On 8 September, the Prime Minister John Howard announced a 12-point proposal to expand the anti-terror laws in Australia.
A group of community lawyers, policy workers, advocates and legal academics expert in the field of Australia's anti-terrorism laws prepared a comprehensive Report about these proposals. This document, Laws for Insecurity? A Report on the Federal Government’s Proposed Counter-Terrorism Measures, outlines in detail various concerns regarding the Commonwealth government’s proposals.
report was prepared by a coalition of organisations concerning the
Howard government's 12-point proposal released on 8 September 2005 to
expand substantially the scope of anti-terror laws in Australia. These
proposals included new provisions on control orders; preventative
detention; access to passenger information; extended stop, question and
search powers; new offences for leaving baggage unattended within the
airport precinct and inciting violence against the community;
strengthening existing offences for financing of terrorism; and
extending the prescription regime to cover organisations that
comprehensive report was a collaborative effort between AMCRAN, the
Public Interest Advocacy Centre, the National Association of Community
Legal Centres, the Combined Community Legal Centres Group (NSW) Inc.,
the Federation of Community Legal Centres (Vic) Inc., the Civil Rights
Network, Liberty Victoria, as well as academic experts from Monash
University (Dr Patrick Emerton) and the University of Melbourne (Dr
Joo-Cheong Tham). The release of the report received media coverage.
The report evaluated the proposals against the following criteria:
- Adequacy of detail;
- Conformity with key principles of a liberal democracy;
- Necessity in efforts to prevent ideologically or religiously motivated violence; and
- Adequacy of public discussion of the proposals.
report criticised the lack of detail, lack of justification,
constitutional issues, as well as departure from key principles of a
liberal democracy, including the presumption of innocence, with
implications for freedoms of political and religious association and
belief, and that the proposals would be used in a discriminatory
fashion to disproportionally affect Muslim sections of the community.
Each of the proposals was also examined:
- Control Orders: There was no
evidence that these far-reaching powers, while representing a
significant departure from fundamental rights and freedoms, have been
successful in preventing terrorism in the UK.
- Preventative Detention: The
government had not provided clarification as to what was sought to be
prevented by these powers given that the AFP already possessed powers
to arrest persons suspected on reasonable grounds for committing or
having committed an offence in order to prevent the commission of
crimes and other existing ASIO and AFP powers.
- ‘Notice to produce': There was a
lack of information about what this proposal would entail, and the
report warned against giving, as a matter of right, the AFP powers that
it would otherwise only exercise subject to judicial oversight.
- Access to passenger information:
concerns were raised about increased access to passenger information by
intelligence and law enforcement agencies that could amount to ethnic,
religious or racial profiling, further marginalising certain groups in
Australian society such as Muslims and Arab Australians.
- Stop, question and search powers:
the report pointed out that the AFP and protective service officers
already enjoyed broad search and questioning powers without warrant and
that it was unclear why these existing police powers were insufficient
for the investigation of terrorism offences.
- Police powers at transport hubs, random baggage searches, CCTV:
random baggage searches were criticised as an unjustifiable shift in
public policy, particularly given that State police current had broad
discretionary coercive and covert powers which already applied to mass
gatherings and transport hubs.
- Changes to ASIO warrant regime:
the proposals to extend the period of search and mail warrants were
criticised in the report, particularly due to the already expansive
search powers under the ASIO Act. It raised serious concerns about the
proposal to allow ASIO to confiscate property.
- Changes to and introduction of various criminal offences:
the proposal to create a new offence for leaving baggage unattended
within the airport precinct was criticised as being outside the norms
of criminal law; while the amendment of existing sedition offences to
include incitement of violence against the community was not considered
necessary as existing laws, such as those targeting racial and/or
religious vilification, were in place to deal with such issues.
- Changes to existing offences for
financing terrorism, providing false or misleading information under an
ASIO questioning warrant and for threatening aviation security: the
proposal did not include sufficient information, but the report stated
that any ‘strengthening' of the offences should be viewed with
- Changes to powers to ban ‘terrorist organisations' for ‘advocating terrorism': the report pointed to existing serious concerns about the proscription regime and warned against any further expansion.
- Changes to citizenship laws: the report raised concerns about changes to citizenship being framed as measures to counter terrorist threats.
- Changes to the financing of terrorism regime:
while there was insufficient detail to properly assess the proposal,
the report warned that any proposal to change the financing of
terrorism regime under the Charter of United Nations Act should be
viewed with caution.
The report goes on to analyse existing state powers so
that the impact of the Federal Government's proposal could be fully
understood. The report concludes that the proposals should be
Campaign leading up to COAG meeting on 27 September 2005
The authors of
the report sent a copy to each of the State and Territory Premiers and
Chief Ministers as well as Attorneys-General who would gather at the
Council of Australian Governments (COAG) meeting on 27 September 2005
to discuss the Federal Government's proposals. AMCRAN also sent out an Action Alerts to educate the community about the proposals to encourage
the community to raise their concerns. A sample community pro forma
letter was provided.
The COAG meeting resulted in a COAG agreement on counter-terrorism
measures. However, the ACT Chief Minister Jon Stanhope posted a
confidential draft of the Anti-Terrorism Bill (2005) on his website
which appeared to differ significantly from the agreement.
The authors of the Laws for Insecurity
report wrote to each of the Ministers who participated in the COAG
meeting to raise their concerns about these serious discrepancies. The
letter states that the draft Bill clearly did not implement the COAG
agreement in three ways:
- the 10-year sunset clause provisions do not apply to all of the new measures;
- there is no provision for a review of the new measures five years after their enactment; and
- the normal avenues of judicial review are not
available to key parts of the legislation, in particular, the
provisions dealing with control orders and preventative detention
The letter also calls for proper public debate that would involve:
- adequate time for public disclosure of, scrutiny of and debate of these measures;
- a review by parliamentary committees at both federal and state
levels of the draft legislation that provides adequate time for
effective public input through submissions and public hearings.
A copy of the letter can be viewed
here. It was endorsed by:
- Australian Lawyers for Human Rights
- Australian Muslim Civil Liberties Advocacy Network
- Combined Community Legal Centre Group (NSW)
- Civil Rights Network
- Federation of Community Legal Centres (Victoria)
- Liberty Victoria
- National Association of Community Legal Centres
- New South Wales Council for Civil Liberties
- Public Interest Advocacy Centre
The Anti-Terrorism Bill (2005)
The Anti-Terrorism Bill (2005) was subsequently amended. For specific information about the bill, see our report here.
The Bill were ultimately enacted as Anti-Terrorism Act (No. 2) 2005. The text of this Act is available here.