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INDEPENDENT NATIONAL SECURITY LEGISLATION MONITOR
16 December 2011
BRET WALKER SC
ONE NATIONAL CIRCUIT
© Commonwealth of Australia 2012
ISSN 2200-1832 (Print)
ISSN 2200-1840 (Online)
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CHAPTER I Introduction 1
CHAPTER II Principles and Policy 4
CHAPTER III International Obligations 12
CHAPTER IV Australian Security Intelligence Organisation Act 1979 22
CHAPTER V Charter of the United Nations Act 1945 32
CHAPTER VI Crimes Act 1914 36
CHAPTER VII Criminal Code 40
CHAPTER VIII Defence Act 1903 51
CHAPTER IX National Security Information (Criminal and Civil Proceedings) Act 2004 52
APPENDIX 1 Independent National Security Legislation Monitor Act 2010 section 4 55
APPENDIX 2 Persons and organisations consulted and events attended 56
APPENDIX 3 Issues for Consideration 58
APPENDIX 4 Sunset provisions 62
APPENDIX 5 Official Assessment of the threat of terrorism 65
APPENDIX 6 Sentencing remarks on motivation 66
APPENDIX 7 Homicide statistics 67
APPENDIX 8 Resolution 1373 (2001) (S/RES/1373 (2001)) 68
APPENDIX 9 Draft Comprehensive Convention on International Terrorism 72
APPENDIX 10 United Nations A/RES/60/288 73
APPENDIX 11 United Nations quotes on observing international obligations in countering terrorism 82
APPENDIX 12 International Covenant on Civil and Political Rights 84
APPENDIX 13 United Nations quotes on hostage taking 90
APPENDIX 14 Descriptions of the matters for which some defendants were convicted and sentenced 91
APPENDIX 15 Australian Government and ASIO statements on extreme and
violent Islamism 95
APPENDIX 16 Jury direction to reduce the risk of prejudice 96
APPENDIX 17 United Nations quotes on motivation for terrorist acts 99
APPENDIX 18 Warrants Issued Under Div 3 of Part III of the Australian Security Intelligence Organisation Act 1979 101
APPENDIX 19 List of offences and penalties under Part 5.3 of
the Criminal Code Act 1995 102
This is the first report of the first Independent National Security Legislation Monitor (“INSLM”). The first appointment to the office came into effect on 21st April 2011. This left just over two months of the year ended 30th June 2011 about which to prepare an annual report. The INSLM must report annually as soon as practicable after 30th June in each financial year and in any event by the following 31st December.
This year, the view has been taken that a full report should be prepared, even though there was virtually no opportunity in just over two months at the commencement of the INSLM’s term to carry out the relevant functions. Those functions are the review of the operation, effectiveness and implications of Australia’s counter terrorism and national security legislation (“CT Laws”)1 and other related laws, and consideration whether those laws contain appropriate safeguards for protecting the rights of individuals, remain proportionate to any threat of terrorism or threat to national security or both, and remain necessary.
The object of the appointment made by the Independent National Security Legislation Monitor Act 2010 (“2010 Act”) is to assist Ministers in ensuring that Australia’s CT Laws are effective in deterring and preventing terrorism, are effective in responding to terrorism, are consistent with Australia’s international obligations and contain appropriate safeguards for protecting the rights of individuals. The method for achieving this object is by the functions of review and consideration noted above.2
Another aspect of the object of the office of INSLM is to assess whether Australia’s CT Laws are being used for matters unrelated to terrorism and national security. Clearly, this is a very important watchdog task. It has been and will remain constantly in mind. But nothing to date begins to suggest any serious possibility of that kind of abuse of the CT Laws. This function will be the subject of more detailed report in 2012.
The nature of the CT Laws makes it obvious that nothing like a completed review or overall consideration of these matters could have been accomplished in just over two months. Rather than a perfunctory annual report to this effect, this first report draws on the work of the last six months to date – it is thus a report on work up to December 2011.
One of the main reasons why this first report poses questions rather than suggests answers is the sheer scope and depth of the subject. To the credit of the many commentators – political, scholarly, historical, legal professional and civil society – whose words are recorded from late September 2001 in relation to the régime Australia has enacted by the CT Laws, and in relation to corresponding laws elsewhere, there is a large and dynamic literature to be read and pondered. It may be doubted whether anyone will ever master it in the sense of exhaustive and detailed understanding of it, continually up to date.
The purpose of this first report is threefold. First, to set out matters of principle and general policy considered fundamental to the continuing scrutiny of the CT Laws. Second, to highlight the most obvious questions raised by the CT Laws as they presently exist – chiefly, concerning whether they are effective criminal laws and contain appropriate human rights safeguards. Third, to notify a provisional agenda for the work of the INSLM over the next year or so, in order to reach informed conclusions about the effectiveness and appropriateness of the CT Laws.
Australia’s CT Laws were not made in a vacuum. They drew on overseas examples, mainly British. Although they were made – in several bursts – relatively quickly, they cannot fairly be seen (or excused) as legislation improvised to meet a pressing emergency. On the contrary, the history of their making is a history of weighing of factors and choices of policy. In sum, the question for the INSLM is whether the balance and the choices can be improved.
The work of the INSLM to date has been reading, listening and thinking. The material to be read and the limited time to read it, and the wide range of views and insights to be gained from conversations with Australians involved in these topics, have combined to make the basic review function of the INSLM very much a work in progress, this year. Next year, a bibliography and conspectus of views received in discussions are hoped to be informative parts of the 2012 report. Nothing of these kinds has been attempted this year because time has permitted only a fraction, almost certainly not representative, of publications to be considered, and only some of the many needed conversations to be held.
