Talk:Australian Anti-Terrorism Act 2005

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Contents 1 NPOV 2 Impact 3 Reichstag Fire Decree 4 Shoot to kill 5 External Links 6 New class of citizen 7 Sedition 8 Misc Changes 9 Reckless Funding 10 Judicial Oversight 11 Urgency 12 Recent developments 13 Sedition (cont) 14 Constitutionality per s 51(xxviii)

[edit] NPOV

*potential for almost unlimited restrictions on named individuals ...

*significant restrictions on the right of any citizen to express certain opinions ...

Rather than saying "Violation of human right X: government agency Y can now do Z", a more NPOV description would be "Government agency Y can now do Z. This has been criticised by organisation A as an erosion of the right to X". Wikipedia should not be concluding that the intention (as opposed to a side-effect) of the bill was to stifle right X: at most it should note allegations that that is the case.

Andjam 02:39, 19 October 2005 (UTC)

*potential for almost unlimited restrictions on named individuals ...

This is an attempt to summarise 104.4. In particular:

104.4(3) The obligations, prohibitions and restrictions that the Court may impose on the person by the control order are the following: ... (h) a prohibition or restriction on the person carrying out specified activities (including in respect of his or her work or occupation); ...

I've looked, and I don't see any restriction on what activities may be specified as restricted.

In many cases, the suspect doesn't have the right to know what they are accused of or what information the police are relying on.

And you don't even have to be a suspect, if it would 'assist' in reducing the risk of a terrorist attack, whatever that means.

*significant restrictions on the right of any citizen to express certain opinions ...

Under schedule 7, part 5.1 of code which is currently "Treason" becomes "Treason and sedition".

These new laws are complicated. Exactly what you can and can't say varies depending on who or what you are talking about, and I'm not sure how else to describe them in much less space than the original legislation.

At the end of section 30A Add: (3) In this section: seditious intention means an intention to effect any of the following purposes: (a) to bring the Sovereign into hatred or contempt; (b) to urge disaffection against the following: (i) the Constitution; (ii) the Government of the Commonwealth; (iii) either House of the Parliament; (c) to urge another person to attempt, otherwise than by lawful means, to procure a change to any matter established by law in the Commonwealth; (d) to promote feelings of ill-will or hostility between different groups so as to threaten the peace, order and good government of the Commonwealth.

Broadly speaking and glossing over important differences, perhaps we could say "it becomes a crime to urge discontent with the sovereign, the consitituion, the government, either federal house of parliament, the laws of australia, or any group of people".

But that's clumsy, and doesn't really capture the detail anyway.

It also doesn't begin to describe the many restrictions on reporting or even discussing the implementation of these laws. In many cases, it is an offense to tell anyone that you or someone else is being investigated, has been taken into detention, etc.

And on another hand, Australians have never actually had a 'right' to free speech.

Also, the wikipedia article doesn't mention anything about the judicial branch, ie which powers require a court order or don't. Andjam 02:39, 19 October 2005 (UTC)

That's tricky. I'm still trying to get my head around that. It varies a lot.

Many things are just the Attorney General's say so, including the declaration of an organisation as being a terrorist organisation with all that implies for anyone with even a remote connection to that organisation.

Most of the rest seem to require a judge, but not always a judge acting as a judge, if that makes sense, and I'm not sure if it does or not. And there seems to be some capacity to create special courts.

Any policeman can shoot any suspect who doesn't surrender immediately, or if it /might/ be hazardous to do otherwise. For example, "he was wearing a heavy coat, we couldn't take a chance that he might have been wearing an explosive belt."

I may not have suceeded, but I've tried err on the side of understatement. It's easy to make this sound so bad that people just assume you must be making it up, because they couldn't really have written anything so dreadful.

BenAveling 23:06, 19 October 2005 (UTC)

Re shoot to kill - police supposed but not required to give a warning to surrender.

Re who can do what, "normal avenues of judical appeal are not availabe to key parts of the legislation" http://www.chiefminister.act.gov.au/docs/Public_interest_Advocacy_Centre_letter.pdf

"The only limit on the banned activities is that they be specified.

Does this suggest to you that solitary confinement for years without charge or trial is not excluded?"

Also

"The Magistrate or Judge is to act in a personal capacity and not as a Court officer. Thus no Court and, therefore, no appeal."

http://www.newmatilda.com.au/home/articledetailmagazine.asp?ArticleID=1045&HomepageID=109

[edit] Impact

Terrorists, their (possibly unintentional) supporters and other dissidents.

vs

terrorists and their (possibly unintentional) supporters.

