At 4:14pm on Thursday, 3 November 2005, Attorney-General Philip Ruddock rose in the House of Representatives and delivered the Second Reading speech to the Anti-Terrorism Bill (No 2) 2005 the speech in which, traditionally, the minister with the carriage of a Bill outlines its terms.
Ruddock only spoke for about eight minutes and some of the content was either wrong or misleading. The speech was no more than a cursory summary of the legislation’s provisions and contained no explanation of the need for Control Orders or Preventative Detention and made no reference to the Bill’s radical departure from centuries of careful safeguarding of the right to personal liberty.
Thanks to Sean Leahy
There was also no reference to the constitutional basis of these controversial measures, so I turned to the Explanatory Memorandum the 116-page document which accompanies the Bill. Nothing there either!
The only possible conclusion is that our Government sees no need to justify or explain itself concerning these fundamental changes.
The Bill is a second draft, and some improvements have been made . In the press, much has been made of the alleged addition of ‘judicial review’ and other ‘safeguards’ to the Bill. But how do they actually work?
The major change to the Control Order regime is that the initial (interim) Order obtained (without notice to controlled persons) will now need to be confirmed at a court hearing. That is a significant improvement. But on close examination, the provisions for the hearing fall far short of what would normally be expected, given the seriousness of the possible outcome.
The problems with the confirmation hearing are as follows:
¢ The notice of the confirmation hearing needs to be given only 48 hours beforehand. Controlled persons or their representatives may call evidence and make submissions at the hearing but that right is available only on the ‘day specified’ in the notice. It appears to exclude an adjournment to allow legal advice to be obtained, which is invariably allowed for other hearings;
¢ The controlled person is not entitled to see the documents upon which the interim Order was obtained, merely a copy of the Order and a summary of the grounds on which it was based. Philip Ruddock misled the Parliament when he suggested in his Second Reading speech that the grounds themselves will be available. The summary is even further limited by allowing the exclusion of ‘material likely to prejudice national security’;
¢ Although the controlled person will not see it, the court must consider the original request for the interim Control Order;
¢ The court need only be satisfied on the balance of probabilities rather than the criminal standard of beyond reasonable doubt;
¢ There is no provision for legal aid for a controlled person (whereas legal aid for serious legal offences is mandatory, if needed);
¢ There is no requirement that the controlled person or a representative be present when the Control Order is confirmed;
¢ The provisions are silent on which party bears the onus of proof;
¢ There is no requirement for any of the police evidence apart from the Control Order and the summary of grounds to be provided to the controlled person prior to the hearing.
If the interim Control Order is confirmed, the controlled person does have a right to apply to the court to revoke or vary the Order at any time thereafter but a similar hearing would take place as above, with the same flawed process. In his Second Reading speech, Mr Ruddock claims that the Act allows the person to apply for the Order to be declared void (from the beginning), at this stage. That is simply not true as can be seen from 104.18 of the Bill.
A controlled person would also be able to appeal the court’s decisions but that appeal would be restricted to errors of law.
Overall while these review procedures are better than nothing, they fall far short of what would be required if a criminal charge had been brought against the controlled person in the same circumstances.
These manifest deficiencies in the review process may add to the likelihood of the High Court declaring these provisions constitutionally invalid. This arises from the traditional view of the High Court that the Parliament cannot invest a Federal Court with the power to imprison a person unless the process involves the adjudication of criminal guilt concerning past conduct. Neither of those requirements is necessarily present here. As there is no charge, no proper trial process and no conviction but a Control Order may impose heavy punishment, one would expect the High Court would lean towards invalidity if it had any doubts. The attitude of newly appointed Justice Susan Crennan may be crucial in this respect.
Preventative Detention Orders
These provisions remain largely unchanged from the first draft Bill.
As before, a reasonable suspicion of involvement in terrorism is enough for a Detention Order to be made by the police (not a court) for an initial 24-hour period. This is six times longer than a person charged with an offence can be detained, before an approach to a court is necessary. In addition, after that 24-hour period is over, the Order can be continued by application to a judicial officer or former judicial officer, acting in a private capacity, The Order then may be continued for a further 24 hours. And the Premiers have agreed to pass laws allowing for the continuation of this detention for up to 14 days!
The first point to make is that this is detention by the Executive (that is, the government) rather than by a court. It is quite open to the government to appoint a retired judge or even induce a sitting judge to resign from a court in order to take up an appointment under these provisions. From the standpoint of human or common law rights, the objection is that this detention power allows the normal four-hour period of detention before a charge has to be laid, to be extended by a factor of 12 and, in relation to the further extension to be legislated by State parliaments, by a factor of 84!
