Safeguarding Australia 2006 Conference - Australian Government initiatives and policy directions after the London bombings of 2005
19 September 2006
Introduction
The London bombings in July last year shockingly highlighted the fact that Western countries are just as exposed to homegrown terrorism as we are to attacks from foreign extremists.
This realization prompted a re-examination of Australia’s counter-terrorism laws.
That response wasn’t surprising.
Major attacks on innocent civilians understandably cause governments both here and overseas to review the adequacy of their existing laws.
This is the reason why the Attorney-General, Philip Ruddock, often refers to our counter-terrorism legal framework as an unfinished canvas.
We had to ensure that our laws gave our intelligence and law enforcement agencies all the powers they need to meet the additional threats posed by the spectre of homegrown terrorism within our borders.
New laws
The review resulted in the passage of two more Anti-Terrorism Acts late last year. The legislation included controversial provisions relating to control orders and preventative detention.
As you no doubt know, a control order allows a court to impose restrictions on a person’s movements or activities for the purpose of protecting the public from a terrorist act.
Preventative detention allows a court to order a person to be detained for up to14 days for the same reason, subject to compliance with a number of strict safeguards.
Those two Anti-Terrorism Acts were the 24 th and 25 th Acts passed by Parliament to better protect Australians from terrorism since the dreadful events in September, 2001.
Before the attacks on the World Trade Centre and the Pentagon, Australia had a miscellaneous collection of legislation outlawing various types of terrorist acts.
For example, we had laws against hijacking aircraft and laws protecting foreign dignitaries which had been made under various international treaties.
But that legislation was quite specific and therefore limited in its application.
We did not have legislation broadly outlawing terrorist organisations and criminalising terrorist acts – such as being a member of a terrorist organisation, training to commit a terrorist act and preparing to commit a terrorist act - until June 2002.
We did, of course, have available a collection of traditional State offences of murder, manslaughter, causing grievous bodily harm, conspiracy and so on.
But they suffered from the same lack of precision, the same lack of direct applicability to the problems posed by modern terrorism as the pre-existing legislative offences.
The traditional offences also suffer from what is, in my view, an almost fatal flaw when related to terrorism. They largely rely on the completion of the act – such as a murder – before the offence is committed.
The whole point of the recent statutory changes to the Criminal Code is to create new offences that are committed before the terrorist act is completed and innocent citizens killed.
An essential element of the new laws is that they authorise law enforcement agencies to intervene earlier to protect the community in advance of a terrorist attack.
So what we have seen since 2001 is, in fact, the evolution or development of a whole new area of criminal law and law enforcement procedure.
It seems to me that, from a legal point of view, this evolution or development can be divided into three quite separate sections or components.
The first is the passage of new laws by Parliament. The second is the implementation of those laws by law enforcement agencies and lawyers involved in criminal prosecutions. The third is the interpretation and application of those laws by the courts.
Today I want to look at that uneasy process in some detail.
Passage by Parliament
I’ll start with the passage of new laws by Parliament.
The first observation I want to make is that there is nothing unusual about evolving or adapting the criminal law – like any other area of law – to meet changing circumstances. That happens all the time.
Apart from counter-terrorism, some other notable areas of development of Australian criminal law over the last few years include legislation outlawing people trafficking and child sex tourism.
The second observation is that changes were plainly necessary. Our existing laws had been drafted to meet different threats. They had become inadequate for the task.
Journalist Paul Kelly put it this way in The Australian earlier this month (2 September 2006, page 18): One sign of a mature democracy is its ability to change its security laws in response to an unprecedented threat to its society. What else would a mature nation do? Denial is not an option.
The third observation is that many other countries have also changed their laws to deal better with the threat of modern terrorism.
The fourth - and I think the most important - observation is that the changes to our counter-terrorism laws were the subject of intense parliamentary scrutiny and public debate.
Anyone who has carefully followed the development of these new laws will know that there have been a number of parliamentary inquiries into the major pieces of counter-terrorism legislation over the past five years.
The draft laws as originally put forward were amended by the Government in the light of the parliamentary committee reports.
They were also amended as a result of internal party consideration and negotiation with the Opposition parties.
In other words, the legislation was negotiated through a complex process that meant there was a considerable level of support for the final form of the new laws.
Let’s look, for example, at the major package of counter-terrorism legislation passed by the Senate on 27 June 2002. The four bills passed at that time recorded 51 ayes, 12 noes - a majority of 39.