On the front page of the legislation it says "amend the law relating to terrorist acts _and for other purposes_" [my emphasis]

Many parts, including the whole of the Sedition section is unrelated to terrorism, but does constrain other forms of dissent.

And there are some restrictions on all of us. To pick one of many, section 103.2 seems to make it a crime to do business with anyone who /might/ be a terrorist suspect.

[edit] Reichstag Fire Decree

" It is therefore permissible to restrict the rights of personal freedom, freedom of opinion, including the freedom of the press, the freedom to organize and assemble, the privacy of postal, telegraphic and telephonic communications, and warrants for house searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed."

Pick the clause that doesn't appear in the Terror Bill. (Not a trick question - there is one.)

Ben Aveling 12:06, 22 October 2005 (UTC)

What's the point of mentioning the Fire Decree anyway? Is it just for the sake of Reductio ad Hitlerum? Or are you arguing there is the possibility Howard will have the entire Labor Party detained so he doesn't have to worry if Barnaby Joyce goes wobbly? Oh, and another difference: The Fire Decree made no mention of same-sex partners. Andjam 13:16, 22 October 2005 (UTC)

If I was going to compare Howard to a Nazi era politician, it wouldn't be Hitler.

However, slippery slope and all that, that is the direction this legislation takes us in.

28% of Teligraph readers believe that "this legislation takes us one step towards being a police state." I have not seen figures for other groups of peoples but we both know it will be higher amongst people with a memory of the the witch hunts of the McCarthy era.

Speak for yourself. Andjam 13:54, 29 October 2005 (UTC)

Perhaps we have a different definition of police state. Here's one that I like: "The defining characteristic of a police state is that the police exercise power on behalf of the executive and the conduct of the police cannot be effectively challenged" Mr Von Doussa [1] Regards, Ben Aveling 06:33, 1 November 2005 (UTC)

The Australian, while editorialsing in favor of this bill, said that we need to understand why we have to give up some rights, that some people will have their rights infringed, and that this should not worry us because (to paraphrase) this law will only be used against bad people anyway.

Law takes two forms: written law (which can be further subdivided) and unwritten law, which is what is followed when people are not in a position to check the written law - that is, as they go about their jobs.

The two are not always the same - Xtra has been at pains to point out that there are already many police powers that are not used, or not often. His claim is that these new powers will not often be used either. He may be right. I sincerely hope that he is right. Because if he is wrong, either now, or at any time in the future, a lot of people will suffer.

I do not see why he is 100% confident that Australia will never suffer corrupt policeman and politicians abusing these laws. Nature abhors a vacume. These laws give a small group of people a great deal of power while at the same time make it a crime to report how they use them.

Sometimes bad things happen because good people are too sure that what they are doing is good. There is nothing fundamentally more moral and upright about Australians than Germans or Italians or Spaniards or Argentenians. What happened in the later countries was unthinkable. But it happened, in a large part it happened because people thought it was unthinkable.

We know where we are now. We have the occasional bombing oversees and small but real risk of something happening here that might 10s or 100s or even 1000s of people, although the steps already taken should have reduced the risk.

We don't really know the consequences of what we're about to do. Discussing where this road can end helps us understand potential consequence of one more step in that direction. I really wish I knew more about Argentina - I think that is a more likely destination for us, but we don't have the same level of understanding about the steps that led there as we do with Nazi-Germany.

I am happy for the answer to my quesions be that I am wrong. I want to be wrong. But I do not want to be told that the question is not-permisable, that a discussion of where this socity might go must include anything too unthinkable.

To return to your specific questions:

• banning an organisation.

Who is to say what Ruddock will do with this power, but this bill gives him the power, by proclaimation, to ban any organisation. I doubt it would be used against the Labor party (although it is arguably a seditious organisation - its constitution calls for the abolition of the senate). If you cast your mind back, at the height of the communist troubles in this country, there was a push to ban the communist party. It was felt at the time, even by those who believed the communists should be banned, that a referendum was the appropriate way to take such action. Under this legislation, it would take one man deciding and proclaiming in parliament.

• same sex partners.

You have me there. The treatment they received, was not covered by legislation.

About using the law to ban groups like the communist party, remember that the Menzies Government first tried to do it through legislation, but the High Court ruled it unconstitutional.

I'm strongly against linking to the Reichstag Fire Decree, because that law in effect turned Germany into a dictatorship. This law could not do that, even under the worst possible circumstances. --RaiderAspect 23:38, 22 October 2005 (UTC)

The Reichstag Fire Decree was only the first of a number of legislative tools that Hitler used to gradually turn Germany into an absolute dictatorship.

