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It may not have been checked against the broadcast or in any other way. Freedom from error, omissions or misunderstandings cannot be guaranteed.

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Law Report

Tuesday 1 November 2005

Lawyers discuss proposed anti-terrorism legislation

Damien Carrick : Today, the biggest horse race in Australia is being ‘pipped at the post’ by a race of a different kind: the rush to get sweeping counter-terrorism laws to the finish line by Christmas. 

 

Well why is the Coalition government in such a hurry? Is this the best way to make new laws? And are the proposed anti-terrorism measures vital to our security? 

 

Details of the draft laws are still being negotiated as we go to air this morning, but we do know that there are three main elements: Preventative Detention Orders, Court Orders and the new Sedition offences. 

 

First, we’re going to ask what these measures mean for the lawyer on the ground, and the client. 

 

Joining me is criminal defence lawyer, Rob Stary, head of the Victorian Criminal Defence Lawyer’s Association. 

 

Rob Stary you have profound concerns about the draft laws, what are they? 

 

Rob Stary : Damien, these new laws represent the most fundamental attack on the fundamental cornerstones on the criminal justice system. They remove the presumption of innocence, they remove an accused person’s right to have the matter litigated in court, it removes the State’s obligation to prove a case beyond reasonable doubt. And invariably, these cases are conducted in secret circumstances. 

 

Damien Carrick : Well what’s your view of the way these laws have been developed and debated so far? 

 

Rob Stary : Thank heavens we’ve had some revelation of what the proposed legislation is by John Stanhope. He’s been courageous in his attempts to generate public debate. I can’t understand what the pressing need is to have the laws passed before Christmas, according to the Prime Minister, and we think there should be full and open and transparent debate about the need for the legislation. Where’s the demonstrated need, where are the deficiencies in the current legislation? 

 

Damien Carrick : Well let’s look at the essential limbs of the draft legislation. There are control orders, orders which might include house arrest or electronic tagging or other restrictions on movement, and they’d be placed on people to assist in preventing a crime, or on someone who provided training or received training from a terrorist organisation. What’s your objection? 

 

Rob Stary : Well firstly, there’s a presumption of innocence on the person who is the subject of the control order. Then the crown or the prosecution or the state aren’t required to prove the case, and a control order in those circumstances, we say is so onerous and so restricted, the person’s freedom, without the crown or the prosecution or the state having to prove anything, that they’re unnecessary. They’re unnecessary in two sets of circumstances. Firstly, if a person’s engaged in some sort of act or planning or preparation of an act or a terrorist act, why aren’t they charged with a substantive offence? And secondly, this is in the second limb, if the person’s received training or attended a terrorist training camp, at a time when it was lawful, why should they be subject to control order if they represent or currently represent no threat to the community? 

 

Damien Carrick : But do you accept that if someone has trained with a terrorist group, that authorities will want to keep tabs on them? They’ll want to keep a very close eye on people who’ve been involved in such activities. 

 

Rob Stary : Well we have the most sophisticated surveillance of people in any western country. The authorities do maintain surveillance of people, they don’t necessarily charge them, but that’s what the ASIO organisation is charged with doing, and they do that. It represents a significant encroachment on those persons’ right to have them subject to orders where they might legitimately subject to other forms of surveillance. 

 

Damien Carrick : Another essential limb is preventative detention. That would allow authorities to detain someone to prevent a terrorist attack or to preserve evidence of a recent attack. What’s your objection to that? 

 

Rob Stary : Well again, there’s no requirement for the state to prove anything. These people are all innocent, there’s no suggestion, for instance, that they are or have been engaged in some form of overt act, and preventative detention, where again they’re removed from the community with no right to litigate the substantive issues, no right to litigate the merits of the case. They’re removed in secret circumstances. 

 

Damien Carrick : A lot of controversy centres on who can be informed and what they can be told, and the government does seem to be giving some ground on that point. Is that still a concern for you? 

