[UPDATED] The definition of a terrorist act will be expanded to include psychological harm and police will be unable to hold terror suspects after seven days, under proposed reforms to Australia's national security laws announced by Attorney-General Robert McClelland yesterday.
A new "terrorism hoax offence", punishable by up to 10 years imprisonment, was also proposed, along with new police powers to search premises without a warrant if it is believed to contain material that is a threat to public health or safety.
Nicola McGarrity, director of the Terrorism and Law Project at the University of NSW's Gilbert + Tobin Centre of Public Law, told Lawyers Weekly that while a lot of the changes were merely "tinkering around the edges", some proposals were of concern - including the new police search powers.
McGarrity said the Government had yet to provide a "compelling justification" for why the established practice of gaining a warrant through a judge could now be disregarded in some terrorism cases.
"We just saw last week successful raids being undertaken in Victoria as part of a joint operation between the AFP and the Victorian police, according to following these search warrant provisions. So where is the compelling case to demonstrate that we actually need to change - so fundamentally - the way in which searches are carried out, such that we don't have any judicial supervision at all?" she said.
"You have fundamental violation of that basic principle of your right to home and privacy."
A 452-page discussion paper was released by the Government, proposing a range of reforms to existing legislation, with McClelland telling a Canberra press conference that the new laws would create a "balance".
"I think it's fair to say that the previous legislation was introduced expeditiously, as the circumstances required, as an immediate response to the events of September 11 and the Bali bomb attacks," he said.
"The Government was required to act, and acted expeditiously. I think it's appropriate, given reflection, given time, that we now need to shift our focus to a frame of reference that is long-term, so that the public accepts the legislation - which in many instances had time limits or sunset clauses - as being valid, credible and effective, but also balanced for the long term."
But McGarrity disagreed that the proposed reforms could be called a "balance".
"I just think we need to be very careful not to say 'Is this legislation a balance?' That's not really the question.
"The question here is really about how intrusive are these provisions in terms of human rights? How intrusive are they in terms of changing accepted principles of our criminal justice system and where is the justification for that? Are these the least intrusive measures that we could adopt to carry out a particular objective?" she said. "But you actually have to provide a justification about why [select] these particular measures [and] why not other measures."
The discussion paper also provided a response to a number of reviews, including the Clare inquiry into Dr Mohamed Haneef who was accused of aiding terrorism and detained without charge for 13 days - prompting the Government's proposed seven-day detainment limit.
McGarrity questioned the proposed limit and said most civil libertarian organisations suggested that a 48-hour time limit should be placed on detaining a suspect without charge.
When questioned about why a response to Australia's terror laws had taken so long, McClelland said that a mature, calm, reflective attitude was desirable to discuss proposed reforms, away from the "intense emotions that those events necessarily evoke".
"The measures outlined in the discussion paper are designed to give the Australian community confidence that our law enforcement and security agencies have the tools they need to fight terrorism, while ensuring at the same time that our laws and powers are balanced with appropriate safeguards, and are accountable," he said.
Other reforms include the right of appeal against bail decisions and the creation of an offence of inciting violence on the basis of race, religion, nationality, national origin or political opinion.
The Government has also introduced legislation to establish a National Security Legislation Monitor to review the operation of terrorism legislation on an annual basis.
An expansion of the jurisdiction of the Parliamentary Joint Committee on Law Enforcement to extend oversight to include the Australian Federal Police and the Australian Crime Commission was also proposed.
The discussion paper was prepared before the recent Jakarta bombings and the arrest of terror suspects in Melbourne, McClelland said.
Submissions regarding the discussion paper can be made until 25 September, with a possibility that reforms could be introduced as early as the end of the year, McClelland said.
- Sarah Sharples
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