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MICHAEL HEAD[*]
[During 2002, on the pretext of shielding the Australian people from terrorism, the Howard government has introduced legislation that arguably undermines fundamental democratic rights, including freedom of speech and political association and freedom from arbitrary detention. A package of ‘counter-terrorism’ legislation has handed unprecedented powers to the executive government and the intelligence and police agencies. The measures have introduced sweeping definitions of terrorism and treason, both now punishable by life imprisonment, which could outlaw many forms of political protest and industrial action. The legislation contains powers to proscribe organisations, freeze their funds and jail their members for alleged support of ‘terrorism’. In addition, it reverses the burden of proof for a range of serious offences, effectively requiring defendants to prove their innocence. One part of the legislative package, which would authorise the Australian Security Intelligence Organisation (ASIO) to detain people in police custody without charge and interrogate them incommunicado, without access to legal advice, was referred to a Senate committee by the opposition parties in October 2002. This article examines the purported rationale for the legislation and argues that the laws infringe basic civil liberties, are unrelated or disproportionate to the threat of terrorism and possibly unconstitutional.]
CONTENTS
Over the past three years, Prime Minister John Howard’s government, supported by the Labor Party opposition, has initiated three major shifts in the political, legal and constitutional framework within which the military, police and security agencies operate. On the pretext of shielding the Australian people from terrorism and protecting the national borders, the government has introduced legislation and undertaken executive action that arguably undermine fundamental democratic rights, including freedom of speech and political association and freedom from arbitrary detention.
In 2000, the Coalition and the Labor parties joined hands to pass military call-out legislation that enables the armed forces to be mobilised against civilian unrest (‘domestic violence’), with or without the agreement of a State government. This overturned the traditional principle of relying on police for domestic law enforcement.[1] In 2001, there was bipartisan support for a raft of measures passed in the wake of the Tampa affair[2] to permit the armed forces to repel or detain asylum-seekers and transport them to remote foreign locations — effectively preventing asylum-seekers or any Australian citizen from legally challenging these actions.[3]
In June 2002, the government, again with the support of the Labor party, secured the passage of a raft of five ‘counter-terrorism’ laws, handing unprecedented powers to the executive government and the intelligence and police agencies.[4] As a result of negotiations with Labor, the legislative package was slightly modified in an effort to appease the many critics of the legislation.[5] Despite these amendments, the measures retain their essential anti-democratic features. They introduce sweeping definitions of terrorism and treason, both now punishable by life imprisonment, which could outlaw many forms of political protest and industrial action.[6] The legislation contains powers to ban political parties, freeze their funds and jail their members for alleged support of ‘terrorism’.[7] In addition, it reverses the burden of proof for a range of serious offences, effectively requiring defendants to prove their innocence.[8]
In a media release announcing the passage of the five bills, the Attorney-General declared his satisfaction with the outcome: ‘We have come out of the Senate debate with a strong set of Bills. The government appreciates the consideration given by Parliament to this vital suite of legislation.’[9] He called on Labor to ‘complete the job’ by supporting the final component of the legislative package, the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth) (‘ASIO Bill’).[10]
As a result of public opposition and adverse parliamentary committee reports,[11] the government temporarily withdrew that Bill, which seeks to authorise the Australian Security Intelligence Organisation (‘ASIO’) to detain people in police custody without charge and interrogate them incommunicado.[12] Initially the Bill was delayed until the August 2002 parliamentary session, pending negotiations with Labor. Because of Labor’s in-principle support, the Bill was expected to be passed with limited amendments, along the lines proposed by the Joint Parliamentary Committee on ASIO and the other intelligence agencies. However, negotiations between Labor and the government broke down and Labor indicated its intention to refer the Bill to the Senate Legal and Constitutional References Committee for further examination.[13]
Many submissions to the Joint Parliamentary Committee and the Senate Legal and Constitutional Legislation Committee (which reviewed the first five bills), including those of the Law Council of Australia and the civil liberties councils of New South Wales and Victoria, questioned the need for the legislative package.[14] Indeed, the laws appear to have little to do with protecting the Australian people against terrorism. In the first place, at the time that the Bills were introduced, the government had admitted repeatedly that it had no evidence of specific terrorist threats.[15] Even if a threat existed, as pointed out by a parliamentary library report issued in March 2002, any conceivable terrorist activity (such as a bombing, hijacking, kidnapping or assassination) would already have been a serious crime under existing law.[16]
This article will argue that the counter-terrorism laws infringe basic civil liberties and democratic rights and that they are unrelated, or at least, disproportionate to the threat of terrorism and are possibly unconstitutional. Firstly, this article will examine the context and purported rationale for the legislation. Secondly, it will examine and criticise the various measures in some detail. Finally, it will consider a number of constitutional issues.
It is ironic that 50 years after the case of Australian Communist Party v Commonwealth[17] and the subsequent defeat of a referendum to ban the Australian Communist Party, the major political parties have passed legislation that goes beyond the measures of 1950–51 in its potential to outlaw dissenting political activity. The Cold War — which provided the setting for the Menzies government’s proposals — has ended, but instead of a new period of political freedom we are witnessing far-reaching moves against traditional democratic norms. Warnings issued by legal commentators, including High Court Justice Michael Kirby’s plea that ‘every erosion of liberty must be thoroughly justified’,[18] have fallen on deaf ears.
The Howard government followed the lead of the Bush administration in the United States and the Blair government in Britain by declaring that the tragic terrorist attacks in the United States on 11 September 2001 required an open-ended ‘war’ against terrorism abroad and curtailment of legal rights at home. Despite criticism by civil liberties groups, both the British and American governments introduced draconian anti-terrorism measures, including detention without trial and proscription of organisations.[19] Among the critics, Amnesty International condemned the Bush administration for breaching the International Covenant on Civil and Political Rights[20] and other international protocols against arbitrary detention and inhuman treatment of prisoners.[21]
When introducing the Australian legislative package, the Attorney-General provided no substantiated justification for it. He 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.’[22] Yet the government admitted that there was no known threat to Australia.[23] Moreover, no major terrorist acts have been recorded in this country since the 1978 bomb blast outside a meeting of British Commonwealth leaders at Sydney’s Hilton Hotel.[24] To this day, responsibility for the Hilton bombing remains an answered question, following the repeated failure to convict Ananda Marga sect members, who were accused of setting the bomb.[25]
Testifying before the Senate Legal and Constitutional Committee on the legislation, ASIO Director-General Dennis Richardson took the official argument somewhat further, insisting that the war on terrorism would require long-term changes to the security landscape:
We should be in no doubt that the effects of 11 September are long term; 11 September was not a blip on the security landscape which will simply fade gradually into history. It has changed the security environment, and those changes will be with us for some years. The US and its partners are enga-
ged in a protracted war — or whatever word one wants to use.[26]
In pursuing this legislation, the government rejected previous advice, adhered to by successive administrations since the Hilton Hotel bomb blast, that it was unnecessary, inadvisable and constitutionally questionable to introduce generic anti-terrorism laws. In the 1979 Protective Security Review Report, Justice Robert Hope, while recommending a major boost to the powers and resources of the police, intelligence and security forces, did not recommend the creation of new criminal offences, stating that ‘[t]errorism by its nature involves breaches of the ordinary criminal law.’[27] In an opinion commissioned by the Fraser government as part of Justice Hope’s review, former High Court Justice Victor Windeyer came to the same view.[28] He expressed serious doubt that an offence of ‘terrorism’ could be supported by the Australian Constitution:
Since all forms of violent wrongdoing that are called terrorism are punishable as crimes under Commonwealth or State law, it seems to me questionable whether the importation into Australian law ... of the word ‘terrorism’ as a concept in law is useful or desirable.[29]
One must ask why the government is now overturning these precepts. The new legislation will punish violent or other criminal activity far more severely if offenders are motivated by political, religious or ideological considerations than if they are acting out of other motives such as revenge, rage, greed etc. This indicates that it is the motive, be it political, religious or ideological — rather than the conduct itself — that the government is seeking to punish. One can only conclude that the ‘war on terrorism’, like the ‘war on communism’ waged a half century ago, is being used for political ends.