 

Rob Stary : It is, because for instance, a person’s right to a lawyer is restricted; they’re only entitled to approach a lawyer to discuss firstly whether there should be a complaint made to the Inspector General or the Ombudsman or to attack the right of the authority to make a preventative detention order; they’re not entitled to receive for instance, general advice, and so there’s curtailments, there’s curtailments on whether the person is entitled to contact family or friends to advise them of their whereabouts. So it’s very restrictive. Now invariably, these things are going to be conducted in secret court. There’ll be suppression orders, there’ll be the invoking of the National Security Information Act, because of the very nature of the proceedings, that is, where it’s said to represent some sort of threat to national security, nobody’s going to know about these preventative detentions or control orders. 

 

Damien Carrick : So media reporting about someone’s detention, say someone complains about being beaten or mistreated while in detention, what will we know about the detention, what happened in detention? 

 

Rob Stary : Well we may know at the end of the year when the Inspector-General reports to parliament, but we certainly won’t know as these things unfold what’s happening. There’ll be no media scrutiny or public overview of what’s happening. 

 

Damien Carrick : The Liberal federal government and the Labor states and territories appear to agree that some kind of new laws are needed. What kind of scheme can you as a defence lawyer, live with? 

 

Rob Stary : Well firstly, I go back to the fundamental premise. There’s no demonstrated need for these laws, that’s the first thing I’d want to say, and the second thing we’d want to say is where is it said that under the 21 pieces of legislation that’s already been passed since September 11, where is it shown that the current laws are deficient? There’s less than a handful of people that have been charged in this country, so if we accept that there’s something wrong with that fundamental premise, then what can we live with? Well firstly, there’s got to be an appeal process put in place, there’s got to be adequate judicial oversight, and there’s got to be the right for the public to know what’s happening, there’s got to be public scrutiny, media scrutiny of what’s occurring. 

 

Damien Carrick : It does seem that when it comes to the control orders, there’ll now be an interim control order, and then there’ll be judicial review on the merits of that control order. Surely that’s a great step forward from your perspective? 

 

Rob Stary : Well it’s a partial step forward. There needs to be further public discussion bout these laws, and you’ve got to remember that the control orders represent the most onerous and restrictive types of orders. They’re a combination of the most severe bail conditions and corrections orders that are envisaged, and this is remembering for a person who’s never been convicted of an offence. 

 

Damien Carrick : People listening to this might say, well, you’re a criminal defence lawyer, it’s your job to protect the rights of your clients, it’s the job of the government to make policy decisions about how best to protect citizens from terrorist bombs; that’s their job, that’s their primary responsibility at the moment perhaps. Do you appreciate where the politicians are coming from on this issue? 

 

Rob Stary : Well if it’s said that these laws are so urgently required that there’s some prospective risk to the community, then the government and the authorities ought to reveal to the public, bring them into their confidence as to what the prospective thread is. Are they saying for instance that the Commonwealth Games are a prospective threat? Are they saying that people who use public transport are at risk? Are they saying that people who attend the Melbourne Cup are at risk? If they are, then they ought to be saying that to the public rather than bringing this sort of draconian legislation, saying ‘Trust us, we know what’s best for you’. So we’ve got grave concern about the level of secrecy and the so-called urgency that’s required in this legislation and why, as I said, the current legislation is said to be deficient. 

 

Damien Carrick : Rob Stary, thank you very much for speaking with me this morning. 

 

Rob Stary : Than, you, Damien. 

 

Damien Carrick : Melbourne criminal lawyer, Rob Stary. 

 

France and Britain are also currently considering new counter-terrorism laws. In Britain, new measures have been intensely debated for months now, even before the London Underground bombings last July. 

 

Someone who’s been looking at those debates and at how they might relate to our own draft laws is prominent legal academic, George Williams. He’s the Anthony Mason Professor of Law and the Director of the Gilbert and Tobin Centre of Public Law at the University of New South Wales. He’s on the line from London. 

 

Professor Williams, before we get on to the British laws, can you clear up something for me about the current Australian draft anti-terrorism laws? In order to plug any constitutional holes, we’re now being told that, or it would appear that Preventative Detention Orders can be issued by retired judges (in their personal capacity) or the president of the Administrative Appeals Tribunal (in their executive capacity) as well as sitting judges. In your view, do those changes help overcome any constitutional concerns about the separation of powers? 

