Research Note No. 25, 2001-02
Terrorism: Legislating for Security
Nathan Hancock
Law and Bills Digest Group
19 February 2002
Terrorism
For most of the last century people have
tried to define 'terrorism'. While there is no consensus, the core elements
are likely to include:
acts or threats of violence or criminality
motivated by political objectives with the intention of influencing the
government or intimidating the public.
Australia has had little or no experiences
of terrorism. We have had experience with related issues such as politically
motivated violence, organised crime and national security. We have enacted
laws dealing with a range of related issues but there is really no specific
anti-terrorism statute in Australia.
Following the '9-11 Attacks' on the United
States, Australia has been forced to consider the nature and extent of
terrorist threats and the appropriate responses in Australia. In particular
Parliament is being drawn into a debate about whether it should go further
and, for example, enact specific anti-terrorist laws.
Overseas Laws (US &
UK)
In part the pressure for legislative action
in Australia stems from recent counter terrorist measures in the United
Kingdom and the United States. The key laws are the Terrorism Act 2000
(UK) and the PATRIOT Act of 2001 (US). Both allow terrorist organisations
to be proscribed, making membership or support an offence and placing
duties of disclosure on third parties. Both confer strong law enforcement
powers, particularly in relation to search and seizure warrants.
Areas of particular interest have been
preventive detention and particular terrorist offences. The UK has a broad
power to detain whereas the US detention regime is largely limited to
aliens. The UK has no specific terrorist offence whereas the US has strong,
specific and extraterritorial terrorist offences.
Australian Laws
As overseas comparisons show, anti-terrorist
laws invariably deal with issues such as control over terrorist organisations,
specific terrorist offences and enhanced law enforcement powers. But there
is a broader set of laws dealing with intelligence gathering, preventive
measures, crisis management and investigative/enforcement powers.
Global Terrorism Statistics (1993-2000)(1)
Key Australian legislation includes:
- entry and deportation of aliens (Migration Act 1958)
- intelligence services agencies (Intelligence Services
Act 2001; Australian Security Intelligence Organisation Act 1979)
- proscribed organisations (Crimes Act 1914; Charter
of the United Nations Act 1945 (via UN Resolutions))
- suspect transactions (Proceeds of Crime Act 1987;
Financial Transaction Reports Act 1988)
- investigation and enforcement (Australian Federal
Police Act 1979; National Crime Authority Act 1984)
- criminal procedure (Extradition Act 1988; Mutual
Assistance in Criminal Matters Act 1987)
- specific offences (Crimes (Foreign Incursions and
Recruitment) Act 1978; Crimes (Hostages) Act 1989; Crimes
(Biological Weapons) Act 1976; Crimes (Internationally Protected
Persons) Act 1976)
Australian Proposals
Key legislative measures proposed to date
by the Government include:
- control over terrorist finances
- extraterritorial application of laws
- questioning of non-suspects by ASIO before a 'prescribed
authority'
- arrest of persons by State and Federal Police 'to protect
the public'
- specific terrorist offences
Specific Issues
The first two proposals would make minor
adjustments to a relatively extensive legislative regime. The remaining
three proposals, however, may give rise to various questions.
For example, do we need a separate terrorist
offence? Virtually all terrorist acts involve some offence known to the
law. The key is investigation and prosecution. Those processes may be
frustrated if, noting the core elements above, police and courts
are also required to prove political motivation or intention to influence
government.
Second, should ASIO be allowed to question
persons and before whom should they be questioned?. There are few precedents,
although the NCA does have powers to compel people to give evidence in
hearings. Compulsory questioning is usually done after arrest, with a
right of representation and before a judge.
Third, are there dangers in protective
detention. Ordinarily, a person is not detained unless arrested under
a judicial warrant. Also, generally, detention should be reasonably necessary.
It should not be arbitrary. These principles are inherent in the common
law and in international law. Yet there is no guarantee that the detention
model proposed will have these features.
General Issues
However, even before these specific questions
arise, there may be more general questions asked about the power of the
Commonwealth to take the proposed anti-terrorist measures
Threshold Questions
The Commonwealth may derive legislative
power over terrorism from a mosaic of direct and indirect sources, including
the powers in relation to defence, external affairs and corporations and
the powers derived from its 'inherent right of self-protection' or its
'character and status as a national government'.
But the Australian Constitution does not
give the Parliament 'complete constitutional power' to deal with terrorism.
It has no general power to deal with crime and, consequently, it may have
limited power to deal with non-federal acts of terrorism.
Moreover, the Constitution does not give
the Government unlimited authority to determine what is in the interests
of national security. Parliament and the Executive will face scrutiny
from the Judiciary regarding the scope of their powers, the scope of judicial
review and the integrity of the judicial process.
Broader Questions
Questions about the scope of legislative
and executive power and the assessment of national security are likely
to be asked. But, so too will questions about whether the laws are necessary,
sufficient or proportionate in relation to the particular threat facing
Australia.
The major issue for Parliament is that
it may be enacting strong laws largely in response to overseas events.
And while overseas measures may offer some suggested approaches, they
should be placed in context. The United Kingdom laws had a very specific
context: the conflict in Northern Ireland during which threats to civilian
targets became a sometimes daily experience. Likewise, the United States
laws were enacted in the aftermath of September 11.
Comparative approaches to counter-terrorism
are a relevant part of the debate in Australia just as is a measured appreciation
of the specific terrorist threat in Australia.
Arguably the way forward would be to approach
'terrorism' as if there were no precedents, simply lessons. A clear appreciation
is needed of:
- the subject matter of the laws: what distinguishes
terrorism from other offences or national security issues?
- their purpose or object: are they to be proactive or
reactive?, and
- the standards against which they will be measured in
terms of:
- intended effects: to what extent will the laws guarantee
security?
- incidental effects: to what extent will they infringe
civil liberties?
Balancing Liberty with
Safety
This last question is one of the strongest
themes in anti-terrorism discourse. In theory, it is possible to achieve
security objectives without threatening individual liberty and the protection
of the rule of law. But there has been a tendency toward intractable conflict
and sacrifice. The standard practice in the United Kingdom and the United
States has been simply to acknowledge the complex competing interests
of safety and liberty. The Australian Prime Minister recently said:
What I can promise you and promise
the Australian public is that we will do everything we fairly and reasonably
and practically can to minimise the risk consistent with not trampling
on what are valuable rights of the Australian people(2)
Justice Michael Kirby also said:
Every erosion of liberty must be thoroughly
justified. Sometimes it is wise to pause. Always it is wise to keep our
sense of proportion and to remember our civic traditions as the High Court
Justices did in the Communist Party Case of 1951(3)
In that case the High Court rejected a
law which attempted to outlaw the Australian Communist Party, based on
Parliament's view that it posed a threat to national security. The Court
held that the Judiciary is to determine issues such as the nexus between
a set of facts and the national security aspect of the defence power not
the Parliament. The 'civic tradition' is essentially that of adherence
to the rule of law.
Endnotes
- US Department of State, Annual Review of Global
Terrorism 2000.
- The Hon. John Howard, MP Transcript
of Press Conference, 2 October 2001.
- Justice Michael Kirby, 'Australian
law, after September 11, 2001', Speech to the
Law Council of Australia, 32nd Australian Legal Convention,
11 October 2001.
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