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Islamic Human Rights Commission
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30th April 2004

AUSTRALIAN ANTI-TERROR LAWS

INTRODUCTION

Following the events of September 11th 2001, the protection of national security by the development of anti-terrorism legislation has been at the forefront of policy making by many governments. Such legislation, it is considered, is the best way to deal with the increasingly global threats to terrorism. Thus, wide-ranging anti-terror laws have been passed through parliaments with incredible speed and little scrutiny, alongside an increasing acceptance by an ill-informed population of the necessity of such laws. Together with this steady increase in laws comes a steady decrease in respect for civil liberties, the rule of law and international human rights standards. In western states traditionally considered as the champions of human rights – the word terrorism has increasingly become an excuse for any repressive measure taken, ironically, in the name of protecting democracy.

Australia has become the latest country to amend its laws to pass radical new anti-terror legislation. Whilst many concerns have been raised over the failure of anti-terror legislation in the US and UK to conform with international standards of civil liberties and human rights, (i) this briefing will take a comparative look at the current proposed laws in Australia and the extent to which they represent a departure from previous laws. As will be seen, there is no doubt that whilst September 11th left governments dealing with a new kind of terrorism threat, the reality is that Australia’s previously and recently revised anti-terrorism laws already had a far-reaching impact upon its citizens’ civil liberties.

THE PROPOSALS – the Anti-Terror Bill 2004

Following September 11th, the Australian Government introduced a range of changes to its legislation to deal with threats of terrorism (ii). However, Attorney General Ruddock is now further proposing a radical new series of laws to counter the ‘ongoing’ threat of terrorism. According to Ruddock during the second reading of the proposed Anti-Terror Bill 2004 (ATB), Australia’s anti-terrorism laws were in need of further review following the recent terrorist bombings in Madrid. The new laws are apparently necessary despite the fact that, according to Ruddock himself, Australia’s response to the threat of terrorism has already been, ‘comprehensive and wide ranging’. The ATB was referred by the Senate to the Senate Legal and Constitutional Legislation Committee on 31 March 2004, which will report back on its provisions by 11 May 2004. Further, Australia has expressed the intention to make even more draconian and extensive measures than just those limited to the ATB. These include a new offence of consorting with terrorists, measures relating to the disclosure of evidence and the opportunity for surveillance without the need for a warrant. Some of the new proposals are considered below.

Detention and Investigation Periods

The ATB contains specific provisions to extend the fixed detention and investigation period under Part 1C of the Crimes Act 1914 for investigations into suspected terrorism offences. Under the current law, an initial period of 4 hours detention is allowed for any investigation with a further 8 hours for serious crimes if judicially authorised. The ATB will amend this so that whilst an initial investigation period of 4 hours will be maintained, the extension period will be increased to 20 hours, making a maximum of 24 hours available for investigations by the authorities. Each extension would have to be authorised by a magistrate or other judicial officer. The justification provided by the government is that international aspects of investigations make this lengthened time period a necessity. Further, the ATB makes provisions for ‘dead time’, which permits law enforcement agencies to suspend or delay questioning of a suspect while overseas inquiries are made, without this time exhausting the finite investigation period that must be observed.

It is a recognised principle of human rights law that any deprivation of an individual’s liberty should be kept to the minimum strictly necessary in any given situation, particularly where it relates to a person who is merely a suspect and thus entitled to the presumption of innocence. It must be remembered that the ‘investigation period’ referred to in the ATB is the period that a person is actually detained and questioned. This is misleading – the detention is not the sole period during which investigation into an alleged offence can take place. The explanatory memorandum to the ATB refers to the complexity of investigating terrorist crimes with an international aspect. However, many other crimes in Australia are of a transnational nature and do not require such lengthy periods of investigation. Furthermore, the introduction of the period of ‘dead time’ means that detention could be unduly prolonged. While the additional time must not ‘exceed the amount of the time zone difference’, this alone could add 23 hours to the detention period, thereby doubling it. Perhaps most worrying of all is the fact that a detainee has no appeal rights as such with respect to the powers to detain and investigate and no method to challenge their detention. The only action a detainee may take if police abuse their powers is a civil action in tort for unlawful imprisonment. The granting of such extended police power without accountability is unacceptable in a so called democratic state.