Three years later, on 7 December 2005, the House of Representatives accepted Senate amendments to the Anti-Terrorism Bill (No 2) 2005 and the question was put. As only Mr Andren, Mr Quick and Mr Windsor voted ‘No’, the Deputy Speaker declared the question resolved in the affirmative.
In the second reading debate on the 2005 Anti-Terrorism Bill (No 2), the Shadow Attorney-General, Nicola Roxon said: Labor are convinced that the terrorist threat does require tough new laws, but we demand that their use be circumscribed carefully.
Later on, talking about amendments to the process for obtaining a control order, the Shadow Attorney said: These are very important improvements. They protect our basic freedoms without in any way compromising the effectiveness of the regime to fight terrorists.
I mention these statistics to illustrate the support this legislation eventually had in the Australian Parliament.
I mention these quotes from Ms Roxon’s speech to illustrate that the changes which were made to the bill as originally introduced resulted in the bill receiving Opposition support.
Public attitudes
It is more difficult to measure public opinion but there are clear indications that these new laws are also supported by the broader public, against a background of general concern about security.
For instance, the Unisys Security Index based on a Newspoll survey for the September quarter this year found that 52% of Australians or 8 million people are very or extremely concerned about Australia’s national security in relation to war or terrorism.
That figure had grown by 1.7 million people in the past quarter.
And an ACNielsen/Age poll reported in The Age on 11 September this year found that:
Almost two in every three Australians believe the world is less safe than it was before the September 11 attacks in the US … And half believe a terrorist attack in Australia is more likely than it was in 2001.
Criticisms
It would be hard to detect these assessments of the broader community view amongst the criticisms of the new counter-terrorism laws that have been published in the media over the last five years.
The Weekend Australian has gone so far as to characterize some of the criticism as a polemical campaign by the legal and civil liberties lobby to de-legitimise and strike down the recent provisions of the Criminal Code, a campaign enthusiastically embraced by sections of a gullible media (2 September 2006, page 16).
The Hon John von Doussa QC, the President of the Human rights and Equal Opportunity Commission, has provided an interesting analysis of what he calls the crucial challenge of reconciling human rights and counter-terrorism.
He made his observations in an address he delivered on 12 September 2006 at James Cook University.
He said: It is self-evident that terrorism is a gross violation of fundamental human rights. Only the mad or the bad would suggest otherwise. The threat of terrorism is patently legitimate. The Government has both a right and a duty to take action to protect its citizens.
This observation is worth stressing. Governments have a duty to take action to protect their citizens.
Governments have to make decisions. They have to deal with complicated interactions of law, policy and public opinion. They have to take action to reshape the law to meet changing circumstances.
Governments have to make difficult choices between competing proposals - but they have to be made. Governments cannot be paralyzed into inaction.
I think it is interesting that many of the critics of our new counter-terrorism laws do not offer any constructive options or counter-proposals. Most of the time they simply argue, either directly or by implication, for the retention of the status quo.
Mr von Doussa endeavoured to tread a middle path through this difficult area.
His speech will give encouragement to both supporters and critics of our new counter-terrorism laws, so I invite you to read his speech for yourself and make your own assessment.
However, there is one point where I particularly take issue with many of the critics.
They attribute the new laws to the Government. In part, this is appropriate, because the Government directed their preparation and introduced them to Parliament.
In part, it is not.
It overlooks the extensive examination, debate and amendment that took place in respect of the original bills and the fact that they were passed in their amended form, as I have indicated above, with considerable, cross party, parliamentary support.
They are, in fact, laws properly attributable to Australia’s elected Parliament.
I should also point out that the Australian Parliament’s constitutional authority to pass counter-terrorism laws is supported by a referral of power from the States.
It is a condition of that referral that changes to Commonwealth counter-terrorism laws are approved in advance by a majority of the referring States.
The State Premiers agreed to the passage of the 2005 Anti-Terrorism Acts and the States and Territories have passed complementary legislation.
It is also worth noting this finding from the ACNielsen/Age poll I referred to a few minutes ago:
Asked about the Federal Government’s response to the threat of terrorism, almost one in two voters (49 per cent) believe the Howard Government had shown about the right amount of respect for civil liberties, 29 per cent believed the Government had not shown enough respect, and 15 per cent thought the Government had shown too much respect.
Implementation
But, as I have said, passing new laws is only the first step in a process.
The second step is to put new administrative arrangements and law enforcement procedures in place to implement them and the third step is to test the laws and procedures in the courts.
