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Head, Michael --- "Detention and the Anti-Terrorism Legislation" [2005] UWSLawRw 1; (2005) 9(1) University of Western Sydney Law Review 1

EDITORIAL: DETENTION AND THE ANTI-TERRORISM LEGISLATION

Michael Head[*]

This special edition of the University of Western Sydney Law Review on detention without trial has proven timely. As we entered the final stages of production, the Australian federal, state and territory governments were in the process of pushing through their respective parliaments far-reaching Anti-Terrorism Bills that introduce two unprecedented forms of detention without trial: ‘preventative detention’ and ‘control orders’. Once again, the ‘war on terrorism’ declared by US President George W Bush and his allies after the September 11, 2001 attacks in the United States is being used to justify previously unthinkable measures.[1]

This edition features two presentations made to a highly successful public forum convened by the UWS Law School in March 2005 on ‘Detention Without Trial: What are the Limits?’ The first is an address delivered by Justice Michael Kirby of the High Court, entitled ‘Liberty, Terrorism and the Courts’. It is a wide-ranging and international review of the extent to which courts have protected liberty against the extension of executive power in the ‘war on terror’. The second is a response by myself, ‘Detention without trial—a threat to democratic rights’, examining the implications of the High Court rulings in Al-Kateb, Al Khafaji and Behrooz, which sanctioned indefinite immigration detention.[2]

Also contained in this edition are two articles by senior legal academics, one by Lynda Crowley-Cyr and the other by Greta Bird, exploring the issues raised by the High Court rulings, particularly in the light of the mistreatment experienced by Cornelia Rau and Vivien Alvarez. Crowley-Cyr argues that the Rau and Alvarez cases illustrate the brutalisation and oppression that can flow from the unfettered discretion exercised by a host of actors pursuant to the Migration Act 1958 (Cth), including Commonwealth and State ministers and officials, private and public health care professionals, and corporate agencies that provide the day-to-day running of detention centres. In her article, Bird draws on theorists such as Derrida, Levinas, Agamben, Lacan and Kristeva to explore the concept of detaining ‘unlawful non citizens’.

In addition, we are pleased to publish two documents arising out of the debate over the Anti-Terrorism Bill 2005. They are the Opinion given by Stephen Gageler SC to the Australian Capital Territory government on the Constitutional issues concerning preventative detention, and the Memorandum of Advice given by Lex Lasry QC and Kate Eastman to the ACT government on the human rights questions raised by the legislation.

In their Advice, Lasry and Eastman conclude that many aspects of the Bill would be inconsistent with the Human Rights Act 2004 (ACT), which draws on a range of international human rights treaties. Control orders would infringe sections of the Act dealing with freedom of movement, arbitrary detention, privacy, freedom of expression, freedom of assembly and association, freedom to take part in public life, rights of minorities, freedom of religion and fair trial and access to lawyers.

In his Opinion, Gageler points to three constitutional grounds on which the Bill could be challenged. The first is the principle, affirmed in the 1992 Chu Kheng Lim case[3], that citizens enjoy a ‘constitutional immunity’ from involuntary detention except by an order of a court exercising the ‘judicial power of the Commonwealth’. Secondly, the High Court reiterated in the 2004 Fardon case[4] that the federal government could not confer on a court any detention power that was preventative and not punitive. In the words of Gummow J, ‘detention by reason of apprehended conduct’ is ‘at odds with the central constitutional conception’ of detention occurring after ‘judicial determination of criminal guilt’.[5] Thirdly, by asking courts or individual judges to issue secret detention and control orders, the government was breaking another rule emphasised in Fardon: courts cannot be ‘called upon to act ... effectively as the alter ego of the legislature or the executive,’ because that would compromise the ‘integrity and independence’ of the courts.

This legal advice makes it plain that the federal Liberal-National Coalition government and the state Labor governments have entered into an agreement that subverts the Constitution, as well as tears up fundamental precepts of international human rights law. The fact that they have continued on this path, despite strong legal opinion, is a serious warning of the lack of support within the political establishment for elementary democratic rights and civil liberties.

The significance of the so-called anti-terror measures has been widely noted in legal circles. On October 31, 2005 the president of the Human Rights and Equal Opportunity Commission, John von Doussa, explained that they had the same goals as a police state.

