REFORM OF AUSTRALIA’S TERRORISM LEGISLATION

DAN O’GORMAN

AUSTRALIAN INSTITUTE OF ADMINISTRATIVE LAW

2006 NATIONAL ADMINISTRATIVE LAW FORUM

Administrative Law: Protection of Individual
and Community Interests

Surfers Paradise Marriott Resort

22-23 June 2006

DAN O’GORMAN

Barrister-at-Law, Roma Mitchell Chambers, Brisbane

Member of Security Legislation Review Committee

Level 12, Quay Central, 95 North Quay, BRISBANE QLD 4000

Ph: 3236 1431 Fax: 3236 3949 DX: 949 Quay Central

dogorman@qldbar.asn.au

REFORM OF AUSTRALIA’S TERRORISM LEGISLATION

1. This paper argues that the Commonwealth Government’s anti-terrorism legislation is defective because it unnecessarily compromises the rule of law and some of our fundamental rights.

2. More particularly, it is argued that Australia’s anti-terrorism legislation:

(a) places too much power in the executive arm of government;

(b) unacceptably abrogates hitherto accepted rights (with particular emphasis on rights in the area of administrative law); and

3. Much of Australia’s anti-terrorism legislation was recently the subject of a review by the Security Legislation Review Committee (“the SLRC”). In this paper there are also numerous references to the SLRC Report which was tabled in the House of Representatives on 15 June 2006. The background to the SLRC, details of the legislation it reviewed and a summary of its recommendations are at Attachment “A” hereto.

SCHEME OF THE LEGISLATION

4. Australia’s terrorism legislation is largely contained in chapter 5 (“The security of the Commonwealth”) of the Criminal Code Act 1995 (“the Criminal Code”).

5. In summary, chapter 5 deals with:

(i) “Treason and sedition”[1];

(ii) “Offences relating to espionage and similar activities”[2]; and

(iii) “Terrorism”[3].

6. The more controversial aspect of Australia’s terrorism legislation are outlined in the “Terrorism” provisions (that is, in part 5.3 of the Criminal Code) which provide for:

(i) specific offences relating to “terrorist acts”[4];

(ii) terrorist organisation offences[5];

(iii) financing of terrorism offences[6];

(iv) control orders[7]; and

(v) preventative detention orders[8].

IMPORTANCE OF THE RULE OF LAW

7. Any assessment of Australia’s anti-terrorism legislation requires consideration of whether the legislation is consistent with the rule of law.

8. I argue that all of Australia’s anti-terrorism legislation should adhere to all aspects of the rule of law and that we, as a community, must be ever vigilant to ensure that we do not compromise the rule of law and/or our own fundamental rights in the fight against terror. We must be prepared to defend the values of a liberal democracy with the same vigour as that shown by those terrorists who attack it. While terrorists can cause great loss of life etc, it is only our Government that can attack the values that are important to us as a community.

9. The importance of these and related issues has long been the subject of serious consideration for decades.

10. When introducing the National Security Bill 1939, Prime Minister Menzies spoke of the need to ensure that the measures intended to protect national security during World War II should not interfere with Australia being a free and democratic society[9]:

“Whatever may be the extent of the power that may be taken to govern, to direct and to control by regulation, there must be as little interference with individual rights as is consistent with concerted national effort…the greatest tragedy that could overcome a country would be for it to fight a successful war in defence of liberty and to lose its own liberty in the process.”

11. The importance of vigilance against the erosion of these important principles was also dealt with by Lord Atkin during World War II[10]:

“Amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by executive, alert to see that any coercive action is justified in law.”

12. In 1943 Chief Justice Latham remarked that while it is easy for judges of Constitutional Courts to accord basic rights to popular majorities, the real test comes when they are asked to accord the same rights to unpopular minorities and individuals.[11] Such sentiments are applicable to the way we deal with the rights of suspected terrorists.

13. The President of the Supreme Court of Israel stated in 2004[12]:

“Regarding the State’s struggle against the terror that rises up against it, we are convinced that at the end of the day, the struggle according to the law will strengthen her power and her spirit. There is no security without law. Satisfying the provisions of the law is an aspect of national security.”

REFORMS

14. Australia’s anti-terrorism legislation should, as a minimum, contain sufficient safeguards “…to stand the test of proportionality and fairness and to withstand administrative law challenge”[13]. This is particularly necessary as Australia does not have a Bill of Rights and the legislation does not contain a sunset clause.

