JURIST Special Guest Columnist Philip Ruddock, Attorney-General of Australia, outlines Australia's recently strengthened counter-terror laws, describing them as an appropriate, proportionate and balanced response by the Australian Government to emerging security threats…

Following the terrorist attacks on the London transport system in July last year, the Australian Government has strengthened counter-terrorism laws to enable authorities to better deter, prevent, detect and prosecute acts of terrorism. The new laws build on the Government’s comprehensive response to the post-September 11 security environment and are a combination of best practice from overseas and innovative solutions that respond to Australia’s security needs.

During the drafting of the new laws the Government was committed to ensuring that the need to protect the community from acts of terrorism was balanced against the rights of individuals. In addition, the legislation was developed consistently with Australia’s international human rights obligations, as well as the Racial Discrimination Act 1975.

The Anti-Terrorism Act 2005

The Anti-Terrorism Bill 2005 was introduced and passed by the House of Representatives on 2 November. The Bill was passed by the Senate on 3 November and the Anti-Terrorism Act 2005 commenced operation on 4 November 2005.

The Anti-Terrorism Act 2005 clarifies that, in the prosecution of a terrorism offence, it is not necessary to identify a particular terrorist act. Instead it will be enough for the prosecution to prove that the particular conduct was related to ‘a’ terrorist act.

The Anti-Terrorism (No. 2) Act 2005

The Anti-Terrorism Bill (No. 2) 2005 was introduced into Parliament on 3 November 2005 and referred to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 28 November 2005. Following public hearings on 14, 17 and 18 November, the Senate Committee tabled a report containing a number of recommendations, including a number of amendments. The Government considered those recommendations, and following consultation with States and Territories, introduced a number of Government Amendments to the Bill. The Bill, as amended, was passed on 7 December and received Royal Assent on 14 December 2005.

Most of the measures in the Anti-Terrorism Act (No. 2) 2005 have now commenced operation. The measures that commenced on 15 December 2005 include provisions extending the criteria for listing terrorist organisations to cover those that advocate terrorism, strengthened financing terrorism offences, the new control order regime, the new preventative detention regime, the new powers authorising the Australian Federal Police (AFP) to stop, question and search people in Commonwealth places and the new notice to produce regime.

The revised sedition offences that cover urging violence against other groups within our community, against Australia’s forces overseas and in support of Australia’s enemies, and the provisions permitting the development of a National Code of Practice for the use of CCTV in airports and on aircraft commenced on 11 January 2006. The remaining financing of terrorism provisions in the Act have not yet commenced. The delay in commencement of the provisions relating to counter terrorism financing measures is to ensure industry has sufficient time to comply with the requirements imposed by the legislation.

The Anti-Terrorism Act (No. 2) 2005 amended a number of existing counter-terrorism laws and introduced new tools into the law enforcement armoury to combat the threat of terrorism. Some of the measures are briefly outlined below.

Sedition

The new sedition laws address those in our community who directly urge others to use force or violence, including terrorist acts. The sedition amendments modernise the language of the old sedition provisions in the Crimes Act 1914 (Crimes Act), and move those offences to the Criminal Code Act 1995 (Criminal Code). The new sedition offences are not a wholesale revision of the sedition offence.

Australia’s sedition offence is unique because it recognises that urging violence between groups is of concern to the fabric of society in the same way urging violence against government authorities is of concern.

Powers

The Act confers powers on the Australian Federal Police (AFP) to stop, question and search in all places occupied by the Australian Federal Government and prescribed security zones within those places to more comprehensively protect the community from terrorism. The laws provide the AFP with a new notice to produce regime to ensure compliance with lawful requests for certain types of information where the provision of that information will assist the investigation of a terrorism offence or another serious offence.

The Act strengthens the regime relating to Australian Secret Intelligence Organisation (ASIO) powers. This includes enhancing various aspects of ASIO’s special powers warrant regime, enhancing its ability to access aircraft and vessel information, and developing an offence for providing false or misleading information under an ASIO questioning warrant. The Act also amends the relevant Customs legislation to broaden Customs powers for security and intelligence purposes.

These measures complement others taken by the Government to ensure that agencies are appropriately equipped and resourced to protect the Australian community.

Much of the discussion about the new laws has focused on the new regimes for control orders and preventative detention.

Control orders

The Act creates a new regime for control orders. Under new Division 104 of the Criminal Code, the AFP can apply to an issuing court for a control order where there are reasonable grounds that a control order would assist in preventing a terrorist act or that a person has trained with a listed terrorist organisation. The concept is derived from similar powers in the United Kingdom.

