The Attorney General's reforms to national security legislation could have grave consequences, writes Brian Walters SC.
In his Ministerial Statement: Reforms to the National Security Legislation delivered on 12 August 2009, the Commonwealth Attorney-General, the Honourable Robert McClelland, began with this sentence: "There is no greater responsibility of government than to protect the safety and security of its citizens."
He probably thought that everyone would agree with this statement. It is, after all, conventional wisdom, having been repeated in one way or another by many politicians until it has developed a patina of familiarity. I want to argue that it is both wrong and dangerous.
What are the responsibilities of government? Should security trump everything else? What about upholding our democratic traditions, our essential freedoms, and justice?
Benjamin Franklin, one of the most influential founding fathers of the modern United States, once said: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
Later this was restated by his protégé, another founding father and the third president of the United States, Thomas Jefferson: "Those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one."
We in Australia do not have any legislated protection of our rights. The limits to the ways the government may interfere with citizens are not clearly defined, and the statement that government's prime duty is security of its citizens has a long historic record of causing harm to democracy.
“The amendments offered by the Attorney-General in his recent discussion paper,
following the Haneef debacle,
are very disappointing”
A famous example of this is the "committee of public safety" which presided over the Reign of Terror in the French Revolution.
To give another example, on 27 February 1933, the immense Reichstag building, the focal point of Berlin's imperial district, was set on fire and destroyed. Only the shell remained. It was a shocking act of terrorism.
In the midst of the public alarm that followed, Adolf Hitler, who had been Chancellor for less than a month, and whose coalition ministry contained only two other Nazis, went to President Hindenburg and presented him with an emergency decree, drafted by non-Nazi public servants, "for the protection of the people and the state". (Eerily, the same words were used in the preamble to the Patriot Act rushed through the US Congress after 9/11.)
The decree abrogated basic civil rights. Hitler said that with this decree he could "try enemies of the state legally and deal with them in a way that will put an end to conspiracies".
The Reichstag fire was also used to justify the passing of the Enabling Act, which further consolidated the control of the executive over elected representatives.
These two pieces of legislation were the legal foundation for all the excesses that followed.
If the government's greatest responsibility is to protect the safety and security of its citizens, there is no end to the interference in the lives of citizens which can be justified: to prevent domestic violence (statistically a far more significant problem than terrorism). Why not, for example, put a CCTV camera in every kitchen, and ban carving knives?
Proposed amendments of the Attorney-General
The amendments offered by the Attorney- General in his recent discussion paper, following the Haneef debacle, are very disappointing. Many important issues are not considered at all. These include control orders - the use of which in relation to Jack Thomas and David Hicks (the only two occasions these provisions have been used) was controversial, unnecessary and ultimately discontinued; preventative detention orders - which have never been needed; ASIO powers - notably the power to hold in custody for questioning both suspects and non-suspects; and the offence of "association" with terrorist organisations which has wide effects on those who belong to particular communities with unavoidable ties to organisations which have been listed as "terrorist".
The definition of a terrorist act
It is worth briefly commenting on some of the proposed changes, firstly, the definition of "terrorist act".
The discussion paper proposes expansion of the definition of "terrorist act" in 100.1(1), and by implication, the entire scope of the terrorism laws regime, to cover reference to "psychological harm" as well as physical harm. This is likely to greatly expand the scope of already broad legislation. Psychological harm is recognised by the courts as extending broadly (see for example Giller v
Procopets (No 1)  VSCA 236, where the court divided on the precise degree required).
Take a situation in which a particular international sporting event were to be held in Australia, and the administrators refused to permit a team from a particular country to compete because of the policy of that country on some particular issue - such as, for example, its treatment of an oppressed section of the population. It is reasonably foreseeable that this would cause psychological harm to athletes from that country. It is difficult to see how this would not become a terrorist act under this provision.
I don't believe the definition should be expanded in this way.
This is all the more so in view of the many ways in which the offence itself can be further expanded by other provisions in this legal regime. It is not merely the doing of a terrorist act that is a crime, but, for example, under these laws it is a crime to recklessly help an organisation indirectly engage in fostering the doing of a terrorist act.
The second proposed change to comment on is that of terrorism investigations.
