On Wednesday the federal Attorney-General, Robert McClelland, tabled a 400-page discussion paper on proposed amendments to the anti-terror laws. The report, which will be open for submissions from the public, proposes a number of significant changes to the existing legislation. Although on balance it seems that the changes have beefed up a set of already hefty laws and require plenty of scrutiny — there are certainly a couple of things to commend.
In line with recommendations of the Clarke Report into the Haneef affair, the Government has proposed a cap of seven days on the amount of time a suspect can be held without charge without judicial intervention. This is substantially less than the period allowed in the UK (28 days) but more than the limit in Canada (24 hours).
The discussion paper also proposes that the sedition provisions of section 80 of the Criminal Code be toned down: the term "sedition" has been abolished in favour of "urging violence against the Constitution etc" and there is now an additional requirement of intent that the force or violence urged will actually occur.
I wouldn’t consider these changes to be a major triumph for supporters of civil liberties but, in the face of a fairly draconian raft of legislation, any development of this nature should be viewed positively.
Unfortunately, the same cannot be said for some of the other recommendations that have been made.
The current definition of a "terrorist act" requires (among other things) that the action or threat of action causes "serious harm that is physical harm" to a person. The Government plans to drop the "physical" aspect of the definition of harm, thereby allowing the laws to account for the possibility of psychological harm being inflicted on individuals as a result of a terrorist action.
Bearing in mind that this relates to the harm caused by the action itself — and not the psychological state of mind of the offender — it is difficult to determine how the psychological harm to victims of terror attacks might be measured. While the proposal purports to bring the definition of "harm" in line with other offences covered under the code, terrorism is a fundamentally different offence in that terrorists often do not discriminate in their selection of targets. In this context, it is difficult to understand how psychological harm might be measured in the context of a large scale attack.
Viewing the legislation as a whole, this change will actually add to the haze surrounding a swag of already nebulous offences. I would be interested to know how one would run the prosecution (or the defence, for that matter) of an individual charged with, say, "attempting to prepare an attack which was likely to cause psychological harm".
Although the concept leaves me bewildered, under the proposed laws, such a charge is entirely possible.
There are also proposed amendments to the Crimes Act 1914, which would enable the police to enter premises without a warrant in emergency circumstances. Currently, police have search powers in relation to terrorist acts, but only in a Commonwealth place or a "prescribed security zone". Under the new legislation, this will be expanded to allow an officer to enter other premises (including private dwellings) where an officer suspects on reasonable grounds that there is material relevant to a terrorism offence and that there is a risk to the health or safety of the public.
Warrantless search is not a new concept. However, the problem lies with the potential application of additional search powers and the definition of what constitutes "emergency" circumstances. I would hope that further changes to the proposed bill would clarify this in more detail, especially when taking into account NSW Police Commissioner Andrew Scipione’s expansive construction of the meaning of the word "imminent" last week.
The discussion paper also flags some possible changes to the National Security Information (Criminal and Civil Proceedings) Act 2004, which impact on the running of criminal and civil proceedings pertaining to terrorist actions.
Under the existing legislation, information pertaining to national security is able to be disclosed either upon the issuance of a certificate by the Attorney-General, or by the prosecutor in the course of his or her duties. There is also a set of circumstances where information may be disclosed by certain others — such as government officials and intelligence officers — while acting in the course of their duties.
The Government has expressed concern that, in civil proceedings, the definition of "permitted circumstances" of disclosure is too wide and it has suggested placing the discretion almost entirely in the hands of the Attorney-General. They have cited "flexibility" as the key impetus for the change.
Flexibility? Certainly, for the Attorney-General’s department and ASIO. Transparency for the rest of us? Absolutely not — especially when one considers the breadth of information that could be considered to fall foul of national security sensitivities.
No doubt more discussion will develop on the issue as we digest the mammoth document produced by Robert McClelland’s office. The bill for a National Security Legislation Monitor, which I mentioned last week, is being considered by a senate committee at the moment. In my view that legislation cannot be passed soon enough.
Suffice to say, I am extremely cynical of any "efficiency" argument underlying the current proposed changes, especially since it is being made by a government prone to churning out 400-plus page discussion papers.
However, I am even less confident in the ability of the Opposition — the initial proponents of the anti-terror legislation — to provide anything more than watered-down criticism of some of the harsher aspects of the proposal. As architects of the original legislation, they approached the task of drafting considered, democratic and balanced anti-terror legislation with the sensitivity of a herd of bulls in a china shop. They were the first to score major political points on the back of being "tough on terror". Their attempts to keep the legislation in check at this point will inevitably suffer from a major credibility crisis.
While government inquiries are useful, they tend to be retrospective and their findings are generally made long after the issue has moved out of the media spotlight. A credible and statutorily sanctioned voice is needed, with the suitable expertise to advise on the impacts of the terrorism laws on a permanent basis.
Procedural rules in our courts have always preferred the interests of justice over streamlined proceedings, and I cannot help but think that the Government still has a long way to go before it gets the balance right. Although it does not want to appear soft on terrorism, such an accusation would be difficult to make in light of an already harsh legislative regime. Careful consideration of whether there is a real necessity to ratchet up invasive laws must outweigh the desire to score political points.
More law, in this case, is not necessarily good law.
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