15. The terrorism legislation should be amended to, inter alia, provide for greater transparency and more appropriate checks and balances, particularly via greater review of the administrative action provided for in the legislation. Such amendments should include:

· reform of the proscription process;

· reform of the control orders regime;

· reform of the preventative detention regime; and

· the introduction of further mechanisms for the monitoring of Australia’s anti-terrorism legislation generally.

16. When considering such amendments it is useful to be reminded of the following comments of Brennan J[14]:

“It is of the essence of a free society that a balance is struck between the security that is desirable to protect society as a whole and the safeguards that are necessary to ensure individual liberty. But in the long run the safety of a democracy rests upon the common commitment of its citizens to the safeguarding of each man’s liberty, and the balance must tilt that way…”

Proscription

17. An organisation may be proscribed as a “terrorist organisation”[15].

18. The process of proscribing an organisation as a terrorist organisation is an essential feature of many of the anti-terrorism offences. The penalties for such offences are not insignificant, ranging from 10-25 years[16].

19. A consequence of the proscription of an organisation is that a person becomes liable to prosecution as a result of his connection with the proscribed organisation. That is, a person connected with an organisation may, at the moment of proscription, become liable to prosecution if that person directs the activities of the organisation,[17] is a member of the organisation[18], recruits others to join or participate in the activities of the organisation[19], trains or receives training from the organisation[20], gets funds to, from or for the organisation[21], or supports the organisation or associates with, for example, members of the organisation[22]. Each of these “derivative” offences is an offence by the person who is connected or associated with the organisation in some way, and is not an offence by the alleged terrorist organisation.

20. A person charged with such an offence cannot specifically raise as a defence the fact that the organisation was wrongly proscribed and is not a terrorist organisation, nor can s/he raise the defence that the body was not even an organisation.

21. Simply put, the proscription of an organisation is by an executive act of the Governor-General on the advice of the Attorney-General. The only criteria for such proscription is that the Attorney-General “…must be satisfied on reasonable grounds” that the organisation:

“(a) is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act has occurred or will occur); or

(b) advocates the doing of a terrorist act (whether or not a terrorist act has occurred or will occur.”[23]

22. The discretion residing in the Attorney-General is unlimited except for the criteria outlined in the preceding paragraph.

23. To date, 19 organisations have been proscribed as terrorist organisations[24]. Seventeen of those organisations have been re-listed after the expiry of the two year period[25]. No applications for de-listing[26] have been made to the Attorney-General.

24. The current process of proscription as a terrorist organisation includes the following[27]:

· An unclassified statement of reasons giving the case for listing (or re-listing) is prepared by ASIO;

· Chief General Counsel of the Australian Government Solicitor provides written advice on whether the statement of reasons is sufficient for the Attorney-General to be satisfied on reasonable grounds that the organisation is an organisation directly or indirectly engaged in preparing, planning, assisting in fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur);

· DFAT is consulted by the Attorney-General’s Department (“AGD”) to identify if there are issues of relevance of which DFAT is aware;

· The Attorney-General considers the statement of reasons, the advice of Chief General Counsel, DFAT comments and a letter from the Director-General of Security;

· If satisfied on reasonable grounds that the organisation has the required characteristics[28], the Attorney-General makes a recommendation to the Executive Council to list or re-list;

· Executive Council documentation to make a regulation is signed;

· The Attorney-General advises the Attorney-Generals of the States and Territories of the decision and the Leader of the Opposition is also advised and offered a briefing;

· The regulation is made and lodged with the Federal Register of Legislative Instruments;

· A press release is issued and the Attorney-General’s Department National Security website is updated;

· The Parliamentary Joint Committee on Intelligence and Security (previously the Parliamentary Joint Committee on ASIO, ASIS and DSD) decides whether to review the regulation;

· If the PJC decides to review the regulation, the inquiry is publicly advertised and submissions are invited, hearings are held (sometimes in private) and the Committee reports its comments and recommendations to each House of Parliament before the end of the applicable disallowance period.

25. The process of proscription has been criticised as “…highly subjective and political”[29].

26. The Senate Legal and Constitutional Legislation Committee observed in its report following its inquiry into the legislation in 2002 that the (then proposed) proscription power was one of the most significant issues of concern, and of all issues it aroused the most vehement opposition[30].

27. The whole process of proscription should be reformed to make it fairer and more transparent.

28. It is unfortunate that offences with such serious penalties may be triggered by mere executive action. It is also regrettable that there is no fixed criteria, published or otherwise, that the Attorney-General is to apply in exercising his discretion as to whether to proscribe an organisation.

