I have now read John Howard’s draft Anti-Terrorism Bill 2005 all 106 pages of it thoughtfully provided by the ACT’s Chief Minister and Attorney-General, Jon Stanhope, on his website.
In relation to the proposed ‘control orders’ and ‘preventative (sic) detention’, the Bill contains radical departures from centuries-old principals underlying our criminal law and deserves the closest scrutiny. Let me tell you about it.
Control orders can impose severe restrictions on persons subjected to them. They are available on application to a Court by the Federal Police with the Attorney-General’s consent. Significantly, the subject of the control orders will not have any knowledge of the application and will not be able to oppose it. If a Court finds that it is more probable than not that the order will ‘substantially assist in preventing a terrorist act’ then a control order may be made.
Remember, a ‘controlled’ person will be someone against whom there is insufficient evidence to support a criminal charge “ otherwise they would be arrested. However for control orders there is no need even for a suspicion of criminal activity. The orders are likely to be routinely made because the standard of proof (‘the balance of probabilities’) is much lower than the criminal standard. Further, the word ‘substantially’ would not seem to add much to the word ‘assist’ and minor assistance is likely to be enough.
Control orders may require a person to remain at specified premises, and/or wear a tracking device, may prohibit a person from communicating with specific individuals, may prevent a person from using communications (for example telephone or internet), and may prohibit a person from possessing specified articles or carrying out specified activities.
These provisions allow a person to be confined to their home for 12 months after which the order can be renewed at 12 monthly intervals.
There are no limits to the persons who could be banned from communication, including all known friends and relatives and even specified lawyers. The only limit on the banned activities is that they be specified.
Does this suggest to you that solitary confinement for years without charge or trial is not excluded? Precisely.
Control orders alleged to be urgent are available from a Court by telephone, fax or email on the condition that an explanation is given for the urgency.
Controlled persons can apply to a Court to object to the order continuing but they are not entitled to obtain copies of any documents used to secure the control order in the first place. So how do they oppose it? And here is the killer “ even if the Court is satisfied that the order objected to should no longer apply, it is not compelled to revoke it!!
The Bill does not prevent an appeal under ordinary Court procedures but as any such appeal would be restricted to errors of law, it may not help much.
If the controlled person breaches the order (for example by using a telephone) there is a heavy penalty “ a maximum of five years imprisonment, the same penalty Alan Bond faced when he stole several thousand million dollars from Bell Resources.
That is not all, however. A control order can apply to a person of just 16 years of age, although the order is then only in force for three months..But it is also renewable.
There is a sunset clause for the control order (and other) provisions “ ten years, and although the Council of Australian Governments (COAG) agreed to a review after five years, I can’t find that anywhere in the daft made available by Stanhope’s.
Preventative Detention Orders
The second radical departure in the draft Bill relates to preventative detention orders which allow a person to be taken into detention to prevent a terrorist act expected within 14 days, or to preserve evidence of, or relating to, a recent terrorist act. Once again, this provision applies to people against whom there is insufficient evidence to justify a charge.
Initially, a senior Police Officer may issue the order if he has reasonable grounds to suspect that the subject will engage in a terrorist act or (merely) possesses a thing connected with the preparation for, or the engagement of a person in, a terrorist act, or has done or will do an act in preparation for, or planning, a terrorist act.
Once again preventative detention orders can apply to a 16 year-old who is then restricted to two hours monitored contact per day with a family member. That family member is then prohibited from informing any other person of the order. Adults can only telephone and say that they are safe and cannot be contacted; or they can have monitored contact with a lawyer – but not a banned one!
Detention orders are made in two stages. An initial detention order is issued by a Police Superintendent (or above) under which the person can be detained for 24 hours. That is six times longer than a person can be detained if they are arrested on a charge, before the
Police must approach a Court. At the end of the 24 hours, the police can apply to a Magistrate or Judge for a 24 hour continuation. The Magistrate or Judge is to act in a personal capacity and not as a Court officer. Thus no Court and, therefore, no appeal.
Why is the Government proposing that a Court not be involved? The answer is that the procedure to obtain preventative detention orders is regarded as an administrative function not a judicial one and the Australian Constitution forbids a Court from performing non-judicial functions. Why? To ensure the separation of powers between the Executive (the government) and the Judiciary.
A potential problem for the Government will be that the High Court said recently that a federal Court or even a federal Judge in a private capacity cannot perform any functions which are incompatible with the holding of judicial office.
When you are talking about detention without charge and punishment without trial (for instance, 12 months house arrest), these provisions may be open to constitutional challenge simply on that basis.
Howard is clearly not confident that the Parliament has the constitutional power to enact a preventative detention process allowing detention beyond 48 hours. As a result, to get around the Constitution, he is asking the State Parliaments to pass legislation to extend preventative detention to up to 14 days.
There are many other worrying proposals in the draft Bill “ life imprisonment for indirectly giving money to someone, reckless as to whether the other person will use it to facilitate a terrorist act, is one. This may ensnare a generous grandparent.
Another is the provision which allows police to shoot dead a person attempting to evade detention by fleeing. There is no doubt from reading the Bill that the inclusion of this clause was quite deliberate. It begins by stating as you would expect, that a police officer cannot use more force than is necessary and reasonable to take a person into custody or to prevent the escape of the person after being taken into custody. However, the clause does not apply where a person is attempting to escape being taken into custody.
The Bill clearly says in that case, if the officer believes on reasonable grounds that action likely to cause death or grievous bodily harm to the fleeing person is necessary to protect life or serious injury, and the officer believes on reasonable grounds that the person cannot be apprehended in any other manner, he can shoot to kill. What a disgrace!
So what is the alternative to the Bill? How should the terrorist threat be dealt with?
Essentially we are talking here about serious crime, conspiracy to murder and murder itself. These are matters for the police of course, supplemented by hard intelligence from the security services. But why are extravagant new police powers necessary?
Did the police need new and drastic powers to solve the backpacker murders, the Snowtown cases, the Glover granny-killer matters, the recent Skaf gang rapes or earlier initially baffling, multiple homicides? No, is the emphatic answer. Over the last 20 years, technology has delivered police unprecedented aids “ DNA testing, advanced chemical analysis, satellite photography and tracking, the internet, directional microphones and voice and face recognition, just to name a few.
The real deficiency here is not with powers but with stretched police resources. Police just need the money to be able to detect, arrest and charge the criminals in the ordinary way. A thousand extra police should do it, surely “ spread across all States and Territories. At a marginal cost of say, $150,000.00 per head per year, it would cost $150 million annually. Small change for an economy running record, billion dollar surpluses.
How much is John Howard proposing to spend to implement his package? Very little on police, and a lot on his secret spy force, ASIO. This is potentially dangerous “ until his ASIO statement last Sunday, we could assume his anti-terror measures would be rarely used, through lack of resources. Now we know that these measures will have the muscle of greatly increased ASIO intelligence secret and untestable.
I wonder whether the Premiers knew this. I suspect not.
Having studied the draft Bill, a substantial part of it appears to be bad policy. It merits lengthy debate and will likely get it, at least before it hits the Parliament – thanks to Jon Stanhope, but no thanks to Howard or his Government.
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