 

George Williams : Well, hello Damien, and firstly, they wouldn’t overcome the central problem, and that is that it may well not be possible for judges to make these type of orders, because the High Court might say that would undermine confidence in the judiciary, in involving judges in this type of process, because they’d be seen to be doing something instead of finding guilt or innocence, and going outside of their role. It may be that the government thinks that by adding in these other categories of retired judges and someone from the AAT, that in those circumstances you’ve got a couple of other options, and if it does go to the High Court and the High Court strikes it down, it may be they only strike down the bit dealing with sitting judges, and hopefully save the rest. But it is a bit of a risk because the High Court may not do that, it may decide the whole thing is bad and don’t save any of it, but I suspect the strategy of the government is to add in those other categories because they think that the High Court would at least uphold those bits. 

 

Damien Carrick : A risk reduction strategy? 

 

George Williams : It is, yes. They’ve certainly tried this in other areas by saying, well if one bit’s bad, let’s add in a few other bits as well, and possibly the High Court will read it down to the bits that can be saved. But as I’ve said, there are some risks involved in that strategy, because you’re really relying upon the court to separate out these things, whereas sometimes they say it’s all part of a larger scheme. And of course if they strike down the whole scheme, it would mean it was void from the moment it was passed, people could have been detained illegally, and indeed they may even be able to seek damages in appropriate and unlawful detention. 

 

Damien Carrick : Now you’re in the UK looking at their anti-terror laws. Are they considering the same kinds of laws that we’re looking at here, such as control orders and preventative detention? 

 

George Williams : They are. In fact some of the things that Australia is considering were already in place in London prior to the London bombings. Control orders, for example, were part of their law prior to the London bombings. Other aspects like increasing the length of preventative detention, glorifying or encouraging terrorism are now being debated within the British parliament, and very widely in British society here. It’s a very active debate where you see something in the newspapers almost every day asking whether they’re going too far perhaps and limiting freedom of speech. On the other hand, whether really laws are needed after the London bombings. So you can see very strong echoes across the world here in London from what you see in Australia, and they’re echoes that I think we need to be thinking about in Australia, given how closely our proposals are modelled on what’s being looked at in the UK. 

 

Damien Carrick : So the proposed British anti-terror laws are being closely scrutinised both in parliament and in the public arena, and that’s been an ongoing debate. What impact has that debate had on the draft? 

 

George Williams : Well it’s going to have I think quite a big effect on the debate and the drafts, and that’s because we’ve gone through different processes. One thing that struck me is just how different the UK’s dealing with it, and you’ve got to remember that the UK is still in a state of shock I think after what happened in July in London. I know someone who’s travelling on the Tube and the buses, but even myself, you feel yourself sometimes feeling a bit concerned if somebody sits next to you with a big backpack. It’s very easy to remember what happened such a short time ago. But even despite that, the government here, even though it’s said it wants tough laws, it wants them brought into place quickly, it has enabled a broad and robust public debate, it released the draft Bill about a month before it went into parliament, it’s allowed a lengthy and good parliamentary process. I went to that hearing last week and I saw Charles Clark, the Home Office minister, being grilled by that committee where they asked him the tough questions that need to be asked about whether the laws are needed, why the police are saying they needed them. Other laws will balance given their human rights obligations. And that’s actually leading to suggestions here, including Charles Clark I saw at that committee, saying, well in light of some of the answers you couldn’t provide, they’ve probably had to think about some changes and we’re looking now at what those changes may be. 

 

Damien Carrick : And they would be two, as I understand it, the two most controversial parts of the package, the 90-day preventative detention scheme and a proposed offence of glorification of terrorism. 