While the law provides for a range of different types of controls to be placed on a person, only those controls the AFP has satisfied an issuing court are necessary and appropriate will be imposed in a particular case. The types of controls that can be imposed under a control order include a prohibition or restriction on the person leaving Australia, associating with a specified person, or carrying out a specified activity.

When considering whether to impose each of the controls sought by the AFP, the issuing court will need to consider not only the need to protect the public from terrorist acts, but also the impact of the proposed controls on the personal and financial circumstances of the individual.

The laws provide for an initial “interim” control order that is effective once it has been served on the person and lasts for a relatively short period of time. The person who has been served with an order and their lawyer are entitled to a copy of it, which includes a summary of grounds for making the order. This is designed to ensure the person is in a position to challenge the confirmation or continuation of the order. The person who is the subject of the order is entitled to attend the court and make representations about whether the control order should be confirmed, voided, revoked, or varied.

A confirmed control order can last for up to 12 months in the case of an adult and up to 3 months for a young person aged at least 16, but under 18 years of age. Control orders are not available for people u
nder 16 years of age.

The Attorney-General is required to report to Parliament each year on the use of control orders and the operation and effectiveness of the regime will be reviewed after 5 years by the Council of Australian Governments, the peak intergovernmental forum in Australia comprising the Prime Minister, State Premiers, Territory Chief Ministers and the President of the Australian Local Government Association.

Preventative Detention

The Act also creates a new regime for preventative detention orders. New Division 105 of the Criminal Code provides for a preventative detention regime that allows the AFP to take a person into custody and detain them for a short period to prevent a terrorist attack occurring, or preserve evidence of a recent terrorist attack.

Where a preventative detention order is sought to prevent a terrorist act, the AFP must establish that detaining the person is reasonably necessary for the purpose of substantially assisting in preventing a terrorist act. It must also be shown that:

• there are reasonable grounds to suspect that either the person will engage in a terrorist act, the person possesses a thing connected with the preparation for or engagement in a terrorist act, or the person has done an act in preparation for or planning a terrorist attack, and a terrorist act is imminent, or
• a terrorist act has occurred in the last 28 days and detaining the person is necessary to preserve evidence of or relating to a terrorist act.

Where a preventative detention order is sought to preserve evidence, the AFP must establish that a terrorist attack has occurred within the last 28 days, and that the order is necessary to preserve evidence relating to the act, and detaining the person is reasonably necessary.

As is the case with control orders, there is a need to balance the threat to the community against the intrusion on the personal freedom of the person to be detained.

The maximum period of detention under the preventative detention regime is 48 hours. Both the order and the treatment of the person detained are subject to judicial review, as well as merits review.

Subject to the existence of a prohibited contact order, the person detained is entitled to contact a number of people while in detention, including a lawyer, a family member, their employer and another person at the discretion of the police officer. A prohibited contact order can only be made where the criteria for issue are met. These include that the prohibited contact order is reasonably necessary to preserve evidence of, or relating to, a terrorist act. If the detained person is not permitted to contact, for example, a particular family member because of the existence of a prohibited contact order, the detained person will be given an opportunity to contact a different family member.

People cannot be questioned for investigation purposes while they are in preventative detention. Young people under 16 years of age cannot be held in preventative detention, and if a young person aged at least 16 years, but under 18 years of age is in preventative detention, there are special provisions that acknowledge the particular vulnerabilities of young people in custody. These rules also apply to people who are incapable of managing their own affairs.

Each year the Attorney-General is required to report to Parliament on the operation of preventative detention orders and the operation and effectiveness of the regime will be reviewed by the Council of Australian Governments after 5 years.

Working with States and Territories

The new laws are the result of extensive consultation and of a concerted effort by the Australian Federal Government and State and Territory Governments to create laws to better deter, prevent, detect and prosecute acts of terrorism. Because of Constitutional limitations on the exercise of the Australian Federal Government’s power, cooperation was needed from the States and Territories to enact uniform laws. State and Territory leaders are currently enacting laws to give effect to preventative detention and stop, question and search powers in their particular jurisdictions. Under the State and Territory preventative detention laws, it is proposed that a person may be detained for up to 14 days.

Bi-Partisan Support

The laws in Bill stage were well received by both major parties in the Parliament and received bi-partisan support when they were voted on in the Senate and the House of Representatives. The Bill was considered by the Senate Legal and Constitutional Committee and the Committee made a number of recommendations about the proposed Bill. The Government addressed many of those specific recommendations by amending the Bill before it was passed.

Overall, the new laws are an appropriate, proportionate and balanced response by the Australian Government to the emerging security threats our country currently faces.

Philip Ruddock MP is the Attorney-General of Australia.
——–