In light of the fact that Australia’s laws currently provide enough power for authorities to detain and question suspects, it seems unclear why further changes are being proposed by the ATB. The Australian Security Intelligence Organisation (ASIO) can already detain and compulsorily question persons suspected of having information related to ‘terrorism’ offences for rolling periods of seven-days under the Australian Security Intelligence Organization Act 1979. Such persons can be questioned for up to 24 hours during detention of one week, or 48 hours with an interpreter. Further, those arrested under these provisions do not have the right to silence and only have a limited right to legal representation. The law also provides that a person can be jailed for five years for refusing to answer questions or misleading the ASIO. The powers given to the ASIO are already unprecedented compared to equivalent organisations in the UK and Canada and their exercise is cloaked with secrecy with the ASIO Legislation Amendment Act 2003 making it illegal to disclose information relating to most ASIO activities.

The reality is that these changes are unnecessary and seem to serve only the purpose of undermining the rule of a law. If provisions curtailing the civil liberties of citizens already exist, there can be no excuse for extending their reach further. Experience from the UK shows the injustice of prolonged detention on individuals. Following the implementation of the Anti-terrorism, Crime and Security Act 2001 (ATCSA), many concerns were raised in the UK about the observation of due process guarantees under international law. Indeed, the case of 14 men held at high security Belmarsh prison under the ATCSA for an indefinite period is well documented. (iii) Some of the men have been imprisoned since December 2001 and none have been convicted or even charged of a crime. The ATCSA allows foreign nationals suspected of involvement in terrorist activities to be detained until they no longer pose a threat. As these suspects cannot be deported (as they would face a risk of torture or death if deported, contrary to A.3 European Convention on Human Rights (ECHR)) they are being detained indefinitely, and without charge. In fact, the men or their lawyers do not even know the evidence that is keeping them in prison. Severe criticism has been made of such indefinite detention without opportunities being given for its appropriate judicial challenge. (iv) Further, similar condemnation has been made of the detention of those currently held in Guantanamo Bay by the US authorities, without charge and without appropriate access to counsel. According to the International Covenant on Civil and Political Rights 1966 (ICCPR), anyone deprived of their liberty ‘shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention…(A.9(1)). Australia, is also a signatory to the ICCPR and it is clear that any prolonged detention without charge, especially in the absence of basic procedural guarantees is a violation of international law. The UN Human Rights Committee (responsible for monitoring compliance with the ICCPR), has noted that A.9 applies equally and without exception to cases where public security is at issue. (v)

The reality is that those that will be detained under the ATB in Australia will have correspondingly fewer rights than those detained under the ordinary criminal law – the inherent injustice involved in the creation of a twin-track criminal justice system is clear. Further, the proposed changes in the ATB will serve only to alienate an already marginalised Muslim community in Australia, as the legislation is in practice likely to be used only against Muslims. The UK experience shows that whilst there is nothing in its anti-terror laws that specifies race, only foreign nationals can be interned and in fact, the legislation has only been used to intern Muslims. This prompted the UN International Committee on the Elimination of all forms of Racial Discrimination to state, in December 2003, ‘[w]hile acknowledging the State Party’s national security concerns, the Committee recommends that the State Party seek to balance those concerns with the protection of human rights and its international legal obligations. In this regard…it underlines the obligation of States to “ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, color, descent, or national or ethnic origin”.’ The danger with the ATB in Australia is that it will similarly run the risk of being used only against Muslims, thereby fuelling feelings of disillusionment with a government already seen by many as providing insufficient protection against the rising tide of Islamaphobia in Australia.

