Australian Anti-Terrorism Act 2005

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The Australian Anti-Terrorism Act 2005 (Revised) is legislation intended to hamper the activities of any potential terrorists in Australia. It was passed by the Commonwealth Parliament on 6 December 2005. ^[1]

1 Chronology
2 Constitutional Issues
3 Deficiencies in the existing law
4 Summary of Changes
5 The "Shoot to Kill" Clause
6 The "Reckless Funding" Clause
7 Judicial Oversight
8 See also
9 External links
10 References

[edit] Chronology

The bill was prepared by the Liberal/National Coalition Government in the wake of a series of terrorist attacks overseas, in particular London, with the stated intent of preventing anything similar from happening in Australia.

Because of the division of powers in Australia's constitution, the bill needed the support of the states. An outline of the bill was presented to the State Premiers who gave it in principle backing.

A confidential draft of the legislation received public scrutiny prior to its reading in federal parliament when it was leaked by ACT Chief Minister Jon Stanhope who declared "Law of this significance made in this haste can't be good law".^[2]

The publication received a mixed response. Prime Minister John Howard criticised the ACT Chief Minister, saying that "the premiers and the other chief minister did not deserve to be hijacked in relation to their ability to participate in consultation."^[3] Responses in the Labor Party to the publication of the draft were mixed, some criticising the publication, some defending it, with one member stating that he wouldn't have done it himself, but defended Chief Minister Stanhope's right to do so.

Almost immediately, the 'shoot to kill' clause was criticised as excessive, as was much of the rest of the bill.

The federal bill was to be introduced to parliament, debated, and passed on November 1, 2005, Melbourne Cup race day. Both the Opposition Australian Labor Party (ALP) and the minor parties had criticised the paucity of time allowed for discussion. The Prime Minister had agreed to postpone and perhaps adjust the bill, so long as it is passed before Christmas 2005.

The bill became law on the 6th December with only Green and Australian Democrat senators voting against.

[edit] Constitutional Issues

The first three "chapters" of the Australian Constitution separate power between the executive, legislative and judicial arms of government. This "separation of powers" doctrine has been interpreted by the High Court in Lim v Minister for Immigration (1992) 176 CLR 1 as granting an immunity for Australian Citizens from involuntary detention by the Government except as a consequence of a finding of criminal guilt before a court. There are some exceptions, such as the detention of a person following their arrest and before they are brought before a court, or whilst on remand awaiting trial where bail is refused. The Federal Government appears to have interpreted as Constitutional periodic detention for up to 48 hours and co-operated with State governments (which do not have the same entrenched separation of powers doctrine) to allow for detention up to 14 days. The Federal government has also introduced "control orders" which allow for a range of restrictions to be placed on an individual (who has not been charged, let alone found guilty of any criminal offence) including subjecting that person to 12 months house arrest. Notwithstanding this, both state and federal preventative detention and federal control orders may still be open to a Constitutional challenge.

Queensland Premier Peter Beattie announced that he has received advice that the blurring of boundaries between the executive and judicial powers is likely to be unconstitutional. This assertion has been rejected by the Prime Minister: "Lawyers often have different opinions as to what the law means." ^[4]. Federal Treasurer Peter Costello has adopted a more cautious attitude, stating that "you never really know" the answer to the vexed question of constitutionality "until such time as the courts decide on these things".(SMH, October 27, 2005) According to spokespeople for the Prime Minister, his and the Treasurer's views are compatible, but some media outlets, including the Sydney Morning Herald, have insinuated otherwise.

Notwithstanding all the above questions, the fact that this legislation has been passed with the concurrence of all the State governments under secion 51(xxviii) of the Constitution, which authorises the Commonwealth government to exercise any power held by the Westminster parliament on 1st January, 1901, (which in practice means they can do anything except amend the constitution), it seems likely that the High Court will rule the legislation valid^{[citation needed]}.

