Castan Centre for Human Rights Law

Submission to Senate Legal and Constitutional Committee1
Regarding the Security Legislation Amendment (Terrorism) Bill 2002 [No. 2]

There are two issues of major concern within this proposed legislation. The first is the excessively broad definition of a terrorist act contained in 100.1, and the second is the constitutionality of the Attorney-General's powers under 102.2 to make declarations of proscribed organisations. There are attendant issues regarding the potentially disproportionate penalties of imprisonment for life that accompany most of the offences in the Bill, the absolute liability offences, and the ambiguous nature of the defences available.

Part 5.3 - Terrorism

Definition of terrorism

Material published before the release of this Bill indicated that the definition of terrorism was going to include the phrase: 'designed to intimidate the public with regard to its security, and intended to cause serious damage to persons, property or infrastructure.' There are two key elements of this definition that do not appear in the Bill. First, there is no mention of terrorist acts being designed to intimidate the public, and second, there is no mention of intention to cause serious damage.

The definition in the Bill only requires intention of 'advancing a political, religious or ideological cause.' Any activity done for this purpose can therefore become a terrorist activity if it involves any of the events listed in subsection (2). There is no mention of an intention to cause harm to persons or property, or to instil fear in the public and government. These should be a key element of any definition of terrorism. For example, definitions from the United Nations, the US Government and the UK Government all include phrases such as: 'intended or calculated to provoke a state of terror'2, 'calculated use of violence or the threat of violence to inculcate fear'3, and 'intended to intimidate or coerce'4. Other definitions, including a 1993 Australian counter-terrorist review, have used 'calculated to evoke extreme fear'5.

The second element of intention that is needed in this definition is the intention to produce the results listed in subsection (2). For example, many protests are multi-faceted and include a number of disparate groups. If one person or group has an intention to commit acts of property damage or violence other groups may not be aware of this. Under the current definition, protestors with no intention to use violence would be guilty by association simply via their presence at a protest site.

The current definition in the Bill raises the issue of distinguishing terrorism from legitimate political protest. Although the definition in the Bill expressly excludes 'lawful advocacy, protest or dissent; or industrial action', it is not clear whether forms of political protest that have an element of incidental violence (and therefore unlawfulness), such as the recent activities at the Woomera Detention Centre, would be included in the definition of terrorist acts. Moreover, there is an interpretation issue as to whether it is just the advocacy that must be legal, or whether the protest and dissent must be legal as well?
Defences to terrorism offences

The offences of providing or receiving training connected with terrorist acts (101.2), possessing things connected with terrorist acts (101.4), and collecting or making documents likely to facilitate terrorist acts (101.5) contain a subsection (4), which reverses the burden of proof. The defendant has to prove that 'he or she was not reckless with respect to the circumstance in paragraph (1)(b).' This places the onus on members of the Australian public to make sure that they are at no times dealing with terrorists; this could encourage ethnic profiling. For example, should the proprietor of a photocopier take steps to question all persons who use it in case they are copying material connected to a terrorist act? Should they take more care if they know that an Arab or Muslim person or group is using the photocopier? Given the absolute liability element of these offences and the very serious maximum penalty of life imprisonment, there is a need for stronger and more detailed defences to accompany the offences.

Another area of concern is the offence of directing organisations concerned with terrorist acts (101.3). This includes directing 'the activities of an organisation that is directly or indirectly concerned' with terrorist acts. This is an absolute liability offence, there is no defence provided, and 'indirectly concerned' is not defined. This is a dangerous situation whereby persons who are unwittingly involved with terrorist acts, even incidentally, can be imprisoned for life without having any knowledge of their involvement or intention to be involved.

The above offences need to be reconsidered. The necessary knowledge, intention, and defences must be included so that non-terrorist parties are not included within the scope of terrorist acts. Furthermore, the human right to be presumed innocent (Article 14(2) of the ICCPR) is clearly undermined by these offences.

In addition, the penalties need to be reassessed. At the least, the legislation should clarify, as stated in the explanatory memorandum, that the penalty is a maximum of life imprisonment, not mandatory life imprisonment. A blanket maximum of life imprisonment does not take into account the varying degrees of involvement that can occur. For example, in similar US legislation6, Americans who provide listed groups with material support or resources are liable to be fined and/or sentenced to up to 10 years in prison.

