Precedent (Australian Lawyers Alliance)
HUMAN RIGHTS AND TERROR LAWS
By Professor Jude McCulloch
Prior to 2001, Australia, unlike the UK and the US, had no specific terror laws. Australia has since made up for this legislative lacuna with what has been termed ‘hyper’ legislative activity. Federal parliament has passed more than 60 terror laws in the 21st century and there are no signs that the legislative tempo is slackening.
In the wake of the emergence of Islamic State in Iraq and Syria (ISIS), a new tranche of terror legislation was introduced in 2014. George Williams, one of Australia’s leading constitutional lawyers, described those laws as ‘the biggest expansion of ... anti-terror laws in nearly a decade’. In addition, Prime Minister Tony Abbott’s February 2015 security statement made it clear that national security would continue to be one of the government’s major foci and that terrorism is seen as the pre-eminent threat, signalling the likelihood of further terror legislation. The Labor opposition will not oppose the government on national security issues for fear of electoral disadvantage, so there is no major impediment to such legislation, regardless of the extent to which it offends human rights.
THE POLITICS OF FEAR AND (IN)SECURITY
Politicians in Australia and other western countries recognise that fear is ‘political gold’, easily manipulated for electoral advantage. (In)security legislation, no matter how disproportionate, poorly calibrated, unnecessary or counter-productive when measured against the threat it purportedly addresses, provides a platform from which leaders can project themselves as decisive, authoritative and competent. Security is Janus-faced; both a threat and a promise. (In)security legislation works to underline danger and to communicate the government’s protective credentials.
The concept of security has narrowed in the past four decades with the waning of the welfare state and the rise of what has been termed the ‘crimefare’ state.  The term ‘crimefare’ neatly captures the growing overlap between waging war and fighting crime; and the growth of these activities as the primary focus of and rationale for state activity, while also underlining the trend away from social welfare as a major state function. While governments increasingly eschew notions of social security, the concept of security is narrowed to military and crime threats. (In)security measures, of which legislation is a central part, are important at a time when governments, particularly conservative ones, have rendered themselves increasingly redundant by handing the reigns of the economy over to the market and big business under the tenets of neo-liberalism. It is no coincidence that Prime Minister Abbott has amplified (in)security politics at a time when his leadership and party are in disarray. His predecessor, John Howard, acted similarly when his party was trailing in the 2001 election, by manufacturing the ‘Tampa crisis’ in what turned out to be the first in a series of ‘khaki’ federal elections. The recent stationing of armed guards inside the chambers of federal parliament serves as a symbolic illustration of the ongoing migration of militarised forms of security into the heart of politics.
It is important to understand (in)security politics in order to understand the sacrifice of human rights to the ‘demands’ of security. Once an issue is categorised as a security issue, concerns about human rights are readily pushed aside. An atmosphere of fear and a sense of emergency provide the rationale and perceived legitimacy for exceptional measures that create new norms about the accepted limits of state powers and the ever more confined space for human rights. While the government may couch the need for terror legislation in terms of balancing rights with protection, the legislation is frequently a Trojan horse for partisan politics or other agendas that have nothing to do with addressing threats. As a result, much of the legislation is not intelligently aligned with the goal of reducing the threat of terrorism, and is thus likely to be ineffective or even counter-productive. Accountability for ineffective or counter-productive content and implementation of such legislation, however, is largely non-existent, partly because what are deemed security measures also provide governments, police and intelligence agencies with the means of controlling the security story. Politicians and security agencies have great ‘defamation edge’ when it comes to labelling people terrorists and criminals and history demonstrates states’ routine denial of human rights abuses.
THE ‘NEW TERRORISM’
It is not only the pace of Australia’s terror legislation that is extraordinary but also its content. What is presented as the novel threat of what has been dubbed ‘new terrorism’ provides the rationale for exceptional laws. While the decisions made after the 9/11 attacks in the US impacted on human rights norms internationally, some of Australia’s terror legislation is extreme even in this context. The extraordinary powers given to the Australian Security Intelligence Organisation (ASIO) to detain and compulsorily question even non-suspects is one such example; another is the power to detain individuals under civil preventative detention orders.
Here I provide a brief overview of the salient features of the terror laws and the impact they have on human rights, specifically the right to a fair trial, and due process protections such as the presumption of innocence and the beyond-reasonable-doubt standard of proof. My basic premise is that these laws trade the concrete protections human rights offer against the dubious promise of increased security against politically, ideologically or religiously motivated violence by non-state actors.