Interesting point about Menzies.

Regards, BenAveling 07:49, 23 October 2005 (UTC)

Are you seriously suggesting that Howard's motive behind this is the same as Hitler's? That is a very far stretch. Xtra 08:15, 23 October 2005 (UTC)

I'm not trying to make any suggestion about Howard's motives. I don't appreciate it when you speculate about my motives; I'm not going to join you in speculating about anyone else's motives.

I am interesting in talking about this legislation on its merits. What it does; what it doesn't. How it is similar to, and different from, other legislation.

Regards, BenAveling 09:58, 23 October 2005 (UTC)

The only clause in RFD and not in the terror bill is the freedom to hold an opinion. But you may be restricted from voicing that opinion.

It is therefore permissible to:

• restrict the rights of personal freedom;

control orders allow arbitrary restrictions on activities

• restrict freedom of opinion, including the freedom of the press;

no restriction on opinions that may be held, but restrictions on opinions that may be expressed and facts that may be reported

new sedition laws: reduced legislative obstacles to prosecution, increased pentalities for breaches

non-reportability of the use of many/most of the powers granted under this bill

• restrict the freedom to organize and assemble;

control orders may forbid contact between named individuals, organisations may be banned

• restrict the privacy of postal, telegraphic and telephonic communications;

options for intercepting same, and accessing records of same

• allow warrants for house searches;

including placing of listening devices

• allow orders for confiscations as well as restrictions on property

control orders allow arbitrary restrictions on property

BenAveling 02:12, 25 October 2005 (UTC)

As I said before, I don't have a problem with you saying in the article that the legislation is regarded as eroding rights X, Y and Z. What I do have a problem is with you implying in the article that that is the primary intent, by listing the erosions in the first sentence of each paragraph. Andjam 13:54, 29 October 2005 (UTC)

[edit] Shoot to kill

Crimes Act 1914 (Cth)

3ZC Use of force in making arrest (1) A person must not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest. (2) Without limiting the operation of subsection (1), a constable must not, in the course of arresting a person for an offence: (a) do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the constable believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the constable); or (b) if the person is attempting to escape arrest by fleeing—do such a thing unless: (i) the constable believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the constable); and (ii) the person has, if practicable, been called on to surrender and the constable believes on reasonable grounds that the person cannot be apprehended in any other manner.

Compare this to @105.23 of the Anti-Terrorism Bill. It is on page 37. http://www.chiefminister.act.gov.au/docs/B05PG201_v281.pdf

There is no difference. Hence, what's the big deal?Xtra 10:10, 21 October 2005 (UTC)

If your argument is that we already have less rights than most people think, you may have a point. ;-)

But seriously, they have added the words "detaining a person under a preventative detention order".

Under this legislation, a person who is not wanted in relation to an offense may be shot without being given an opportunity to surrender.

Ben Aveling 11:10, 21 October 2005 (UTC)

but only if the officer believes that they are a threat to life. Which is the same rule. These people who would be shot under this new law would also be shot under existing laws. Xtra 12:20, 21 October 2005 (UTC)

Or to stop them escaping. No requirement that there is an threat to life, immediate or otherwise. No requirement that there is even a suspicion that the person has commited or intends to commit a crime, so long as their detention in some way assists police.

Perhaps this should be continued in the discussion section for the new wikinews article "Premiers take on Australian PM on Shoot To Kill Laws":http://en.wikinews.org/wiki/Premiers_take_on_Australian_PM_on_Shoot_To_Kill_Laws

Ben Aveling 12:56, 21 October 2005 (UTC)

If you read @105.23 carfully you will read that it says "An AFP member must not, in the course of taking a person into custody or detaining a person under a preventative detention order: do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the AFP member believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person..."

I do not see where that becomes so unclear that it could be construed to mean "No requirement that there is an threat to life, immediate or otherwise. No requirement that there is even a suspicion that the person has commited or intends to commit a crime, so long as their detention in some way assists police." (quoting Ben Aveling 12:56, 21 October 2005 (UTC)). The meaning section is as clear as day and it is the same meaning that it has always had. Xtra 13:37, 21 October 2005 (UTC)

Sorry, you are correct that there needs to be a perception of a potential threat - "serious injury" or worse. I missed that. But it doesn't have to be an real or immediate threat.

The reason I say that non-suspects may be targeted is that this law will apply to people wanted under 'preventative' detention, which does not require that the person be suspected of anything, only that "making the order would substantially assist in preventing a terrorist act occurring." (p26)

Detention orders contain: (p28)

(a) the name of the person in relation to whom it is made; and (b) the period during which the person may be detained under the order; and (c) the date on which, and the time at which, the order is made; and (d) the date and time after which the person may not be taken into custody under the order.

