Anti-terrorism laws - links update #9 | Webdiary - Founded and Inspired by Margo Kingston

MR4905
2 November 2005

Legal Profession Opposes Anti-Terror Bill

Representing a united legal profession, the Law Council has today publicly detailed its concerns over specific aspects of the Federal Government's draft Anti-Terrorism Bill.

Criticising the legislation for its scant regard for civil liberties, the Law Council's primary concerns relate to control orders, preventative detention orders, use of force, sedition and legal representation.

Speaking on behalf of Australia's legal profession, Law Council President John North said, "The Federal Government's proposal to allow citizens as young as 16 to be detained for up to two weeks is simply wrong. Bad laws like this undermine Australians' civil liberties and personal freedoms."

"The Law Council is adamant that people who are not guilty of a criminal offence should not be imprisoned or controlled by the State - preventative detention and control orders should not be introduced into Australian law," Mr North said.

"Another worrying aspect of the draft Bill is that people can be convicted of sedition for 'urging' others to commit violence against the community or to assist the enemy. This could seriously jeopardise free speech, and it presents difficulties for media commentators, broadcasters, publishers and protesters," he said.

The Law Council is also deeply concerned about proposals to monitor communications between a detained person and their lawyer.

"Communication between a person and their legal adviser in these circumstances should be completely privileged and police monitoring should not be allowed," Mr North said.

"It's simply another example of the Federal Government's over-reaction to the issue of terrorism and its desire to rush through, without proper public consultation, laws that will not necessarily make Australia a safer place," Mr North concluded.

_{The Law Council of Australia exists to
represent the legal profession at the national level, to speak on
behalf of its constituent bodies on national issues, and to
promote the administration of justice, access to justice and
general improvement of the law.}

The Law Council's summary of concerns is republished below.

Law Council of Australia

Summary Comment ^[1] on Draft Bill ^[2]

Proposal

LCA Response

Control Orders

Control orders can impose obligations, prohibitions and restrictions on persons in relation to their movements and associations. Persons might be confined to their homes or to specified localities, manacled with a tracking device, restricted in their use of technology, photographed and fingerprinted, not allowed to leave Australia, required to report to specific persons and forbidden to associate or communicate with specified individuals. A control order may exist for a period of 12 months and successive control orders may be made.

Control orders should not be introduced into Australian law.

Persons not charged with or found guilty of a criminal offence should not be subjected by the State to such restrictions on their freedom.

The power to make control orders is to be given to Federal Courts and is likely to be non-judicial. Absent from the Draft Bill are proper safeguards including fair procedure, the opportunity for the person the subject of the order to challenge its application, and disclosure of the basis upon which orders are sought and made.

Federal Courts should not be asked to discharge such functions because they are not incidental to the exercise of judicial power and undermine the integrity of the judiciary and the proper administration of justice.

Judicial review of the Attorney General's consent to an application for a control order should be permitted in accordance with the Administrative Decisions (Judicial Review) Act 1977.

Control orders are contrary to international human rights treaties (International Covenant on Civil and Political Rights 1966) ratified by Australia .

Preventative Detention Orders

Preventative detention orders will allow persons to be detained for up to 14 days. Except in limited circumstances detained persons may not contact another person. Contact by a detainee with a lawyer is limited and may only take place if the content and meaning of communication between them can be monitored by the AFP.

Preventative detention orders should not be introduced into Australian law.

Persons not charged with or found guilty of a criminal offence should not be imprisoned by the State.

Absent from the Draft Bill are proper safeguards including fair procedure, the opportunity for the person the subject of the order to challenge its application, and disclosure of the basis upon which orders are sought and made.

The power to make detention orders is given to federal judicial officers in their personal capacity. To require them to make detention orders is to require them to complete tasks incompatible with their office.

Judicial review of decisions to make detention orders should be permitted in accordance with the Administrative Decisions (Judicial Review) Act 1977.

Preventative detention orders are contrary to international human rights treaties (International Covenant on Civil and Political Rights 1966) ratified by Australia.

Use of Force

The new powers authorise the use of force to take persons into preventative detention and extend to:

the power to cause the death of the person to be detained where the police believe that causing death is necessary to protect life or prevent serious injury; or
where the person attempts to escape being taken into custody and the police believe that causing death is necessary to protect life or prevent serious injury and the person has, if practicable, been called on to surrender and that the person cannot be apprehended in any other manner.