Oversight by the courts is an essential element in determining the constitutionality, scope and proper application of any new laws.
But that is not an easy task either, as the British Lord Chancellor, Lord Falconer of Thoroton, pointed out in an address in Sydney last Wednesday.
The Lord Chancellor said: Democracies can only survive where judges have the power to protect rights of the individual. Democracy is not just a process of electing those who govern us. It is also a political philosophy which believes in the critical importance of the rule of law, that says we are all equal, with an equal say in how we are governed…
But he also said: The more judges are taking decisions which are in the political arena – not in the sense that they are party political, but in the sense that they are dealing with issues that politicians also address – the more their ‘democratic’ legitimacy comes into question.
Now that we have had some experience with the application of these new laws, we can see some of the practical issues which have to be dealt with in implementing them.
Here is a brief resume of some recent terrorism cases.
Some recent cases
There have been two terrorism related convictions.
Mr Jack Roche pleaded guilty to an offence of conspiring to destroy official diplomatic premises with intent to endanger life. He is serving a nine year sentence of imprisonment with a non-parole period of four and a half years.
Mr Faheem Lodhi has also been convicted of offences related to the preparation to commit a terrorist act, in this case involving Australia’s electricity supply system. He has been sentenced to 20 years imprisonment, with a minimum term of 15 years.
Judge Whealy, who conducted the Lodhi trial, said: …the obligation of the Court is to denounce terrorism and voice its stern disapproval of activities such as those contemplated by the offender here …. The community is owed this protection even if the obstinacy and madness of extreme views may mean that the protection is a fragile or uncertain one.
Jack Thomas was convicted in the Supreme Court of Victoria for offences involving receiving money from a terrorist organisation and falsifying a passport.
The trial judge, Justice Philip Cummins, said: Australia has a deep duty to protect its citizens from terrorism and so far as in its power to protect humanity from terrorism. That is why the Commonwealth Parliament enacted the laws against terrorism … and why the States of the Commonwealth likewise have enacted laws. The most fundamental right is the right to life. The law must protect that right. Australians are entitled to security. However, security is a necessary but not sufficient condition for a just society. Security is not enough. There must also be justice – for all citizens, including the weak, the marginalised, the unpopular and the alienated.
Mr Thomas’ conviction was overturned by the Victorian Court of Appeal. A record of interview conducted by Australian police overseas was held to be inadmissible because established procedures had not been followed.
Even so, the Appeal Court found that: No question has arisen with respect to the truthfulness or reliability of those statements….
Since the Appeal Court decision, a federal Magistrate has issued an interim control order over Mr Thomas. That is the first application for a control order under the 2005 legislation. However, the order is subject to further court hearings, so I won’t say anything more about it today.
Pending cases
In addition to those cases, you may recall the press coverage of police Operation Pendennis, where multiple arrests were made in both Melbourne and Sydney in November last year.
Nine men have been charged in Sydney with one count of conspiring to do acts in preparation for a terrorist act.
They are all being held in custody and their cases are being prepared for committal proceedings.
In Melbourne, 13 men have been arrested. Ten of them were arrested in November last year and a further three were arrested in March 2006.
They have been charged with varying charges.
The charges include being members of a terrorist organisation, directing the activities of a terrorist organisation, intentionally making funds available to a terrorist organisation, possessing a thing connected with the preparation for a terrorist act, making a document in connection with the preparation for a terrorist act and receiving funds from a terrorist organisation.
Their committal proceedings have commenced.
A key point to note is that these charges are new statutory charges under the Criminal Code. They are the charges that best fit the alleged offences.
Some of the alleged offences involve preparatory acts. They would not easily have been covered by the traditional offences I mentioned before, offences of murder, manslaughter and so on.
Some of the charges relate to membership of or directing a terrorist organisation. They would not have been covered at all.
A practical question about evidence
One aspect of the new legislative provisions that is yet to be fully explored in practice is the procedure for getting classified or sensitive security information into evidence in court.
The statutory process for this to be done is set out in the National Security Information (Criminal and Civil Proceedings) Act 2004.
I think it is worth taking a little time to look at the background to that Act and its underlying justification, because the ability to get evidence before the court is a hugely significant practical issue in any criminal trial.
It is a fundamental principle among intelligence and security agencies that classified information can only be seen by people with the appropriate level of security clearance.
Intelligence is shared between friendly countries strictly on this basis.
Indiscriminate disclosure of classified information could reveal sources of intelligence or intelligence gathering capabilities. That disclosure could damage or destroy both current and future operations. It could put people’s safety at risk.