Control orders do not have enough information to know for sure that a person is or is not a threat, only enough for a 'reasonable belief' that a person might be dangerous, or why would the order exist.

Put it this way, if the bill doesn't change anything, why put it forwards? The question should not be if it changes anything, but what does it change.

Bills get put forward for lots of reasons. Making people think that they're safe is almost as important as making them safe. And reasonable belief is a technical legal term, it doesn't just mean 'because the AFP feels like it'. --RaiderAspect 11:23, 22 October 2005 (UTC)

The provisions are essentially the same, except the Crimes Act stuff only applies to people being arrested or attempting to avoid arrest by fleeing. The new stuff applies to people being taken into custody or being detained under a preventative detention order. So there has to be such an order against you to be subject to this. @105.4 explains when orders can be given - if there are reasonable grounds to suspect that the person will engage in a terrorist act (within 14 days), or possesses evidence, or has done some preparation; also if a terrorist act has occurred in the last 28 days and detention is necessary to preserve evidence.

So the point is this won't let them shoot whoever they feel like, just people with preventative detention orders against them. The difference is that an order could be made against an innocent party, eg. a material witness, and AFP members might not be in uniform, and they only have to call the person to surrender "if practicable".

There is a difference, but it's not necessarily as large as people are suggesting. --bainer (talk) 11:31, 22 October 2005 (UTC)

"[Howard] agreed the shoot-to-kill clause was not put to the premiers at their summit and since it was not something that went to the core the laws, he said there could be compromse witht he premiers in futhre talks."

Australian Financial Review, p4, October 22-23, 2005

Xtra, why is it so hard for you to believe that a proposed change to the law changes the law?

Should I call a vote on this? What will it take to convince you?

The fact is, and it remains indisputable that a) no draft was actually presented at the meeting, b) the section referred to is identical to all previous provisions. Therefore your edits are just wrong. Xtra 22:51, 22 October 2005 (UTC)

Go ahead, call a vote. ATM I can see three regged users arguing against one anoymous editor with an axe to grind. --RaiderAspect 23:30, 22 October 2005 (UTC)

Xtra is claiming that the proposed change to the law is not a change to the law because "it is written in exactly the same terms".

Our state premiers do not believe that the proposal makes no difference. Neither does bainer or most of the many commentators who have written on this subject. John Howard believes that the proposal changes the law. There may be disagreement on whether this is good or bad but to imply that the proposal is already law is misleading.

Rewriting a law without introducing some unintended changes, even if only in empathis. Such changes are generally not of consequence, but they can be important in some cases.

This bill:

1. introduces a new category of person against whom force may be used. (call them Desaparecidos if you like.) I don't think Xtra is denying that.
2. says Australian Federal Policeman where the previous section said person or constable. Does that change anything? I don't know, but I doubt it.
3. "All decisions under the new Division 105 are exempt from judicial review under the ADJR Act. See clause 20 of Schedule 4 of the Anti-Terrorism Bill 2005, amending Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977." www.nswccl.org.au/issues/terrorism.php.

I have proposed several variations, including trying to describe the differences from the current law, saying it extends the current law without saying how, saying that it changes the current law but not saying how, saying only that the premiers think that it changes the current law, and Xtra has reverted all of them withing without trying to find something that we can all agree with.

I agree that "The Current federal Crimes Act and all state Crimes Acts already have a provision allowing Shoot to Kill" but putting that sentance in on its own implies that there is no difference between the proposal and the current legislation which is not a universally agreed truth.

Otherwise, the implication is that the premiers are complaining about nothing at all. Which may be Xtra's POV and yours, but it is not mine and it is not the view of the premiers or the prime minister. Perhaps I am wrong and you are right. But my POV is a common POV and I think you have to respect that?

I don't expect you to agree with me. But I do expect you to work with me. I don't enjoy being asked "what's the big deal?" when we are talking about people being shot. Nor does telling me that "your edits are just wrong" help me.

Between us we can find something NPOV, if you want to.