Division 102 - Proscribed organisations

Constitutionality of Attorney-General's powers

The power of the Attorney-General to make declarations of proscribed organisations (102.2) raises constitutional issues that arose in the Communist Party Case.7 In that case, it was unconstitutional for the legislature to confer on the executive the power to proscribe organisations that were prejudicial to the security of the Commonwealth. The High Court found that the defence power, s 51(vi), did not authorise the legislature to delegate to the executive the power to conclusively decide if certain actions were necessary for the defence of the nation. The doctrine that arose from this case is that 'no law can give power to any person (other than a court) to determine conclusively any issue upon which the constitutional validity of the law depends.'8 Therefore, there must be doubts as to whether this law comes within the s 51(vi) head of power. Another possible head of power is the implied nationhood power, although it appears to be very limited with regard to coercive power.9

Justiciability of the Attorney-General's declarations

Although the explanatory memorandum mentions that 'the lawfulness of the Attorney-General's decision making process and reasoning is subject to review under the Administrative Decisions (Judicial Review) Act 1977', there is no mention of this in the Bill. This is a significant omission given that under common law principles decisions involving national security and other issues with high policy/political content may not be justiciable.10

Breadth of the Attorney-General's discretion

The discretion given to the Attorney-General under 102.2(1)(d) may be, from a policy point of view, unconscionably too broad. Under the principle of the rule of law, society should be governed 'according to declared law, rather than by arbitrary exercises of power,' including 'wide discretionary authority on the part of the government.'11 The law should be clear, and the law's application should be 'predictable, consistent and non-discriminatory, thus there is a need to minimise the discretion available to administrative decision-makers.'12

This broad discretion is compounded by the fact that judges are loath to review assessments pertaining to national security.13 This makes it difficult for an organisation caught by the wide discretion in 102.2(1)(d) to appeal the basis of the Attorney-General's decision. Given the dire consequences of being listed as a proscribed organisation, this is an unsatisfactory situation.

Subdivision C - Offences in relation to proscribed organisations

Again these offences place a great onus on the public to ensure that they are not in contact with terrorist organisations. In particular, it may be difficult to ensure that one does not directly or indirectly receive funds from or make funds available to, a proscribed organisation. For example, would a financier be required to check at all times that they are not dealing with members of proscribed organisations?

102.4 subsections (1)(d) training and (1)(e) assisting, are of grave concern because of their broad and undefined nature. For example, would these provisions preclude proscribed organisations from receiving legal training or assistance? For example, it has recently been reported14 that in October a US court found that a law preventing US citizens or residents from providing training and personnel to listed groups15 violated the Constitution.

1 Submission prepared by Anne McCasland-Pexton, Sarah Joseph and David Kinley on behalf of the Castan Centre for Human Rights Law, Faculty of Law, Monash University.
2 United Nations General Assembly, 'Measures to eliminate international terrorism', A/RES/51/210 (17/12/96).
3 US Department of Defence per David Whittaker (ed.), The Terrorism Reader, Routledge, 2001, p. 3.
4 18 U.S.C. 2331(5), inserted by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. 107-56, section 802; Lord Lloyd of Berwick, Inquiry into Legislation Against Terrorism, Cm 3420, October 1996.
5 Frank Honan and Alan Thompson, Report of the 1993 SAC-PAV Review, Canberra, 1994, p. 4.
6 Anti-Terrorism and Effective Death Penalty Act 1996, s 323.
7 Australian Communist Party v Commonwealth (1951) 83 CLR 1.
8 L Zines, The High Court and the Constitution (4th ed, Butterworths, 1997), p 219.
9 S Joseph and M Castan, Federal Constitutional Law: A Contemporary View (Lawbook Co, 2001), pp 112-116.
10 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Minister for the Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218.
11 Joseph and Castan, above, footnote 3, pp 4-5.
12 Joseph and Castan, above, footnote 3, p 5.
13 Church of Scientology Inc v Woodward (1982) 154 CLR 25, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
14 R Dreyfuss, 'Colin Powell's List: The targeting of 'terrorist' groups harks back to earlier repression of dissent' The Nation March 25, 2002, p 19.
15 Anti-Terrorism and Effective Death Penalty Act 1996, s 323.