It might sound over-dramatic to say that the proposed laws are of the kind that may identify a police state, but let us reflect for a moment on that proposition. The defining characteristic of a police state is that the police exercise power on behalf of the executive, and the conduct of the police cannot be effectively challenged through the justice system. Regrettably, that is exactly what the laws which are currently under debate will achieve.[6]

In an article published in the Sydney Morning Herald on November 1, 2005 leading Sydney barristers Ian Barker and Robert Toner pointed out that under the bill’s provisions the government would have the power to control, monitor and jail people who have not committed a crime and have not been charged with committing a crime.

Fundamental to the concept of the rule of law is that citizens are entitled to due process which necessarily includes a right to know what is alleged against you and the facts that are said to support that allegation and to have the allegation determined by a court of law which stands independent of the executive government.

Neither the person subject to the control order nor anybody acting on his or her behalf is given documentation other than the order itself which describes the basis upon which the order was made. The information that the Australian Federal Police provides may be inaccurate, maliciously informed, biased or little more than rumour or gossip clad as reliable information.

Today we are on the edge of a slide into our own 21st-century form of fascism; secret arrest, secret detention, secret interrogation, by secret people. This will be a product of the Anti-Terrorism Bill, itself kept secret until the last minute to avoid scrutiny by those it will put at risk: the Australian public.[7]

‘Terrorism’, detention and sedition

As this edition was being prepared for publication, some provisions of the Anti-Terrorism Bill (No. 2) 2005 were still the subject of possible amendments, partly arising out of the Senate Legal and Constitutional Legislation Committee report on the legislation.[8] Regardless of the final details, however, there was no reason to disagree with these assessments made by eminent lawyers.

Indeed, an objective examination of the legislative record suggests that the anti-terrorism laws have little to do with protecting ordinary people from the threat of terrorism. At the Commonwealth level, the Anti-Terrorism Bills (Nos. 1 & 2) 2005 are the latest of more than 30 pieces of counter-terrorism legislation introduced since 2001. The full list is on the federal government’s national security web site.[9]

Even before this barrage of laws, the government and the police and security agencies had every power needed to detect, monitor, arrest and charge terrorists. Every conceivable terrorist act was already a serious crime -- from murder to arson and hijacking. Furthermore, the criminal law amply covered all planning, preparing, conspiring, financing, supporting and attempting related to such activities. Moreover, the Australian Security Intelligence Organisation (ASIO) and the state and federal police already possessed immense powers to infiltrate organisations, tap phones, bug premises, intercept mail, search homes and hack into computers.[10]

Then came the ‘anti-terror’ legislation of 2002 and 2003, introduced in the aftermath of September 11, 2001. For the first time, it introduced a special category of terrorist crimes and made them punishable by life imprisonment. It defined terrorism so broadly and vaguely that it could cover many traditional forms of political protest. It also introduced secret detention and interrogation by police and ASIO officers for up to a week without charge, the ability to conduct closed-door trials and powers to ban political organisations by executive fiat.[11]

The latest measures take these attacks on democratic rights to an even higher level. In the first place, they are evidently designed for use where the police and intelligence agencies cannot produce any evidence of involvement in specific terrorist activity or planning.

The Anti-Terrorism Bill (No. 1), which was enacted on November 9, 2005, changed the wording of many terrorist offences from ‘the’ terrorist act to ‘a’ terrorist act. In effect, it means that people can be convicted of planning or preparing for terrorism and sentenced to life imprisonment without the police producing any evidence of a specific time, date, location or method of the supposed attack. The authorities need only establish that the accused’s conduct related to ‘a’ terrorist act—that is, any potential act. In addition, a person can be convicted even if ‘a terrorist act does not occur’. These provisions give the police wide powers to arrest people on the vaguest possible charges of, for example, ‘assisting’, ‘preparing’ or ‘supporting’ an unidentified terrorist act that never takes place.

Above and beyond that, the new laws grant unilateral powers to the federal and state police to intern ‘suspects’ without any charge or trial whatsoever. This can be done in two ways. First, anyone whom police allege may be involved in a future terrorist act, or may have information about such an act, can be seized for ‘preventative detention’ for up to 48 hours.

A judge, former judge or magistrate operating in a ‘personal capacity’ (i.e., not as a court, but as part of the executive) can approve the internment in an initial ‘ex parte’ hearing, that is without the ‘suspect’ being present. Suspects will have limited rights to know why they being detained. They may be held incommunicado and any conversations they hold with a lawyer can be monitored—removing any semblance of lawyer-client privilege.