BenAveling 05:36, 23 October 2005 (UTC)

How about this wording: "The current federal Crimes Act and the Crimes Acts in each state have provisions regulating the use of force, even deadly force, during arrests. The new legislation regulates the use of such force by an AFP officer when detaining or attempting to detain a person who is subject to a preventative detention order. Some civil libertarians [this would be much better with a source] have expressed concern that these provisions may allow the use of deadly force against persons who have not committed an offence." --bainer (talk) 13:20, 23 October 2005 (UTC)

But it needs to be made clear that the scope of who force can be used against will not change. It is a simple fact that the above section simply spells out self defence. If it were not there, AFP could still do that anyway. So it makes no difference. Thus, this is much ado about nothing. Xtra 13:55, 23 October 2005 (UTC)

Hi Xtra, I think we got off on the wrong foot, but never mind. You've used the expression "self defence." I have three problems with that statement. The legislation says "prevent serious injury to another person (including the constable)". (1) A shooting B to protect C from B, while often justifiable, is not usually considered self defence. (2) This legislation also allows A shooting B to protect C from D. If so, that is significantly different from self defence. (3) Some recent battered wife cases notwithstanding, self defence usually requires that the threat be reasonably proximate, and I don't see that that requirement applies here.

Hi Bainer, Your suggestion is accurate, but I find it wordy, perhaps deliberately so? If we have something like that for one clause, we probably should go into more detail for all the important clauses, which maybe we should anyway. Anyhow, what about "One clause in particular has drawn the ire of the state premiers, the so called shoot to kill clause. Based on a similar provision in the existing legislation, the clause treats people wanted under detention orders in the same way that current law treats people suspected of committing crimes." Shorter, punchier, if not very NPOV. I have trouble finding a neutral way to express the concept that "this law treats innocent people as if they were criminals". Xtra, maybe it's a concept you can put words to?

BenAveling 04:19, 24 October 2005 (UTC)

Someone once tried to argue that A painting B counts as self-defence of C against D, if that's of interest. Andjam 12:07, 24 October 2005 (UTC)

It's entertaining. :-) It's probably relevant, though maybe even more relevant to one of the other sections.  :-(

What about "One particular clause has drawn the ire of the state premiers, the so called shoot to kill clause. Based on a similar provision in existing legislation, the clause treats people wanted under detention orders in the same way that current law treats suspects." BenAveling 20:12, 24 October 2005 (UTC)

I see no problem at the moment. but the shoot to kill provisions only apply where it is to prevent serious injury or death to someone else. I think that needs to be made clear as someone who doesnt know the provissions may think it allows shoot first in any circumstance, which it does not. Xtra 03:41, 25 October 2005 (UTC)

My alternative

"One particular clause has drawn the ire of the state premiers, the so called Shoot to kill clause. Based on a similar provision in existing legislation, the clause treats people wanted under detention orders in the same way that current law treats wanted suspects and allows police to shoot where they believe there is a threat to life. "

Xtra 03:42, 25 October 2005 (UTC)

It's wordy. But it's probably balanced. It doesn't mention that the person has to be trying to escape, it says life rather than serious injury, it doesn't discuss alternatives, all of which would be even more wordy.

Maybe "One particular clause has drawn the ire of the state premiers, the so called Shoot to kill clause. Based on a similar provision in existing legislation, it treats people wanted under detention orders in the same way that current law treats wanted suspects; it allows police to use lethal force if they perceive a threat to life."

I'm not thrilled about the last 4 words. They're clumsy, but I don't immediately have anything better.

It'll do. It can always be changed.

Regards, BenAveling 04:25, 25 October 2005 (UTC)

[edit] External Links

This could use a tidy up.

Done, except for this one

• The Australian editorialised against the publication - anyone have that link?

[edit] New class of citizen

One concern expressed is that this law creates a new class of citizen who has not been found guilty of any crime, or even accused of a crime, who may nonetheless be treated as guilty of a crime if it is convenient to do so.

http://www.newmatilda.com/home/articledetailmagazine.asp?ArticleID=1045&HomepageID=109

[edit] Sedition

Help needed here. Usually I can grok legal jargon, but this defeats me.

What does p77 mean when it says "(2) Recklessness applies to paragraphs (1)(a), (b) and (c)"

Dito for clauses (4) and (6).

Are they saying that even if you didn't mean to (eg) incite violence but did so by accident, it's still sedition?

Also, 80.2(5) makes it an offense to incite violence against a group, if the use of force would threaten the peace, order _and_ good government of the Commonwealth. [My empathsis]

But 80.2 doesn't apply if a person "points out in good faith matters producing ill-will between groups, in order to remove those matters" 80.3(1)(d).

I don't understand this. I'm sure 80.3(1)(d) doesn't mean that you can in good faith incite violence? But I don't know what it does mean either. Help?

Another question.

The Attorney General no longer needs to give written consent before proceedings for an offence of sedition can begin. (80.1(3)is repealed and not replaced.)