29. Currently, the legislation does not require notice of the intention to proscribe to be given to the organisation or to persons who would be affected by proscription, nor is there any opportunity for that organisation or such persons to be heard in opposition to the proscription. That is, the current system of proscription does not enable persons who could be affected by such proscription to be informed in advance that the Attorney-General is considering proscribing the organisation, nor are such persons able to answer the allegation that the organisation is a terrorist organisation.

30. Administrative law principles clearly require the process, where possible, to provide organisations and other persons affected by proscription with both notification that it is proposed to proscribe the organisation and the right to be heard in opposition[31]. Such requirements are reflected in the comments of Mason J in Kio v West[32] in which he laid down what has been described[33] as “…the broad statement of principle that has since become a mantra”, namely, that “…there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectation, subject only to the clear manifestation of a contrary statutory intention”[34].

31. Hence, it is arguable that procedural fairness requires that, in all but exceptional circumstances, an intention to proscribe an organisation should be made public and all interested persons should be given an opportunity to be heard. In the words of the SLRC[35]:

“(The law) suggest(s) that the Attorney-General is currently under an obligation to observe natural justice when determining whether to list an organisation under paragraph (b) of the definition of terrorist organisation. The duty to accord natural justice is owed both to the organisation and to its members. The question in any given case will be whether the rules of natural justice have been observed in the process of proscription. There is, of course, a practical question as to whether organisations, such as those currently listed under paragraph (b), may choose to utilise a procedure of this kind to seek a hearing by the Governor-General or the Attorney-General. But if it were intended to proscribe an organisation set up in Australia or operating in Australia with Australian members, and if both the organisation and the members were left with no opportunity to resists the application for proscription, an erroneous belief that the organisation was a terrorist organisation could lead to a substantial injustice to those members.”

32. While it may be impracticable to notify overseas organisations of the intention to proscribe it, there is no apparent reason why an Australian organisation and its members (or Australian members of an overseas organisation, if known) cannot be advised of the intention to proscribe it.

33. Similarly, there is no reason why an Australian organisation and its members cannot be given the opportunity to be heard in opposition to the proscription prior to the decision to proscribe it. That is, there should be an opportunity to be heard as to the appropriateness of the proposed proscription.

34. I concur with the recommendation of the Parliamentary Joint Committee on Intelligence and Security[36] that the current criteria the Attorney-General is required to address is insufficient and that he should be required to address each of the following criteria when considering whether to proscribe an organisation:

(i) engagement in terrorism;

(ii) ideology and links to other terrorist groups or networks;

(iii) links to Australia;

(iv) threat to Australian interests;

(v) proscription by the United Nations or other like-minded countries; and

(vi) engagement in peace or mediation processes.

35. As was concluded by the SLRC[37], the circumscription of the Attorney-General’s discretion in this way would provide legal certainty to organisations and persons to whom the derivative offences might apply as required by international law.

36. Currently, the Attorney-General’s decision to proscribe an organisation is not subject to merits review, hence the factual correctness of the decision that an organisation is a terrorist organisation is unable to be challenged. Such a decision is subject to judicial review pursuant to the ADJR Act, but such a review does not, of course, permit a review of the facts or of the reasonableness and proportionality of the decision. Consequently, decisions relating to the proscription of organisations are effectively unreviewable because of the limited scope of the ADJR Act and because of the courts traditional reluctance to get involved in national security issues.

37. These defects in the legislation are most unfortunate because the consequences flowing from the proscription of an organisation are potentially quite significant for a citizen. For example, if a citizen is either a member of the organisation[38] or associates with the organisation[39], that person could potentially be prosecuted merely because someone in the organisation praised terrorism. This is the case “…even if the organisation has no other involvement in terrorism; even if the praise did not result in a terrorist act; even if the person praising terrorism did not intend to cause terrorism”[40].

38. Similarly, an organisation which is in no way involved in terrorism could be proscribed because a person who is identified as being connected with the organisation praises a terrorist act, even if that person had no intention to provoke a terrorist act. The consequence could be a heavy penalty imposed on a member innocent of any connection with terrorism[41].

39. The SLRC has also recommended[42] that the proscription process should be revamped so that:

(a) the process of proscription becomes a judicial process on application by the Attorney-General to the Federal Court with media advertisement, service of the application on affected persons and a hearing in open court;

(b) if the processes of proscription is to continue by way of regulation made by the Governor-General on the advice of the Attorney-General:

(vii) there should be built into that process a method for providing a person, or organisation affected, with notification, if it is practicable, that is proposed to proscribe the organisation and with the right to be heard in opposition; and

(viii) an advisory committee, established by statute, should be appointed to advise the Attorney-General on the case that has been submitted for proscription of an organisation (and such a committee would consist of people who are independent of the process, such as those with expertise or experience in security analysis, public affairs, public administration and legal practice, and the role of the committee should be publicised, and it should be open to the committee to consult publicly and to receive submissions from members of the public).