 

George Williams : Yes. If I can be specific about what I think will be changed. I haven’t seen the amendments yet, because they’re still working through the debate to see what else needs to be altered, but they are looking at having 90 days preventative detention. Australia’s only looking at two weeks, but they’re looking at 90 days here. It’s been suggested that that’s almost like the sort of internment you had during World War II. Once you get in for three months, and perhaps that can even be renewed, it’s a very long period of time that somebody’s taken out of the system before they’ve even been found guilty of an offence, let alone even charged with an offence. So it seems likely that’s going to be wound back to a much shorter period of time.  

 

The second area is about glorification of terrorism. There’s been very strong views put here that that’s going to infringe upon very basic principles of freedom of speech. There was a strong cross-party support for this type of provision a couple of months ago, soon after the London bombing, but that’s now fractured and indeed, people are having quite grave second thoughts given the sort of freedom of speech in this country, whether it is appropriate to pass that type of law, and how it might affect legitimate public debate. So you’ve now got genuine opposition emerging amongst the other parties. 

 

And the third one actually relates to control orders, which is quite interesting, because it’s a key part of the Australian proposal to have these control orders that might amount to house arrest for people who haven’t been found guilty of a crime. But what’s actually happened here is there’s a sense amongst many that those will become largely redundant. They were put in place actually before the London bombings, there’s only I think one person now who’s subject to a control order, and it’s questionable when they’re looked at properly next year, whether there’ll be a major part of a package, and whether they really have an important role to play in a democratic society in dealing with the threat of terrorism. 

 

Damien Carrick : Well, coming back to Australia, there’s little prospect of a full parliamentary committee process, along the lines that we saw, say, for the 2002 or 2003 ASIO laws which would scrutinise these new proposals. Do you think that’s a mistake? 

 

George Williams : Look, I think it’s a very large mistake. You’ve got to remember that John Howard has the numbers. He’s got the people in parliament who can get the legislation through, he controls the Senate, and I don’t see why he wouldn’t have a decent process to look at these laws. The risks of not doing it are far too great. It may be that something is simply missed, it might mean it’s struck down constitutionally in the High Court, and that would be quite a grave blow to our national security if we lost part of the legal plank of our laws. Another problem would be that perhaps they just haven’t anticipated something, and perhaps it needs to be tweaked or changed in some area, or perhaps it just needs to be balanced off, particularly when you’re dealing with something like free speech, it’s something we take for granted in Australia, but it’s actually surprisingly fragile. It’s something that you recognise very quickly when you’ve lost it, but it’s hard to appreciate while you’ve got it. They’re the sorts of things that need to be looked at by a robust bipartisan inquiry, that was what happened last time, indeed I think some of the very best people on the inquiry over 2002 and 2003 were the Liberal members of parliament. And I would expect they’d play a similar role again that would genuinely improve the legislation, and I’d expect most of the changes like last time, would be bipartisan. 

 

Damien Carrick : On the other hand, we’re talking about agreement from at least four states, probably all, before this will go ahead. So there are many political stakeholders of different political parties who are having real input into this process, and there are lots of different legal experts and lots of politicians of different colours, all putting in their 2-cents worth. 

 

George Williams : I think there’s a couple of things about that. One is that that makes it even more complicated and actually increases the risk you get something wrong. Once you introduce the federal aspect in Australia with referrals of power, there’s a whole series of High Court cases about how that can be complicated and about the sorts of powers that can be exercised by different agencies. That actually hasn’t even come up very much in the Australian debate, and I’m wondering whether other things might be thrown up by that. 

 

The second is, well it may be we’ve had a successful COAG meeting with all of the leaders, it may be the solicitor-generals have had a good look at this, but it’s just no substitute for democracy, it’s no substitute for a proper debate in Australia where people get enough time to think about the issues, to talk about them in the media and in their communities, and to make sure that the politicians here, what they’ve got to say, and politicians ought to be responding to that type of debate, not just to what has been decided often behind closed doors in COAG and elsewhere. 

 

Damien Carrick : And very briefly, at first brush the UK and Australian laws look quite similar, but of course unlike Australia, the UK does have an added civil rights protection, the UK Human Rights Act. Does a Bill of Rights or a similar document, have any real important impact on the way these kinds of laws are brought in and used? 