What difference will this make in practical terms?

Yet Another Question.

Under the crimes act of 1914 (http://www.austlii.edu.au/au/legis/cth/consol_act/ca191482/s24a.html) it is already seditious to " (g) to promote feelings of ill-will and hostility between different classes of Her Majesty's subjects so as to endanger the peace, order _or_ good government of the Commonwealth;" [again, my empathis]

This seems to be watered down in the new bill, by replacing "or" with "and", by changing "promote feelings of ill-will and hostility" to "use force or violence".

And I think I can now answer my own earlier question re good faith violence. The good faith clause is more or less the same as the current clause in http://www.austlii.edu.au/au/legis/cth/consol_act/ca191482/s24f.html It's just having replaced ill-feeling with violence, the clause no longer makes much sense. Sound right?

Recklessness means that you had actual foresight of the probable consequences, that is, you knew what was likely to happen when you did something, and you did it anyway. So in this case, if you knew that your actions would probably incite violence, and then did them, and they did in fact incite violence, then you would have recklessly incited violence. 80.3(1)(d) is protection for journalists etc. (PS, please sign your posts on talk pages.) --bainer (talk) 13:38, 22 October 2005 (UTC)

Not sure what the purpose of the Attorney-General no longer needing to give written consent is. Possibly it's there to reduce the chances of someone getting off on a technicality? --RaiderAspect 23:42, 22 October 2005 (UTC)

The only technicality I can think of is the the AG forgot to give consent. But proceedings currently need consent to start. All I can think of is that it makes it easier to start proceedings.

Regards, BenAveling 06:03, 23 October 2005 (UTC)

http://www.abc.net.au/news/newsitems/200511/s1498428.htm

Turnbull doesn't like the laws either. I think we need a section on sedition, complicated or not.

Regards, Ben Aveling 02:07, 5 November 2005 (UTC)

[edit] Misc Changes

Thanks, whoever changed "drawn the ire of" phrase-I should have changed it myself as it was a bit strong Georgeslegloupier 03:08, 26 October 2005 (UTC)

I will add a section when I have time about the perception of the changes by the Australian public. Georgeslegloupier 13:39, 26 October 2005 (UTC)

May have been too strong, feels too weak now. Will leave for now.

Change I have made:

• Add the date of debate (Cup Day)
• Break in to sections and fill in some more detail
• s/Laws/Law/ - it's what he said, and Law can be plural anyway
• don't explain furphy - ppl can look it up if they need
• seperate stk argument from the PM. (It was ours, not his.)
• illegal funding of terrorists includes money and assets, not money goods. (ie. You can give dynamite to a terrorist, but don't buy dynamite from a terrorist. Go figure)
• other typos

Notes to self or other wikignome:

• check which labor premier said what.
• tighten up dates, eg "within days" could be "Two days" or whatever it actually is
• how to link within a document?
• find quotes for; criticism of shoot to kill, beattie on the constituion,
• plenty of people who will explain what they don't like about it. can we find anyone who publically defended the various clauses? There was an editorial in the Australian, and an opinion piece in the SMH
• some of the popular press links in "See also" might be better as in-text footnotes.

Ben Aveling 21:19, 26 October 2005 (UTC)

[edit] Reckless Funding

103.2 Financing a terrorist (1) A person commits an offence if: (a) the person intentionally: (i) makes funds available to another person (whether directly or indirectly); or (ii) collects funds for, or on behalf of, another person (whether directly or indirectly); and (b) the first-mentioned person is reckless as to whether the other person will use the funds to facilitate or engage in a terrorist act. Penalty: Imprisonment for life. (2) A person commits an offence under subsection (1) even if: (a) a terrorist act does not occur; or (b) the funds will not be used to facilitate or engage in a specific terrorist act; or (c) the funds will be used to facilitate or engage in more than one terrorist act.

Regards, Ben Aveling 20:49, 27 October 2005 (UTC)

[edit] Judicial Oversight

It's possible to see from reading the legislation that any judge can be asked to issue any number of control or detention orders, and that there isn't any restriction on the number of times a control order can be sought from different judges.

But I agree, we should have a cite or something before we can just say so.

Maybe http://www.lawcouncil.asn.au/read/2005/2418069228.html or http://www.abc.net.au/news/items/200510/1490449.htm?queensland

Regards, Ben Aveling 08:30, 2 November 2005 (UTC)

[edit] Urgency

Today the Government will introduce into the House of Representatives an urgent amendment to Australia’s counter-terrorism legislation and seek the passage of the amendment through all stages tonight. The President of the Senate will recall the Senate for 2pm tomorrow. It is the Government’s wish that the amendment be law as soon as possible.

