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Tuesday, 23 June 2009
Page: 4019

Senator LUDLAM (3:46 PM) —I move:

That this bill be now read a second time.

I seek leave to table an explanatory memorandum relating to the bill.

Leave granted.

Senator LUDLAM —I table the explanatory memorandum, and I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

The Australian Greens are deeply committed to the principle of non-violence. Non-violence is one of the four interconnecting pillars that are the foundation of our party’s policy and practice; the other three pillars are social justice, economic and ecological sustainability and participatory democracy. In rejecting violence we condemn the violent crime of terrorism, and view non-violence as a creative, planned, positive force to resolve conflict, believing it to be the best way to transform oppressive power, symbols and behaviour. Our objective is not just to reduce violence but to address the underlying conflicts and create alternatives to resolve the immediate dynamic and causes, as well as contributing to political change that will build a more sustainable peace over the long term, based on cooperation and justice. We support the right of people to resist unjust laws, unethical corporations and inappropriate development by non-violent direct action and civil disobedience. In choosing to reject violence, in refusing to emulate violent power or tactics, we fight fire with water and earth, rather than with fire.

The violent crime of terrorism did not occur for the first time on 11 September 2001 and it will occur again. This is a grave reality that must be faced by governments who have the responsibility to protect citizens from intimidation and violence. Likewise, governments also have the responsibility to protect human rights and civil rights. The Greens do not underestimate the complexity of these responsibilities, however, we are not alone in recognising that in many countries, including our own, the balance between these two responsibilities was skewed by the responses to the events of 11 September 2001. Perceived and real threats to security were used as a lever to curtail human and civil rights and fair trials.

The newly elected US President has begun the courageous and complex work of reversing the symbolic and actual mistakes made in the name of the “War on Terror”. The Obama Administration is putting effort into devising “clear, defensible and lawful standards…” to govern the treatment of detainees and arguing that the nation should “enlist the power of our most fundamental values” in the effort to keep itself safe. Australia entered the “War on Terror” very much on the terms set by the United States; we too should rethink and redefine a legitimate response to terrorism and practical ways to address its root causes and consequences.

The laws that were hastily created in Australia following the crimes of 11 September need to be reviewed to determine which merit retention and modernisation. Mistakes were made; indeed, mistakes were inevitable when the government of the day would not allow the parliament to debate each bill individually, even though the anti-terrorism legislative package constituted some of the most dramatic changes ever made to Australia’s security and legal environment. Of course mistakes were made when 200 pages of legislation and explanatory memoranda were introduced into the House of Representatives at 8pm and were expected to be debated at 12 noon the next day, leaving entirely inadequate time for review and analysis. Amendments were made available to the Senate less than 24 hours before the commencement of debate in that Chamber, effectively stripping the parliament of the time necessary to ensure that the laws were adequate to prevent, deter and pursue terrorists while ensuring that any limits on free speech or association struck an acceptable balance. The parliament was set up to fail, and fail it did.

The purpose of this Bill is to identify those laws and provisions that are so extreme, so repugnant, redundant or otherwise inappropriate, that they should be abolished and don’t even deserve the dignity of being subjected to review by the long-awaited independent reviewer of terrorism laws. Some of the laws identified in this bill offended our core democratic principles by using definitions and terminology that was simply too vague and broad such as the bizarre “reckless possession of a thing”. Other laws curtailed freedom of expression and association; others compromised the rule of law and the principle of fair and open trials. Such laws simply need to be removed, to allow the solid criminal laws and procedures to continue doing the job they did before 2001 in prosecuting and penalising anything that can be sensibly described as terrorism.

While some leaders and commentators deeply fear the accusation of being “soft on terrorism” believing it to be corrosive of their public perception, standing and masculinity, the Greens believe that to maintain these laws in their current form is corrosive of democracy itself and the rule of law upon which it is based. The benefit of hindsight and the passage of time have revealed the laws identified in this bill as irrational, unused or extreme.

