Measuring terror laws against civil liberties

Liberal MP Petro Georgiou adds his weight to the call for an independent review of Australia’s terror laws. CLA says we also need a benchmark statement of what Australia’s civil liberties are, against which we can measure the 50-plus anti-terror laws passed in haste since September 2001.

Our terrorism laws need extra vigilance

Democracy’s response to the threat of terrorism cannot simply be more stringent laws, more police and more intelligence personnel, writes Petro Georgiou, federal member for Kooyong

During the last sitting week of the House of Representatives in March, I introduced a Bill to establish the position of independent reviewer of terrorism laws, a person who would undertake ongoing assessment of the operation, effectiveness and implications of our wide-ranging regime of counter-terrorism laws.

Despite having strongly supported the creation of this position when in Opposition, the Labor Government used its numbers to prevent any discussion of the Bill, without giving a reason.

I hope it swiftly reconsiders and decides to support the implementation of this much-needed measure.

Since the terrorist attacks on the USA on 11 September 2001, the Australian Parliament has enacted more than 30 laws dealing with terrorism.

The legislature has agreed on a bipartisan basis that protecting Australians from the threat of terrorism demands exceptional restrictions on civil liberties and on freedom of speech and of association.

Offences and procedures have been established which depart significantly from traditional principles and practices of our criminal law. In the words of NSW Chief Justice James Spigelman, “the particular nature of terrorism has resulted in a special and in many ways a unique, legislative regime”. [1]

The federal Attorney-General has been given power to “list” organisations as involved in terrorism. This means that membership and support of such organisations are criminalised. ASIO can detain people for interrogation. Those suspected of terrorist involvement may be subjected to control orders and preventative detention.

Within the Parliament and the community, there has been considerable debate about the necessity for and the desirability of such measures. As reflected in the pages of Lawyers Weekly, lawyers and their representative bodies have been prominent in the debate.

Parliament has given its imprimatur, though not always unanimously and often with considerable reservation.

I and a number of other legislators have expressed concern that aspects of the current regime are draconian. I have also voiced my belief that the system’s severity could be eased without undermining its effectiveness and that such reform could potentially enhance it.

The fact is that a democracy’s response to the threat of terrorism cannot simply be more stringent laws, more police and more intelligence personnel. The point was well made by European Commissioner for Justice, Freedom and Security, Franco Frattini, when he said:

“Our citizens entrust us with the task of protecting them against crime and terrorist attacks; however, at the same, they entrust us with safeguarding their fundamental rights … [The] necessary steps we take to enforce security must always be accompanied by adequate safeguards to ensure scrutiny, accountability and transparency.”[2]

Frattini’s observation has been widely endorsed, not least by the Attorney-General, Robert McClelland, and I support it.

The challenge of protecting security without undermining fundamental rights requires constant vigilance.

But the machinery of vigilance in Australia is deficient, a situation that has addressed in an ad hoc manner over a number of years.

When Parliament passed the Security Legislation Amendment (Terrorism) Act 2002, at the instigation of the Opposition it included a requirement that the Attorney-General establish a one-off public and independent review of the operation of a number of counter-terrorism laws.

This saw the establishment of the Security Legislation Review Committee (SLRC) headed by retired NSW judge Simon Sheller with members including the Inspector-General of Intelligence and Security (who oversees bodies such as ASIO), the Human Rights Commissioner and two lawyers nominated by the Law Council of Australia.

It reported in 2006 and its first recommendation was to establish a mechanism for further independent review:

“It is important that the ongoing operation of the provisions [of the legislation], including the views taken of particular provisions by the courts, be closely monitored and that Australian governments have an independent source of expert commentary on the legislation. Either an independent reviewer should be appointed, or a further review by an independent body such as the SLRC should be conducted in three years.”[3]

Before the SLRC had even got under way, the government was already proposing sweeping new measures following the bombing in London in mid-2005.