40. I am strongly of the view that the preferred approach is that involving the judiciary.

41. As recommended by the SLRC[43], such a scheme involving the judiciary should include the following:

· initiation of the process by the filing of an application by the Attorney-General in the Federal Court for an order proscribing the organisation, together with evidence supporting the making of that order;

· the application is then advertised in the press;

· where practicable, the application would be served upon the organisation and members of the organisation, and other persons considered by the court to be affected by the making of such an order;

· any person with a sufficient connection to the application would be given an opportunity to be heard;

· questions about procedure, the admissibility of evidence, and the management of classified material would be the province of the court.

42. Such a process has the benefit of requiring the Attorney-General to justify his reasons for the alleged need for the proscription of the organisation and would allow the court to determine whether the relevant grounds were established on the evidence before it.

43. A further advantage of such a process is that persons affected by the proscription of the organisation would be put on notice and would have the opportunity to oppose the proscription.

44. Additionally, the adoption of a process involving the judiciary should ameliorate some of the strongly held concerns about the proscription process. The enhancement of the transparency of the proscription process would enhance the public’s confidence that the process was not attacking unreasonably a particular person or a particular sector of the community but rather, was genuinely operating to protect Australians and Australia’s national interests. As was said by the SLRC[44], such transparency would help to reduce the fear of discrimination and the possibility of error.

45. The SLRC outlined the benefit of the judiciary being involved in the proscription process thus[45]:

“The attraction of a judicial process for the function of declaring an organisation to be a proscribed organisation is the safeguards this brings to the process. A judicial officer will be independent of the parties to any dispute and bring an unbiased and objective mind to the task. The procedure for making a declaration will be rigorous, and focus on the strength of the evidence to support an application. There will be an opportunity for interested persons to be heard before a declaration is made that renders it a criminal act, from the moment the declaration becomes effective, to be connected to an organisation that is henceforth to be classified as a terrorist organisation. There is also public respect for the independence and integrity of the judicial process.”

46. However, the Attorney-General has ruled out any such changes. In his media release following the tabling of the SLRC Report on 15 June 2006, the Attorney-General stated that the government believes “…the current listing process contains sufficient safeguards, including judicial review and parliamentary oversight”. Similarly, on the day after tabling the SLRC Report, he cited national security issues[46]:

“It’s alright to talk about transparency, but if it’s going to disclose the nature of techniques you might use to obtain intelligence information if it’s going to jeopardise the provision of security information from countries abroad, if it’s going to expose the lives of agents you obviously have to have those matters uppermost in your mind.”

47. Such reasoning does not withstand scrutiny.

48. The involvement of the judiciary in such a process is not a radical concept. For example, part 5.3 of division 104 of the Criminal Code, legislation introduced by the Attorney-General’s government, enables a court (the “issuing court”, which is the Federal Court, Federal Magistrates’ Court and the Family Court), at the request of a senior AFP member, to make an “interim control order”[47], an “interim control order by electronic means”[48], and an “interim control order in person”[49]. The interim control order must be personally served on the person in relation to whom it is made[50], and if that person is a resident of Queensland or if the issuing court issued it in Queensland, the Queensland Public Interest Monitor is to be provided a copy[51].

49. Similarly, the Crimes Act 1914 provides that the Attorney-General may apply to the Federal Court, via a summons, for an order calling upon any body of persons to show cause why it should be declared to be an “unlawful association” (that is, an association that, inter alia, advocates or encourages the overthrow of the Constitution, the Government of the Commonwealth or either House of Parliament)[52].

50. Additionally, there is already in place legislation that protects the national security in both courts and administrative tribunals. For example there is the Information (Criminal and Civil Proceedings) Act 2004, the object of which is[53]:

“…to prevent the disclosure of information in federal criminal proceedings and civil proceedings where the disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice.”

51. Similarly, there are provisions in the AAT Act that protect the disclosure of evidence relating to, inter alia, national security issues[54], outline procedures to be adopted in hearings in the Security Appeals Division[55], and prohibit the disclosure of certain documents and information before the Security Appeals Division[56].

