite this, the 15 recommendations made by the Committee were limited to the operational aspects of the legislation, including that it not apply to children and that people be detained for a maximum of seven days. The Committee did not address the central issue of whether a government should possess the power to detain Australian citizens where there is no suspicion that they have committed an offence.
On 27 August 2002, Attorney General Daryl Williams issued a News Release announcing proposed amendments to the ASIO Bill. While the amendments adopt many of the recommendations of the Parliamentary Joint Committee, such as that detention be limited to a maximum of seven days, they also reject some key findings. As a result, the amendments further highlight, rather than remedy, the problems with the ASIO Bill.
The Parliamentary Joint Committee recommended that detained people be given access to legal advice, if necessary by security cleared lawyers. Instead, the government is proposing that a detained person only be guaranteed access to legal advice after the first 48 hours of detention. This raises questions about what may happen to a detained person in that critical two-day period. Moreover, even when legal advice is available, a detainee will only be able to discuss matters with a lawyer in the presence of an ASIO officer, thereby in many cases undermining the value of having access to a lawyer.
The proposed amendments provide limited concessions in regard to children. The Parliamentary Joint Committee found that no child should be held by ASIO for days at a time away from their parents and subjected to coercive questioning. The amendments, however, would retain the capacity to detain and question children from the age of 14 years and upwards.. While the amendments would limit the total period of detention of any person to seven days, the detention and questioning of a 14-year-old by ASIO for a week remains disturbing.
The amendments also fail to adopt the Parliamentary Joint Committee’s recommendation that the legislation be subjected to a three-year sunset clause. Without such a clause, the ASIO Bill cannot be seen as a short-term, immediate response to September 11. It will bring about a permanent change to law enforcement in Australia, and will entrench the notion that the detention of people who may have useful information is an appropriate tool for the gathering of information about criminal activity. The dangers of such a development in any law and order debate are obvious.
The ASIO Bill is inconsistent with basic democratic and judicial principles. Australians should not be detained beyond an initial short period (currently eight hours) except as a result of a finding of guilt by a judge or as part of the judicial process (such as being held in custody pending a bail hearing).
Australians are unlikely to accept the detention of citizens except as part of a fair and independent judicial process resulting from allegations of criminal conduct. There are grave dangers in allowing a government to bypass the courts, especially where a secret government organisation is involved. The possibilities of abuse of such a power are very real. For example, American judges found recently that the FBI and United States Justice Department supplied ‘false information’ in regard to ‘more than 75 applications for search warrants and wiretaps’ for terrorist suspects. Information had also been improperly shared with prosecutors in charge of criminal cases, thereby raising the issue of misuse of intelligence information to gain criminal convictions.
It would not be acceptable to the community for a state police force to detain people in secret for some days, nor should it be for ASIO. Whatever the view of the detention of David Hicks by the United States without trial for an indefinite period, we are unlikely to support the detention of Australians without trial within our borders.
ASIO is a covert intelligence-gathering agency. It is not a law enforcement body. If ASIO is to be granted coercive police powers, the Bill must subject the organisation to the same political and community scrutiny and controls that apply to any other police force. However, this is not compatible with the current intelligence gathering work of ASIO and its organisational structure (such as the secrecy applying to the identity of its employees). It would be difficult, if not impossible, for ASIO both to be sufficiently secretive to adequately fulfil its primary mission, as well as to be sufficiently open to scrutiny to exercise the powers set out in the ASIO Bill.
There are two grounds for a constitutional challenge to the ASIO Bill in the High Court. First, it breaches the separation of powers in empowering the executive to detain Australian citizens who have not committed an offence. This aspect of the Bill is inconsistent with the decision of the High Court in Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27, where Brennan, Deane and Dawson JJ, with whom Gaudron J agreed, held that ‘the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt’.. There are exceptions to this rule where the detention is non-punitive in character, such as detention due to mental illness and infectious disease. In Lim (at 28 fn 66) it was not determined ‘whether the defence power in times of war will support an executive power to make detention orders’. In any case, the High Court is unlikely to view the current situation as a time of war. However, in Kruger v Commonwealth (Stolen Generations case)  HCA 27; (1997) 190 CLR 1 at 162, Gummow J pointed out that ‘The categories of non-punitive, involuntary detention are not closed’ and the Court could create a new exception relating to national security.