The Government has received specific intelligence and police information this week which gives cause for serious concern about a potential terrorist threat. [2]

I don't get it.

A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

Penalty: Imprisonment for life [3]

This isn't proposed law, this is the current law.

Why then do we need this urgent action?

Regards, Ben Aveling 09:07, 2 November 2005 (UTC)

I 'm not completely sure, but I think that what is argued is that if "the terrorist act" is changed to "a terrorist act" in the following :

(2) A person commits an offence under subsection (1) even if the terrorist act does not occur.

then that means it does not have to be proven in court that a specific terrorist attack (eg "disrupting Federal Parliament on April 1 by pumping into the air-conditioning system hallucinogenic gas that causes victims to run around wearing their underpants on their head, dance the can-can and sing "Bohemian Rapsody" [please excuse the frivolous example) was being planned, you just have to prove that A terrorist attack was being planned, but you don't necessarily know where or when it was going to happen (eg you can prove that "the culprits had been trying to obtain a hallucinogenic gas and had planned to use it at some point somewhere in Australia to cause mass disruption and public embarrassment to many important public figures).

The distinction between "a" and "the" seems a bit academic to me, especially when "the terrorist act" in part 2 clearly refers to "a terrorist attack" in part 1. But I guess it is being suggested that in legal circles the difference is significant. I also heard that the changing of "the" to "a" in other places will make it easier for the AFP to do searches, use controlling orders etc if they have evidence of some unspecified terrorist attack being prepared, instead of having to prove the specific details (when, where, etc)of the potential attack to a judge.

All that aside, I'm not entirely convinced by the way John Howard has handled this one. The whole "Australians, there is an imminent terrorist attack but I'm not going to tell you anything about it" sounds a bit like "be alert, and very alarmed" to me. The whole "urgency" thing sounds fishy to me-the terrorist threat just happened to pop up at exactly the time that was most convenient. I'm sure there is some sort of suspicious activity being monitored, but is it a concrete and clear threat of a specific terrorist attack? John Howard seems to think so. Is it at all possible he might have chosen to portray the threat as being more concrete and serious than it actually is?

And one other thing. If you have evidence that a terrorist attack is being planned, is it the best idea to trumpet that fact, so any organisation planning such an attack knows it should probably cover its tracks and start over? Georgeslegloupier 13:33, 3 November 2005 (UTC)

Reading between the lines, it seems there are a number of people who have had contact with al-Qaeda, including training. Some, perhaps most of them are known to ASIO. Most of those are harmless, just as most communists sympathisers were actually harmless. A small number would like to do damage, but would never actually do so. And a very small percentage would be prepared to do something, given a chance.

As I see it, the problem for ASIO is that they don't always know which is which. So the temptation is preventative detention and control orders for the lot of them. Under the current law, that requires evidence that a crime was being planned. Thus, the Terror Bill.

If Howard's announcement were to cause someone to abandon a planned attack, which I doubt, then I wouldn't actually see it as a bad thing. Not as good as them being caught, but still a good thing.

I still don't see the need to make the current change. Consider: "go to the fish market and buy something. Make sure the fishmonger gives _it_ a good cleaning." English allows us to speak of abstract things in concrete terms. Even if it didn't, judges and juries have always shown that they are prepare to look past the letter of law to the spirit of it.

Unless there is some passenger change going through as well that does make a difference to something?

Regards, Ben Aveling 19:48, 3 November 2005 (UTC)

[edit] Recent developments

• the parliamentary recall to change "the" to "a"
• the recent (ongoing?) raids in Sydney and Melbourne.

I heard Mick Keelty on the ABC saying that the existing laws were adequate for what the police did, but let's see if we can get a transcript before we make any changes.

Regards, Ben Aveling 21:48, 8 November 2005 (UTC)

I heard both Christine Nixon and Ken Morony saying that it assisted, as no target was specifically known. Xtra 07:22, 9 November 2005 (UTC)

• Googles*

"Since making an indirect remark on television at the weekend, suggesting Australia was at a greater risk of terrorist attack because of its stance on Iraq, the Federal Police Commissioner has copped flak from all directions."

No, that's not it. Try this:[4]

KERRY O'BRIEN: does it demonstrate that current powers are adequate?

MICK KEELTY: Well, I think they are and I think the issue about the proposed bill was an issue of transparency and I commend transparency when we've got such difficult issues to work through with the community.