Certainly, the Howard government’s rhetoric is reminiscent of the campaign conducted at the end of the 1950s. After winning the 1949 election in the wake of the coal miners’ strike, Prime Minister Robert Menzies claimed a ‘political mandate’ to place Australia on a ‘semi-war footing’ against communism.[30] Against a backdrop of global anti-communism, the Communist Party Dissolution Act 1950 (Cth) was the incoming government’s first piece of legislation. The Act’s preamble claims that its measures were required for the ‘security and defence of Australia’ in the face of a dire threat of violence, insurrection, treason, subversion, espionage or sabotage.[31]
The High Court, however, rejected the use of these recitals to validate the government’s claim to be exercising the defence, incidental and executive powers of the Commonwealth.[32] The Court held that the Commonwealth government and Parliament cannot unilaterally assert constitutional bases for legislation. However, the Court’s decision had wider implications. The judgments warned of the corrosive dangers of unfettered executive power. Dixon J, for example, stated that
[h]istory 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.[33]
As one commentator has observed, the decision is notable for ‘its confirmation of fundamental constitutional principles such as the rule of law, its impact upon civil liberties, its symbolic importance as a reaffirmation of judicial independence, and its political impact’.[34] The Court’s stance was, in effect, vindicated by the defeat of the 1951 referendum. It remains to be seen whether today’s High Court will restate these principles — if and when the current legislation is challenged.
Central to the legislative package are far-reaching definitions of terrorism, treason and espionage. These offences will become some of the most serious on the statute books, with severe penalties. The first two are punishable by life imprisonment; the third by 25 years’ imprisonment. Under the Security Legislation Amendment (Terrorism) Act 2002 (Cth), a ‘terrorist act’ extends to acts or threats that advance ‘a political, religious or ideological cause’ for the purpose of ‘coercing or influencing by intimidation’ any government or section of the public.[35] Such acts or threats need not involve harm to a person, merely ‘serious damage’ to property,[36] ‘serious risk’ to public health or safety,[37] or ‘interference’ with an information, telecommunications, financial, transport, or essential services, system.[38]
The legislation goes further. It imposes jail terms ranging from 10 years to life for preparing, planning or training for ‘terrorist acts’ and for possessing documents, or other objects, used in the preparation of such acts.[39] A person can be jailed for possessing such a ‘thing’ even if they did not know it was ‘connected’ with terrorist purposes, but were merely ‘reckless’ as to that fact.[40]
The definition of ‘treason’ — regarded as one of the most serious political crimes of all — 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.[41] This definition was modified, with Labor’s agreement, to protect ‘the provision of aid of a humanitarian nature’.[42] This defence is designed to shield bodies such as the Red Cross or religious aid organisations. Anyone claiming this protection, however, has the burden of proving their humanitarian intent — one of the numerous instances where the legislation overturns the traditional presumption of innocence.[43]
Another part of the counter-terrorism package, the Criminal Code Amendment (Espionage and Related Offences) Bill 2002 (Cth), was originally intended to extend and toughen two sets of laws, one against alleged espionage, the other against the leaking of government information. Faced by considerable opposition from the media, the Attorney-General dropped the provisions relating to the unauthorised release of official secrets, but the espionage measures remain.[44]
Anyone convicted of disclosing information about national ‘security or defence’, ‘with the intention to prejudice’ that security, or of releasing information that is in Australia’s control relating to the security or defence of another country, can be imprisoned for 25 years, more than trebling the previous maximum term of 7 years.[45] ‘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’.[46] For the first time, anyone who exposes the intelligence activities of the government’s security partners (the chief ones being the United States and Britain, whose agencies include the Central Intelligence Agency, the Federal Bureau of Investigation and the Security Service (MI5)) can be charged with espionage under Australian law.
Any charges under the legislation, whether of ‘spying’ or ‘leaking’, can be heard behind closed doors. ‘[I]n the interests of national security or defence’, courts or tribunals may exclude all members of the public from the whole or part of a hearing, and ban publication of any or all of the proceedings.[47] This provision, which already exists in the Crimes Act 1914 (Cth), has been extended to include the new definition of ‘security or defence’.[48]
These provisions threaten democratic rights in numerous ways. The definition of terrorism could cover any demonstration or strike action in which a person was injured or felt endangered. A Labor-backed amendment to add the ‘coercion or intimidation’ clause to the definition is practically meaningless, given that the purpose of many protests and strikes is to apply pressure to a government, employer or other authority. For instance, nurses taking strike action that shut down hospital wards in support of a political demand for greater health spending could be accused of endangering public health and thus be charged as terrorists.
The various, related terrorist offences could apply to 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. Demonstrators who block roads or entrances to financial institutions, such as the Australian Stock Exchange, could be charged as terrorists, as could computer hackers.
During questioning in a Senate committee hearing on 8 April 2002, the Attorney-General’s representatives admitted that someone who cut through a fence at the March–April 2002 protest at the Woomera refugee detention centre or the people who invaded the Parliament building during a 1996 trade union rally could have been charged with terrorism.[49] The officials acknowledged that a picketing striker who caused property damage or a person who possessed a mobile phone which they used to discuss a violent act could be prosecuted under the new provisions.[50]
While citing the September 11 attacks in the United States as its justification, the government has adopted a definition of terrorism that goes beyond the Bush administration’s USA Patriot Act,[51] which covers activity that is dangerous to human life and violates existing criminal laws. The Howard government’s version is based on the Blair government’s Terrorism Act 2000 (UK) c 11, but goes further in specifying disruption to various types of communications systems.[52]
The treason offences could punish political or physical opposition to Australian military intervention in Afghanistan, Iraq or anywhere else. Friends and relatives who fail to prevent such dissenting activities or who fail to report them to ASIO or the police could be charged with treason, and also face life imprisonment.[53] In the Senate committee hearings, the Attorney-General’s officials admitted that they knew of no other country with a specific provision punishing failure to report or prevent treason.[54]
Moreover, it will now be espionage to reveal or publish official material about the operations of Australian security agencies, which include ASIO, the armed forces, the external Australian Secret Intelligence Service (‘ASIS’), the Prime Minister’s Office of National Assessments (‘ONA’), the military’s Joint Intelligence Office (‘JIO’) and an electronic eavesdropping agency, the Defence Signals Directorate (‘DSD’). Currently, the ASIO Act 1979 (Cth) and other measures prohibit revealing the identities of intelligence officers,[55] but the new provision is more general and carries a heavier penalty.
The above provisions provide considerable scope for persecuting anyone accused of opposing the ‘war against terrorism’ or any other military intervention. For instance, they will outlaw public revelations about the operations of the Special Air Service 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 the 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.[56]
Under the original version of the Security Legislation Amendment (Terrorism Bill) 2002 (Cth) (‘Terrorism Bill’), the Attorney-General could have proscribed any organisation on a number of vague grounds, including his view that a group had ‘endangered, or is likely to endanger, the security or integrity’ of Australia or another country.[57] In light of the wide meanings that can be given to the term ‘national security’, and the difficulties of obtaining judicial review of its use by government and intelligence agencies,[58] these criteria opened up wide scope for political abuse. They could have applied to any political party deemed to be a threat to domestic political stability, as well as to any group supporting opponents of another government, such as West Papuan, Kashmiri, Tibetan or Sri Lankan Tamil secessionists.
