A Guide to Terror Control

Despite the short time frame for the inquiry by the Senate’s Legal and Constitutional Legislation Committee into the Anti-Terrorism Bill (No 2) 2005, more than 260 written submissions were received. The Committee crammed discussion of the submissions into 3 1/2 days of public hearings and is compiling its report, to be presented next week.  

Only a handful of the written submissions support the Bill’s proposed Control Orders and Preventative Detention, and none of the detailed submissions do.

Only one witness at the hearings, Deputy Commissioner John Lawler of the Australian Federal Police gave reasons for the need for these Control and Detention Orders. This is how he expressed himself:

[Control Orders are needed] because ASIO’s questioning and detention powers can only be exercised in limited circumstances because gathering intelligence is not the correct response, because the person cannot be prosecuted because an offence is not available, because the evidence is not admissible or cannot be used without revealing and/or compromising sources and techniques.

OK, so ASIO’s   powers are allegedly deficient why are additional police powers necessary?

Intelligence is not the right response? So, when is it ever the right response the police role is to get the evidence.

No offence available? No examples of gaps in the law were given but new offences could easily be created.

Not the right evidence? Try harder.

Lawler went on:

[Preventative Detention] would enhance [the AFP’s] ability to prevent and investigate terrorist attacks and to respond effectively to attacks in a way that is consistent with the police in other jurisdictions.

So, if you lock up people against whom you have insufficient evidence, this will help police prevent terrorism. I suppose it might but it has not done so in England, the ‘other jurisdiction’ referred to. And what about the dangers no person is safe from suspicion, say, as a result of a malicious complaint.

The solution? More resources for the police forces to enable them to get the evidence they need to charge people.

The Committee’s hearings involved some lively debates, in particular between the Liberal Senator George Brandis and some of the key opponents of his view.

Senator Brandis supports the Control Order/ Detention provisions while John North, the President of the Law Council of Australia (the lawyer’s peak body) emphatically does not. Brandis put it to North that Control Orders are similar to Apprehended Violence Orders obtained during domestic disputes. North conceded they are similar in form but contended that AVOs never amount to imprisonment or anything like it.

Brandis claimed that Control and Detention Orders fill a gap in the law but only cited one example he said that if a terror suspect was overheard telling someone that he proposed to commit a suicide attack the following day, the suspect could not be arrested on a charge because he hasn’t yet done anything.

How can that be right? Surely the police could effect an arrest hours before the attack, catching the would-be terrorist in possession of explosives. John North’s response was that he could be arrested immediately for the offence of planning the attack. (See sections 101.4 & 101.6 of the Criminal Code 1995)

Mr North was an impressive witness not least when he quoted Guy Mansfield QC, the Chair of the UK Bar Council, who has criticised the Bill:

even defendants charged with the most appalling and despicable crimes remain entitled to basic rights A nation’s level of civilisation is to be judged not by the way it treats the majority of its citizens but what it does to its minorities, its criminals, its troublemakers and its misfits.

George Brandis is getting it right on one issue though. He carefully cross-examined several witnesses who made submissions on the Sedition changes and made it clear he doesn’t think Sedition laws are necessary at all. It looks like Phillip Ruddock may have to can those changes, pending his already announced review of sedition.

Briefly on other contributions, Cameron Murphy from the NSW Council for Civil Liberties pointed out that the Bill contains provisions which effectively abolish the need for police to obtain a search warrant to enter and search premises in relation to all serious federal offences. This is a very radical alteration of the current law, the need for which has not been explained at all. This change has slipped past some of us trying to pay attention, but perhaps we can be forgiven when you consider the haste with which the Bill is being rammed through the Parliament.

Finally, Geoff McDonald from the Attorney-General’s Department seemed curiously coy when explaining the constitutional basis for Preventative Detention. The impression you get is that the Government knows that the Control and Detention Orders are constitutionally suspect and seems unconcerned.

Who cares if the High Court strikes down these provisions when, as I suspect, they are really just about distracting attention from the WorkChoices legislation just a cynical smokescreen, reckless as to their impact on, and encouragement of, extremists among our disaffected minorities. It should be remembered though that the complementary legislation to be passed by the States will likely be constitutionally valid.  