The terror laws are characterised by five overlapping traits: pre-emption; a focus on identity rather than acts; uncertainty; intelligence; and secrecy – all of which combine to trump human rights. In particular, these traits have arguably constructed a situation in which whole categories of people are implicitly regarded as presumptive enemies. Although these laws are underpinned by a broad definition of terrorism, the main significance of the terror legislation as a whole is not the provisions that define terrorism and punish it as a separate crime based on political, ideological or religious motivation, but the range of laws aimed at pre-empting terrorism.
The criminal law has traditionally concentrated on punishing past crimes. The thrust of the terror laws, however, is to seek to eliminate the opportunity to commit terrorism (a future crime). The rationale for this approach is that the harms caused by completed acts of terrorism are too grave to permit the standard post-crime approach. The pre-emptive rationale is most obvious in those laws that seek to detain or otherwise restrict or coerce people on the basis that they might represent a threat. Civil Control Orders and Preventative Detention Orders fall into this category. These orders are not a part of the criminal law but, instead, use the civil law to avoid the usual restrictions imposed by the due process protection embedded in the criminal law. These type of orders are generally regarded as exceptional, and transparently reject standard due process protections in criminal law. Instead, substantive coercive interventions are permitted, including detention and severe restrictions on liberty without charge or trial. This occurs despite uncertainty about past criminal acts or future intention to engage in violent acts, and represents a significant departure from important norms of presumption of innocence and the requisite standard of proof as being beyond reasonable doubt.
While the criminal law has long allowed for the criminalisation of inchoate or unconsummated crimes, the terror laws push the temporal boundaries of the criminal law to create ‘pre-inchoate’ or ‘pre-crime’ offences. Laws introduced in 2002 allow for the criminalisation of acts deemed to be engaged in for the purposes of preparing to engage in terrorism. These offences attach criminal liability at an earlier point than the traditional inchoate offences of attempt and conspiracy. These laws stretch the thread between the substantive crime that the laws seek to pre-empt – terrorism – and the criminalised acts. The temporal boundary of the law has since been stretched even further, with prosecution for inchoate preparatory offences such as conspiracy to engage in preparatory crimes generating ‘pre-pre-crime’ offences or ‘pre-pre-inchoate’ offences.
After the preparatory offences were introduced in 2002, legal scholars argued that the prosecution of the inchoate forms of such offences would be ludicrous or impossible. Time has demonstrated that these legal scholars underestimated the flexibility of the terror laws and the creativity of prosecutors. The greater the distance between the criminalised acts and the substantive crime targeted, the more vacuous the guilty acts element of the crime.
FOCUS ON IDENTITY AND INTENTION, NOT ACTS
Behaviours deemed to be preparatory acts are often innocuous, harmless and lawful except for what is perceived to be the intention to engage in a future act of terrorism. Otherwise legal acts are essentially criminalised on the basis of intention, which must be proven beyond reasonable doubt. While the mens rea element of these offences was once considered likely to act as a safeguard against the overly broad operation of these laws, establishing intention to commit a future crime has not proved a hurdle to successful prosecutions. When no overt or unambiguous action has been taken towards implementing an act of terror, and where no agreement has been entered into to engage in an act of terrorism, intention is often opaque. However, in order to be convicted of preparatory offences, it does not have to be demonstrated that the substantive offence allegedly being prepared for was likely to have taken place, but for the intervention of the authorities. In addition, it is not necessary for the prosecution to show that a target was selected, a time-line for action was decided, or that the defendants had the means or capacity to carry out any attack. Where a group is prosecuted, the prosecution does not have to establish that those to be involved in any terrorist act, or the details of that terrorist act, had been decided. The only thing that must be proven, as pointed out above, is intention to engage in a future act of terrorism. Australian cases, and similar cases in the UK and US, reveal that suspicious identity often stands in as proxy for intention.