Reasonable powers to effect apprehension are warranted but a new power expressly authorising police to cause the death of a detainee who is not being arrested because he or she is believed to have committed a criminal offence is unacceptable.

Where no future terrorist act is imminent the power to cause death should not be available in relation to detention orders that are made with the sole objective of protecting evidence of a terrorist act that has already occurred.

Sedition

The offence of sedition is inappropriately expanded to catch the behaviour of 'urging' and the element of recklessness. The current law of sedition applies to actions which cause violence and requires proof that the accused acted with intent and knowledge.

Persons can be convicted of sedition for 'urging' others to commit violence against the community or to assist the enemy. This raises serious issues and difficulties for media commentators, broadcasters, publishers and protesters.

The proposed offences will extend culpability to reckless behaviour which need not have caused a result provided that it contributed to the result.

The new offences erode free speech and may be unconstitutional due to their breadth.

Financing Terrorism

A person will commit the offence of financing a terrorist by making funds available to another, directly or indirectly, or by collecting funds. The person need not have known or intended to finance a terrorist. In this regard, it is sufficient for the person to have acted recklessly.

The broadening of existing offences to include the element of 'recklessness' threatens to catch innocent, well-meaning people and to stifle community generosity.

Such provisions have the potential to exacerbate community and racial tensions.

Casting the scope of these offences so wide is likely to create uncertainty and produce unjust consequences.

In the case of reckless financing of a terrorist act, the penalty of life imprisonment is unreasonable and not proportionate to an offence unknowingly committed by a person.

Representation by a Lawyer

Persons the subject of a control or detention order have limited rights of contact with a lawyer (and family). Lawyer-client communications will only be permitted in circumstances where they can be monitored by police.

Face-to-face contact with a lawyer appears to be denied - contact by fax, email and telephone is all that is permitted.

Unless effective monitoring can be undertaken by a police officer, contact with a lawyer (or family member) will not be allowed at all.

Lawyers (and their clients) have no right to information which is said to justify orders.

Communication between a person and his or her legal adviser in these circumstances should be completely privileged.

It is extraordinary that a person not charged with any criminal offence should not be entitled to at least the same level of privileged communications with his or her lawyer as is provided for persons charged with criminal offences.

Police monitoring of communications between lawyers and their clients in these situations should not be allowed.

Lawyers should be entitled to know the facts and other grounds which form the basis of an order.

Reporting and Review

The Attorney General must prepare an annual report on the operation of laws relating to detention and control orders and table it in Parliament.

The operation of the Anti-Terrorism Bill 2005 should be subjected to periodic statutory reviews similar to the review provided under the Security Legislation Amendment (Terrorism) Act 2002.

Information in the annual report should specify the number of young persons aged 16-18 years, foreign nationals and orders not granted or varied by a court.

1. Not all matters of concern to the Law Council have been included in this summary.

2. Draft Bill as released by ACT Government in October.

A .doc version of this summary document is available from here (138.0K) or .pdf version is available at http://www.lawcouncil.asn.au/shared/2418309974.pdf (48k).

Premiers' anti-terrorism agreement a step forward: Rudd
Lateline: 01/11/2005 T
TONY JONES: There's one interesting thing about this phone hook-up and that is that Premier Peter Beattie wasn't apparently part of it and he was the one who thought the bill was unconstitutional. Does it concern you at all that four premiers may strike a deal, leaving out one with serious concerns like that?

KEVIN RUDD: Maybe it's a problem with daylight savings and no daylight savings in Queensland at the time of the hook-up. I don't know, Tony. This is a very late-breaking story. I don't know why Peter wasn't on the hook-up.http://www.abc.net.au/lateline/content/2005/s1495612.htm

One word amendment widens terror laws
The Age, November 2, 2005 - 2:01PM
Prime Minister John Howard's proposed amendment to anti-terrorism laws will change one word - replacing "the" with "a" - to make it easier to prosecute people allegedly planning terrorist attacks.
It clarifies that, in a prosecution for a terrorist offence, it is not necessary to identify a particular terrorist act. - http://www.theage.com.au/news/national/one-word-amendment-widens-terror-laws/2005/11/02/1130823256326.html