Second, it is doubtful whether a federal magistrate can be a prescribed authority. The High Court has held that non-judicial powers (such as granting a warrant) can be conferred on a federal judge in his or her personal capacity. However, according to Brennan CJ and Deane, Dawson and Toohey JJ in Grollo v Palmer  HCA 26; (1995) 184 CLR 348 at 365, this is also subject to the principle that ‘no function can be conferred that is incompatible either with the judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power’. A power cannot be granted to a federal judge that is incompatible with the nature of the judicial office in the sense that it threatens the integrity of the judiciary. It is arguable that involving judges in an investigative process by which Australian citizens are detained in secret for unprecedented periods would undermine public confidence in the judicial system.
The arguments for invalidity are sufficiently strong that a High Court challenge is probable in the event of a detention (assuming of course that there is knowledge of the detention). Parts of the law may be declared invalid at the very time they are being applied, and may provide no protection against terrorist activity.
The ASIO Bill goes further than equivalent legislation in the United Kingdom (Terrorism Act 2000), Canada (Anti- Terrorism Act 2002) and the United States (USA PATRIOT Act 2001). Only Australia has sought to legislate to authorise the detention in secret of non-suspects. In the United Kingdom and Canada, the police may detain suspected terrorists (in the United Kingdom for 48 hours extendable for a further 5 days, and in Canada for 24 hours extendable for a further 48 hours). In the United States, legislation provides for the detention of ‘inadmissible aliens’ as well as for any person who is engaged in any activity ‘that endangers the national security of the United States’ (detention is for renewable six-month periods).
No policy justification for the ASIO Bill has been offered, nor has the government set out the nature and extent of the danger posed to Australians by terrorism. Unfortunately, the Bill has the appearance of being a hasty over-reaction to the tragedy of September 11, rather than being an appropriate response to the issues facing Australia.
Australians have the right to ask: how will this Bill assist in dealing with the threat of terrorism facing our nation? In fact, the Bill may not be particularly helpful. Unlike legislation in the United Kingdom, Canada and the United States, this Bill is not aimed at terrorists, but at non-suspects who may have useful information.
Recent debate in the United States has questioned whether the problem facing intelligence services is one of analysis of information rather than information gathering. It seems that United States intelligence services had information about the September 11 plot before the incident, but were unable to ‘connect the dots’. The ASIO Bill, in providing coercive new means of information gathering, may miss the more significant issue of whether ASIO possesses the resources and capacity to analyse adequately the information it already has (especially given that Australian authorities already engage in a far higher level of phone tapping than their United States counterparts). Increasing the volume and intensity of information gathering through such methods may redirect the work and resources of ASIO in a way that does not meet the problem. It may also lead to the gathering of information that is inadmissible in court. The lack of procedural fairness resulting from how the evidence has been collected may prejudice the reliability of the material and the capacity to have a fair trial.
The government’s legal response to September 11 is some of the most important legislation ever introduced into the Federal Parliament. The Terrorism Bill has now been passed with sufficient amendments to allay the strongest concerns. However, debate over the ASIO Bill continues. That Bill was passed by the House of Representatives with the Government’s amendments on 24 September 2002, with the Labor Opposition voting against it. Senator John Faulkner, the Leader of the Opposition in the Senate, stated that when the Bill reached the Senate ‘Labour will move a referral to a Senate References Committee to examine alternative ways of enhancing the capacity of our law enforcement agencies to counter terrorism without compromising civil liberties’. The Bill has been debated in the Senate and on 21 October was referred to the Senate Legal and Constitutional Affairs References Committee for a public inquiry and report by 3 December 2002.