State Legislation
Turning to that complementary State legislation, the Terrorism (Police Powers) Amendment (Preventative Detention) Bill 2005 has been introduced into the NSW Parliament.

This State Bill provides for Preventative Detention for up to 14 days. The provisions allow a person to be detained if it would ‘substantially assist’ the prevention of a terrorist act expected within 14 days, or to preserve evidence of, or relating to, a recent terrorist act. It applies to people against whom there is insufficient evidence to justify a charge.

Initially, the Supreme Court may make an Interim Order for a maximum of 48 hours if it 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.

The Interim Order can (and likely will) be made without the subject’s knowledge. It is made in a closed court where the rules of evidence do not apply. Hearsay evidence will be allowed. The subject is taken into custody and the hearing at which a final 14 day Order may be made must take place within 48 hours after detention, otherwise the Interim Order lapses.

The procedure for this final hearing is also seriously deficient:

¢ The notice of hearing is required to be given less than 48 hours beforehand. Detained persons or their lawyers may call evidence and make submissions at the hearing but preparing for it at short notice would be very difficult;

¢ Detained persons are not entitled to see the documents upon which the Interim Order was obtained, merely a copy of the Order and a summary prepared by the police, not the court, of the grounds on which it was based. The summary is further limited by allowing the exclusion of ‘material likely to prejudice national security’;

¢ Detained persons’ communications with their lawyers are monitored, an unprecedented and totally unacceptable provision;

¢ 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, whereas legal aid for other serious criminal offences is mandatory for those unable to afford representation;

¢ The hearing will be in a closed court and publication of information about it may be suppressed;

¢ Again, the rules of evidence do not apply and hearsay evidence is therefore allowable;

¢ There is no requirement for any of the police evidence to be provided to the detained person prior to the hearing;

¢ The police make the application, not the independent Director of Public Prosecutions who usually prosecutes serious criminal offences.

If the Interim Order is confirmed, the detained person does have a right to apply to the court to revoke or vary the Order at any time thereafter, but only if there is new evidence available. A similar hearing would take place as above, with the same deficiencies.

Detention without charge has never been allowed in Australia except in cases of serious mental or infectious illness, internment during wartime, or in relation to non-citizens (that is, illegal immigrants). Apart from these exceptional cases and ASIO’s very limited power to detain for questioning which has been strongly criticised, citizens can only be detained for the purpose of bringing them before a court on a charge.

As with the Federal Bill, there is no explanation in the State Bill or the accompanying Explanatory Memorandum or in the Minister’s Second Reading Speech of the need for this detention or the severe restrictions on the detainee’s opportunities to respond to it.

One wonders what is supposed to be achieved. Questioning of the detained person is prohibited by the Bill, so it will not assist an investigation.

Incidentally, Attorney-General Bob Debus did not introduce the Bill or deliver the Second Reading speech. This was left to one of the State’s most junior Ministers Milton Orkopolous perhaps indicating the level of support Mr Debus has for the legislation which he is reported last week to have described as ‘a shithouse Bill.’

Nevertheless, the Bill seems set to pass serenely through State Parliament with the support of the major parties.

A Kangaroo Court
It will then be law. Any new powers conferred on the Supreme Court are allocated to one of the Court’s Divisions to which Judges are appointed according to their experience of particular legal areas. It seems appropriate that a new Division should be created for the proposed Act. I suggest it be called the Kangaroo Court because that is how the Supreme Court will operate when exercising its jurisdiction under this Act.

I am a member of the ALP’s right wing faction. Many of my factional colleagues will scorn this criticism. They will say that I should shut up and concentrate on fighting the much more important industrial relations changes being forced through Federal Parliament.

As a trade union (USU) member for more than 20 years, I agree with them that the IR Bill is extremely important. However, these Anti-Terror Bills, while perhaps not as critically important, are still of major significance. Parts of them are an attack on fundamental common law rights the right to personal liberty and the presumption of innocence.

State and Federal MPs may care to reflect on all this before they vote on these proposals. They may also care to read the written submission made to the Senate Committee by a Dr Andrew Christy. Christy quoted Benjamin Franklin:

Any society that would give up a little liberty to gain a little security will deserve neither and lose both.