Control Orders

52. Control orders, provided for in Division 104 of the Criminal Code, allow “obligations, prohibitions and restrictions” to be imposed on a person “for the purpose of protecting the public from a terrorist act”[57]. Those obligations, prohibitions and restrictions[58] are potentially both significant and intrusive.

53. Some of the generally accepted principles of natural justice and procedural fairness are not observed.

54. A senior AFP member may seek the Attorney-General’s written consent to request an interim control order if the member considers “on reasonable grounds” that an order would substantially assist in preventing a terrorist act or if the member suspects “on reasonable grounds” that the person has provided training to, or received training from, a listed terrorist organisation[59].

55. For its part, the issuing court must make its own independent assessment of the facts. It may make an interim control order if, inter alia, it is satisfied “on the balance of probabilities” that the making of order would substantially assist in preventing a terrorist act or that the person has provided training to, or received training from, a listed terrorist organisation[60].

56. Hence, the “reasonable grounds” upon which the original request was made are merely the grounds perceived by the requesting AFP officer and may not necessarily be the grounds on which the issuing court makes its decision.

57. An interim control order is sought in ex parte hearings. Hence, such an order may be made without giving the person concerned an opportunity to be heard. The potential unfairness of such an approach is obvious. Further, it means that the court cannot make a determination with any certainty as to how the order will affect a person’s individual personal circumstances.

58. There are considerable restrictions on access by the person the subject of the order to the evidence upon which the order is based. For example, the lawyer of the person in relation to whom an interim control order is made is not entitled to be given a copy of, or even see, any document other than the actual interim control order[61] or the confirmed or varied control order[62].

59. If the issuing court decides to make the interim control order, it is only required to set out a summary of the grounds on which the order is made[63]. However, because the issuing court is not required to outline the actual grounds to relied upon, the issuing court may not be disclosing the real reason for the making of the order, thereby making judicial review more difficult.

60. When the issuing court is considering whether to confirm, avoid, revoke or vary an interim control order, the person the subject of the order has the opportunity to challenge the decisions of the executive government because there is the opportunity to adduce evidence and make submissions[64]. However, it is difficult for the lawyer to represent the person as adequately as possible if he or she cannot be fully aware of all of the grounds relied upon by the issuing court in granting the interim control order.

61. In the words of Mr Walker SC in his submission to the Senate Legal and Constitutional Legislation Committee[65]:

“Without any need for alarmist or inappropriate slurs against members of the AFP or lawyers advising them, it is easy to see that in practice the contexts of a critical document, viz the summary of the grounds to be served on the person against whom an order has been made, may well not accurately represent the real reason why the order was made.”

62. Hence, it is submitted that if the issuing court decides to make an interim control order, it must be required to outline in some detail, and not in a mere summary form, all of the grounds on which the order is made, and such grounds should be outlined in something akin to a Statement of Reasons as provided for in s.13 of the ADJR Act.

63. Information relating to the facts that are provided to the issuing authority should, as far as possible, be required to be adduced before the issuing court in the form of admissible evidence.

64. It is not unreasonable to suggest that such decisions by the executive should be open to more scrutiny.

Preventative Detention Orders

65. The object of preventative detention orders is to allow a person to be taken into custody and detained for 48 hours in order to (i) prevent an imminent terrorist attack occurring, or (ii) preserve evidence of, or relating to, a terrorist act[66].

66. The requirements for the granting of a preventative detention order are unnecessarily too broad and vague. For example, an application for an initial preventative detention order may be made so long as, inter alia, an AFP member has reasonably grounds to “suspect” that the subject of the order will engage in a terrorist act or possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act, or has done an act in preparation for, or planning, a terrorist act[67]. Such a test is lower than the test of “belief on reasonable grounds” required of police before the arrest of a person[68].

67. A consequence of the requirement that the AFP member need merely have reasonable grounds to “suspect” certain things is that the facts relied upon need not be correct or well founded.

68. Many of the generally accepted principles of natural justice and procedural fairness are not observed in the legislation relating to preventative detention orders.

69. There are restrictions on contact between a detainee and a detainee’s lawyer[69]. There is also provision for the monitoring and recording of communications between the lawyer[70]. Further, the lawyer commits an offence if, inter alia, the lawyer discloses to another person any information that the detainee gives the lawyer[71].

70. That an application for an initial preventative detention order may be made by any member of the AFP[72] and that such an order may be made by a senior member of the AFP[73] raises a clear apprehension of bias because both the power to apply for such order and the power to issue such order are vested in the same agency, namely the AFP.