Membership of Armed Forces

The ATB also amends the Crimes (Foreign Incursions and Recruitment) Act 1978 to prohibit Australian citizens or those resident in Australia from engaging in hostile activities in a foreign state where a terrorist organisation is part of the armed forces of that state. The ATB gives the Government the power to proscribe organisations for the purposes of the Act. Previously, the law was only applicable to a non-Australian citizen or resident if the person was in Australia at any time during the year preceding the act.
Currently, the Crimes (Foreign Incursions and Recruitment) Act 1978 exempts Australian citizens and residents who fight with the armed forces of a foreign state from criminal liability. However, in light of the fact that the definition of a ‘proscribed organisation’ has been broadened to allow the Attorney-General to proscribe organisations which have not been listed by the United Nations, it will mean that any armed force may be declared a terrorist organisation, regardless of the moral principles with which the group is fighting and whatever its methods of warfare. This taken together with the fact that the offence of ‘terrorism’ in Australia is already defined in the widest possible terms (vi) means that in the current climate the legality of the conduct of Australians fighting with foreign armed forces will become an entirely political decision. Once again, by making such serious criminal liability subject to the whim of a particular government, the distinction between the executive and the legislature is blurred and respect for the rule of law further diminished. Finally, neither the ATB itself nor its Explanatory Memorandum identifies what criteria will be used before an organisation is prescribed.

Similar legislation has been drawn up by the US and UK which also have the widest possible definition of terrorism. Under the UK Prevention of Terrorism Act 2000, the definition includes any act or threat of action which involves serious violence and is ‘designed to influence the government or to intimidate the public or a section of the public’. The latter requirement is not necessary where the action includes firearms or explosives which are always considered terrorist actions. (vii) The definition thus includes violence against heads of state without regard to the legitimacy of the movement. To this extent, ‘terrorist organisations’ could include such legitimate struggles as those of Nelson Mandela and the ANC during the period of apartheid in South Africa. Further, for the first time in UK and US history, the definition includes attacks on military targets as well as attacks on civilians. The reality is, by having such broad undefined terms to the disposal of any government, they are able to deligitimise otherwise morally legitimate struggles against regimes that western states have a political interest in protecting. In doing so, the UK, US and Australia are clearly undermining international agreements. In 1979, the UN General Assembly voted to affirm ‘the legitimacy of the struggle of peoples under colonial and alien domination recognised as being entitled to the right of self-determination to restore themselves that right by any means at their disposal’. Yet, in the definition of terrorism, there is no longer any recognition of the distinction between terrorists and so-called freedom fighters pursuing the right to self-determination in a society which allows no legitimate means for change.

Training with a terrorist organisation

An amendment to s.102.5 of the Criminal Code Act 1995 will introduce modified offences of providing training to or receiving training from a terrorist organisation. The first offence will apply where a person is reckless as to whether an organisation is a terrorist organisation. The second is a strict liability offence under which the onus is on the accused to prove they were not reckless and applies where an organisation has been specified by regulations under the Code. The ATB also proposes to increase the penalty for being reckless to 25 years from 15 years.

The adoption of a strict liability offence was not explained in the second reading of the ATB nor in its Explanatory Memorandum. Such liability is usually restricted to penalties for minor offences which do not result in the possibility of imprisonment. The fact that offences in this area are so widely defined, combined with the fact that the government could suddenly ‘proscribe’ a particular organisation makes it more imperative that culpability for these offences is curtailed. Furthermore, the ‘training’ prohibition is not limited to a terrorist act – thus resulting in the prospect that a medical worker providing first aid training to a registered charitable organisation that is suddenly ‘proscribed’ may find himself or herself facing a prison sentence.

Proceeds of crime

Further, the ATB will make it unlawful for a person to make money from literary proceeds ‘directly or indirectly’ from a foreign indictable offence, derived in Australia or elsewhere and subsequently transferred to Australia. At present, the Proceeds of Crime Act 2002 permits assets to be confiscated if they are the result of a ‘foreign indictable offence’. This is an act committed abroad that would be a crime in Australia. This is intended to prevent a person from receiving financial benefit from their crime.