The work required for the office of INSLM is not full time: for the purposes of remuneration, the office has been reckoned by the Government as 60 days in a year. It will involve every bit of that. To date, but perhaps only thus far, the provision of an adviser within the Department of the Prime Minister and Cabinet (working confidentially and only to this office) for three days a week, has been adequate. The bulk of reading and the breadth of consultation by discussion that the provisional agenda for the next year or so will require are very large. Successfully accomplishing the tasks proper to discharge of the office will require further administrative and clerical assistance.
A list of people already consulted is contained in Appendix 2. I am grateful to all of them. Their generosity, intellectual and professional, in sharing their experience and expressing their views promises well for the capacity of the INSLM, at least, to be better informed. I hope to be able to pursue further with many of those already met the topics on which they have already greatly assisted. It is intended that items found in the provisional agenda assembled below will be raised with them and the many others yet to be consulted, and with the public. Whether this will involve hearings has yet to be decided.
The lack of a bibliography should not conceal a felt deficiency in the reading so far by the INSLM. Practically all of the material read to date is in English (a very little in French). The English is so far confined to Australia, New Zealand, the United Kingdom, the United States and Canada. None of those jurisdictions has laws so similar to Australia’s CT Laws as to enable straightforward transfer to Australia of the observations – let alone lessons – obtainable from their experience. But it is certain that the work of this office cannot proceed sensibly without frequent gauging of Australia’s position by reference to the various positions in other societies, especially those with whom we have historical and cultural close links. On the other hand, the real possibility of valuable perspectives on these international problems from systems and societies outside the British or anglophone orbits is compelling, and efforts will be made to repair this deficiency.
Drawing on reading and consultation to date, the next Chapter addresses matters of principle and policy presently thought to provide a useful basis for the review, consideration and assessment functions of the INSLM in relation to the CT Laws.
Integral to the functions of the INSLM is an understanding of Australia’s international obligations, binding by treaties to which Australia is party. In particular, the concern is with human rights obligations, counter terrorism obligations and international security obligations. They inform, of course, the matters of principle and policy addressed in Chapter II. More detailed exposition of their implications is set out in Chapter III.
Chapters IV to IX deal with the provisions comprising the CT Laws, in the order they appear in the relevant definition contained in the 2010 Act. It is intended that these parts of the report be read as considered preliminary views on matters deserving closer attention to the form and substance of the CT Laws.
For ease of reference, issues for consideration raised in the body of the report below have been collected in a numbered list in Appendix 3.
My work, and this report, have been greatly assisted by the skills and diligence of my Adviser, Teneille Elliott. I am very grateful to her.
PRINCIPLES AND POLICY
The functions of the INSLM and the object of the 2010 Act may be paraphrased as the review of the effectiveness and appropriateness of the CT Laws. The specific words of secs 3, 6 and 8 of the 2010 Act govern, but the paraphrase serves to emphasize the twin poles between which the CT Laws are to be considered.3
As to whether the CT Laws are effective, the question concerns their part in deterring and preventing, and responding to, terrorism and terrorism related activity including that which threatens Australia’s security.
As to whether the CT Laws are appropriate, the question concerns, first, their consistency with Australia’s international obligations including human rights obligations, counter terrorism obligations and international security obligations. Second, it concerns the safeguards contained in them for protecting the rights of individuals. Third, it concerns their proportionality to any threat of terrorism or threat to national security or both.
Linking the questions whether the CT Laws are effective and appropriate is a further question drawing on all these inquiries. It is whether the legislation comprising the CT Laws “remains necessary”. Those two words in subpara 6(1)(b)(iii) of the 2010 Act compress all the issues to be examined by the INSLM. They seek a conclusion based on principle as well as overall policy.
Those words are also an emblem of the dominating character of the CT Laws – as laws enacted to meet conditions thought to constitute an international and national emergency. That meant the CT Laws were thought to provide means of countering terrorism and enhancing national security that were not already fully available in existing criminal and national security laws. A constant test to be applied to the CT Laws is to scrutinize this supposed need for something different and extra over and above the pre existing criminal and national security laws. That scrutiny cannot rest on a once and for all satisfaction that the CT Laws were in order when first enacted. The people and their Parliament should check that circumstances and conditions as they change from time to time continue to justify the CT Laws – including checking whether they could be wound back or even need to be winched up.
The pre existing law, by way of obvious example, already provided imprisonment for life as a possible penalty upon conviction for murder, attempted murder or conspiracy to murder. Conventional sentencing approaches would require the circumstances and character of the offence as well as the offender to be reflected in the penalty to be imposed. It follows that the most serious cases of terrorism could not be treated any more seriously under the CT Laws than under pre existing law.
The more detailed discussion in Chapter VII thus starts from the position that terrorist crimes, at their worst, are murders – and murders were already punishable to the utmost under pre existing laws. The pre existing modes of ancillary criminal liability in relation to murder (such as conspiracy, accessory, incitement, aid and abet) were just as available for a group of terrorists as for a gang of drug traffickers.
As discussed in Chapter VII, the CT Laws’ definition of “terrorist act” and enactment of inchoate and preparatory offences in relation to terrorist acts therefore require evaluation against a standard simple to state but not so simple to apply. Do these provisions really add anything of value to the set of pre existing laws criminalizing lethal violence?
Legislation in Australia and elsewhere that provides antecedents for the CT Laws had been enacted over many years before the terrorist attacks of 11th September 2001. It continued to be enacted after the further terrorist attacks in London, Madrid and Bali. Some of it was enacted so quickly that legislative scrutiny could not have been as thorough as such drastic laws should attract: witness the
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