71. Such apprehension of bias could be overcome by requiring that the initial preventative detention order must be made by a judicial officer, preferably a judge of the Federal Court or a Federal Magistrate. Because such judicial officers can be available at all hours of the day, such a requirement should not lengthen the time the process would take because such judicial officer is merely performing the role currently performed by the senior member of the AFP.

72. While it is acknowledged that an ex parte order may be justified in circumstances where there are real and genuine reasons for urgency, there is no reason why ex parte orders should be made except in such limited circumstances.

73. It is appropriate that the issuing of continued preventative detention orders can only be made by a judge of a State or Territory Supreme Court, a serving judge of the Federal Court, a serving Federal Magistrate, a person who is a retired judge of a superior court with five years service or the President and Deputy Presidents of the AAT. However, it is inappropriate for such continued preventative detention orders to be made merely on the untested information provided by the AFP. Such orders should be based on tested evidence only. The ideal situation would be that the testing of such evidence would be carried out by, or on behalf of, the person the subject of the order. However, if this is considered inappropriate, the evidence should at least be able to be tested by a person or body independent of the AFP such as a Public Interest Monitor (see below). In any event, the issuing authority should have the opportunity to hear and receive evidence, including cross-examination. Such evidence should also include evidence of the person the subject of the order if that person wishes to give such evidence.

74. The legislation currently requires that the effect of the preventative detention order must be explained to the subject of the order[74], and such person must be provided with a copy of the order and a summary of the grounds on which it is based[75]. However, there should be a requirement that full reasons be provided (subject to redactions or omissions on national security grounds) so that the subject of the order is able to ascertain the case that is said to be against him and is then able to determine whether to seek review of the decision.

75. Additionally, the lawyer is not entitled to be given a copy of, or see, a document other than the preventative detention order or the extension or further extension of such order[76].

76. The operation of the Administrative Decisions (Judicial Review) Act 1977 is specifically excluded[77].

77. While there is provision for the AAT to review a decision to issue an initial or continued preventative detention order and the extension of a preventative detention order after the order is no longer in force[78], the legislation is silent on the question of review while the order is in force. Hence, it would appear that a preventative detention order that is in force is unreviewable, whether on the merits or pursuant to the ADJR Act.

78. The person the subject of preventative detention orders is not provided with the factual material relied upon, nor detailed reasons for the decision, thereby minimising his opportunity to apply to the High Court in its original jurisdiction or to the Federal Court pursuant to s.39B of the Judiciary Act 1903 for a prerogative writ or injunctive relief. Because of the severe consequences that flow from the making of a preventative detention order, it is important that such orders be the subject of merits review, thereby providing the subject of the order with the opportunity to test the facts upon which the order is made. The National Security Information (Criminal and Civil Proceedings) Act 2004 would allow the Attorney-General in such proceedings to issue a certificate excluding security sensitive information, thereby overcoming the main reason for refusing such merits review.

Monitoring of the Legislation

79. The introduction of anti-terrorism legislation that abrogates some hitherto accepted fundamental rights has resulted in the need for the establishment of mechanisms and/or procedures that would minimise the impact of these terrorism laws on fundamental rights. It is submitted that the gravity of the issues dealt with in this legislation necessitates more scrutiny and oversight of the legislation than would normally be the case.

80. There are different bodies that could be established for this purpose. Such bodies could include the Independent Reviewer, the Public Interest Monitor, the Special Advocate and/or a variation on some or all of these bodies. The Independent Reviewer would periodically review the legislation under review. The Public Interest Monitor and/or the Special Advocate would ensure, inter alia, that the interests of a person who may be adversely affected by the legislation under review (normally the detainee/defendant/ respondent) are protected by an independent lawyer.

Independent Reviewer

81. There is a need for the establishment of a statutory monitor to periodically report to the parliament on (a) the efficacy of Australia’s anti-terrorism legislation in the “war on terror”, and (b) the effects of this legislation on human rights in Australia.

82. Such a position would be similar to the United Kingdom position of “Independent Reviewer”[79].

83. The Independent Reviewer reviews the working of the Terrorism Act[80] and the Prevention of Terrorism Act[81] and every 12 months it must provide the Secretary of State with a report[82] that dealt with:

(a) the implications for the operation of the Prevention of Terrorism Act of any proposal made by the Secretary of State for the amendment of the law relating to terrorism; and

(b) the extent (if any) to which the Secretary of State has made use of his power to make non-derogating control orders in urgent cases without the permission of the court (by virtue of s.3(1)(b)).

