Reporting on the final anti-terrorism bill

The Howard Anti-Terrorism Bill (No. 2) 2005 (no. 1 being the one rushed through both Houses yesterday with bipartisan support) is a considerable improvement on the original draft leaked by ACT Chief Minister John Stanhope. But it still has major problems in my view.

Sedition provisions

I still have doubts about the constitutionality of the sedition provisions, for the reason explained in my previous post. I saw a newspaper item which suggested the final bill had been amended to make it clear that a person’s words urging violence would not amount to sedition unless there is a real probability that they will actually provoke violence. However I can’t find any such amendment in the final bill on initial perusal. I have no problem with making it a serious criminal offence to urge others to go and fight with Al Qaeda or Jemaah Islamiah, or strap explosives to themselves and blow themselves and others up in a public place. On the other hand, a person who merely says “someone ought to shoot that bastard John Howard, because he’s turning the country into a police state” should not be guilty of sedition or any other criminal offence. It’s a fairly ordinary if intemperate political statement, and no-one is likely to take up the suggestion anyway, even if it was seriously meant. Although the “good faith” defences in proposed section 80.3 go some way towards allaying my concern, I still don’t think the bill is sufficiently “appropriate and adapted” to the purpose of controlling speech likely to incite terrorism while minimising any interference with ordinary (if robust and intemperate) political speech that doesn’t pose any genuine risk to civil order.

Control orders

The control order provisions of the bill are much improved from the original draft. Personally I’m now satisfied that they strike an appropriate balance between national security and protection of the rights of an accused person. The subject of a control order now has a full right of legal representation, hearing before a federal court and judicial review. Presumably the ordinary operation of the common law rules of natural justice before a federal judicial body will ensure that the hearing and review rights are real ones involving an entitlement to be informed of all adverse evidence and have a proper opportunity to rebut it.

My only remaining concern about the control order provisions is a technical constitutional one. I still have serious doubts as to whether the power to issue control orders is a judicial power. If it isn’t, then it can’t constitutionally be conferred on a federal court (as the bill purports to do), because that would breach the separation of powers doctrine. Case law on the nature of judicial power for separation of powers purposes is horrendously complicated, and riddled with qualifications and exceptions, so it’s almost certainly impossible for anyone to give a definitive opinion. However the basic general definition of judicial power suggests that there may be constitutional problems. Judicial power is the power to adjudicate (i.e. to pronounce a final, binding and authoritative decision) on existing rights to life, liberty and property. Usually judicial power doesn’t centrally involve the creation of future rights, duties or liabilities; that is usually a hallmark of executive power. In the area of criminal law, judicial power generally involves adjudication of guilt or innocence on the basis of weighing evidence of conduct that has already occurred, rather than a crystal ball-gazing assessment of future risk of criminal behaviour.

Of course, that sort of risk assessment does take place as part of the exercise of determining a bail application and setting bail conditions. But the bail function is closely associated with and clearly incidental to the normal criminal process i.e. the accused person will ultimately face a court where their guilt or innocence will be judicially determined, and the bail process is simply a way of ensuring that they appear for trial without interfering with their personal liberty to any greater extent than necessary. The control order process, on the other hand, will take place entirely divorced from any normal judicial determination of guilt or innocence. A federal court is required to make an assessment of future risk of terrorism, and to authorise serious restrictions on a person’s liberty, in a process where that person is not necessarily alleged to have committed any breach of the law at all. Whether that would be regarded by the High Court as an exercise of judicial power is very doubtful in my view.

Nevertheless, I’m sanguine about these provisions of the bill being enacted and tested in front of the High Court in due course. In a substantive sense the rights of an accused person appear to be reasonably well protected by the control order provisions as they now stand.

Preventative detention orders

The preventative detention order provisions are another kettle of fish entirely. They still don’t contain any meaningful safeguards. Richard Ackland’s characterisation remains a fair one on this aspect of the bill:

The design of the legislation is to conscript the federal judiciary into sprinkling holy water over assessments made by ASIO and the Federal Police. If one of Papa Doc Howard’s tonton macoutes points the bone at you, basically you’re a goner.