Whilst in principle this is a commendable provision its extended application can result in severe injustice. The amendments mean that the experiences of those who have been detained and mistreated may never come to public attention. Where detention has not conformed to international standards of deprivation of liberty, it is in the public interest to publicise and investigate such incidents. Perhaps the most worrying aspect of this amendment is that the definition of foreign indictable offences includes offences tried by United States military commissions. This proposal would thus recognise the military commissions being established by the United States government to try detainees currently being held in Guantanamo Bay.

The military commissions were proposed by President Bush on the grounds that it was ‘not practicable’ to try detainees under the ‘principles of law and the rules of evidence’ applicable to the ordinary criminal justice system. However, as military tribunals are ad hoc and not subject to the rules governing regular military courts they have been condemned by many human rights organisations for failing to meet the requirements for a fair trial under international law. (viii) The detainees have no right to challenge their detention before the tribunals, the military will act as prosecutors, defence, judges and executioners and the jurisdiction of the US courts is excluded. The ultimate authority presiding over them is the US President who has already described those held there as ‘killers’ – a clear mockery of the presumption of innocence and the notion that justice must be seen to be done. Indeed, the Inter-American Commission on Human Rights, responsible for adjudicating upon the American Convention on Human Rights 1969, requested the US Government to allow the legal status of the Guantanomo Bay detainees to be determined by a lawful and competent tribunal rather than a political authority. This request was rejected. Finally, it is inappropriate for a constitutional democracy such as Australia to recognise offences created by an executive branch of the Government of the US. Where a so called democratic country begins to take measures which effectively legitimise the breach of such a fundamental right as that of a fair trial, it can only mean the beginning of a slippery slope of erosion of other human rights and liberties.

Perhaps as worrying is s.4 of the ATB that applications can be made for the retrospective operation of this provision. In other words, conduct that would not have been an offence at the time it occurred would now be covered. There can be no justification for a departure from the normal rule of law that legislation should not operate retrospectively. Indeed, so fundamental is this right that it is enshrined in most human rights treaties (e.g. see UDHR, A.11 and ICCPR, A.15).

Consorting with terrorists

The proposals to deal with terrorism currently being debated in Australia go beyond those being considered in the ATB. Particularly worrying is that an offence of ‘consorting’ with persons suspected of a ‘terrorist’ offence is being considered. This far reaching offence would punish those guilty merely by association and could mean that innocent family and friends of those suspected of terrorist offences could be criminalised. The result is that the legislation affects a far wider range of people than expected and by doing so, it undermines the fundamental freedom of association protected by the Universal Declaration of Human Rights (UDHR) (A.20) and the ICCPR (A.22).

Secret trials

The Australian Government is also considering a proposal that would mean that certain evidence provided at trial by intelligence agencies and police would be withheld from the accused and their lawyers. This clearly impinges on the fundamental human right to a fair trial. It is hard to see how the accused can have a fair trial if he has no knowledge of the evidence upon which he is charged or the opportunity to challenge such evidence. Indeed, the ICCPR states,
‘All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him…everyone shall be entitled to a fair and public hearing.'(A.14(1)). Further, A.3 states,

In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

1. To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
2. To have adequate time and facilities for the preparation of his defence…
3. To examine, or have examined, the witnesses against him…