84. The Independent Reviewer, who is currently Lord Carlile of Berriew QC, is able to see closed material including some product of criminal intelligence obtained from technical and human sources of various kinds.[83]

85. The SLRC recommended[84] that if the Government was minded to establish a similar body in Australia, that person should be required to provide a report to the Attorney-General every twelve months, which the Attorney-General should be obliged to table in Parliament, and such report would deal with:

(a) the operation and effectiveness of Part 5.3 of the Criminal Code; and

(b) the implications for the operation and effectiveness of Part 5.3 of any Government proposals for the amendment of terrorism laws.

86. The need for such a body has been dealt with by Mr Petro Georgiou, Liberal MHR[85]:

“One of the criteria the Parliament should apply in assessing the new counterterrorism legislation is that we have the means to monitor its implementation so as to identify and promptly rectify any unintended adverse consequences…the idea of an independent statutory monitor reporting regularly to the Parliament has much to commend it.”

Public Interest Monitor/Special Advocate

87. There is a need for the establishment of an office similar the “Public Interest Monitor” (which has been established in Queensland) or that of the “Special Advocate” (which has been established in the United Kingdom). On balance, I believe the Public Interest Monitor model is preferable to that of the Special Advocate.

88. The Public Interest Monitor, which currently exists only in Queensland, is provided for in both the Crime and Misconduct Act 2001 and in the Police Powers and Responsibilities Act 2000.

89. In summary, the role of the Public Interest Monitor is to balance two competing expectations, namely (1) the community expectation that modern investigative agencies will have appropriate powers and technology available to them in combating contemporary crime, and (2) the erosion of fundamental rights of the individual that the granting of such powers necessarily involved will be minimised to the greatest possible extent. Its functions are:

(i) to monitor compliance with the relevant legislation;

(ii) to appear at hearings and ask questions, cross-examine witnesses and make submissions;

(iii) to gather statistical information;

(iv) to provide reports on non-compliance with the legislation.

90. The Public Interest Monitor’s functions are outlined as follows[86]:

“The public interest monitor has the following functions for surveillance warrants and covert search warrants-

(a) to monitor compliance by the commission with this Act to in relation to matters concerning applications for surveillance warrants and covert search warrants;

(b) to appear at any hearing of an application to a Supreme Court judge or a magistrate for a surveillance warrant or covert search warrant, or under section 131, to test the validity of the application, and for that purpose at the hearing-

(i) to ask questions of the applicant and to examine or cross-examine any witness; and

(ii) to make submissions on the appropriateness of granting the application; and

(c) to gather statistical information about the use and effectiveness of surveillance warrants and covert search warrants; and

(d) whenever the public interest monitor considers it appropriate – to give to the commission a report on non-compliance by the commission with this Act.”

(2) Subject to the direction of the public interest monitor, a deputy public interest monitor has the functions mentioned in subsection (1)(a), (b) and (c).”

91. The Public Interest Monitor is also required to produce an annual report[87].

92. The Special Advocate is a specially appointed lawyer, typically a barrister, who is instructed to represent a person’s interests in relation to material that is kept secret from that person and his ordinary lawyers but is analysed by a court or similar body at an adversarial hearing held in private. The Special Advocate has the advantage of being able to go behind the curtain of secrecy.

93. The Special Advocate is independent of both the investigator/prosecution/applicant and the detainee/defence/respondent and, inter alia, acts as the contradictor to any claim of public interest immunity and presumably any statutory claim for discovery of evidence of any description before the court.

94. While the Special Advocates are cleared to see secret or “closed” documents from the intelligence services, they are not allowed to speak to the detainee/defendant/respondent of his lawyers once he has seen this information.

Further Review of the Legislation

95. As recommended by the SLRC[88], there should be a legislative-based timetable for continuing review of the security legislation by an independent body, such as the SLRC, to take place within the next three years.

96. If an Independent Reviewer (as discussed above) is appointed, the review to be commissioned by the Council of Australian Government (COAG) in late 2010 could include a review of the whole of Part 5.3 of the Criminal Code[89].

CONCLUSION

97. The following six principles are of particular relevance to the application of the rule of law to the terrorism problem[90]:

(a) legislation should, as far as possible, approximate the ordinary criminal law and procedure;

(b) any additional statutory powers and offences would be justified only if they are necessary to meet the anticipated threat;

(d) legislation should comply with Australia’s international law obligations;

(e) legislation should strike the right of balance between the needs of security and the rights and liberties of the individual;

(f) in balancing the need of security and the rights and liberties of the individual, the possibility of other means of combating the perceived security threat should always be considered.