In the face of widespread condemnation,[59] the government was compelled to back down on its original proposal. But the amended version allows the government to issue regulations to outlaw parties or groups if the UN Security Council has listed them as terrorist parties or groups.[60] A court can also declare an organisation to be ‘terrorist’.[61]
Proscription orders can have far-reaching implications. Any person who directs[62] or provides support[63] to the activities of a terrorist organisation, knowing it to be terrorist, can be jailed for 25 years, or, if they are ‘reckless’ as to whether the organisation is terrorist or not, for 15 years.[64] A member of a group banned under a regulation faces up to 10 years’ imprisonment.[65] Membership is defined to include ‘informal membership’ or taking ‘steps to become a member’.[66] It is a defence to have taken ‘reasonable steps’ to cease membership ‘as soon as practicable’ after knowing the organisation was terrorist, but the burden of proof again lies on the defendant.[67]
The legislation also retains a backdoor method for banning organisations by freezing their funds, even if they have not been formally declared ‘terrorist’. The Attorney-General can freeze assets or proscribe groups if a UN Security Council freezing order has been issued.[68] Either the Minister can ‘list’ an organisation by a Gazette notice[69] or the Governor-General may make proscription regulations.[70] Anyone collecting or providing donations for such organisations can be jailed for five years.[71] If the funds are used for terrorist purposes, the penalty is life imprisonment.[72] Under regulations introduced in October 2001, the government has already outlawed several lists of political groups.[73] They include the Kurdistan Worker’s Party, the Kurdish separatist organisation, and the Sikh Youth Federation.[74]
Under the existing provisions of the Crimes Act 1914 (Cth), the federal government already had the power to declare unlawful any association that advocates or encourages the overthrow of the Constitution or any Australian government by revolution, sabotage, force or violence, or the destruction of government property or seditious conduct.[75] These provisions, however, which were expanded in 1917 to combat support for the Russian Revolution,[76] require the Attorney-General to seek a Federal Court order declaring an association unlawful,[77] and have never been used successfully.
Evidently, government leaders now hope to exploit the fear of terrorist violence to allow them to outlaw groups seen as a political threat. Regulations are subject to parliamentary disallowance, but judicial review will be limited to examining the legality of the regulations — not their merits. Given that the regulations will derive from UN Security Council resolutions, the scope for legal review will be restricted. Moreover, although the High Court has rejected the proposition that challenges to decisions based on official assessments of national security are non-justiciable, it has, in effect, declined to review such assessments.[78] In any case, by the time that a proscribed organisation challenges its proscription in court — a process that could take many months — its members may already have suffered irreparable harm.
The original version of the ASIO Bill 2002 (Cth) would have enabled ASIO to detain people in police custody without charge;[79] to hold them incommunicado;[80] to deny them access to legal advice;[81] to strip-search detainees;[82] and to interrogate them in detention for at least 48 hours,[83] with provision for indefinite extension through the issuing of repeated warrants.[84]
Under the original version, detainees did not need to be suspected of a terrorist offence or any other criminal offence. The Attorney-General could be satisfied, and certify, that ‘there are “reasonable grounds” for believing’ that interrogation of the detainees would ‘substantially assist the collection of intelligence that is important in relation to a terrorism offence,’ even if no act of terrorism had occurred.[85] This power could be used to detain journalists and political activists, as well as the children, relatives or acquaintances of terrorist suspects. Any detainee who refused to answer ASIO’s questions would be liable to five years’ imprisonment, with no defence of the privilege against self-incrimination.[86]
In addition, officers could use ‘reasonable and necessary’ force to conduct strip-searches.[87] In order to provide a fig leaf of protection against torture, intimidation and frame-up, an interrogation must be videotaped[88] and conducted in the presence of a ‘prescribed authority’, that is, a magistrate or member of the Administrative Appeals Tribunal.[89] Videotaping of ASIO interrogations — currently required for police questioning in most Australian jurisdictions — is no guarantee against the planting of evidence and extraction of false confessions.[90] And there is always the possibility that a government may appoint magistrates or tribunal members with no judicial tenure[91] who are amenable to its requirements.
Another clause provided 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’.[92] Apart from revealing that degrading treatment is, in fact, quite possible, this clause was largely meaningless. There was no penalty for its breach, and it would be difficult to enforce by way of judicial review, in light of the fact that the abusive treatment had already occurred. The only specific remedy provided by the Bill was the making of complaints to the Ombudsman and the Inspector-General of Intelligence and Security (a high-ranking official within the security apparatus).[93]
In a media statement, the Attorney-General said that the Bill contained ‘strict safeguards’ of individual freedom, the first being the need for ASIO to obtain his consent before seeking a detention warrant.[94] This proviso only underscores the highly political character of the new measures, with power concentrated in the hands of the government of the day.
The Bill would have constituted a radical extension of ASIO’s powers and had serious implications for civil liberties. ASIO currently has no powers of arrest or interrogation. The State and federal police can detain people, but only on suspicion of committing a criminal offence and those suspects must be either charged or released within a short period and generally cannot be detained for interrogation.[95] Prisoners, generally, have both the right to legal counsel and to remain silent.[96] Indeed, with the notable exception of the detention of asylum-seekers, detention without trial is regarded as unconstitutional.[97]
To claim that ASIO needs detention powers to detect terrorists is ludicrous. Already, it can bug phones,[98] install listening devices in offices and homes,[99] intercept telecommunications,[100] open people’s mail,[101] monitor online discussion,[102] break into computer files and databases,[103] and use personal tracking devices.[104] 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.[105] Moreover, ASIO is part of an extensive security and intelligence network, which incorporates the Defence Intelligence Organisation, ASIO, ASIS, DSD, the Office of National Assessments and special State police units (formerly called Special Branches).[106]
Reflecting a groundswell of publicly expressed opposition, the Joint Parliamentary Committee unanimously condemned the Bill on the ground that it would ‘undermine key legal rights and erode the civil liberties that make Australia a leading democracy’.[107] The government subsequently withdrew the Bill and indicated that it had drafted amendments taking into account the Committee’s recommendations.[108]
The Committee proposed a seven-day limit on detention, to be followed either by release or the laying of charges by police.[109] This would still give ASIO, working with police personnel, unprecedented power to arbitrarily detain individuals. The report recommended modifying the incommunicado regime, but only to permit access to an official panel of lawyers with security clearances.[110] Detainees would have no right to choose their own legal representatives. Since ASIO would provide the security clearances, it would have an effective veto over the selection of lawyers to serve on the panel and could threaten to bar uncooperative ones.
To avoid openly breaching the United Nations Convention on the Rights of the Child,[111] the Committee proposed restricting the detention power to adults aged over 18.[112] It also suggested that ASIO draw up detention protocols to protect detainees from torture, prolonged interrogation and other abuses, and that penalty clauses apply to officers who failed to comply.[113] However, detainees would have difficulty legally enforcing any protocols because they would not be able to ascertain the identity of their ASIO captors. The ASIO Act 1979 (Cth) makes it a serious offence to publicly identify ASIO officers or agents.[114]
The report called for prisoners to be protected against self-incrimination, but primarily in order to make detention more effective from an intelligence-gathering angle.[115] The Committee expressed concern that fear of life imprisonment for terrorist offences could lead detainees to regard five years’ jail for refusing to answer a question as a lesser penalty.[116] If detainees were protected against self-incrimination, they could more easily be induced to provide information. Detainees who failed to produce a document or any other ‘thing’ demanded by ASIO could still be jailed for five years unless they proved that they did not have the items requested.[117]
In response, the government only partly accepted the Committee’s recommendations.[118] It insisted that children as young as 14 be liable to detention, provided that a parent, guardian or an ‘other acceptable representative’ be present during interrogation. It further insisted that detainees could be denied access to a lawyer, even a security-cleared one, for the first 48 hours of detention and that ASIO monitor all communication between a detainee and a lawyer. Moreover, it proposed that ASIO have the power to remove a lawyer who intervenes in or ‘disrupts’ the interrogation. These proposals flout the basic principle of lawyer–client confidentiality.