A study of the implementation of these types of laws reveals how the gap between being a suspected terrorist and a convicted ‘would-be-terrorist’ has narrowed. While the beyond–reasonable-doubt standard of proof and the presumption of innocence are formally in play, the ‘would-be terrorist’ charged with a preparatory offence finds it next to impossible to ‘prove’ benign intent when accused of harbouring what are characterised as extreme religious or political ideologies. The accused in these trials are essentially convicted of being the type of person juries believe could, given the opportunity, possibly commit future acts of terrorism. The presumption of innocence and the beyond-reasonable-doubt standard of proof are legally present, but are substantively eclipsed, in the prosecution of preparatory offences. The criminal trial provides only a façade of justice that hides the focus on identity and the pre-emptive nature of the punishments that flow from conviction. People who are convicted as ‘would-be terrorists’ typically receive harsher penalties than those found guilty of actually committed serious criminal offences, including sexual assaults and homicides.
The preparatory offences are proved essentially through a focus on suspicious identity that casts a pall of suspicion over equivocal, innocuous acts and otherwise legal acts. There are also a host of terror laws that explicitly focus on identity and association. These include financing of terrorism, and laws that make it an offence to associate with groups and individuals deemed to be terrorists. These laws run counter to the standard criminal law principle that crimes are based on behaviour rather than identity. Such offences have much in common with other long-standing identity offences known as ‘status offences’, such as the laws against consorting. The offences that explicitly focus on identity under terror legislation, however, attract far more serious penalties.
Vagueness or uncertainty is another hallmark of the terror laws. The laws are typically cast extremely broadly, giving police and intelligence agencies great latitude in terms of which individuals and which activities are viewed as a threat and become subject to coercive interventions or are criminalised. For example, the preparatory laws, referred to above, include provisions that prohibit possession of ‘a thing’ connected with preparation for a terrorist act. The thing can literally be anything. Financing of terrorism offences are drawn widely enough to target people who donate to charities with no intention of supporting terrorism, and where the donation has no connection to any act of terrorism. There has been much consternation among Muslims and diaspora communities about what charities might be supported without risking falling foul of laws against terrorism financing.
INCREASING ROLE OF INTELLIGENCE
Attempting to predict the future to pre-empt terrorism has led to an increase in the spread, scope and significance of intelligence in criminal justice. Under the terror law framework, the role of intelligence, evidence, and the activities of security agencies, such as ASIO and the police, have merged to an unprecedented extent. Traditionally, intelligence and evidence operated under distinct paradigms. Evidence is more reliable than intelligence, which is typically fractured and partial, sometimes amounting to little more than gossip and innuendo. Previously, intelligence was gathered by security agencies, operating in secret and accountable only to executive government for the purpose of providing background information on threats to national security. Police, on the other hand, primarily gathered evidence in order to solve past crimes. Previously, it was widely accepted that activities, such as arrest and questioning, were carried out by police, not intelligence agencies. While there have long been overlaps between the covert operations of intelligence agencies and the more open but coercive operations of law enforcement, these intersections have expanded significantly under the terror laws. Police agencies have been granted greater covert powers and intelligence agencies have been granted unprecedented coercive powers.
Intelligence alone is increasingly the foundation for prolonged and significant coercive interventions. Civil Control Orders, for example, can be granted on the basis of intelligence alone. Non-disclosure provisions allow secret, untested information to be used as the basis for such orders, so that those affected have no real opportunity to rebut the allegations against them. In addition, information that bears the hallmarks of intelligence is increasingly the basis of terror prosecutions. Prosecutions for terrorism offences typically have no crime scenes as they target future crimes. In these circumstances, the prosecution relies on enormous amounts of material gleaned largely from the defendant’s conversations and actions, often over a long period of time. The volume of material, typically, tends to put the defence at great disadvantage in terms of resources. In addition, as there is often no hard evidence to rebut, the defence finds itself boxing at shadows.
SECRECY AND INFORMATION CONTROL
The greater reliance on intelligence and intelligence agencies in criminal justice has not been accompanied by a shift in their secret, politicised culture. The world of intelligence has instead cast its shadow over law enforcement and the courts so that open justice is eclipsed by the rise of secret police and the spread of secret evidence. Increasingly, national security is cited as the grounds for withholding information from defendants and their legal representatives in counter-terrorism pre-crime cases. Closed material procedures allow ‘law enforcement and security agencies to classify almost any information as “protected” and “sensitive” and withhold it from terrorism suspects and their legal counsel, even if it is vital to the case and their defence’. Courts are required to give greatest weight to the question of ‘the risk of prejudice to national security’ rather than to the needs of the accused in making decisions about closed material. New South Wales Supreme Court Justice Whealy, reflecting on his experiences in a terror trial, maintained that ‘the increasing presence of our intelligence agency in the investigating and trial processes brings with it an ever-increasing appearance of secrecy which, if not suitably contained, may substantially entrench upon the principles of open justice and significantly dislocate the appearance and the reality of a fair trial’.