98. Many aspects of Australia’s current anti-terrorism legislation do not adhere to these principles and constitute unfettered power in the executive arm of government.

99. The dangers of unfettered executive power was dealt with by Dixon J in the following terms[91]:

“History and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power. Forms of government may need protection from dangers likely to arise from within the institutions to be protected.”

100. The importance of the rule of law was highlighted by the U.S. Supreme Court in its June 2004 decisions in Hamdi v Rumsfeld[92] and Rumsfeld v Padilla[93] in which it granted all persons held by the US military the right to judicial review. In Padilla, Justice Stevens said[94]:

“At stake in this case is nothing less than the essence of a free society…Unconstrained Executive detention for the purpose of investigating and preventing subversive activities is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process…For if a Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyranny even to resist an assault by the force of tyranny.”

101. The Inquiry into the Circumstances of the Vivian Alvarez Matter and the Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau are both recent examples of how Australian public officials can exercise considerable power over other persons present in Australia, with little or no consciousness of what affect their actions were having on those person’s civil rights.

102. Australia has for so long been well served by a system of checks and balances and by a division of powers. These principles cannot be allowed to become a victim of the “war on terror”.

103. We must remain ever vigilant to this risk if for no other reason than the fact that terrorists are successful if they force us to abandon legal prerequisites and core values of our democracy, such as due process.

[9] Commonwealth Parliamentary Debate, House of Representatives, 7 September 1939, 164

[10] Liversidge v Anderson [1942] AC 206 at 244 (although he was dissenting)

[11] Adelaide Company of Johovah’s Witnesses Inc v The Commonwealth (1943) 67 CLR 116 at 124

[12] Bit Sourik Village Council v Government of Israel (unreported) (HCJ 2056/04) 2 May 2004 cited by Krby J in the Robert Schuman Lecture at ANU on 11 November 2004

[14] in Alister v The Queen (1984) 154 CLR 404 at 456

[24] see the list at Annexure E of the SLRC Report

[25] pursuant to s.102.1(3)(c) of the Criminal Code

[29] The Politics of Proscription, Research Note No. 63, Parliamentary Library, 21 June 2004

[30] Senate Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 (No. 2) and Related Bills, Chapter 3.155

[31] as recommended by the SLRC at Chapter 9 of the SLRC Report

[33] Aronson, M Dyer, B and Groves, M “Judicial Review of Administrative Action” 2^nd Ed. LBC Information Services 2004 Sydney at p.382

[36] Review of the listing of four terrorist organisations, May 2005 (the full text of which is available at: http://www.aph.gov.au/house/committee/pjcaad/terrorist_listings/report.htm) and SLRC Report at paragraph 8.21

[42] SLRC Report at Chapter 8, at paragraphs 9.33-9.34

[46] on the “AM” program on 16 June 2004 (see http://www.abc.net.au/am/co)

[53] s.3 of the National Security Information (Criminal and Civil Proceedings) Act 2004

[54] ss.35, 35AA, 36A and 36D of the Administrative Appeals Tribunal Act 1975

[55] s.39A of the Administrative Appeals Tribunal Act 1975

[56] s.39B of the Administrative Appeals Tribunal Act 1975

[58] which are outlined in s.104.5(3) of the Criminal Code

[65] Submission 194 to the Senate Legal and Constitutional Legislation Committee at page 3

[73] ss.100.1(1)(a), 105.8 and 105.10 of the Criminal Code

[77] s.105.51 of the Criminal Code and s.3(dac) of Schedule 1 of the ADJR Act

[79] which was established pursuant to the Terrorism Act 2000 and the Prevention of Terrorism Act 2005

[82] which the Secretary of State must lay before Parliament: s.126 of the Terrorism Act; s.14(b) of the Prevention of Terrorism Act

[83] Lord Carlile of Berriew QC Proposals by Her Majesty’s Government for Changes to the Laws Against Terrorism 6 October 2005 at [11]

[85] Petro Georgiou, “Multiculturalism and the war on terror”, lecture presented for the Castan Centre for Human Rights Law, Monash Law Chambers, October 18, 2005

[86] s.326(1) of the Crime and Misconduct Act, and the Police Powers and Responsibilities Act has a similar provision at s.159(1)

[90] items 1-5 are principles identified by Lord Lloyd of Berwick in his report of October 1996 to the United Kingdom Parliament on legislation to address terrorism

[91] in The Communist Party v The Commonwealth (1951) 83 CLR 1 at 187