Where these rights are not upheld the danger of wrongful convictions is all too apparent. The important of these rights have been well recognised in international law. As early as 1948, the UDHR declared that ‘[e]veryone is entitled in full equality to a fair and public hearing…’. Indeed, the concept of a fair trial is the cornerstone of justice in most democratic states. Furthermore, the concept of ‘equality of arms’ in a trial, particularly where the liberty of an individual is at stake is well accepted by all international human rights treaties. To use an example concerning the right to a fair trial under the ECHR, the European Court of Human Rights has stated, ‘each party must be afforded a reasonable opportunity to present his case, including his evidence under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent’. (ix)
Evidence from the UK shows the injustice that such a change in the law as proposed by the ATB would cause. In the UK, those detained under the ATCSA challenged their detention before the Special Immigration Appeals Tribunal. During these trials the Home Secretary relied on secret evidence before the Court and a specially appointed lawyer whom neither the detainees nor their own lawyers had access to. In relation to some of the men, it became clear that some of the prosecutorial evidence had been obtained via torture in other countries. It is recognised in international law, that such evidence should be inadmissible in trial. According to the UN Convention Against Torture, ‘[e]ach state party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings’ (A.15). The danger in such trials is that the accused has no effective way of challenging such evidence. If Australia does adopt this proposed measure, it is clear that the absence of such procedural guarantees would raise serious concerns about the hearing as an impartial and effective forum for any appeal by an accused.

Surveillance without warrant
Finally, the Surveillance Devices Bill 2004, currently before the Australian Parliament, will allow, in certain circumstances, law enforcement officers to conduct surveillance without a warrant. Furthermore, the range of offences for which surveillance, with or without warrant, can be conducted is extended. Once again, this curtailment of accountability of the actions of government agencies is a further undermining of the rule of law.

CONCLUSION
It is appropriate that in any democratic society, parliament should act as the principal carrier of its citizens’ civil liberties and the first court of human rights. Yet the reality in Australia is that the proposals contained in the ATB are little to do with the protection of fundamental freedoms and more to do with protecting the political interests of parties in a country where politicians and the media have encouraged the public’s perception that such measures are a necessity to curb terrorism. Yet far from these measures being effective in the fight against terrorism they can be counter-productive. Their impact will be to create feelings of mistrust within Muslim communities, which in turn could fuel extremism.
One thing is clear – even without the measures contained in the ATB, Australia already has wide ranging powers to combat terrorism. These existing measures together with the provisions of the ordinary criminal law are sufficient, as we have seen, to provide police with the powers to protect citizens. It thus seems that the ATB is merely another grab for increased power and creates a twin track criminal justice system where suspects accused of terrorist offences have fewer rights and correspondingly fewer safeguards than those present in the ordinary criminal law. It is difficult to reconcile this with the notion that Australia is a protector of international human rights and upholder of aspirations contained in the UDHR that ‘[a]ll men are born free and equal in dignity and rights’. It is important to remember that state authorities are not infallible and that all systems must have in-built safeguards. As soon as these safeguards begin to suffer from erosion the first casualty will be the civil liberties of all citizens. The reality is that terrorism will never be eradicated completely, but it is imperative that any action taken to curb it does not represent a more extreme curtailment of the rights of individuals than it seeks to prevent.
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NOTES

1. See e.g. Liberty, Anti-Terrorism Legislation in the United Kingdom and the Human Rights concerns arising from it, March 2003; and Human Rights Watch, World Report 2004.
2. E.g. the offences contained in the federal Criminal Code were updated; and the Security Legislation Amendment (Terrorism) Act 2002 introduced a further series of offences relating to terrorist activities.
3. See Internment: the truth behind the ‘war on terror’, Liberty Lecture by Gareth Pierce on 15 December 2003 at the LSE, London,
4. According to A.5 ECHR, ‘Everyone has the right to liberty and security of person’, and further, anyone deprived of his liberty ‘shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’ (A.5(4)).
5. See General Comment No.15.
6. The broad statutory definition contained in the Criminal Code Act s.100.1 can cover at its margins certain types of industrial action such as picketing. The definition excludes industrial action, but picketing has been found not to be industrial action under the Workplace Relations Act 1996.
7. In the UK, Part II of the Terrorism Act 2000 is concerned with proscribed organisations. The Secretary of State may proscribe an organisation if he believes it engages in acts of terrorism, although it is enough for a group to promote and encourage terrorism to fall within the section.
8. E.g. See Human Rights Watch, World Report 2003
9. Dombo Beheer BV v The Netherlands 1994

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