 

George Williams : Yes it does, it has a big impact, and one of the things I’ve discovered here is just how different it is to be in a system where you’ve got a common democratic standard of human rights that’s accepted in the community as having been passed by parliament. It means that if you compare for example Tony Blair’s announcement of his changes to John Howard’s; in many respects they’re almost identical. In fact even some of the words are almost identical, except for the fact that Tony Blair talks about human rights and the need not to cross a certain line, whereas that type of view seems strangely absent in Australia. 

 

Damien Carrick : George Williams, we’ll have to leave it there. Thank you very much for speaking with The Law Report. 

 

George Williams, the Anthony Mason Professor of Law and Director of the Gilbert and Tobin Centre of Public Law at the University of New South Wales. He was speaking on the line there from London. 

 

In many countries, terrorism is not a new threat. Europe has endured many violent groups over the years: ETA in Spain, various Algerian groups in France, the shadowy November 17 in Greece, the Italian Red Brigade and of course the IRA in Britain, to name just a few. 

 

German lawyer Christopher Michaelsen has looked at counter-terrorism laws in various European countries. He’s currently a visiting doctoral candidate at the Australian National University. He’s studying how anti-terror laws in Australia and Europe compare. 

 

Christopher Michaelsen : There’s no doubt about it, that the Australian laws and proposals are right there at the top, possibly with the UK, but yes, they’re certainly among the toughest laws and proposals that we’ve seen anywhere in any Western liberal democratic nation. 

 

Damien Carrick : Is it useful to make comparisons, given that there are such radically different legal systems in Europe, comparing Europe and Australia? 

 

Christopher Michaelsen : Well it depends really. I think you can to some extent compare Australia to for example the UK, because of the similar legal and political system, and I also think to some extent you can compare Australia to other major European countries such as France and Germany for the simple reason that we all share a similar liberal democratic tradition. But you’re absolutely right in terms of legal systems, there’s a difference between Australia and the UK on one hand, and civil law countries such as Germany and France on the other. 

 

Damien Carrick : Of course as I understand it, some countries have very draconian laws, places like France which apparently is, incidentally, also considering toughening its laws further. In France, terror suspects can be held in detention I think for up to two or three years? 

 

Christopher Michaelsen : That’s right, but the major difference between them in this regard is that France can only hold terror suspects for two years after they have been charged. Without charging, the authorities in France can only hold people for up to I think 48 hours, and that’s often overlooked in current referrals to the situation in France. And another difference is that in France you have the protection of the constitution which contains the protection of human rights and civil liberties, and that’s something that’s not available in Australia of course. 

 

Damien Carrick : Is that a meaningful distinction? If somebody is charged do they ultimately always come to trial? 

 

Christopher Michaelsen : No, it’s a very tough legislation in France as well, but I think there is a difference between locking up people without charge and holding people after they’ve been charged, because that also means that in case the charges are dropped or procedures at court don’t proceed, that they’re entitled to any compensation. So I think there is a difference, but I totally agree that these laws are still quite draconian over there as well. 

 

Damien Carrick : And what about Germany? 

 

Christopher Michaelsen : Well the situation in Germany is completely different. Due to our historical past and to the very strong protection of human rights and civil liberties, through the constitution which is directly binding for all three parts of government, the situation in Germany is that you can only be held for 24 hours and then you have to be either charged or released. 

 

Damien Carrick : And what about the UK, which is perhaps the country where there are the obvious parallels between there and Australia? 

 

Christopher Michaelsen : I think there are two key differences between Australia and the UK. First of all, the UK does have a Human Rights Act of course, this is enacted by parliament, and this Act provides some protection as far as human rights and civil liberties are concerned. Now obviously Australia doesn’t have a Bill of Rights enshrined in the constitution, nor does it have an Act of Parliament protecting human rights and civil liberties. So that’s one big difference, because the British law is always read in light of the 1998 Human Rights Act. Now this is not the case in Australia. 