The government also refused to insert a sunset clause to terminate the legislation after three years. Following the government’s rebuff of key committee recommendations, Labor did not reject the Bill outright. Instead, it indicated that it would seek to have the Bill referred to the Senate Legislation and References Committee.[119]
From its introduction in March 2002, the legislation has substantially received bipartisan support, despite widespread objections.[120] Two parliamentary committees found considerable concern among ordinary people, as well as among a broad range of organisations.[121] The Bills received little initial coverage in the media and the committees were given only a short time in which to invite submissions and conduct hearings. Moreover, parliamentary hearings provided only a rarified, formal and somewhat intimidating forum for ordinary people to protest against the government’s plans. Nevertheless, submissions poured in: the Senate Legal and Constitutional Legislation Committee received 431, and the Parliamentary Joint Committee more than 150.
Apart from the Law Council of Australia and the civil liberties councils, those objecting to the laws, in full or in part, included Amnesty International, the Uniting Church, the Islamic Council, the Ethnic Communities Council, the Australian Council of Trade Unions, community legal centres, environmental groups, political parties and legal and other academics.
The Law Council described the definition of terrorism as ‘unacceptably broad, imprecise and unwieldy’[122] and warned that scholars, researchers and journalists could be jailed for innocently possessing documents relating to terrorism.[123] The Ethnic Communities’ Council of Victoria said there were ‘tremendous concerns’ within immigrant communities that people could be jailed for ‘assisting’ terrorists by donating to help support widows, orphans and other victims of overseas conflicts.[124] The Islamic Council of Victoria expressed fears that the legislation could lead to the type of persecution and racial profiling already witnessed in the United States.[125] Liberty Victoria denounced the legislation for ‘proscribing modes of thought’.[126] The New South Wales Council for Civil Liberties said the proposed definition of membership of an association was so broad that an organisation could be outlawed because of a violent act by an individual who falsely claimed to represent that organisation.[127]
In an individual submission, one New South Wales woman stated:
The anti-terrorism legislation which allows ASIO to detain people incommunicado for up to 48 hours without charges without the right of silence and without access to a lawyer is quite draconian and reminiscent of Nazi Germany.[128]
A Melbourne woman wrote:
It is my belief that the Bills being proposed are not really going to be used to defend Australia against terrorism, rather they will use the ‘war against terrorism’ against voices of dissent within the Australian community.[129]
Another submission commented:
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.’[130]
Nevertheless, the Labor Party has supported the legislation in principle — a fact underscored on 5 April 2002, when the leaders of the Australian States and Territories (all of which currently have Labor governments) agreed at a Conference of Australian Governments (COAG) summit to formally refer their powers over terrorism to the federal Parliament. Their decision has the potential to give the Commonwealth substantially unfettered law-making, and police enforcement, power over politically-related crime for the first time since Federation in 1901, possibly freeing the government of the need to find precise constitutional heads of legislative or executive power for its measures.[131]
Even so, the potential constitutional problems with the laws are manifold. They arise from the Commonwealth Parliament’s lack of general power to legislate with respect to criminal law[132] or ‘terrorism’,[133] as well as the Constitution’s implied right to political communication[134] and, perhaps, freedom of association.[135] In addition, detention without trial may infringe on judicial power and the separation of powers.[136] The freedom of religion protected by s 116 of the Constitution could also be infringed if the measures interfere with the free practice of a religion, although the High Court has interpreted s 116 as only invalidating laws that specifically target religious practice.[137]
The legislation seeks to remedy its lack of constitutional foundation by referring to offences that affect various Commonwealth interests.[138] These interests are listed in a manner designed to invoke assorted heads of power in s 51 of the Constitution, including: defence;[139] external affairs;[140] international and interstate trade and commerce;[141] postal, telegraphic, telephonic, and other like services;[142] banking;[143] insurance;[144] and incidental matters.[145] Alternatively, they are listed in a manner designed to invoke the executive power of the Commonwealth under s 61 of the Constitution, or the implied ‘nationhood’ and ‘self-protection’ powers recognised by the High Court.[146]
Apart from the doubts surrounding the connection between some of these heads of power and terrorism, this patchwork approach means that whether an offence has been committed under the legislation may depend on the complexities of constitutional law. A person who commits an offence covered by a Commonwealth power may be imprisoned for life, whereas a similar offence under State law may carry a far less severe penalty.
If, in accordance with the above-mentioned COAG agreement, the State Parliaments validly refer their legislative powers over terrorist-related crime to the Commonwealth Parliament, under s 51(xxxvii) of the Constitution, these problems may be overcome. However, no assessment of the validity or effectiveness of such action is possible until the States’ legislation is introduced.[147] Nevertheless, several observations are necessary.
In the first place, the Communist Party Case made it plain that the Parliament cannot simply declare its own laws valid. In the words of Fullagar J,
a stream cannot rise higher than its source ... The validity of a law or of an administrative act done under a law cannot be made to depend upon the opinion of the law-maker, or the person who is to do the act, that the law or the consequence of the act is within constitutional power upon which the law in question itself depends for its validity.[148]
Secondly, in the same case, the judges warned against using a combination of heads of power, particularly in conjunction with the incidental and executive powers, to artificially produce a power with far-reaching implications. Dixon J stated:
For myself I do not think that the full power of the Commonwealth Parliament to legislate against subversive or seditious courses of conduct and utterances should be placed upon s 51 (xxxix) in its application to the executive power dealt with by s 61 of the Constitution or in its application to other powers. I do not doubt that particular laws suppressing sedition and subversive endeavours or preparations might be supported under powers obtained by combining the appropriate part of the text of s 51 (xxxix) with the text of some other power. But textual combinations of this kind appear to me to have an artificial aspect in producing power to legislate with respect to designs to obstruct the course of government or to subvert the Constitution.[149]
Then followed Dixon J’s call for the protection of democratic institutions, quoted earlier in this article. This warning would seem even more appropriate where the government is seeking to criminalise conduct that goes far beyond the bounds of subversion and sedition, to include wider means of political protest and dissent. In a series of cases against leaders, or sympathisers, of the Communist Party,[150] the High Court upheld, and enforced, the laws against seditious acts and words, but insisted that such legislation could not be used to suppress free speech.[151]
Thirdly, in Re Tracey; Ex parte Ryan,[152] Brennan and Toohey JJ reaffirmed the principle that a law may be declared invalid if its scope or application potentially exceeds the Constitution.[153] To borrow their fishing metaphor, if the ‘net’ cast by Parliament is too wide, in the sense that the legislation may cover cases with insufficient connection to a valid head of power, then it may be struck down.