As with the initial draft bill, all that the AFP officer must provide to a judge or magistrate as the basis for issuing a preventative detention order is a statement “set[ing] out the facts and other grounds on which the AFP member considers that the order should be made“. As I explained in my previous post:

[O]ne would think that the minimum requirement for fairness and accountability would be that the AFP or ASIO be required to disclose the actual evidence or other material on which they have based their statement of facts, grounds and explanatory reasons. Otherwise how is the issuing federal judge or magistrate to make any meaningful assessment of whether there is in fact a reasonable basis for suspicion sufficient to impose quite drastic and long-lasting restrictions on a citizen’s liberty? Without such a requirement, an ASIO officer could simply submit to a judge an application baldly stating (say) that the suspect had received terrorist training with Al Qaeda in Afghanistan in 2001, and the issuing judge would have no way of assessing the strength or reliability of that assertion. On what material was it based? Could ASIO have mistaken the suspect for another person with a similar name? Was the suspect just paying an innocent visit to Uncle Omar in Kabul?

If the issuing judge isn’t required to be shown the evidence and the suspect isn’t required even to be told that the proceedings are taking place let alone allowed to know the evidence against him or her (as is the case), then it really is a case of the judiciary being used to “sprinkle holy water” over an assessment made in secret by the spooks.

While the final draft contains more extensive rights to judicial review, they remain largely meaningless window-dressing. There are slightly improved rights to legal representation and notification of family, as well as a few other procedural protections. But the entitlement of the accused person to know what has been alleged against him remains rudimentary at best. All that the AFP is required to tell a person against whom a preventative detention order has been made is a “summary of the grounds on which the order is made” i.e. there is no requirement to disclose even the full grounds let alone any of the evidence for the allegations made. And even that minimal obligation may not exist in a given case (see section 105.32):

(2) To avoid doubt, paragraph (1)(b) does not require information to be included in the summary if the disclosure of the information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).

How can a person meaningfully defend themselves if neither they nor their lawyer are permitted to know any more than the bare bones of what is alleged against them?

Moreover, a court engaging in judicial review will have precisely the same disadvantages. See sections 105.51 and 105.52. Section 105.51 precludes judicial review by a federal court under the Administrative Decisions (Judicial Review Act 1977 (Cth), but doesn’t appear to attempt to restrict prerogative review either by the Federal Court or High Court (restricting the latter wouldn’t be constitutionally permissible anyway). Section 105.52 allows judicial review by a state or territory court, but restricts the court on judicial review to access to the same minimal supporting information that applied to the original “issuing authority” (see section 105.52(3):

[T]he court may order the Commissioner of the Australian Federal Police to give the court, and the parties to the proceedings, the information that was put before the person who issued the Commonwealth order when the application for the Commonwealth order was made.

And, as with the information required to be given to the subject and his/her lawyer, even that minimal requirement might not apply in a given case:

Subsection (3) does not require information to be given to the court, or the parties to the proceedings, if the disclosure of the information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).

This is an empty charade of judicial review. As such, it might well offend constitutional restrictions flowing from the separation of powers doctrine, although, as Patrick Keyzer pointed out in yesterday’s SMH, the so-called Kable doctrine has been quite narrowly interpreted by the High Court in recent times. Nevertheless, I think Patrick overstates the case. In my view a challenge to this aspect of the bill based on the Kable doctrine would have some prospect of success.

It appears that the broad policy of the preventative detention provisions of the final bill is to allow only minimal, almost meaningless judicial oversight of the issue and continuance of these orders. The Administrative Appeals Tribunal is to be allowed to conduct full merits review of preventative detention orders, and to award compensation to persons wronly subjected to them, but only after a given order has ceased to have legal effect!!! Suspects are to be permitted to be imprisoned for up to 14 days with no effective judicial oversight, solely on the unsupported factual assertions of an ASIO or AFP officer. I can understand the need for emergency powers where a terrorist attack is believed to be imminent, and also understand that much of the evidence against a suspect might initially be impressionistic and uncertain, to an extent where it would be unlikely to satisfy a court on any normal onus of proof. But whether that can reasonably justify a power to detain for as long as 14 days (as will be the case once the complementary state and territory laws are enacted), without any meaningful right to challenge the detention until after the event, is questionable to say the least.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Nicholas Gruen
2022 years ago

Thx for that Ken.

David Tiley
2022 years ago

“seditious intention means an intention to effect any of the
following purposes:
(a) to bring the Sovereign into hatred or contempt;”

Is still there. Is that not ridiculous, or does it have some meaning other than the obvious?

Ken Parish
Ken Parish
2022 years ago

David

As I explained in the previous post about the sedition offence, the point you list (about the Sovereign) is just one of several “intentions” labelled as seditious. But in order for it to amount to the OFFENCE of sedition, you must have not only the intention but you must also convert it into reality by actively urging people to commit serious violence against the Sovereign (or the Parliament etc). You must not only suggest that Charlie or Wills or Liz are dickheads, but actually urge people to kill them.