It is largely for this reason – the fact that there has generally been no way to put this information before a criminal court and protect it at the same time – that there have been so few prosecutions for espionage and similar offences in Western countries.
It is easy to see the dilemma this evidentiary problem could pose in a terrorism prosecution.
It is clearly possible that a terrorism charge could rely on classified material supplied by another country or on Australian material that would be highly prejudicial to disclose publicly.
It is equally easy to see that the public would not accept that a prosecution for a terrorist act committed in Australia or against Australians overseas could not go ahead because the evidence could not be put into open court.
The 2004 National Security Information Act addresses this problem. It steers a path between the opposing policy demands of the principle of open, public criminal trials and the need to protect the classified information that forms part of the prosecution case.
I won’t go into all of the mechanics of the process.
The essence of it is that the classified material is to be handled by court staff and lawyers with appropriate levels of security clearance.
The judge may then hold a closed hearing to determine the best way to present the classified information in an open court hearing while at the same time protecting the elements of the material that cannot be disclosed in public.
The security cleared lawyers see all of the classified material and take part in the closed hearing.
One way the information could be protected is by blacking out or redacting the classified or sensitive information from the document that is produced in court.
This approach would be similar to blacking out or deleting inappropriate material from documents disclosed under the Freedom of Information Act.
Another way to do it could be to agree on a summary of the essential parts of the classified information and present the summary in evidence in the trial.
The point is that, once that is done – once a way has been found to put the essential evidence before the jury in a way that protects the sensitive or classified parts of the information - the trial proceeds in the normal way. The trial is held in public and the evidentiary material is put into evidence in the agreed form.
Barristers
So, you might ask, what is the difficulty?
The problem is that some barristers have taken the view that they should not be required to obtain a security clearance to have access to the classified information.
They argue that their standing as lawyers combined with undertakings of non-disclosure they could give to the court should be enough.
There are a few points I would like to make about that attitude.
The first is that, while the legislation does not compel any lawyer to apply for and obtain a security clearance, failure to do so could prejudice their client’s defence.
It could also prejudice the conduct of the trial. It could result in a trial being stopped by the judge and the cost of the trial being thrown away.
The second point is that quite a few lawyers already hold security clearances. It has not compromised their professional ethics or their ability to represent their client in any way.
They include lawyers employed or engaged by the Commonwealth Director of Prosecutions, government lawyers, private practitioners who are members of the Defence Reserve and lawyers in private practice who have been required to hold a security clearance to act in some commercial or other matter involving classified information.
Thirdly, a number of the lawyers who have sought clearances recently had already been appointed to act by their clients before they applied for and obtained their security clearance.
The suggestion made by some critics that the Government would use this security clearance process to pick the lawyers who could act for defendants has been shown to be without foundation.
It comes down to this.
Is it better that lawyers obtain security clearances so trials involving classified or sensitive information can go ahead?
Or is it better that criminal prosecutions are not brought, or are abandoned, because essential classified information cannot be put before the court in an acceptable form to allow the trial to proceed in the usual, open way?
This would have the result that people who are properly believed to merit prosecution for alleged offences – even terrorist offences – simply go free.
The Government’s view is very strongly that it is better to find a way to put the classified or sensitive information before the court to allow the trial to go ahead.
Parliament agreed, by passing the National Security Information Act.
Personally, I think the Act provides a sensible answer to a difficult, practical problem.
But to test that view, I asked Sir Laurence Street, a former Chief Justice of the Supreme Court of New South Wales, what he thought about it.
He didn’t hesitate in agreeing that the barristers should obtain security clearances and get on with it.
He told me that he was one of many counsel engaged in the Voyager Inquiry in 1964. They were required to hold security clearances to take part in the inquiry. None of the barristers involved, including some leading Queen’s Counsel, took any objection to this requirement.
Sir Laurence’s comments made me wonder how many barristers would turn down a similar brief today because they objected to obtaining a security clearance.
Conclusion
So in conclusion, I think the last five years have provided us with a fascinating case study of the evolution of a whole new area of criminal law and practice.
It has been a complicated process and the evolution is not yet complete.
The laws have not yet been used to their full extent nor have they been fully considered by the courts.
A number of issues requiring resolution still lie ahead of us.
But two things are clear.
The first is the Government’s determination to make our counter-terrorism laws work in practice.
The second is that the laws will be further adjusted to meet new threats as they arise in future.
Robert Cornall AO