Fourthly, doubts exist as to the proportionality of the legislation with respect to any of the heads of power. The High Court has assessed legislation according to whether it is ‘reasonably appropriate and adapted’ to the relevant power or purpose.[154] A law may fail this test if it unduly infringes on basic rights, such as freedom of speech,[155] or if it contains retrospective criminal sanctions.[156] In addition, it is a fundamental principle of criminal law that a citizen must be able to know what conduct is impermissible.[157] Terms such as ‘serious risk’ and ‘security or defence’ may be so vague as to be invalid for uncertainty or lack of connection to a Commonwealth matter.[158]
Finally, special doubt surrounds the proscription and asset-freezing measures. The Communist Party Dissolution Act 1950 (Cth) granted the Governor-General an unfettered power to declare an organisation to be unlawful or a person to be a communist. The High Court found that this unreviewable power could not be sustained by the defence power in a time of relative peace.[159] As explained above,[160] the current legislation does allow limited parliamentary and judicial review of declarations of terrorist organisations by regulations. Proscription by ‘listing’ under the asset-freezing provisions is less susceptible to review. Given the consequences that attach to proscription, including loss of both freedom of speech and association, and the jailing for up to 25 years of people who cannot prove that they have broken their association with the organisation, these possibly ineffectual forms of review may make the Terrorism Bill 2002 (Cth) invalid.
The powers assigned to ASIO and the Attorney-General to detain people without trial for questioning may be unconstitutional because they infringe upon the judicial power that ch III of the Constitution vests exclusively in the courts. In Chu Kheng Lim, Brennan, Deane and Dawson JJ acknowledged that Australian citizens enjoy a ‘constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth’.[161] Their Honours did not extend the same protection to ‘aliens’, that is, immigration detainees.[162] For citizens, however, their only definite exceptions were non-punitive detention (for example: in cases of mental illness or infectious diseases); the traditional powers of Parliament to punish contempt; and the right of military tribunals to punish breaches of military discipline.[163] They also opined that, in times of war, the defence power could possibly support an executive power to make detention orders.[164]
The Court found that this constitutional immunity did not extend to immigration detainees because they were not being incarcerated by way of criminal sanction, but rather to protect the national interest. Remarkably, ignoring the reality of refugee persecution, the majority asserted that the detainees (Cambodian asylum-seekers) were to some extent voluntary ‘prisoners’ who were free to return to their country of origin if they wished.[165] In the final analysis, the High Court upheld the mandatory detention regime on the basis of the power to legislate with respect to aliens.[166] The majority concluded that s 51(xix) of the Constitution conferred upon the executive authority to detain an alien for the purposes of expulsion or deportation, with an incidental power of detention to investigate and determine an application for asylum.[167] Several commentators have suggested that the vehemence of the then Labor government’s views may have led the Court to bow to the wishes of Parliament and not object to the breach of the separation of powers doctrine.[168] Even so, the Court did declare invalid, as ‘an impermissible intrusion to oust judicial power’, one section of the legislation that attempted to oust judicial review of the plaintiffs’ detention.[169]
By this authority, detention of non-citizens for questioning by ASIO may be valid, but not detention of citizens. Arguably, such detention is punitive, particularly where detainees are held incommunicado (possibly for lengthy periods), denied access to independent legal advice and compelled to answer questions on pain of imprisonment. Despite the ‘elasticity’ afforded by the defence power and the ‘inherent right of self-protection’ in times of war,[170] these powers should not extend to executive detention during peacetime. The connection between these powers and the need for detention is certainly less compelling than in the case of detention for the purpose of enforcing and administering the removal of ‘unlawful non-citizens’. Moreover, as noted above, the High Court has affirmed that, at least in principle, it will review an ASIO assessment of whether a threat to national security exists.[171]
It may also be unconstitutional for a federal magistrate to be a prescribed authority to witness and supervise ASIO’s detention and questioning. This would employ judicial officers in a non-judicial role, breaching the separation of powers doctrine. The High Court has held that judges cannot be given functions that are incompatible with the judicial process, including roles that could undermine a judge’s performance of judicial duties or arouse political controversy, thus compromising public confidence in the judiciary.[172] While the High Court has permitted judges to issue warrants for phone-tapping,[173] their involvement in ASIO interrogation is likely to be politically contentious and damaging to the notion of judicial independence.
To overcome this problem, the Joint Parliamentary Committee proposed that Federal Court judges issue warrants where detention exceeds 96 hours, but that the Attorney-General appoint non-judicial officials to issue other warrants. This would only give ASIO easier access to detention warrants. The MPs conceded that their proposals ‘may be pushing the constitutional limits of the Bill’.[174] The government has essentially accepted this suggested scheme.[175]
During the 1990s, the High Court found that the Constitution contained an implied freedom of political participation, association and communication.[176] In doing so, their Honours largely relied upon ss 7, 24, 30, 41 and 128 of the Constitution, which deal with voting in federal elections and referenda. However, the language of the Court has been broad, including ‘freedom of political discourse’[177] and ‘freedom of communication, at least in relation to public affairs and political discussion’.[178]
Although commonly referred to as an implied freedom of political communication, that freedom is meaningless unless it includes freedom to associate and otherwise participate in the political process. McHugh J, generally regarded as allowing the narrowest scope to the implied freedom, made this point in Australian Capital Television:
subject to necessary exceptions, the people have a constitutional right to convey and receive opinions, arguments and information concerning matter intended or likely to affect voting in an election for the Senate or House of Representatives. Moreover, the right must extend to the use of all forms and methods of communication which are lawfully available for general use in the community. To fail to give effect to the rights of participation, association and communication identifiable in ss 7 and 24 would be to sap and undermine the foundations of the Constitution.[179]
The freedom is not absolute. As Gaudron J stated, it can be curtailed by legislation ‘but only if [the legislative] purpose is not to impair freedom, but to secure some end within power’.[180] Here too, the High Court has applied a proportionality test. In Lange v Australian Broadcasting Corporation,[181] the Court posed a two-step test in relation to freedom of political communication:
Obviously, the current legislative package has the capacity to burden the freedom of political communication, participation and association. As indicated earlier, many traditional forms of political expression may be criminalised; political parties and other organisations that comment on political and related economic and social issues may be outlawed; and citizens, including political activists, may be subjected to protracted detention on the request of a government minister and the political police of ASIO. Denial of access to independent and freely-chosen legal advice and representation while in detention may, in particular, infringe on political communication.[183] As I have argued, the context, scope and character of the legislation indicates that its purpose is to curtail these freedoms. To use the Lange test, the measures are not appropriate and adapted to combating alleged terrorist conduct.
In recent years, the High Court has at times adopted a narrow view of the implied freedom of political communication.[184] In Levy v Victoria,[185] the High Court affirmed that the freedom extended to non-verbal communication, such as symbolic acts of protest, but declined to recognise the right of an anti-duck shooting campaigner to defy Victorian regulations forbidding entry into a permitted hunting area. The Court accepted that the regulations were adopted to protect life and limb.[186] It declined to question the Victorian government’s judgment that safety considerations were sufficiently serious to require the measures.[187]
Nonetheless, the ‘counter-terrorism’ laws are in a different league. They impair political freedoms more systematically and to a far greater degree than duck shooting regulations. They are not necessary to combat terrorism. They seek to revive the executive power struck down in the Communist Party Case and defeated by the 1951 referendum. In the name of upholding political liberty, they undermine it.
These laws represent one of the greatest threats to basic democratic rights since World War II. Serious inroads will be made into long-standing principles such as the prohibition on detention without trial, the presumption of innocence and freedom of speech and association. The events of September 11 have been utilised to bring forward unprecedented measures that will substantially expand the powers of the security agencies. Both the context of the legislation, and the extraordinary reach of its measures, invite constitutional challenge as well as public opposition.
