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.
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.
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.