The most recent tranche of terror laws includes provisions that criminalise the disclosure of activities deemed to be special intelligence operations. These laws, by providing for up to ten years’ imprisonment for disclosure and not including a public interest defence, severely restrict the ability of journalists (and others) to disclose or report on national security operations. While the government claims these measures are necessary to ensure that intelligence agencies can operate effectively, these laws dramatically increase the extent of information control wielded by security agencies, police (who are often engaged in joint operations with security agencies) and the government, which stakes much of its political legitimacy on security. Such information control expands the space for police and intelligence agencies to operate behind a shield of immunity, broadening the scope for illegal activities, human rights violations and politically partisan and ideologically driven intelligence-gathering and coercive interventions. Secret evidence denies suspects and the accused access to the details of the case against them and the opportunity to challenge it, while the public is also denied knowledge of the operations of the courts. Secrecy in policing and as the basis for criminal processes and coercive interventions creates the context for state crimes to be committed by the police and intelligence agencies with impunity.
The prime minister’s recent rhetoric about ‘no more benefit of the doubt’ highlights the pre-emptive trend in terror legislation and its incompatibility with the due process standards of the presumption of innocence and the beyond reasonable doubt standard of proof. Terror legislation as introduced and implemented in the past 14 years expands state power, producing an environment that is ripe for human rights abuses to be committed with impunity.
Jude McCulloch is a Professor of Criminology at Monash University. Her book (with Dean Wilson) Pre-crime: Pre-emption, precaution and future crime will be published later this year by Routledge. EMAIL Jude.firstname.lastname@example.org.
 Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University Press, 2011). The volume of terror legislation precludes reproducing a comprehensive list of provisions here. However, such legislation includes that which defines a terrorist act and makes it illegal to engage in such offences, a wide range of offences related to conduct preparatory to a terrorist act; legislation that allows for the proscription, or banning, of organisations by government decree; preventative detention and control order regimes, greatly expanded powers to the Australian Security Intelligence Organisation; powers that criminalise the disclosure of ASIO activities; and laws which allow for the details of evidence used to prosecute terrorism offences to be kept secret from the public, defendants and their legal representatives. Recently passed legislation addresses issues related to foreign fighters; allows for the collection, retention and searching of metadata and expands secrecy provisions in relation to ASIO activities and the penalties for disclosing information about certain intelligence operations. For a comprehensive overview of terror laws see, http://www.ag.gov.au/NationalSecurity/Counterterrorismlaw/Pages/Australiascounterterrorismlaws.aspx.
 I use the term ‘terror laws’ rather than ‘anti-terrorism’ or ‘counter-terrorism’ because it is not clear that the laws effectively counter the threat of terrorism. In addition, the categorisation of acts as ‘terrorist’ is contentious and there is evidence that what are widely referred to as anti-terror or counter-terrorism laws can be a source of terror and state crime. See, for example, Sentas, V (2014) Traces of terror: counter-terrorism law, policing, and race, Oxford University Press.
 Williams, G (2014) Does Australia Need New Anti-Terror Laws? http://www.cla.asn.au/News/terror-laws-some-good-some-unneeded/ (accessed 18 December 2014).
 ‘Prime Minister Tony Abbott’s full national security statement’, The Age, 23 February 2015. At http://www.smh.com.au/federal-politics/political-news/prime-minister-tony-abbotts-full-national-security-statement-20150223-13m2xu.html.
 Danner, M (2012) ‘The Politics of Fear’, New York Review of Books, November 22- December 5 2012, pp50-4.
 Andreas, P and Price, R, ‘From war fighting to crime fighting: transforming the American national security state’ (2001) 3(3) International Studies Review 31-52.
 McCulloch, J, ‘National (In) Security Politics in Australia’ (2004) 29 Alternative Law Journal 87.
 Massola, J, ‘Armed guards now stationed to protect Australian MPs and senators in both chambers of Federal Parliament’, Sydney Morning Herald, 9 February 2015 at http://www.smh.com.au/federal-politics/political-news/armed-guards-now-stationed-to-protect-australian-mps-and-senators-in-both-chambers-of-federal-parliament-20150209-139ya3.html.