PM 'excluding' ACT from anti-terrorism bill talks
ABC Online, November 2, 2005
ACT Chief Minister Jon Stanhope says Prime Minister John Howard has once again excluded him from further negotiations around the draft anti-terrorism legislation.
The premiers of New South Wales, Victoria and Queensland have given their in principle support to the new laws. - http://www.abc.net.au/news/newsitems/200511/s1496069.htm

Bracks joins anti-terrorism bill backers
ABC Online, November 2, 2005
Victorian Premier Steve Bracks will tell Prime Minister John Howard that he will sign up to national counter-terrorism laws today.
New South Wales Premier Morris Iemma now says he is ready to back the new laws and Queensland Premier Peter Beattie believes he could also do a deal. - http://www.abc.net.au/news/newsitems/200511/s1495774.htm

Anti-terrorism laws threaten ASIO bungle reporting, lawyer says
ABC Online, November 2, 2005
A Sydney lawyer whose clients have just received compensation from the Federal Government over a bungled counter-terrorism raid, says journalists may not be able to report on similar cases that happen in the future. - http://www.abc.net.au/news/newsitems/200511/s1495712.htm

Stanhope calls for PM to release legal advice
ABC Online, November 2, 2005
ACT Chief Minister Jon Stanhope has called on Prime Minister John Howard to release his legal advice on the draft counter-terrorism bill, if he maintains the laws do not breach international human rights obligations. - http://www.abc.net.au/news/newsitems/200511/s1495670.htm

This level of hysteria suggests anti-terror laws are sound
The Australian, November 02, 2005, JANET ALBRECHTSEN AUSTRALIA has a new measure of sound public policy. Called the Fairfax Index, it works like this. The more hysterical the hyperbole on a particular topic on the Fairfax opinion pages and the greater the number of progressive pen pals spilling their outrage on the Fairfax letters pages, the more likely it is that the target of their anguish is good public policy. Using the Fairfax Index, the latest anti-terrorism laws must represent very sound public policy indeed. - http://www.theaustralian.news.com.au/common/story_page/0,5744,17109852%255E32522,00.html

State shut the door on civil liberties
SMH November 2, 2005
A Queensland ruling shows a challenge to the new detention laws is likely to fail, writes Patrick Keyzer.
DESPITE the doubts expressed by some commentators, as long as the state and federal governments comply with recent High Court precedent, then provisions authorising judges to make detention orders are very likely to be found valid in a High Court challenge. - http://www.smh.com.au/news/opinion/state-shut-the-door-on-civil-liberties/2005/11/01/1130823206887.html

UK police chief says attacks foiled
SMH, November 2, 2005
Britain has thwarted attempted terrorist attacks in the past few weeks and faces the continued threat of a repeat of the deadly July 7 London bombings, the country's top police officer says. Ian Blair, commissioner of London's Metropolitan Police, said the force needed greater powers to cope with "a new reality" in the wake of the attacks on the capital. - http://www.smh.com.au/news/World/UK-police-chief-says-attacks-foiled/2005/11/02/1130823250741.html

Keelty warns of home-grown terrorists
SMH, November 2, 2005
Australian Federal Police chief Mick Keelty has backed a warning by spy agency ASIO that home-grown terrorism is an emerging threat to Australia. - http://www.smh.com.au/news/National/Keelty-warns-of-homegrown-terrorists/2005/11/02/1130823250418.html

Attack being planned in Australia: PM
SMH, November 1, 2005
Australian intelligence authorities have received specific information about a terrorist threat in Australia, Prime Minister John Howard says.
Mr Howard refused to give details of the threat, saying the Australian public would never forgive him if he wrecked any police operation to stop it.
Australia's general terrorism threat level will remain unchanged, despite the information. - http://www.smh.com.au/news/National/Attack-being-planned-in-Australia-PM/2005/11/01/1130823212518.html

Constitution concerns delay new Australian terror laws
Ireland Online, Ireland - 1 November 2005
Australian state leaders today held up the introduction of tough new counter-terror laws in parliament, saying they had concerns the legislation threatened ... http://breakingnews.iol.ie/news/story.asp?j=68894052&p=68894354