This Bill seeks to amend, and in some cases repeal

  • Provisions in the Criminal Code 1995 related to the definitions relating to terrorism offences, provisions relating to the proscription of ‘terrorist organisations’, offences relating to interaction with ‘terrorist organisations’, ‘reckless possession of a thing’ and the offence of sedition.
  • Provisions in the Crimes Act 1914 relating to detention of terrorism suspects.
  • Provisions in the Australian Security Information Organisation Act 1979 relating to the questioning of terrorism suspects and the detention of terrorism suspects; and
  • Repeals the National Security Information Act 2004.


1.   Defining a terrorist act

The Bill repeals the current definition of ‘terrorist act’ at section 100 of the Criminal Code and offers an alternative definition, drawing heavily from the definition arrived at by the United Nations Security Council in 2004. Some of the terminology used within the Criminal Code in relation to terrorism offences is either currently undefined or inadequately defined. The current definition of ‘terrorist act’ at section 100.1 of the Criminal Code is considered ‘problematic’ by the Law Council of Australia and a number of national and international review bodies. The Law Council of Australia is of the view that the breadth of the Australian definition in section 100.1 of the criminal code falls outside the internationally accepted definition of terrorist act. The UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism has taken the view that the definition of ‘terrorist act’ in section 100.1 of the Criminal Code oversteps the Security Council’s characterization of the term.

The current definition of ‘terrorist act’ includes a ‘threat of action’. This has been identified as unsuitable by the June 2006 Report of the Security Legislation Review Committee, (known as the Sheller Report after the Chair of the Committee, Hon Simon Sheller AO QC). The report recommends that the reference to ‘threat of action’ and other references to ‘threat’ be removed from the ‘terrorist act’ definition in section 100.1(1). This position has been supported by the Australian Law Council, who also recommended the removal of ‘threat of action’ and other references to ‘threat’ from the definition of ‘terrorist act’ in section 100.1(1).

(2)   Fostering and supporting a terrorist organisation

What are the actions and intentions that define the fostering and supporting of a terrorist organisation? Under section 102.1 of the Criminal Code, supporting a ‘terrorist organisation’ means; “provide support or resources that would help a terrorist organization engage in preparation for, or planning, assisting or fostering of the doing of a terrorist act”. The Act currently fails to define ‘fostering’; this has been identified as problematic because of the potential for ‘fostering’ to be construed very broadly. For instance, technically Australian aid organisations providing food and material assistance to people in crisis zones, such as in Sri Lanka, Afghanistan and elsewhere could easily fall into the category of fostering, when in fact their work is humanitarian assistance and emergency support. The inability to define fostering highlights its inappropriateness as an offence.

(3)   Reckless possession of a thing

‘Thing’ is not defined within section 101.4(1). Parameters for what may be included with the scope of ‘thing’ are needed. Under the current Act it is possible to be in reckless possession of a thing if somebody passes along a DVD recommending that the contents be viewed, whether one views it or not, or agrees with the content. Another example that has been discussed in our courts as ‘reckless possession of a thing’ related to a document stored on a computer. The case was lost as it was possible to show through forensic evidence the absence of an electronic path. The document had not been accessed, however, what if the person had opened the document to assess its contents?

Most would consider it reasonable that the ‘thing’ in question should be linked with a terrorist act, a thing practically necessary in the material carrying out of a criminal act of violence. Instead of things actually connected, what we have is the possibility of things that are ideologically connected, things of a literary nature.

If parameters cannot be provided the provision should be removed. There have been two convictions under section 101.4(1) ‘reckless possession of a thing’ both in relations to the possession of a CD connected with preparation of a terrorist activity.  In addition, anyone who saw the ‘thing’, which could be just about any object given the lack of a precise definition, is exposed to the possibility of a Detention or Questioning Warrant.