[edit] Deficiencies in the existing law

Attorney General Philip Ruddock said that the new laws are needed^[5], on advice from the Australian Federal Police that existing laws would not protect Australians from London-style terrorist attacks. ^[6]

[edit] Summary of Changes

Potential for preventive detention: short term detention for named individuals: without evidence; and without criminal involvement; the detainee may be interrogated by ASIO; disclosing that an individual has been so detained or interrogated is, in almost all circumstances, a crime.
Control orders: Potential for almost unlimited restrictions on named individuals: freedom of movement; freedom of association (including one's lawyer); banning the performing of named actions and owning named items, including actions and things necessary to earn a living; unlimited requirements to be, or not to be, at specified places at any or all times of the day and week; wear a tracking device; and including encouragement to submit to re-education. These restrictions are referred to as "control orders", and may be granted for a period of one year before review.
Significant restrictions on the right of any citizen to express certain opinions: including criticism, or "urging disaffection", of the sovereign, the constitution, the government, the law, or 'different groups'; exemptions may exist where the target of criticism is agreed to be 'in error'; exemptions appear to exist where the claim is that a feature of a group of people is in some way offensive to the mainstream of society; onus of proof of goodwill is on the defendant - the presumption is not of innocence.
It becomes a crime, punishable by life imprisonment, to recklessly provide funds to a potential terrorist: funds include money and equivalents and also assets; it is not necessary that the culprit know the receiver is a terrorist, only that they are reckless about the possibility; it is not even necessary that the receiver is a terrorist, only that the first person is reckless about the possibility that they might be.
Police can request information from any source about any named person: any information about the person's travel, residence, telephone calls, financial transactions amongst other information; professional privilege does not apply; it can be an offence to disclose that such documents have been obtained.

[edit] The "Shoot to Kill" Clause

The "Shoot to kill" clause instructs police to treat people wanted under detention orders in the same way that an equivalent clause in the current law treats wanted suspects.

The clause in particular has raised the concern of some state premiers, the so-called "Shoot to kill" clause, where police may use lethal force if they perceive a threat to life. The clause was not put to the premiers in the original discussions between the States and Federal Governments. ^[7]

Law Council of Australia president John North, suggested that such powers were designed to protect police in the event of a mistaken fatal shooting such as that of Jean Charles de Menezes. ^[8]

John Howard has declared that the whole issue is a "misnomer, a furphy, a diversion," ^[9] but has suggested that changes to the clause are possible.

[edit] The "Reckless Funding" Clause

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Section 103.2 makes it an offence to recklessly provide funds to a person who might be a terrorist, or a supporter of terrorists. It is not a defense that the person is not a terrorist or that you had another reason for handing money to this person, if you are reckless about the possibility that they might be a terrorist. The definition of funds includes money and assets of any kind but does not include goods or services. The mental element of recklessness is defined under the Commonwealth Criminal Code section 5.4 as being an awareness of a substantial risk that the result will occur. The definition varies from the common usage of the word recklessness and the mental element of section 103.2 would only be satisfied if the person supplying the money gave the money with the knowledge that there is a substantial risk of them being a terrorist or supporter of terrorists. Furthermore they must have unjustifiably given the money knowing the substantial risk is present. It is misleading to provide that mere 'recklessness' in the common sense will trigger the offence as the legal definition requires the higher threshold of knowledge of the substantial risk

[edit] Judicial Oversight

The published version of the Anti-Terrorism Bill has attracted the criticism that it does not respect the separation of powers and is thus unconstitutional. Prime Minister John Howard has declared, "Speaking for the Commonwealth, and based on the advice I have received from the Crown law authorities at a commonwealth level, these laws are quite constitutional."^[10] John North, President of the Law Council of Australia, said "The power to make control orders is to be given to federal courts and is clearly non-judicial. Judicial power requires a fair procedure, including notice of the proceedings and disclosure of the basis upon which orders are sought and made. None of this occurs in relation to control orders." ^[11] Similar concerns were raised by the Queensland and Western Australian Premiers and NSW Premier Morris Iemma. ^[12].