[*] BJuris, LLB (Hons) (Monash), LLM (Columbia); Senior Lecturer in Law, University of Western Sydney. Some material in this article was first published in reports by the author on the World Socialist Web Site <http://www.wsws.org> .
[1] See Michael Head, ‘The Military Call-Out Legislation — Some Legal and Constitutional Questions’ (2001) 29 Federal Law Review 273; Defence Act 1903 (Cth); Defence Legislation Amendment (Aid to Civilian Authorities) Act 2000 (Cth). See also Australian Constitution s 119.
[2] See generally Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs [2001] FCA 1297; (2001) 182 ALR 617 (‘Tampa’).
[3] See Michael Head, ‘Whither the Refugee Convention — A New Perspective for the 21st Century’ (2002) 21 Mots Pluriels <http://www.arts.uwa.edu.au/MotsPluriels/MP2102mh.html> at 2 October 2002.
[4] The raft of ‘counter-terrorism’ bills passed consisted of: the Security Legislation Amendment (Terrorism) Bill (2002) (Cth); Criminal Code Amendment (Suppression of Terrorist Bombings) Bill (2002) (Cth); Suppression of the Financing of Terrorism Bill (2002) (Cth); Border Security Legislation Amendment Bill 2002 (Cth); Telecommunications Interception Legislation Amendment Bill (2002) (Cth).
[5] See, eg, submissions to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills (2002) vols 1–6.
[6] See, eg, Criminal Code (Cth) divs 80.1, 100.1.
[7] See, eg, Criminal Code (Cth) div 102.7; Charter of United Nations Act 1945 (Cth) s 15(5), amended by Suppression of the Financing of Terrorism Act 2002 (Cth) sch 3.
[8] See, eg, Criminal Code (Cth) div 102.7.
[9] Daryl Williams (Attorney-General), ‘Australia Stronger in War on Terror’ (Press Release, 27 June 2002) <http://www.law.gov.au/aghome/agnews/2002newsag/67_02.htm> at 2 Octo-
ber 2002.
[10] Ibid.
[11] See, eg, Joint Committee on ASIO, ASIS and DSD, Parliament of Australia, An Advisory Report on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (2002).
[12] ASIO Bill 2002 (Cth) sch 1, item 24, inserting ss 34F(1), 34F(8) into the Australian Security Intelligence Organisation Act 1979 (Cth) (‘ASIO Act’).
[13] Daryl Williams (Attorney-General), ‘Sir Humphrey Would Be Proud’ (Press Release, 27 August 2002) <http://www.law.gov.au/aghome/agnews/2002newsag/92_02.htm> at 2 October 2002. The government reintroduced the ASIO Bill 2002 (Cth) in the Senate on 15 October 2002, just three days after the apparent terrorist atrocity in Bali. Labor and other opposition parties referred the ASIO Bill 2002 (Cth) to the Senate Legal and Constitutional References Committee on 21 October 2002.
[14] See submission to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills (2002) vol 1, 157–65 (Cameron Murphy, New South Wales Council for Civil Liberties Inc); submission to Senate Legal Constitutional Legislation Committee, Parliament of Australia, Canberra, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills (2002) vol 2, 252–62 (Anne O’Rourke, Liberty Victoria — Victorian Council for Civil Liberties); evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Melbourne, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills, Official Committee Hansard, 17 April 2002, 117 (Anne O’Rourke, Assistant Secretary, Liberty Victoria; Julian Burnside, Committee Member, Liberty Victoria); evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Melbourne, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills, Official Committee Hansard, 18 April 2002, 137 (Anthony Abbott, President, Law Council of Australia).
[15] Daryl Williams (Attorney-General), ‘Australia’s National Security’ (Press Release, 18 September 2001) <http://www.ag.gov.au/aghome/agnews/2001newsag/1047_01.htm> at 19 September 2002; Daryl Williams (Attorney-General), ‘Australia Well Prepared’ (Press Release, 2 November 2001) <http://www.ag.gov.au/aghome/agnews/2001newsag/preparedaust.htm> at 9 September 2002; Daryl Williams (Attorney-General), ‘Upgrading Australia’s Counter-Terrorism Capabilities — Amended’ (Press Release, 18 December 2001) <http://www.ag.gov.au/aghome/agnews/2001newsag/1080a_01.htm> at 19 September 2002; Daryl Williams (Attorney-General), ‘Indian Authorities’ (Press Release, 7 February 2002) <http://www.ag.gov.au/aghome/agnews/2002newsag/06_02.htm> at 19 September 2002.
[16] Nathan Hancock, ‘Terrorism and the Law in Australia: Legislation, Commentary and Constraints’ (Research Paper No 12, Department of the Parliamentary Library, Parliament of Australia, 2001–02) 16.
[17] [1951] HCA 5; (1951) 83 CLR 1 (‘Communist Party Case’).
[18] Justice Michael Kirby, ‘Australian Law — After 11 September 2001’ (2001) 21 Australian Bar Review 253, 263.
[19] For a comparison of the US and British legislation, see Hancock, above n 16, 2–8.
[20] Opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[21] Amnesty International, Amnesty International’s Concerns Regarding post September 11 Detentions in the USA: An Amnesty International Report (2002) Amnesty International USA <http://www.amnestyusa.org/usacrisis/> at 3 October 2002.
[22] Australian Broadcasting Corporation, Opposition Welcomes Changes to Proposed Anti-Terrorism Laws (2002) ABC News Online <http://www.abc.net.au/news/politics/2002/03/
item20020312235919_1.htm> at 3 October 2002.
[23] Commonwealth, Parliamentary Debates, House of Representatives, 13 March 2002, 1141 (Peter Slipper, Parliamentary Secretary to the Minister for Finance and Administration).
[24] For a history of alleged terrorist acts in Australia, see Jenny Hocking, Beyond Terrorism: The Development of the Australian Security State (1993) chs 5–7. At the time of writing, no evidence had been produced linking the bombing atrocity in Bali, on 12 October 2002, to terrorist organisations.
[25] ASIO and police special branch agents, notably Richard Seary, infiltrated the Ananda Marga religious sect and ‘framed up’ three of its members. The convictions were finally overturned seven years later and the three were pardoned in May 1985. One of the accused, Tim Anderson, was rearrested in 1989 and charged with murder, but was acquitted on appeal in 1990. In the meantime, the Fraser government exploited the Hilton affair to dramatically increase the surveillance powers of ASIO and other security agencies. See generally, ibid chs 5–7; Tom Molomby, Spies, Bombs and the Path of Bliss (1986) 14–31; George Petersen, ‘Framing Ananda Marga’ (1985) 72 Arena 25.
[26] Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills, Official Committee Hansard, 19 April 2002, 237 (Dennis Richardson, Director-General, ASIO).
[27] Commonwealth, Protective Security Review Report, Parl Paper No 397 (1979) 13.
[28] Ibid 291.
[29] Ibid.
[30] See Katherine Lindsay, The Australian Constitution in Context (1999) 72–6. For the political and social context of the Communist Party Case, see George Winterton, ‘The Significance of the Communist Party Case’ [1992] MelbULawRw 6; (1992) 18 Melbourne University Law Review 630.
[31] Communist Party Dissolution Act 1950 (Cth) preamble.
[32] Communist Party Case [1951] HCA 5; (1951) 83 CLR 1.
[33] Ibid 187.
[34] Winterton, above n 30, 653.
[35] Criminal Code (Cth) div 100.1.
[36] Div 100.1(2)(b).
[37] Div 100.1(2)(d).
[38] Div 100.1(2)(e).
[39] Divs 101.2, 101.4, 101.5, 101.6.
[40] Divs 101.2, 101.4, 101.5, 101.6.