Anyone—including family members, lawyers and the media—who reveals that the person has been detained, can be jailed for five years. Parents cannot even tell each other if their son or daughter is being held. These extraordinary provisions are designed to ensure that no one knows how many people have been rounded up, or why, or in what conditions they are being held. The Australian Press Council said in its submission to the Senate Legal and Constitutional Legislation Committee:

Even in circumstances where a person has been detained illegally or inappropriately, the media are unable to investigate or report upon the detention. If detainees have suffered torture or abuse during their detention, they cannot inform the media of this, and the media are prohibited from reporting the abuse.[12]

The state and territory laws will go further, permitting ‘preventative detention’ for up to 14 days. The New South Wales Bar Association has pointed out that the NSW Bill would permit consecutive 14-day periods of detention, effectively allowing police to detain people indefinitely. It said that after the first 14 days, authorities could simply change the date of an anticipated terrorist act to keep a suspect behind bars. The association's president, Michael Slattery, QC, said section 26K of the Terrorism (Police Powers) Amendment Bill 2005 could result in ‘open-ended rolling preventative detention orders’.[13]

In the second form of detention, specially designated ‘issuing courts’ may grant ‘control orders’—which can include house arrest, the fitting of personal tracking devices and bans on employment and all forms of communication—also without any initial notice or hearing. Like preventative detainees, those under house arrest can be barred from alerting anyone to their internment. The control orders can last 12 months and be renewed continuously. Detainees can only challenge them, possibly weeks or months later, in the same special courts.

Preventative detention and control orders can be imposed on top of each other. This is in addition to the existing provisions, introduced in 2003, for ASIO and the police to secretly detain a person for seven days for interrogation. The authorities will be able to detain someone for a week of questioning, followed by 14 days of ‘preventative detention’ and a year or more of house arrest.

These laws overturn the presumption of innocence. They can allow governments and their security agencies to lock someone away based solely on what they allege the ‘suspect’ might be intending to do in the future. Thus, the legislation clears the way for practices commonly identified with totalitarian regimes. People can simply ‘disappear’ into police custody, without the media, or anyone else, being able to report it. Lengthy house arrest can be imposed on political opponents; the use of secret evidence will become commonplace; and security forces will have explicit ‘shoot-to-kill’ powers.

The essential purpose of the new provisions is to silence political dissent. Any organisation that ‘advocates’, ‘praises’ or ‘counsels’ a terrorist act can be outlawed, automatically exposing its members, supporters and financial donors to imprisonment as well. ‘Praising’ terrorism could mean merely expressing sympathy for, or calling for an understanding of, the social and economic roots of terrorism.

Most significant is the radical extension of the law of sedition. It will include ‘urging disaffection’ against the government, promoting ‘feelings of ill-will or hostility between different groups’ or urging conduct to assist an ‘organisation or country engaged in armed hostilities’ against the Australian military, whether or not a state of war has been declared. Moreover, ‘recklessness’ has been added as a seditious state of mind. That is, anyone can be guilty of sedition even without intending their remarks to create disaffection, ill-will or armed resistance.

Those convicted will face up to seven years’ jail. Organisations that support such sentiments can be declared ‘unlawful associations,’ also exposing their property to seizure and their members, supporters and donors to imprisonment.

Most notably, these laws allow for the criminalisation of any criticism of the government, or support for resistance to the growing range of Australian military interventions, including the occupations of Afghanistan and Iraq or operations in the Asia-Pacific region, such as the dispatch of troops to the Solomon Islands, Papua New Guinea, Indonesia or the Philippines.

Lawyers warned the Senate committee that the laws are so wide that they could be used to prosecute supporters of Tamil and Palestinian organisations, anti-Iraq war demonstrators and even protesters chanting ‘Bring Johnny [Howard] down!’ Others said the recent riots by youth across France could be defined as terrorism or sedition under the Bill, along with statements such as ‘9/11 was a hoax’, ‘America had it coming’ or ‘we must resist the occupiers’. The same went for unions that urged disobedience to the industrial relations laws also due to be passed before the end of 2005. Summing up, Law Council of Australia president John North told the committee the sedition offences could catch ‘legitimate protesters and even peace activists’.[14]

Nevertheless, the government insisted that the sedition provisions remain in the Bill, despite previous promises that the Attorney-General’s department would review them in the New Year.

Finally, we have yet to see the details of yet another instalment of the measures agreed upon by Prime Minister John Howard and the state and territory Labor leaders in their joint communiqué from the September 27, 2005 Council of Australian Governments (COAG) ‘counter-terrorism’ summit.