Next six weeks critical for govt: Howard
The Age - 1 November 2005
Prime Minister John Howard has told his backbench the next six weeks will be the most crucial stage of their fourth term in government. ... http://www.theage.com.au/news/National/Next-six-weeks-critical-for-govt-Howard/2005/11/01/1130823202871.html

ALP caucus debates counter-terrorism laws
ABC Online, Australia - 1 November 2005
ELEANOR HALL: At this morning's Federal Labor caucus meeting there was heated debate on the issue of counter terrorism, in response to leader Kim Beazley's ... http://www.abc.net.au/worldtoday/content/2005/s1495264.htm

Labor debates anti-terror plans
Australian, Australia - 1 November 2005
EIGHT federal Labor MPs argued strongly against the Government's proposed anti-terrorism powers during a heated one-hour caucus debate in Canberra today. http://www.theaustralian.news.com.au/common/story_page/0,5744,17104915%255E1702,00.html

Laws must pass:PM
Daily Telegraph, Australia - 1 November 2005
JOHN Howard has warned the Coalition partyroom the proposed terrorism legislation must pass in the national interest as the state premiers confirmed today's deadline to reach agreement on the new laws is likely to pass without a deal. http://dailytelegraph.news.com.au/story/0,20281,17104157-5001022,00.html

We won't make anti-terrorism law deadline: Beattie
ABC Online, Australia - 1 November 2005
The state and territory leaders say they will not meet today's deadline set by the Prime Minister to sign off on the Federal Government's draft counter ... http://www.abc.net.au/news/newsitems/200511/s1495225.htm

Terror debate winding up
NEWS.com.au, Australia - 1 November 2005
JOHN Howard has warned the Coalition partyroom the proposed terrorism legislation must pass in the national interest as the state premiers confirmed today's deadline to reach agreement on the new laws is likely to pass without a deal. http://www.news.com.au/story/0,10117,17103400-38876,00.html

Premiers want more time on anti-terrorism bill
ABC Online, Australia - 1 November 2005
The State and Territory leaders look set to miss the Prime Minister's deadline to sign off on the proposed counter-terrorism legislation by today. ... http://www.abc.net.au/news/newsitems/200511/s1494869.htm

Beazley locks divided ALP into terror laws
Australian, Australia - 1 November 2005
KIM Beazley has tried to lock troubled Labor MPs into voting for the Government's anti-terror legislation despite deep reservations about the reforms on both ... http://www.theaustralian.news.com.au/common/story_page/0,5744,17100086%255E2702,00.html

State leaders seek time on terror laws, but Beazley won't tamper
Melbourne Herald Sun, Australia - 1 November 2005
KIM Beazley has given Prime Minister John Howard a green light to introduce his controversial terror laws - even if the Government ignores Labor's objections - http://www.heraldsun.news.com.au/common/story_page/0,5478,17096591%255E2862,00.html

Anti-terrorism legislation a step closer
ABC Regional Online, Australia - 1 November 2005
Legal advice to the ACT Government says the Commonwealth's latest draft counter-terrorism legislation still does not meet human rights obligations. ... - http://www.abc.net.au/news/newsitems/200511/s1495576.htm

Hackers shut down Stanhope website
Sydney Morning Herald (subscription), Australia - 1 November 2005
Computer hackers have shut down the website ACT Chief Minister Jon Stanhope used to release a draft of the proposed anti-terrorism laws. ... - http://www.smh.com.au/news/national/hackers-shut-down-stanhope-website/2005/11/01/1130720534395.html

Keelty puts case for terrorism laws
ABC Online, Australia - 1 November 2005
TONY JONES: Back now to our top story. Last week, the Attorney-General, Philip Ruddock told us that the main impetus for the new anti-terror laws came from advice from the AFP that existing laws were inadequate for the task of protecting Australians from London-style terrorist attacks. As you'll hear, Federal Police Commissioner Mick Keelty has drawn from the experience of his British counterparts during the London bombings - especially the use of preventative detention in the earliest phase of the investigations when 30 people were picked up and detained in police sweeps. As MPs on both sides of politics and the State premiers debate the latest draft of the terror bill, Commissioner Keelty joined us in Canberra to put his case for new powers and explain how they'd be used. Mick Keelty thanks for joining us. - http://www.abc.net.au/lateline/content/2005/s1494855.htm