(4)   Proscribing a terrorist organistion

Division 102 of the Criminal Code currently allows organisations to be designated as ‘terrorist organisations’ by regulation. This has significant consequences for the organisation, its members and supporters - for example, a person can be imprisoned for being a member or supporter of a ‘terrorist organisation’. The ‘Sheller Report’ recommended that the process of proscription be reformed to meet the requirements of administrative law. The report recommends that the process of proscription by way of regulation made by the Governor-General on the advice of the Attorney-General, as per section 102.1 of the Criminal Code be retained. However, the process should be made more transparent and should provide organisations, and other persons affected, with notification, unless this is impracticable, that it is proposed to proscribe the organization and with the right to be heard in opposition.

This Bill amends section 102 of the Criminal Code, as per recommendation 4 of the ‘Sheller Report’;

(a)   To provide notification, if it is practicable, to a person, or organization affected, when the proscription of an organization is proposed.

(b)   To provide the means, and right, for persons and organisations, to be heard in opposition, when proscription is considered.

(c)   To provide for the establishment of an advisory committee, to be appointed to advise the Attorney-General on cases that have been submitted for proscription of an organization.

(d)   To require the committee to consist of people who are independent of the process of proscribing terrorist organizations, such as those with expertise in security analysis, public affairs, public administration and legal practice.

(e)   To require the role of the committee be publicised,

(f)   To allow the committee to consult publicly and to receive submissions from members of the public to assist in their role.

(g)   To require that proscribed organizations be widely publicised, with the view, in part, to notify any person connected to the organization of their possible exposure to criminal prosecution.

If the Government of a foreign country has requested the proscription, that should be revealed to all parties. Additionally, provision should be made for merits review of the decision to list an organisation by the AAT. Standing rules for such a review should include protections, so that those coming forward to seek review do not automatically find themselves admitting to criminal offences.

(5)   Offences related to interaction with ‘terrorist organisations’

The Criminal Code also contains a number of offences relating to interaction with ‘terrorist organisations’. It is an offence to:

  • direct the activities of a terrorist organisation (s102.2);
  • be a member of a terrorist organisation (s102.3);
  • recruit a person to join or participate in the activities of a terrorist organisation (s102.4);
  • receive or provide training to a terrorist organisation (s102.5);
  • receive funds or a make funds available to a terrorist organisation (s102.6);
  • provide support or resources that would help a terrorist organisation engage in, plan, assist or foster the doing of a terrorist attack (s102.7); or
  • on two or more occasions associate with a member of a terrorist organisation or a person who promotes or directs the activates of a terrorist organisation in circumstances where the association will provide support to the organisation and is intended to help the organisation expand or continue to exist (s102.8).

The Attorney-General’s department has explained the rationale for these offences as follows:

By criminalising activities such as the funding, assisting and directing of a terrorist organisation, proscription contributes to the creation of a hostile operating environment for groups wanting to establish a presence in Australia for either operational or facilitation purposes. It also sends a clear message to Australian citizens that involvement with such organisations, either in Australia or overseas, will not be permitted. Proscription also communicates to the international community that Australia rejects claims to legitimacy by these organisations.

Critics of the offences, including the Law Council of Australia, have argued that the offences are unnecessary and that, “[b]y shifting the focus of criminal liability from a person’s conduct to their associations, the terrorist organisation offences unduly burden freedom of association and are likely to have a disproportionately harsh effect on certain sections of the community who, simply because of their familial, religious or community connections, may be exposed to risk of criminal sanction.”

There has been particularly strong criticism of the ‘association’ offence in section 102.8 of the Criminal Code. The shortcomings and dangers of this provision have been noted by, amongst others, the Senate Legal and Constitutional Legislation Committee, the Sheller Committee and the Parliamentary Joint Committee on Intelligence and Security.

The Bill also amends the ‘supporting’ offence (s.102.7). The Human Rights and Equal Opportunity has argued, and the Sheller Committee accepted, that the reference in s.102.7 to ‘support’ for a terrorist organisation ‘could extend to the publication of views that appear to be favourable to a proscribed organisation and its stated objective.’ This would be an unwarranted interference with freedom of expression. In the light of these concerns, the Sheller Committee recommended that, “Providing support to a terrorist organisation’, be amended to ensure that the word ‘support’ cannot be construed in any way to extend to the publication of views that appear to be favourable to a proscribed organisation and its stated objective.”