And

KERRY O'BRIEN: So it's clear that you waited until after the amendment, last week's amendment was rushed through both houses of parliament and royal assent to that amendment before you put your plan into motion; that's correct? Can we assume that you began to put that plan into motion immediately after that impediment was removed?

MICK KEELTY: Well, certainly on the advice of the DPP and I think that's acknowledged even in your prelude to this interview, all of us except that the passing of the legislation assisted in making the decision,

Also

KERRY O'BRIEN: Did you wince when you saw Thursday's papers? [Howard's announcement]

MICK KEELTY: Well, I wondered the people involved would continue. Whether we'd be confronted with another sort of problem.

And

KERRY O'BRIEN: And I don't know whether you can answer this, but can you say what, if anything, in particular triggered the decision to conduct the raids and bring the suspects in?

MICK KEELTY: Well, as I say, it was a combination of factors [...] It's a tension between when is the most appropriate time to intervene to maximise the evidence before the court or when is the opportune time to protect the community and how do we deliver the balance on that tension?

I can believe what you say. It sounds to me like the new laws probably encouraged the police to move a bit earlier, as did Howard's announcement. Although I'm not sure that the change makes a difference. It was already a crime under 101.6 (1) to perform any act in preparation for _a_ terrorist act. The "the" which was changed was in clause (2). When it said "the act" it refered to the act in (1), that is, "a terrorist act". IDGI.

What needed to be specific was an act of planning. It never needed to be a specific terrorist act, and I don't think the new law changes that. [5] vs [6]

IDGI

The other problem I have is that I don't see how to stick ==Enforcement== into the article cleanly. It doesn't seem to fit anywhere, nor do I really want to rewrite things so that it does, because I expect we'll have to fork as more information comes out. Nor do we have enough information to fork it yet.

Any suggestions?

Regards, Ben Aveling 08:31, 9 November 2005 (UTC)

ABC interview with Christine Nixon:

TONY EASTLEY: Is this linked to the same terrorist intelligence that the Prime Minister mentioned last week?

CHRISTINE NIXON: Yes it is.

TONY EASTLEY: Was it the amendments under, the new amendments passed through Parliament that allowed you to conduct these arrests now?

CHRISTINE NIXON: Some of it is related to that amendment, the minor amendment that occurred.

TONY EASTLEY: This is the amendment of a terrorist act, rather than the terrorist act?

CHRISTINE NIXON: That was part of it, but this is a long-term operation. We've been involved in this operation with the Australian Federal Police, with the New South Wales Police, with ASIO, with the Australian, sorry, the New South Wales Crime Commission for much of that 16 months. And so we've been looking to understand what these people were planning, to see how they were going about their work and so it's a long-term – it isn't just something that happened last week.

[7] Xtra 08:52, 9 November 2005 (UTC)

[edit] Sedition (cont)

Of course, this is already law in Australia - the offence of 'sedition'. There have been no prosecutions of sedition in Australia in 45 years. 220.237.187.254

Well, no. There are major changes to the law that make it apply differently. Some things that used to be OK to say now aren't, and probably vice-versa.

And the max penalty has gone way up.

And the Attorney General no longer needs to give approval before charges are laid.

So there are important changes.

Regards, Ben Aveling 05:08, 11 November 2005 (UTC)

We probably need a separate section in the article discussing the sedition laws. They seem to be a major issue and particularly controversial given that it is looking like they may well go through the upper house, although a Senate committee rejected (I think it was unanimously, but can't find the source for that yet)them [8]. Of particular interest is Phillip Ruddock's comment that the laws would be reviewed further AFTER they were passed, which I believe is supposed to be rather unusual. Georgeslegloupier 05:38, 30 November 2005 (UTC)

The final part of that committee Hansard hasn't been published yet, but when it is it will be available here, under the heading "Anti-Terrorism Bill (No. 2) 2005". --bainer (talk) 06:42, 30 November 2005 (UTC)

We have a page Australian sedition law we can perhaps draw on. Regards, Ben Aveling 02:10, 1 December 2005 (UTC)

[edit] Constitutionality per s 51(xxviii)

I have removed this:

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]}.

from "Constitutional issues". There is no citation, the section in question is incorrect (I think the poster meant s 51(xxxviii)) but most importantly I'm fairly certain it's wrong. The grant of power which could previously be exercised by the UK Parliament would be ignored if inconsistent with the separation of powers. The more specific rule takes precedence over the more general. There's also another grammatical error (just in case anyone wants to re-insert): in last line it should be "would" not "will" after High Court as there is no current challenge (AFAIK). Could probably also do with a bit of wikification - HCA, Westminster, Constitution etc. mjec 02:06, 10 June 2007 (UTC)