The ASIO Bill is rotten at its core. It would confer unprecedented new powers upon ASIO that could be used against the Australian people by an unscrupulous government. It is unfortunate that it has come to this, but the ASIO Bill would establish part of the apparatus of a police state. It is a law that would not be out of place in former dictatorships such as General Pinochet’s Chile. The powers to be given to ASIO may not be used against the Australian people today, or even over the next decade, but we cannot guess at the wisdom and motives of a government or of ASIO in 10, 20 or even 50 years time.
While new laws dealing with terrorism are necessary and important, the ASIO Bill cannot, and has not, been justified. The Bill would affect the basic rights of every Australian. Even if amended, it would subject citizens, including children, to lengthy detention by ASIO in secret. Instead of going down this path, we should first determine the nature of the threat to Australia, and then explore ways of strengthening our defences by improving the operational capacity of ASIO and by improving the effectiveness of our current policing framework.
[*] George Williams is the Anthony Mason Professor and Director of the Gilbert & Tobin Centre of Public Law at the Faculty of Law, University of New South Wales and a New South Wales barrister.email: firstname.lastname@example.org: www.gtcentre.unsw.edu.au©2002 George Williams
 Criminal Code Act (NT), Pt III Div 2. The provisions were modelled on the Prevention of Terrorism (Temporary Provisions) Act 1974 (UK).
 They were: Terrorism Bill; Suppression of the Financing of Terrorism Bill 2002; Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002; Border Security Legislation Amendment Bill 2002; Telecommunications Interception Legislation Amendment Bill 2002.
 Senate Legal and Constitutional Legislation Committee, Consideration of Legislation Referred to the Committee: Security Legislation Amendment (Terrorism) Bill 2002 et al, May 2002.
 The section does, however, allow the person to contact the Inspector General of Intelligence and Security and the Ombudsman while in detention.
 Administrative Appeals Tribunal Act 1975 (Cth), s.8.
 Parliamentary Joint Committee on ASIO, ASIS and DSD, An Advisory Report on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, May 2002 at vii. See also Senate Legal and Constitutional Legislation Committee, Consideration of Legislation Referred to the Committee: Provisions of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, June 2002.
 ‘Sir Humphrey Would Be Proud’, News Release, 27 August 2002. For the full text of the amendments, see Hansard, House of Representatives, 23 September 2002, pp.6784-91.
 Kelly, T., ‘Court Reveals FBI Deceit’, Sun Herald, 25 August 2002.
 See Hancock, N., Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, Bills Digest No 128 of 2001-02, 1 May 2002, pp.20-2.
 See, for example, Alcorn, G., ‘Calls for Account of Failure to Connect the Dots’, Sydney Morning Herald, 18 May 2002; Eccleston, R., ‘Clues Aplenty, but FBI Failed to Connect Dots’, Weekend Australian, 18 May 2002; Eggen, D., ‘Revealed: FBI Told of Hijack Suspect a Month before Planes Hit’, Sydney Morning Herald, 3 January 2002.
 In the financial year ending in June 2001, ‘more than 2150 warrants were issued for phone taps in Australia, but only 1490 in the United States’, Banham, C., ‘Rampant Phone Tapping puts US in the Shade’ Sydney Morning Herald, 16 September 2002; see Daryl Melham MP, ‘More Telephone Taps in Australia than the United States’, Media Statement, 15 September 2002; and compare Attorney General Daryl Williams, ‘Interception an Effective Crime-Fighting Tool’, News Release, 16 September 2002.
 Hansard, House of Representatives, 24 September 2002, pp.6844-47. See also for the debate on the Bill, Hansard, House of Representatives, 19 September 2002, pp. 6607-33, 6661-63; Hansard, House of Representatives, 23 September 2002, pp. 6762-93.
 ‘Government Fails Over ASIO Bill’, Media Statement, 27 August 2002.
 Hansard, Senate, 21 October 2002, pp.5392-93. For the debate, see Hansard, Senate, 17 October 2002, pp.5279-5300; Hansard, Senate, 21 October 2002, pp.5347-57. Details of the inquiry can be found at <www.aph.gov.au/senate/committee/legcon_ctte/>.