The Bill implements this recommendation by substituting “support” with “material support” as recommended by the Parliamentary Joint Committee on Intelligence and Security in order to ensure that ‘mere words’ are not caught by the section  - an approach supported by the Government. In order to resolve ambiguity as to what may be deemed as ‘supporting’, an amendment is made to provide that the accused not only offered support, but also intended that the support have the requisite connection (direct or indirect) to a terrorist act, demonstrating proof of a connection between the support and the accused’s intention. Section 102.7 is considered ineffective because of its complexity. It is argued that this complexity has lead to a failure to convict, making the provision redundant as it exists currently.

(6)   Sedition Offences

The Australian Law Reform Commission’s report Fighting Words: A Review of Sedition Laws in Australia, was published in July 2006. The Commission recommended the repeal of two of the five offences (urging another person to engage in conduct that assists an enemy of Australia and urging another person to engage in conduct that assists an organization or country engaged in armed hostilities with the Australian Defence Force). It also recommended substantial amendments to the other three offences, including removing any use of the term ‘sedition’. The Law Council of Australia recommended that these laws should be repealed in their entirety because they are unnecessary, lack clarity and precision, and have a chilling effect on free speech and expression. This Bill seeks to implement the Law Council’s recommendation.


   (7)   Dead time

Under Commonwealth criminal laws, a person can be arrested if the arresting officer believes on reasonable grounds that:

  • the person has committed the offence; and
  • arresting the person is necessary because proceeding by way of summons would not achieve one or more of certain purposes specified in the Crimes Act (e.g. ensuring the appearance of a person before the court).

The difference between terrorism offences and ordinary criminal offences emerges after a person has been arrested. The key differences are:

  • once a person has been arrested they can be detained for up to 24 hours, rather than the usual 12; and
  • there is a special provision for terrorism offences relating to ‘dead time’, which allows a magistrate or justice of the peace to ‘stop the clock’ where questioning is reasonably suspended or delayed.

The extended periods for detention of terrorism suspects were introduced by the Anti-Terrorism Bill 2004. As originally introduced, the Bill provided that additional ‘dead time’ was limited to:

   Any reasonable period during which the questioning of the person is reasonably suspended or delayed in order to allow the investigating official to obtain information relevant to the investigation from a place outside Australia that is in a different time zone, being a period that does not exceed the amount of the time zone difference.

The Senate’s Legal and Constitutional Legislation Committee considered the Bill. A majority of the Committee recommended that the Bill be supported with some amendments, including an amendment to ensure that the special ‘dead time’ provisions for terrorism offences only be available upon successful application to a judicial officer. As the Law Council has pointed out, the Government adopted the recommendation to introduce a requirement for judicial approval. However, the amended clause also removed any cap on the maximum allowable dead time and expanded the grounds on which dead time could be claimed.

The ‘dead time’ provisions were applied in the case of Dr Haneef, who was detained for more than 11 days before he was charged. The Report of the Inquiry into the Case of Dr Mohamed Haneef (‘the Clark Inquiry’) considered the dead time provisions in some detail. Justice Clarke stated that, “Perhaps the most obvious deficiency in Part 1C of the Crimes Act is the absence of a cap on, or limit to, the amount of dead time that may be specified as a consequence of the introduction of s. 23CA(8)(m) and therefore the amount of time a person arrested for a terrorism offence can be detained in police custody.”

In relation to the length of time a cap on dead time, Justice Clarke said:

   Varying time limits were suggested in submissions. Some argued for 48 hours; others argued for longer—up to 13 days. I do not have expertise to determine the most appropriate time, nor do I hold a strong view about it. Many people told the Inquiry the period of Dr Haneef’s detention (11 or 12 days) was far too long. Others, including police forces, would argue that 48 hours is manifestly inadequate. In the United Kingdom the period is 28 days (subject to judicial oversight), but different considerations apply in Australia

   … I do not understand my task as requiring me to put forward a specific recommendation as to the allowable time.