Defence Minister Robert Hill said the government would introduce revamped military call-out laws into parliament before the end of 2005, in time for troops to be used to protect Melbourne during the 2006 Commonwealth Games. In 2000, the government rushed in the original military call-out legislation, claiming it was necessary for the Sydney Olympic Games. The legislation was not used at the 2000 Games, nor has it been invoked since.[15]

If deployed, troops can seize buildings, places and means of transport, detain people, search premises and seize possessions. Military personnel are permitted to cause death or grievous bodily harm—in other words, shoot to kill—where they believe ‘on reasonable grounds’ that such action is necessary to protect the life of, or prevent serious injury to, another person. The purpose of the proposed amendments is to make it easier to activate these police-state powers.

Arguably, these proposals also violate constitutional norms. The only provision for calling out the troops is section 119 of the Australian Constitution, which allows state governments to request federal military assistance to protect them against ‘domestic violence’. At Federation in 1901, the Australian states and their respective police forces retained ‘law enforcement’ powers, while the Commonwealth was given the ‘defence’ power for external use. The sole exception was ‘domestic violence’. While not defined in the Constitution, this was understood to mean civil disorder that was so convulsive that it threatened the existence of the state.[16]

This federal-state division of powers embodies the centuries-old British taboo—in place since the overthrow of the absolute monarchy in the 17th century—on the internal use of the military against civilians. The fact that this taboo is now being overturned is another disturbing indicator that the federal and state governments are preparing for political unrest, dissent and turmoil that the police forces will not be able to contain.


[*] Editor, University of Western Sydney Law Review.

[1] For the political background see M Head, ‘Orwell's Nineteen Eighty-Four 20 years on: ‘The war on terrorism’, ‘doublethink’ and ‘Big Brother’ (2005) 30 Alternative Law Journal 208.

[2] Al-Kateb v Godwin [2004] HCA 37; Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38; Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous [2004] HCA 36.

[3] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.

[4] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 210 ALR 50.

[5] Ibid at [84].

[6] J Von Doussa, ‘Presentation at Forum on National Security Law and Human Rights’, 31 October 2005, http://www.hreoc.gov.au/about_the_commission/speeches_president/20051101_forum_on_national_security_laws_and_human_rights.html (accessed 2 December 2005).

[7] I Barker & R Toner, ‘Ruddock lowers the bar on legal terror tactics’, Sydney Morning Herald, November 1, 2005, http://www.smh.com.au/news/opinion/ruddock-lowers-the-bar-on-legal-terror-tactics/2005/10/31/1130720479003.html (accessed 2 December 2005).

[8] The Senate, Legal and Constitutional Committee, Provisions of the Anti-Terrorism Bill (No. 2) 2005, Department of the Senate, Parliament House, November 2005 (http://www.aph.gov.au/senate/committee/legcon_ctte/terrorism/report/index.htm) (accessed December 1, 2005).

[9] National Security Australia web site, http://www.nationalsecurity.gov.au/agd/www/nationalsecurityHome.nsf/headingpagesdisplay/9F291545F46DC7B9CA256E43000565D4?OpenDocument (accessed December 1, 2005).

[10] M Head, ‘Counter-terrorism laws: a threat to political freedom, civil liberties and constitutional rights’ [2002] MelbULawRw 34; (2002) 26 Melbourne University Law Review 666.

[11] M Head, ‘Another threat to democratic rights: ASIO detentions cloaked in secrecy’ (2004) 29 Alternative Law Journal 127 and M Head, ‘ASIO, Secrecy and Lack of Accountability’ (2004) 11 Murdoch University Electronic Journal of Law (December 2004)

[12] Australian Press Council, Submission, http://www.aph.gov.au/senate/committee/legcon_ctte/terrorism/submissions/sub143.pdf (accessed 2 December 2005).

[13] M Pelly, ‘Detention laws too great a power boost: lawyers’, Sydney Morning Herald, 30 November 2005, http://www.smh.com.au/text/articles/2005/11/29/1133026469466.html (accessed 2 December 2005).

[14] Senate Legal and Constitutional Legislation Committee, op cit, p 77.

[15] M Head, ‘The Military Call-out Legislation Five Years On -- Disturbing Trends and Unanswered Questions’ [2005] UNSWLawJl 33; (2005) 28 University of New South Wales Law Journal 479 and M Head, ‘The military call-out legislation -- some legal and Constitutional questions’ 29 (2001) Federal Law Review 273-294.

[16] Ibid.


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