The A-G and his PA

In October 2003, former NSW Premier Neville Wran said:

Bluntly, there is no place in a democratic country like ours for powers like these, and history is cluttered with examples where authorities have misused or abused powers to secretly detain and question citizens.

Nifty Neville was talking about ASIO’s (then) new powers to interrogate non-suspects in secret for 24 hours over seven days (and, if necessary, to detain them for that period), if this would ‘substantially assist in the collection of intelligence which is important in relation to a terrorism offence.’ This test is satisfied although the only involvement non-suspects may (allegedly) have is to possess information relating to someone else’s offence.

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On Tuesday of last week, the Bill which will extend these powers for another 10 years ended its journey through Federal Parliament, when it passed through all stages in the Senate, unamended.

Two days later, the report of the Security Legislation Review (or Sheller) Committee was released by the Attorney-General. The Committee is a high-powered body of senior lawyers and statutory office holders, including the Federal Ombudsman, the Privacy Commissioner, the Inspector-General of Intelligence and Security and the Human Rights Commissioner, presided over by a retired NSW Supreme Court judge Simon Sheller QC. Its report, which runs to 255 pages, was required by law to be a ‘public and independent review’ of the operation of security acts relating to terrorism.

Legal tragics (and others who should get a life) have been breathlessly awaiting it. Would it criticise these ASIO powers, and the extraordinary Control Orders and Preventative Detention powers introduced last December?

The answer was no because the review’s terms of reference excluded consideration of those powers, which the report itself revealingly describes as ‘arguably the most controversial parts of the security legislation.’ However, the Committee does find substantial fault with the remaining parts of the Howard Government’s counter-terrorism laws.

It strongly criticises the Attorney-General’s power to proscribe an organisation as a terrorist organisation. The following dramatisation describes the process:

[Attorney-General Philip Ruddock in his office with a personal assistant]

A-G: Roxanne, this bloody Nursing Mothers’ Association has dared to attack my plan to require new mums to supply sufficient surplus milk for my weekly bath!

Roxanne: [horrified] Oh no, Minister, what will happen to your fair complexion?

A-G: There is no alternative, I will have to proscribe them! Type up the usual Regulation, Rox. When it’s ready, grab a cab out to Yarralumla and get Mike to sign it, there’s a good girl.

Roxanne: [puzzled] Mike?

A-G: You know, Mike Jeffery. The Governor-General.

Roxanne: Oh yes, that nice man who saves you the trouble of signing things.

That is the process or close enough.

Not surprisingly, the Sheller Committee recommends the process be more transparent, independent and provide prior notice to the organisation and persons affected.

This seems desirable when the immediate consequence of proscription is that members of a proscribed organisation become liable, as such, to prosecution for an offence punishable by 10 years jail!

The Committee’s report also recommends repeal of the offence of ‘associating with terrorist organisations.’ The association element of the crime is satisfied if the accused merely ‘communicates’ twice with a member of a terrorist organization. The Committee concludes that the offence breaches a fundamental human right freedom of association, as well as the Federal Constitution’s implied right of freedom of political communication.

Sheller and his Committee, all but two of whom were either selected by Ruddock or occupy statutory offices to which they were appointed by this Government, have other substantial objections to the security legislation under review.

Criticism is made of provisions imposing strict liability for offences which carry heavy penalties. For example, the offence of providing training to, or receiving training from, a terrorist organisation does not require that accused persons know that the organisation is a terrorist organisation, merely that they are reckless as to that possibility. Yet the penalty is severe 25 years jail.

The report slams the reversal of the onus of proof. It is usual for the prosecution to be required to prove all the elements of a crime. However, where persons are charged with membership of a terrorist organisation, accused persons themselves are required to prove that they took all reasonable steps to cease to be a member as soon as practicable after they became aware that the organisation was a terrorist organisation. They may have taken those steps but if they cannot prove it, they may still be convicted.

Thanks to Emo.

In all, this impressive report contains 20 recommendations which deserve the closest consideration. Sadly, within hours of its release, Ruddock (perhaps on the advice of Roxanne) ruled out both changing the process for proscribing terrorist organisations and the repealing of the ‘associating with terrorist organisations’ offence.

The Federal Opposition should agitate for the ASIO powers, and the Control Orders and Preventative Detention powers introduced last December, to be reviewed by the Sheller Committee also. The reports of the parliamentary committees which inquired into these provisions compare unfavourably with the Sheller report whose authors have the necessary legal expertise, time and independence (from the Government and a partisan A-G’s Department) to do a proper job.

In particular, the parliamentary committees did not come to grips with the constitutionality and human rights breaches of most of those provisions.

Meanwhile, at the NSW ALP State Conference held in Sydney earlier this month, some progress was made on these issues. The State ALP’s Law Reform and Constitutional Processes policy committee presented a report to the Conference containing a unanimous recommendation that a community consultation process occur to determine whether a (State) Charter of Rights and Responsibilities should be introduced the same process which resulted in the Bracks Government announcing plans to introduce such a Charter in Victoria.

With a State election due in March 2007, there is considerable nervousness within State Cabinet about that proposal because of its potential to excite a fear campaign by the usual clique of Right-wing media apologists for the Liberal Party. After discussion, the Conference agreed that the consultation occur within the NSW ALP, as a first step. Do not expect this process to conclude before the election.

My friend Carmel Rose and I also submitted an amendment to the Committee’s report which called on the Federal Parliamentary Labor Party (FPLP) to ‘consider reviewing’ its attitude to detention-without-charge, referring to the ASIO and Control Order detention provisions.

After the amendment was lodged, a Federal Shadow Minister asked to speak to me about it. After a polite exchange, I gained the distinct impression that it was
unlikely to receive the support of the Conference. The MP and I agreed it was not sensible to proceed with it publicity of a negative vote on such a proposal was not in the Party’s interests. The difference between us was, I suspect, that the MP would have thought the same about publicity of a positive vote.

I re-drafted the amendment and the Shadow Minister expressed agreement with it, after he checked it with a colleague over the phone. The final draft still asked the FPLP to consider reviewing its attitude to detention-without-charge, noted that Federal Labor was supporting a five-year sunset clause for the ASIO Bill (rather than Ruddock’s 10 years) and urged support for the introduction of the same sunset clause for Control Orders.

The altered amendment was debated and carried on the voices. Three steps forward, two steps back. Politics.

The highlight of the Conference was Kim Beazley’s tough speech drawing a line in the sand on AWAs he was applauded with genuine enthusiasm and affection by the 800 delegates. More please, Leader!

The election of Professor George Williams as Chair of NSW’s Law Reform Committee was also a welcome development as he is a brilliant lawyer and the architect of the Bracks Government’s Charter of Rights and Responsibilities.

In 2003, Neville Wran, a strong critic of our anti-terror laws (and a resolute defender of basic legal rights during his political career), concluded his remarks about the ASIO powers, as follows:

it is of fundamental importance that in the fight against terrorism, we do not do more damage to ourselves and the values we cherish, than we do to enemies of our civilisation.