In that context I said it was important that the Parliament identify a credible mechanism to continuously review the operations of terrorism legislation comprehensively. I suggested that we consider appointing an independent expert to undertake the task, as the UK had done for a number of years.

The idea of having an independent reviewer of terrorism laws was subsequently examined in detail by the bipartisan Parliamentary Joint Committee on Intelligence and Security, which unanimously endorsed the proposal.[4]

The SLRC observed that reviews of the law had been sporadic and fragmented. The limited mandates of the various review mechanisms meant that critical issues fell outside their terms of reference. For example, no mechanism is charged with examining the impact on the conduct of trials of the National Security Information (Criminal and Civil Proceedings) Act 2004.

Under this Act, the court has power to decide whether to withhold information from the defendant on national security grounds. In making this decision, the court must give greatest weight to the certificate from the Attorney-General which seeks to prevent the disclosure of the evidence. Former High Court justice Michael McHugh, among others, has expressed considerable concern about the legislation:

It is no doubt true in theory the National Security Information (Criminal and Civil Proceedings) Act 2004 does not direct the court to make the order which the Attorney General wants. But it does as close as it thinks it can. It weights the exercise of the discretion in favour of the Attorney-General and in a practical sense directs the outcome of the closed hearing.[5]

How can a court make an order in favour of a fair trial when in exercising its discretion, it must give the issue of fair trail less weight than the Attorney-General’s certificate?

Other laws which the SLCR cited as not subject to review are the Anti-terrorism Act 2004 which increased maximum questioning and detention times by police for terrorist offences and the Anti-terrorism Act (No 3) 2004 which provides for the confiscation of travel documents and prevents people from leaving Australia.[6]

In the SLRC’s view, the appointment of an independent reviewer would ensure ongoing and comprehensive monitoring and contribute positively to community confidence.

The Joint Committee on Intelligence and Security initially recommended that the position of independent reviewer of terrorism laws be created in a report published in 2006 and reiterated the recommendation in a 2007 report [7]. The former Coalition government did not respond to the Committee’s unanimous and emphatic view.

Attorney-General Robert McClelland has not commented on the proposal and simply advised that the Rudd Government is considering “a number of useful recommendations” made by the Parliamentary Joint Committee on Intelligence and Security, the SLRC and the Australian Law Reform Commission (which reviewed the law on sedition which was amended in 2005).[8]

Given the detailed consideration the proposal has already undergone, and the wide support it has received, there seems no good reason to delay its implementation.

Legislation is essential to ensure the reviewer’s independence and to give the powers needed to do the job well.

The Bill which I introduced last month provides the essential legal basis to establish this safeguard for security and our rights, a safeguard which been endorsed across the political spectrum and by members of civil society.

I hope the Parliament is given the opportunity to endorse the proposal and ensure its effectuation as a matter of priority.

[1] Lodhi v R {2006} NSWCCA 121 at 66 cited in Parliamentary Joint Committee on Intelligence and Security, Review of Security and Counter Terrorism Legislation, December 2006, page 17.

[2] Address to EU Conference on Public Security, Privacy and technology (20 November 2007), cited by Attorney-General Robert McClelland, speech to Security in Government Conference, National Convention Centre, Canberra, 7 December 2007.

[3] Report of the Security Legislation Review Committee, June 2006, page 6.

[4] Review of Security and Counter Terrorism Legislation, December 2006 and Inquiry in the proscription of ‘terrorist organisations’ under the Australian Criminal Code, September 2007.

[5]Hon Michael McHugh AC QC, ‘Terrorism Legislation and the Constitution’ (2006) 28 Australian Bar Review 117.

[6] Review of Security and Counter Terrorism Legislation, December 2006, page 18.

[7] See footnote 4.

[8] Sandra O’Malley, ‘Georgiou, Moylan to seek review of terror laws,’ AAP, 11 March 2008, retrieved 18 March 2008.

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