 McCulloch, J, ‘Transnational crime as productive fiction’ (2007) 34(2) Social Justice 19-32.
 Herman, E, ‘Terrorism: misrepresentations of power’, in D Brown & R Merril (eds), The Politics and Imagery of Terrorism, Bay Press, Seattle (1993), p56.
 Cohen, S (2013), States of denial: Knowing about atrocities and suffering, John Wiley & Sons.
 Neumann, P (2009), Old and New Terrorism, Cambridge, UK: Polity.
 McCulloch, J and Tham, JC, ‘Secret state, transparent subject: the Australian Security Intelligence Organisation in the age of terror’, (2005) 38(3) Australian & New Zealand Journal of Criminology 400-15; Walker, B (2012), Declassified Annual Report Independent National Security Monitor, Canberra, Australian Government.
 McCulloch, J and Pickering, S ‘Pre-crime and counter-terrorism imagining future crime in the “war on terror’’’, (2009) 49(5) British Journal of Criminology 628-45; Ramsay, P (2013), ‘Democratic limits to preventative criminal law’, in AJ Ashworth, L Zedner, P Tomlin (eds), Prevention and the Limits of the Criminal Law, Oxford University Press, pp214-34.
 See, for example, McSherry, B, ‘Terrorism offences in the criminal code: broadening the boundaries of Australian criminal laws’  UNSWLawJl 26; (2004) 27 University of New South Wales Law Journal 354.
 Rose, G and Nestorovska, D, ‘Australian counter-terrorism offences: necessity and clarity in federal criminal law reforms’ (2007) 31 Criminal Law Journal 20-55.
 See, for example, Scanlon, Z, ‘Punishing proximity: sentencing preparatory terrorism in Australia and the United Kingdom’, (2013) 25(3) Current Issues in Criminal Justice 763-83.
 See, McCulloch, J and Wilson, D (forthcoming 2015), Pre-Crime: Pre-emption, Precaution and Future Crime, London, New York: Routledge.
 McGarrity, N, ‘Let the punishment match the offence: determining sentences for Australian terrorists’, (2013) 2(1) International Journal for Crime and Justice 18-34.
 McSherry, B, see note 15 above, 354.
 Davis, F, ‘Plastic swords couldn’t behead anyone, but could possession be a crime?’ The Guardian, 9 October 2014 http://www.theguardian.com/commentisfree/2014/oct/09/plastic-swords-couldnt-behead-anyone-but could-possession-be-a-crime? (accessed 24 November 2014).
 McCulloch, J and Pickering, S, ‘Suppressing the financing of terrorism: proliferating state crime, eroding censure and extending neo-colonialism’ (2005) 45(4) British Journal of Criminology 470-86; Tham, JC, ‘A risk-based analysis of Australia’s counter-terrorism financing regime’, (2007) 34(2) Social Justice 138-52.
 See, for example, International Commission of Jurists, (2009) Assessing Damage, Urging Action Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights http://www.refworld.org/cgi-bin/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y&docid=4a7836d62 (accessed 12 August 2014).
 Ibid, p13.
 See, for example, Moor, K, ‘Abdul Benbrika and other terrorists wanted to kill but can't be prosecuted’, Herald Sun, September 20, 2011, at: http://www.heraldsun.com.au/news/law-order/these-terrorists-wanted-to-kill-us-but-a-court-has-decided-they-cant-be-prosecuted/story-fni0ffnk-1226142188593.
 Rix, M, ‘Counter-Terrorism and Information: The NSI Act, fair trials and open, accountable government’, (2011) 25(2) Continuum: Journal of Media and Cultural Studies 285-97.
 International Commission of Jurists, above note 24, p153.
 Whealy, AG, ‘Difficulty in Obtaining a Fair Trial in Terrorism Cases’ (2007) 81(9) Australian Law Journal at p757.
 Media Entertainment and Arts Alliance (2014), ‘MEAA says national security law an outrageous attack on freedom’, 26 September http://www.abc.net.au/mediawatch/transcripts/1436_meaa.pdf (accessed 18 December 2014).
 Mannix, L, ‘‘‘Bad people” treating us as mugs: Abbott’s national security warning’, Sydney Morning Herald, 15 February 2015, http://www.smh.com.au/federal-politics/political-news/bad-people-treating-us-as-mugs-abbotts-national-security-warning-20150215-13f3bd.html (accessed 17 February 2015).