Noting that no court is involved in the process, there is no appeal. Philip Ruddock trumpets a right of ‘judicial review’ in his Second Reading speech but this arises directly from the Australian Constitution and cannot be excluded by legislation. That right of review is limited to ensuring that the police and judicial or former judicial officers do what they are supposed to do under these provisions. There is no right to any other review within the 48-hour period. At the insistence of the Premiers, at the end of the initial 24-hour period, the decision-maker is required to make a fresh decision rather than confirm the previous decision. This is only a minor improvement because there is no hearing involved.
There is a provision allowing the detained person to make submissions to a police officer in relation to the detention process but that person is hardly independent.
The Government now proposes allowing two (rather than one) family members to be advised that the detained person is safe. Further, the detainee is entitled to a summary of the grounds on which the Order was made but, as in the case of Control Orders, the summary may not include information ‘likely to prejudice national security’.
Under these second draft provisions, a Preventative Detention Order in relation to a minor between 16 and 18 years of age may (but need not) allow for a longer period than two hours contact with a family member per day. There has been no change to the extraordinary provision that contact with a lawyer must be monitored.
Presumably as a result of negotiations with the Premiers, there is a new and welcome provision that suggests that if the detention order is extended under State legislation allowing for detention for 14 days, the detained person has a right in any legal proceedings challenging the State order to also raise the same matters concerning the Federal Order. At that time, the court is given a discretion to require all of the information that was put before the person who issued the Federal Order to be provided to the parties to the proceedings. This is again subject to exclusion of matters likely to prejudice national security. That right, which will remain unclear until we see the State legislation, obviously does not apply until after the first 48-hour period has expired.
Preventative Detention Orders are also constitutionally suspect. This arises from the possible view of the High Court that detention may only occur by a Federal Court not by police officers or judicial officers acting in a private capacity who must be regarded as part of the Executive.
The Howard Government’s probable argument is that under the Federal provisions, preventative detention only continues for a maximum of 48 hours and that in those circumstances, exceptionally, the usual constitutional objections should be waived. However, due to the absence of any proper hearing except a very limited right to judicial review, the High Court may take a hard line.
To demonstrate the stupidity of at least one of the sedition amendments in the Bill let us look at the change to Section 30A of the Crimes Act which introduces a definition of ‘seditious intention’.
If this amendment is made the relevant part of this Section will read:
The following are hereby declared to be unlawful associations namely: …any body of persons …which by … propaganda or otherwise advocates or encourages …the carrying out of a seditious intention.
‘Seditious intention’ is then defined as:
…an intention to … to promote feelings of ill will … between different groups so as to threaten the peace order and good government of the Commonwealth.
Hmmmmm…What particular body of persons is most observed promoting feelings of ill will between different groups so as to threaten good government? Perhaps, gentle readers, it is the Liberal Party of Australia, judging by the activities of the Prime Minister over the last five years.
More seriously, the new sedition offence would catch a person who simply urges another person to engage in conduct which he or she intends will assist (by any means whatever) an organisation or country engaged in armed hostility with the Australian Defence Force.
In relation to the invasion of Iraq, which many Australians thought illegal and grossly immoral, why is it necessarily sedition to urge someone, say an Iraqi citizen, to assist the Government or the armed forces of a country which a large section of the population regarded as quite justified in defending against an invasion?
Under the proposal, the mere urging of such assistance would be enough to satisfy the offence. Surely that is going too far?
In addition, opinion pieces written by journalists may infringe the provisions and require the authors to prove that the comment was made ‘in good faith’. That film-makers and theatre producers are worried about the provisions catching comments made during artistic productions is a good enough reason to defer the whole of these sedition changes. Surely, there should be an exemption for what is simply an expression of free speech.
The Struggle Continues
The one heartening thing in all this is Howard’s agreement to the Senate Legal and Constitutional Legislation Committee’s inquiring into the Bill. That Committee is currently taking submissions but only until 11 November. It will report back by 28 November.
There is a glimmer of hope here because the six Senators on the Committee are capable moderates from the Coalition, Marise Payne (Chair), Brett Mason and Nigel Scullion, from Labor, Trish Crossin and Linda Kirk, and Natasha Stott Despoja from the Democrats. Senator Kirk even wrote her doctoral thesis on ‘the separation of judicial power’!
Let’s keep up the pressure “ there is still time and the Senators may need that pressure and our help to justify doing the right thing.
As for Mr Ruddock, his level of respect for the Parliament is clear from the fact that his Second Reading speech contained 900 fewer words less than this article…
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