[41] Div 80.1(1).
[42] Div 80.1(1A).
[43] See, eg, div 102.7.
[44] Pt 5.2.
[45] Div 91.1.
[46] Div 90.1.
[47] Div 93.2.
[48] Div 93.2.
[49] Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Sydney, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills, Official Committee Hansard, 8 April 2002, 27 (Susan McIntosh, Principal Legal Officer, Security Law and Justice Branch, Information and Security Law Division, Attorney-General’s Department).
[50] Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Sydney, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills, Official Committee Hansard, 8 April 2002, 17–24 (Karl Alderson, Principal Legal Officer, Criminal Justice Division, Attorney-General’s Department; Peter Ford, First Assistant Secretary, Information and Security Law Division, Attorney-General’s Department; Susan McIntosh, Principal Legal Officer, Security Law and Justice Branch, Information and Security Law Division, Attorney-General’s Department).
[51] Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub L No 107-56, 115 Stat 272 (2001) (the acronym being ‘USA Patriot Act’).
[52] See Criminal Code (Cth) div 100.1(2)(e). For a comparison of the US and British legislation, see Hancock, above n 16.
[53] Criminal Code (Cth) div 80.1 (2).
[54] Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Sydney, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills, Official Committee Hansard, 8 April 2002, 16 (Karl Alderson, Principal Legal Officer, Criminal Justice Division, Attorney-General’s Department).
[55] ASIO Act 1979 (Cth) s 92.
[56] See Michael Head, ‘Leaked Spy Intercepts Prove Australian Complicity in Timor Massacre’ (2002) World Socialist Web Site <http://www.wsws.org/articles/2002/mar2002/
timo-m25.shtml> at 2 October 2002. See also, Hamish MacDonald, ‘Silence over a Crime against Humanity’, Sydney Morning Herald (Sydney), 14 March 2002, 10.
[57] Terrorism Bill 2002 (Cth) s 4, inserting div 102.2 into the Criminal Code (Cth). The Bill was not enacted in this form.
[58] See Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25, 59–60 (Mason J); Hoong Lee, Peter Hanks and Vincenzo Morabito, In the Name of National Security: The Legal Dimensions (1995) 208–20.
[59] See, eg, submissions to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills (2002) vols 1–6.
[60] Criminal Code (Cth) div 102.1(3)(a).
[61] Div 102.1.
[62] Div 102.2(1).
[63] Div 102.7(1).
[64] Divs 102.2(2), 102.7(2).
[65] Div 102.3(1).
[66] Div 102.1(1).
[67] Div 102.7(2).
[68] Charter of United Nations Act 1945 (Cth) s 15(5).
[69] Section 15(1), (7).
[70] Sections 15(2), 18(1).
[71] Sections 20–1.
[72] Criminal Code (Cth) div 103.1.
[73] Charter of the United Nations (Anti-Terrorism Measures) Regulations 2001 (Cth) reg 7; Alexander Downer (Minister for Foreign Affairs) and Daryl Williams (Attorney-General), ‘Further Steps to Prevent the Financing of Terrorism’ (Press Release, 18 April 2002) <http://www.foreignminister.gov.au/releases/2002/fa057j_02.html> at 2 October 2002.
[74] Australian Security Intelligence Organisation, Report to Parliament 2001–2002 (2002) 17. See also Commonwealth, Parliamentary Debates, Senate, 24 June 2002, 2404 (Bob Brown).
[75] Crimes Act 1914 (Cth) s 30A, amended by Crimes Act 1926 (Cth).
[77] Crimes Act 1914 (Cth) s 30AA.
[78] See Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25.
[79] ASIO Bill 2002 (Cth) sch 1, item 24, inserting s 34F(1) into the ASIO Act 1979 (Cth).
[80] ASIO Bill 2002 (Cth) sch 1, item 24, inserting s 34F(8) into the ASIO Act 1979 (Cth).
[81] A detainee may only consult a lawyer if the lawyer is specified in the warrant authorising the detention: ASIO Bill 2002 (Cth) sch 1, item 24, inserting s 34D(4) into the ASIO Act 1979 (Cth).
[82] ASIO Bill 2002 (Cth) sch 1, item 24, inserting s 34L into the ASIO Act 1979 (Cth).
[83] ASIO Bill 2002 (Cth) sch 1, item 24, inserting s 34D(2)(b)(i) into the ASIO Act 1979 (Cth).
[84] The bill specifically authorises the issuing of repeated warrants: ASIO Bill 2002 (Cth) sch 1, item 24 inserting s 34F(7)(a) into the ASIO Act 1979 (Cth).
[85] ASIO Bill 2002 (Cth) sch 1, item 24, inserting s 34C(3)(a) into the ASIO Act 1979 (Cth).
[86] ASIO Bill 2002 (Cth) sch 1, item 24, inserting s 34G(3) into the ASIO Act 1979 (Cth).
[87] ASIO Bill 2002 (Cth) sch 1, item 24, inserting s 34L(7) into the ASIO Act 1979 (Cth).
[88] ASIO Bill 2002 (Cth) sch 1, item 24, inserting s 34K into the ASIO Act 1979 (Cth).
[89] ASIO Bill 2002 (Cth) sch 1, item 24, inserting s 34B into the ASIO Act 1979 (Cth).
[90] See Michael Chaaya, ‘The Right to Silence Reignited: Vulnerable Suspects, Police Questioning and Law and Order in New South Wales’ (1998) 22 Criminal Law Journal 82. On police ‘verballing’ and videotaping in general, see David Brown, David Farrier and David Weisbrot, Brown, Neal, Farrier and Weisbrot’s Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales (2nd ed, 1996) 203–34.
[91] Federal magistrates are appointed for a term expiring upon attaining the age of 70 years: Federal Magistrates Act 1999 (Cth) sch 1, s 4. Administrative Appeals Tribunal members serve seven-year terms: Administrative Appeals Tribunal Act 1975 (Cth) s 8(3).
[92] ASIO Bill 2002 (Cth) sch 1, item 24, inserting s 34J(2) into the ASIO Act 1979 (Cth).
[93] ASIO Bill 2002 (Cth) sch 1, item 24, inserting s 34F(9) into the ASIO Act 1979 (Cth).
[94] Daryl Williams (Attorney-General), ‘ASIO Legislation Amendment Bill Introduced’ (Press Release, 21 March 2002) <http://www.ag.gov.au/aghome/agnews/2002newsag/32_02.htm> at 3 October 2002.
[95] Williams v The Queen [1986] HCA 88; (1986) 66 ALR 385.
[96] See generally Simon Bronitt and Maree Ayers, ‘Criminal Law and Human Rights’ in David Kinley (ed), Human Rights in Australian Law: Principles, Practice and Potential (1998) 120.
[97] Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1 (‘Chu Kheng Lim’).
[98] Telecommunications (Interception) Act 1979 (Cth) s 9(1).
[99] ASIO Act 1979 (Cth) s 26(3).
[100] Telecommunications (Interception) Act 1979 (Cth) s 9(1).
[101] ASIO Act 1979 (Cth) s 27(2).
[102] This falls within the ambit of a ‘telecommunications network’ in Telecommunications (Interception) Act 1979 (Cth) s 9(1).
[103] ASIO Act 1979 (Cth) s 25A(4).
[104] Section 26B(1).
[105] See Hocking, above n 24, 142–59. See also ASIO Act 1979 (Cth) s 29.
[106] See Hocking, above n 24, 165–72; Lee, Hanks and Morabito, above n 58, ch 3.
[107] Joint Committee on ASIO, ASIS and DSD, above n 11, vii.