   If pressed —and having regard to Dr Haneef’s detention in circumstances where the overseas involvement created time problems generally for the investigation —I would tend to say the cap should be no more than seven days.

Justice Clarke went on to identify other concerns with the ‘dead time’ provisions and to recommend a review of the whole of Part 1C of the Crimes Act 1914 in relation to terrorism offences - a recommendation that the Government has since accepted.

Notwithstanding the fact that Part 1C of the Act is now under review, 23 CA (8)(m) of the Crimes Act should be repealed to remove ‘investigative dead time’ from the calculation of dead time. Subsection 23CA (8)(m) of the Crimes Act is unique to terrorism offences and provides that the investigation period in terrorism cases does not include any ‘reasonable time’ approved by a magistrate or justice of the peace, during which the questioning of a person is ‘reasonably suspended or delayed’. The maximum allowable length of the investigation period for terrorism offences is 24 hours, compared to the 12 hours permitted for all other offences. This additional period negates the need for the additional inclusion of ‘investigative dead time’ provisions.

Other amendments to this section require investigators to inform the defendant of their rights.


(8)   Questioning and detention of those with information about terrorism offences

Many of the terror related provisions under the ASIO Act have never been invoked, leading some commentators to question whether they are in excesses to actual requirements. A person can be detained without charge under an ASIO warrant for up to 168 hours, or 7 days. A person may therefore be held in detention indefinitely for rolling periods of 7 days, without any charge having been made out against them in accordance with conventional criminal procedure. This is also contrary to Australia’s human rights obligations under Article 9 of the International Covenant on Civil and Political Rights. Additionally under this legislation:

  • the person may be prohibited and prevented from contacting anyone at any time while in custody;
  • the person may be questioned in the absence of a lawyer;
  • the person’s lawyer may be denied access to information regarding the reasons for detention and also in relation to the conditions of detention and treatment of the person;
  • the person is prohibited from disclosing information relating to their detention at risk of five years imprisonment; and
  • the person’s lawyer, parents and guardian may be imprisoned for up to five years for disclosing any information regarding the facts or nature of the detention.

These secrecy provisions prevent the press, academics and human rights advocates from independently monitoring the use of ASIO questioning and detention powers. As Amnesty International noted, ‘[t]he level of secrecy and lack of public scrutiny provided for by this Bill has the potential to allow human rights violations to go unnoticed in a climate of impunity.’

 This Bill amends the Australian Security Intelligence Organisation Act 1979 to amend sections 34F(6) and 34G(2) which allow detention without charge to continue beyond 168 hours if at the end of the 168 hours new material justifies the issuing of a separate warrant. Under our bill detention periods cannot simply be extended by way of “rolling warrants”. Further detention warrants can only be sought and issued if they relate to different offences arising from different circumstances.

This Bill also amends the ASIO Act to repeal the following provisions:

  • Section 34K(10) which allows a person to be prohibited and prevented from contacting anyone at any time while in custody;
  • Section 34ZP which allows a person to be questioned in the absence of a lawyer;
  • Section 34ZT which permits the denial of access to information regarding the reasons for detention and also in relation to the conditions of detention and treatment of the person to the person’s lawyer;
  • Section 34ZS(2) which prohibits the person from disclosing information relating to their detention at risk of five years imprisonment; and
  • Section 34ZR relating to the conduct of the parents of a detained person during questioning.
  • Section 34S; which allows a person to be detained without charge for 168 hours is amended to provide for a detention without charge period of 24 hours. A corresponding amendment to section 34G(4)(c) reduces the prescribed period from 168 hours to 24 hours.