My problem is that even that degree of specificity of elements of the offence isn’t enough (in my view) to justify creating such an offence (either as a matter of constitutional law or moral principle). There needs also to be a requirement to prove that there is a real probability that people will take the urgings seriously and set out to murder Charlie or Wills or Liz as a result. The good faith defence provisions get part of the way there, but they’re not clear or strong enough IMO.

BTW I assume you wouldn’t argue that seriously urging people to commit grossly violent acts in a way that creates a real probability that some of the audience will in fact do so is perfectly OK, and something we should be quite sanguine about. If you think that, then we have no common ground. If OTOH you’re simply arguing that the existing provisions are ill-cconsidered and dangerous, then I agree with you.

John Quiggin
John Quiggin
2022 years ago

Ken, we looked at this over at Andrew Leigh’s blog, and it seemed to me that the sedition provisions were imported into Section 30A, prohibiting seditious associations, with no reference at all to violence. That is, an association that aimed to bring the Sovereign into contempt would be illegal regardless of whether there was any violent intention.

Previously, 30A referred back to 24A which did include the stuff about violence.

Feel free to set me straight on this, as I’m no expert on legal drafting.

What is really problematic, though, is that a definition of sedition designed at suppressing antiwar dissent in 1914 has been revived. What is the point of this? It’s not as though the kind of people we are presumably worrying about spend a lot of time attacking the sovereign, or the Australian constitution.

Without a big stretch, it would be very hard to apply these provisions to someone who, for example, urged their listeners to volunteer for a holy war to re-establish a Caliphate throughout the historically Islamic lands.

Homer Paxton
Homer Paxton
2022 years ago

Thanks Ken,
It looks to my lay eyes this MIGHT help the police after the fact but there is nothing there that assists the forces before an ‘event’ happens.

you can arrest and convist people now if they are attempting to kill people. how does this legislation facilitate arrest in this area?

Ken Parish
Ken Parish
2022 years ago

John

The “seditious intention” definition is to be inserted into the Crimes Act 1914, and adds to the definition of unlawful association. You’re correct that an association can be an unlawful association without actually advocating the use of force or violence to overthrow the Soverign, Parliament etc. As such it’s certainly a worry and arguably unconstitutional.

However, my main focus in this post and the previous one has been the quite separate provisions actually creating the crime of sedition. Well, in fact they remove and then recreate it, because these amendments delete the existing sedition-related offences from the Crimes Act 1914 (24A-24E), and insert brand new sedition offences in the Criminal Code Act 1995. These new offences ARE all conditioned by a requirement for “force or violence” before the crime of sedition is committed (as I observed), but not by a requirement that this urging must actually involve any level of probability that a brecah of the peace will actually result from the words.

Thus, the net effect of the Anti-Terrorism Bill (No 2) 2005 is to create crimes of sedition where the urging of force or violence is an essential element, but also to deem associations to be unlawful which advocate the overthrow of the Sovereign, Parliament etc irrespective of whether this advocacy involves urging force or violence. As such the provisions are lacking in coherence/consistency, as well as being arguably unconstitutional.

Ken Parish
Ken Parish
2022 years ago

Homer

The purpose of the preventative detention provisions (and in a different way the control order provisions as well) is to permit a person to be imprisoned for up to 14 days (preventative detention orders) and then be subjected to further restrictions on liberty (short of imprisonment) for up to 12 months (control orders), even though the person has NOT committed any offence at all. The basis for the order is a statement that there are grounds to suspect that the person MIGHT commit (or be somehow involved in) a terrorist offence at some time in the future. That is, as the labels suggest, the provisions are designed to prevent the commission of terrorist crimes by imprisoning and otherwise restricting the liberty of people whom ASIO and AFP suspect of plotting future terrorist acts. Thus these provisions are quite different from the existing laws you’re talking about, which involve arresting and charging people for crimes they have ALREADY committed (or are currently committing).

Homer Paxton
Homer Paxton
2022 years ago

Ken,
i know for a distinct fact that in NSW you can arrest and most likely gaol any person who is attempting to kill anyone IF you have the evidence.
I have yet to find any argument that this legislation makes it easier to get that evidence.

From what you are saying these laws merely help the agencies who think there maybe something happening.

given NY, Madrid & London I aint that confident.

David Tiley
2022 years ago

Ken – the latter. I am a pragmatist, not a libertarian. Not a lawyer, either, so this interlacing legislation makes my head hurt.