[108] Daryl Williams (Attorney-General), ‘Amendments to ASIO Bill’ (Press Release, 25 June 2002) <http://www.ag.gov.au/aghome/agnews/2002newsag/65_02.htm> at 3 October 2002.
[109] Joint Committee on ASIO, ASIS and DSD, above n 11, 23.
[110] Ibid 36.
[111] Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
[112] Joint Committee on ASIO, ASIS and DSD, above n 11, 51.
[113] Ibid 38–9.
[114] ASIO Act 1979 (Cth) s 92(1).
[115] Joint Committee on ASIO, ASIS and DSD, above n 11, 44–5.
[116] Ibid 44.
[117] ASIO Bill 2002 (Cth) sch 1, item 24, inserting s 34G(6) into the ASIO Act 1979 (Cth).
[118] Attorney-General’s Department, Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth): Proposed Government Amendments (2002) <http://www.law.gov.au/aghome/agnews/2002newsag/Att_govtamend.htm> at 3 October 2002.
[119] Cynthia Banham, ‘Labor Rejects ASIO Bill’s Powers of Detention’, Sydney Morning
Herald (Sydney) 28 August 2002, <
http://www.smh.com.au/text/articles/2002/08/27/1030053060221.htm> at 29 August 2002. At the time of the writing this article, the nature and length of the proposed committee inquiry into the Bill was not known.
[120] See, eg, submissions to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills (2002) vols 1–6.
[121] Those parliamentary committees were the Senate Legal and Constitutional Legislation Committee and the Parliamentary Joint Committee on ASIO, ASIS and DSD.
[122] Submission to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills (2002) vol 3, 714 (Law Council of Australia).
[123] Ibid 746.
[124] Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Melbourne, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills, Official Committee Hansard, 17 April 2002, 107 (Victor Borg, Member of Executive Council, Ethnic Communities’ Council of Victoria).
[125] Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Melbourne, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills, Official Committee Hansard, 17 April 2002, 106 (Bilal Cleland, Secretary, Islamic Council of Victoria).
[126] Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Melbourne, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills, Official Committee Hansard, 17 April 2002, 119 (Julian Burnside, Committee Member, Liberty Victoria).
[127] Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Sydney, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills, Official Committee Hansard, 8 April 2002, 47 (David Bernie, Vice President, New South Wales Council for Civil Liberties).
[128] Submission to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills (2002) vol 1, 11 (Beverly Inshaw).
[129] Submission to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills (2002) vol 1, 137 (Ruairi Gallagher).
[130] Submission to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills (2002) vol 1, 244 (Kathryn McCloughry).
[131] This assumes that the States will legislate accordingly. See below n 147.
[132] See, eg, R v Kidman [1915] HCA 58; (1915) 20 CLR 425, 448 (Higgins J): ‘There is not in our Constitution ... any power to make laws as to “the criminal law”’.
[133] See Commonwealth, Royal Commission on Intelligence and Security, Fourth Report (1977) vol 1, 60–5. See also Commonwealth, Royal Commission on Australia’s Security and Intelligence Agencies, Report on the Australian Security Intelligence Organisation (1984) 88–9; Commonwealth, Protective Security Review Report, Parl Paper No 397 (1979) 291.
[134] Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 (‘Nationwide News’); Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (‘Australian Capital Television’).
[135] Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1.
[136] Chu Kheng Lim (1992) 176 CLR 1, 70, 72 (McHugh J).
[137] See Krygger v Williams [1912] HCA 65; (1912) 15 CLR 366; Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth [1943] HCA 12; (1943) 67 CLR 116.
[138] Criminal Code (Cth) div 100.2.
[146] See Communist Party Case [1951] HCA 5; (1951) 83 CLR 1, 188 (Dixon J), 259 (Fullagar J); Victoria v Commonwealth [1975] HCA 52; (1975) 134 CLR 338, 361–2 (Barwick CJ); New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337, 52–5 (Barwick CJ).
[147] On 13 November 2002, the NSW government introduced the Terrorism (Commonwealth Powers) Bill 2002 (NSW) into the Legislative Assembly, purporting to refer certain matters relating to terrorist acts to the Commonwealth Parliament.
[148] [1951] HCA 5; (1951) 83 CLR 1, 258.
[149] Ibid 187.
[150] See, eg, Burns v Ransley [1949] HCA 45; (1949) 79 CLR 101; R v Sharkey [1949] HCA 46; (1949) 79 CLR 121; Cooper v The Queen [1961] HCA 16; (1961) 105 CLR 177.
[151] See Michael Head, ‘Sedition — Is the Star Chamber Dead?’ (1979) 3 Criminal Law Journal 89.
[152] [1989] HCA 12; (1989) 166 CLR 518.
[153] Ibid 568.
[154] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 567.
[155] See Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79.
[156] See Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501.
[157] This was assumed, for example, by the High Court in Davern v Messell (1984) 155 CLR 121.
[158] See King Gee Clothing v Commonwealth [1945] HCA 23; (1945) 71 CLR 184, 194–6 (Dixon CJ).
[159] Communist Party Case [1951] HCA 5; (1951) 83 CLR 1, 252–4 (Fullagar J).
[161] Chu Kheng Lim (1992) 176 CLR 1, 28–9.
[162] Ibid 32.
[163] Ibid 28.
[164] Ibid 28 fn 66. See also Little v Commonwealth [1947] HCA 24; (1947) 75 CLR 94.
[165] Chu Kheng Lim (1992) 176 CLR 1, 33–4 (Brennan, Deane and Dawson JJ).
[166] Mary Crock, Protection or Punishment: The Detention of Asylum Seekers in Australia (1993) 346–56.
[167] Chu Kheng Lim (1992) 176 CLR 1, 32 (Brennan, Deane and Dawson JJ).
[168] See, eg, Nick Poynder, ‘An Opportunity for Justice Goes Begging: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs’ [1994] AUJlHRights 28; (1994) 1 Australian Journal of Human Rights 414; Margo Kingston, ‘Politics and Public Opinion’ in Crock, above n 166, 8.
[169] Chu Kheng Lim (1992) 176 CLR 1, 37 (Brennan, Deane and Dawson JJ).
[170] See Communist Party Case [1951] HCA 5; (1951) 83 CLR 1, 261 (Fullagar J).
[171] Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25, 68 (Murphy J).
[172] Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1.
[173] Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348.
[174] Joint Committee of ASIO, ASIS and DSD, above n 11, 19.
[175] Attorney-General’s Department, Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth): Proposed Government Amendments (2002) <http://www.law.gov.au/aghome/agnews/2002newsag/Att_govtamend.htm> at 3 October 2002.
[176] See Nationwide News [1992] HCA 46; (1992) 177 CLR 1; Australian Capital Television (1992) 177 CLR 106.
[177] Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 94 (Gaudron J).
[178] Australian Capital Television (1992) 177 CLR 106, 138 (Mason CJ).
[179] Ibid 232.
[180] Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 95 (Gaudron J).
[181] [1997] HCA 25; (1997) 189 CLR 520.
[182] Ibid 567. See also Constitution s 128; Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (3rd ed, 2002) 1192–3.
[183] See Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272; McClure v Australian Electoral Commission [1999] HCA 31; (1999) 163 ALR 734. This issue was raised, but not decided in the Tampa case.
[184] See, eg, Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302, where the Court refused to recognise the freedom to advocate informal voting in a federal election. See also Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272, where the Court declined to extend the implied rights to non-citizens.
[185] [1997] HCA 31; (1997) 189 CLR 579.
[186] Ibid 629 (Gaudron J).
[187] Ibid 629 (Gaudron J), 635–6 (Kirby J).
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