National Security Information (Criminal and Civil Proceedings) Act 2004 (NIS Act)

This Act is problematic in the extreme. It requires security clearance for lawyers while providing no justification. Requiring security clearance for lawyers threatens the right to a fair trial and limits the pool of lawyers permitted to act in cases. It also threatens the independence of the legal profession by allowing the executive arm of government to effectively ‘vet’ and limit the class of lawyers who are able to act in matters which might involve sensitive information. By undermining the independence of the legal profession the right to an impartial and independent trial with legal representation of one’s choosing is undermined. This Act also permits for closed court proceedings in certain circumstances for terrorism cases, and provisions relating to the designation of evidence as ‘secret’. The Law Council of Australia has described these concerns in detail Pursuant to the Commonwealth Legal Aid Guidelines (March 2008), a legal representative acting for a legally aided person cannot maintain carriage of a matter (where the Attorney-General has issued a security notification) unless they already have or can obtain security clearance. If the legal representative does not have or cannot obtain a security clearance, then a legal Aid Commission can only continue to pay the legal representation for 14 days from the date a security clearance was issued. This detracts significantly from the guarantee in Article 14 (3) of the International Covenant on Civil and Political Rights that all persons have access to a legal representative of their choosing, and that such representation be provided for by the State in cases where the person does not have sufficient means to pay for it.

This act also provides for the exclusion of evidence, which again compromises the right to a fair trial. Subsection 31 (8) of the NIS Act restricts the court’s discretion to determine whether evidence should be closed to the accused and their legal representatives, resulting in a disproportionate restriction on the right to a defence and a fair hearing. The relevant provisions of section 31 provide:

(7)   The court must, in deciding what order to make under this section, consider the following matters:

(a)   whether, having regard to the Attorney-General’s certificate, there would be a risk of prejudice to national security if:

(i)   where the certificate was given under subsection 26(2) or (3)- the information were disclosed in contravention of the certificate; or

(ii)   where the certificate was given under subsection 28 (22) - the witness were called;

(b)   whether any such order would have a substantial adverse effect on the defendant’s right to receive a fair hearing, including in particular on the conduct of his or her defence

(c)   any other matter the court considers relevant.

(8)   In making its decision, the court must give greatest weight to the matter mentioned in paragraph (7)(a).

The Law Council contends that the NIS Act tilts too far in favour of the interests of protecting national security at the expense of the rights of the accused. These concerns are exacerbated by Part 3 of the NIS Act, which permits the exclusion of a defendant or legal representative from the hearing to determine whether certain information should be banned from disclosure. Further provisions of the Act restrict the defendant’s right to access information that may be used against him or her in criminal proceedings. While it may be necessary for the court to restrict pubic access to a hearing in the interests of national security, the Law Council is of the view that restricting a party or their legal representative from examining and making representations to the court about the prosecution’s attempt to restrict access to certain information goes beyond that which is necessary in the interest of national security.

The NIS Act has no redeeming features, and Schedule 4 of the bill provides for the whole of the Act to be repealed.

As Bill Calcutt has observed in the April 2009 Journal of Policing, Intelligence and Counter Terrorism, “A primary objective of terrorism as an organisational strategy is to engender a disproportionate response within the wider community and to act as a catalyst for changes to society that advance the terrorists’ goals….An alarmist and sensationalist media; an intelligence community that grows in importance and resources in the face of imminent threats; and a government that apparently gains electoral advantage from appearing to be tough and protective; combine to reinforce community fear and inadvertently serve the terrorists interest.”

Australia’s parliament and community did not get an opportunity to hold a thorough, calm and considered debate over the terrorism laws when they were introduced; nor did they consent to the substantial reallocation of resources away from health and schools to security and defence. Now is the time for a thorough, calm and considered debate about methods for dealing with terrorism that strengthen our democracy and are consistent with Australian values. That process includes the appointment of the long-awaited independent reviewer of terrorism laws, whose time need not be wasted on the draconian measures amended or repealed in this Bill.

Senator LUDLAM —I seek leave to continue my remarks later.

Leave granted; debate adjourned.