AMCRAN

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.

This 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 ‘advocate' terrorism.

This 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;
• Constitutionality;
• Necessity in efforts to prevent ideologically or religiously motivated violence; and
• Adequacy of public discussion of the proposals.

The 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 apprehension.

• 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 immediately withdrawn.

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.

Post-COAG meeting 

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 orders.

• 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.