The paper proposes some changes to the investigation regime for terrorism offences, but fails to grasp the real issue: having a different legal regime for investigation of terrorism offences, as distinct from other offences, is not justified.
Insofar as international inquiries may be required, this is also required in relation to other offences, and the fact is that overseas agencies and Australian agencies work very closely together in any event.
There have been several instances reported to lawyers in which the power to hold persons without charge has been used as a threat to induce persons to talk to security authorities. This kind of power invites just this kind of abuse.
The provisions to hold a person in custody during investigation have only been used twice: Firstly, in relation to the questioning of Dr Haneef over many days and secondly, in relation to the questioning of one of the recently charged Somalis, who was questioned for several hours.
Under the current proposals, the outer limit of detention remains undefined. The periods which may accrue can amount to a total period of eight days - with further (undefined) time as required for certain matters outlined in the legislation.
It is unsatisfactory, after the controversy surrounding the Dr Haneef affair, and the Clarke Inquiry which succeeded it, to leave the outer time for detention of suspects for questioning undefined.
Even an outer limit of eight days cannot be justified from experience to date. The time limit should be no greater than for non-terrorism offences.
The discussion paper proposes that there be an automatic 72 hour stay of an order granting bail pending prosecution appeal. If a court orders a person to be released, then that should be given effect unless on application to a superior court a stay is granted on proper material.
If this proposal is adopted, then any decision of a magistrate granting bail against the opposition of the Commonwealth will have to be validated by a superior court before the accused can be released from custody. Any period of detention between the grant of bail by a judicial officer and the review of that grant by a superior court could amount to arbitrary detention.
If the Magistrates Court has jurisdiction to grant a person their liberty, then such an order should be given effect unless and until the Supreme Court finds an error with that exercise of discretion.
This is especially so in view of the seriously adverse conditions under which terrorism suspects are currently held by prison authorities, a matter which has been the subject of significant criticism on several occasions.
Not touched in the discussion paper is the important issue of the reverse onus provision in relation to bail in terrorism matters. Not all so-called "terrorism" offences are of the same level of seriousness, and the application of the highest hurdle for all such charges - the same hurdle as is imposed in cases of murder - cannot be justified.
The discussion paper proposes relaxation of review periods for listing of terrorist organisations from two years to three years.
On average, parliamentary terms in Australia are less than three years, and the prospect is that these listings will not be reviewed in the life of every parliament.
There is no effective right of appeal against the listing of terrorist organisations. The primary reason for this is practical. Once an organisation is listed, who will swear an affidavit claiming to be a member of the organisation and claiming to be adversely affected so as to have standing to challenge the listing? Once there is no legal check on the exercise of power by the executive, the power is exercised without being subject to the rule of law, and is open to serious abuse.
Presently there are many organisations listed whose status as terrorist organisations would be strongly contested by substantial sections of the Australian community. Examples include the PKK, Hamas and Al-Shabaab.
The discussion paper does not deal with the bizarre situation which arose in the Tamil case, where an organisation was, after consideration by the Attorney-General, not listed, and yet charges proceeded anyway.
A look at the Tamils and terrorism
At the time of writing, the trial of three Australian members of the Tamil community on terrorism offences concerning alleged support for the Liberation Tigers of Tamil Eelam remains before the Supreme Court of Victoria.
The example of the Tamil case shows that these laws are dangerous to our way of life. We have reached this point through uncritical acceptance of conventional wisdom following the murderous terrorist attacks of 9/11. Acting in accordance with these views, we have spent billions of dollars on security in Australia.
Originally we were promised safeguards such as sunset clauses, but these were swept away by subsequent amendments.
It will take a generation to recover the human rights ground lost through these bad laws, passed with the support of the major parties. It will require lawyers to be vigilant about the misuse of the law, to challenge conventional wisdom when it is astray, and to remind the community of the great values upon which our legal system is founded.
As Lord Hoffmann said in A v Secretary of State for the Home Department when the House of Lords found that legislation permitting the administrative detention of foreign terrorist suspects violated human rights:
"Terrorist crime, serious as it is, does not threaten our institutions of government or our existence as a civil community. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for parliament to decide whether to give the terrorists such a victory."
Brian Walters is a Melbourne-based barrister. This is an edited extract of a presentation he gave at the Australian Lawyers Alliance national conference last week.