Blog Views

The legislation that stops the nation
The Road To Surfdom
Today is the first Tuesday of November, the day on which, by long tradition, Federal Parliament passes draconian anti-terrorist legislation. Kirribilli Diva is tipped to win. Actually, Ken and I started an interesting discussion on the topic over at his joint late last week, so, given that I ran out of time over the weekend, I thought I might add a few comments here. - http://www.roadtosurfdom.com/archives/2005/11/the_legislation_1.html

Melbourne Cup drowns out the Real World...
Mahler's Prodigal Son
One might be forgiven for thinking that there is absolutely nothing more important in the world than the Melbourne Cup. Talk about the media going into over-drive! - on drivel and inconsequential rubbish. Sadly, all the Cup hype all but drowned out the reporting of the speech given by The Hon. John von Doussa QC, the President of the Australian Human Rights & Equal Opportunity Commission in Canberra last night. - http://mahlersprodigalson.blogspot.com/2005/11/melbourne-cup-drowns-out-real-world.html

ANTI-war demonstrators could be jailed for seven...
Fisher News
Doctors caution on terror laws
ANTI-war demonstrators could be jailed for seven years under the Federal Government's proposed anti-terror laws, a doctors' body said today. As the Commonwealth and states negotiate on a final draft of the laws, the Australian Medical Association for the Prevention of War has urged them not to be pressured into supporting the Bill in its present form. - http://fishernews.com/index.php?itemid=84

I'm Terrified of Powerful Governments
Stable.cowoh.org
I wrote a letter in to the Australian yesterday complaining that the Liberal Party is abandoning its platform of individual freedom. In the past the federal Liberal Party has lowered taxes, opposed the introduction of a national identity card, defended state's rights to decide things that the constitution says they should decide and worked to weaken trade unions. But this year we find them trying to water down the rule of law. It's a slippery slope. Far more Australians die in car accidents than acts of terror. Yet here we are throwing the baby out with the bathwater - giving up a core element of our system supposedly to right people who don't like the pillars of our system. Madness. http://stable.cowoh.org/articles/2005/11/01/im-terrified-of-powerful-governments

The Risk ASIO, the Australian Security Intelligenc...
(Southern Cross) Words
The Risk ASIO, the Australian Security Intelligence Organisation , is at the forefront in protecting the country from terrorist attack. The chief, Paul O'Sullivan, has recently appeared before the Senate to address the genuine threat of attack here. - http://crosswords.blogspot.com/2005_11_01_crosswords_archive.html

Is It Time To Change From The Typical Two Party Political System?
Phill's Corner of Existence
Throughout my life of over 30 years, Australians have voted to governance either of two main parties of politicians, the Liberals or the Labor Party. What is evident over this time is that Australia's leadership has been anything but inspiring or grand - http://druidictus.homeip.net/blog/?p=22

The Parkin Precedent
mgk: Machine Gun Keyboard
While he has been deported and is now back in the US, Scott Parkin is pursuing a challenge of his recent visa cancellation with the help of Greenpeace. Andrew Wilkie makes the point that if Parkin had committed acts in Australia which were actually threats to national security, Parkin would not have been deported- he would have been charged and committed to stand trial. - http://machinegunkeyboard.com/?p=133

Counter-terrorism legislation to end counter-terrorism legislation debate
Irony Party of Australia Electronic Pamphlet
An agreement on new counter-terrorism measures by the Australian Commonwealth and state and territory governments will see totalitarian instruments of control and detention introduced across the country in order to prevent future opposition to counter-terrorism measures. - http://ironyparty.org/ipa29sept05.htm

UK

Terrorism law detainees 'depressed'
icNorthWales - 1 November 2005 Detainees held without trial under the Anti-Terrorism Act have suffered serious damage to their mental health, researchers said. Following independent assessment, eight detainees held at Belmarsh Prison were all found to be clinically depressed. Several had experienced post-traumatic stress disorder (PTSD). - http://icnorthwales.icnetwork.co.uk/news/ukworld/tm_objectid=16317367&method=full&siteid=50142&headline=terrorism-law-detainees--depressed--name_page.html

(see John von Doussa's speech at the Canberra forum: Are we crossing the line?)

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