 

The second difference is that what we’re currently seeing in the United Kingdom is a big debate, a big parliamentary debate on whether the new terrorism Bill put forward by the prime minister Tony Blair in the aftermath of the London bombings, is actually warranted, and also rightly in accordance with the Human Rights Act. And I think we don’t see this kind of similar, comprehensive debate in Australia. 

 

Damien Carrick : I think perhaps there’s a third difference. There is an office in the UK, I think it’s called the Independent Reviewer of Terror. 

 

Christopher Michaelsen : You’re absolutely right. This is currently the person acting as the Independent Reviewer of all British proposals, is Lord Carlisle of Bucklow, QC, who’s a very senior member of also of the House of Lords and he, as you said, acts as an independent reviewer of the proposals. And in general, you’re absolutely right, it’s the review mechanisms in the UK are completely different to those in Australia, or should I say the review mechanisms in Australia are non-existent. You have in the United Kingdom - the operation and function of the laws are constantly monitored either by a parliamentary committee which reports annually or, as you rightly pointed out, the proposals are reviewed by an independent reviewer - who actually just issued a report about ten days ago. 

 

Damien Carrick : And I understand that was very critical of the current legislation which is being considered in the UK. Can you tell me about that? 

 

Christopher Michaelsen : Yes, it was very critical. It was especially critical regarding what’s become known as glorifying of terrorism provisions, and also about the proposal to extend the 14-days preventative detention to 90 days, and yes, the second reading in the UK parliament plays last week. Incidentally, the Tories, the Conservative party, they offered qualified support for the Bill but they also indicated that the case for extending the period beyond the present 14 days, was not convincing. 

 

Damien Carrick : And what’s the situation here in Australia? 

 

Christopher Michaelsen : Well in Australia we don’t have any effective review of both of the operation of laws, and also of the proposals. The only committee that’s currently looking at specific provisions of the 2003 ASIO Act is a Parliamentary Committee on ASIO and DSD, and they are about to issue a report next year. But that’s about it as far as both parliamentary and judicial review is concerned, because major pieces of legislation such as the ASIO Act which allows for the detention of non-suspects, I have to say, for seven days, people don’t have any recourse to the courts here. 

 

Damien Carrick : You’re talking there about people who may have information relating to a possible terrorist act, but who aren’t actually suspected of planning or carrying it out. 

 

Christopher Michaelsen : Absolutely right. Under the ASIO legislation of 2003 people do not have to be suspected of any terrorism offence in order to be detained for seven days, it is sufficient for the authorities to allege that they have some kind of information in relation to a terrorism offence, and that’s also a major difference both to the UK and other countries in Europe such as France, Australia is the only country among any western liberal democratic nation that allows for the detention of non-suspects. 

 

Damien Carrick : Although as I understand it, under the ASIO Act of 2002 or 2003, a number of people have been brought in for questioning, but they have not necessarily been detained. 

 

Christopher Michaelsen : Well that’s right. It’s up to the authorities to decide whether to detain or just simply question them, but I'd like to point out that the authorities do have the power to bring in people for questioning and then hold them for up to seven days. 

 

Damien Carrick : I suppose when it comes to anti-terror laws in Europe, and for that matter, North America, there’s one fundamental difference between those parts of the world and here. We don’t have a Bill of Rights, whereas most other western countries, I think all other western countries do. 

 

Christopher Michaelsen : That’s absolutely right. 

 

Damien Carrick : German lawyer, Christopher Michaelsen, a doctoral candidate at the ANU Strategic And Defence Studies Centre. He’s also a legal adviser to the independent organisation Civil Liberties Australia and he’s also a supporter of an Australian Bill of Rights. 

 

That’s the Law Report for this week. A big Thank You to producer Anita Barraud, and also to technical producers Brendan O’Neill and Carey Dell.

 

Guests on this program:

Rob Stary  

Criminal lawyer and Head of the Victorian Criminal Defence Lawyer's Association

Professor George Williams,  

Anthony Mason Professor of Law and Director of the Gilbert and Tobin Centre of Public Law University of New South Wales.

Christopher Michaelsen,  

German lawyer and PhD candidate, Strategic and Defence Studies Centre, ANU