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Kerr MP, The Hon Duncan --- "Australia's legislative response to terrorism: Strengthening arbitrary executive power at the expense of the rule of law" [2004] AltLawJl 35; (2004) 29(3) Alternative Law Journal 131


Strengthening arbitrary executive power at the expense of the rule of law[1]


. .

'A new, breathtakingly vague and broad definition of terrorism'

In the aftermath of September 11 the United States Congress passed the USA Patnot Act in a matter of weeks with only one dissenting vote in the Senate and sixty-six in the House of Representatives.

In doing so the US· Congress implicitly accepted the logic that a threat to national security justifies the suspension of ordinary civil rights and the imposition of measures 'that are not consistent with [United States'] established laws and values and would have been unthinkable before.'[2]

Writing in the New York Review of Books, Ronald Dworkin states that the Act,

sets out a new, breathtakingly vague and broad defln1t1on of terrorism ... someone may be guilty of aiding terrorism, for example if he collects money for or even contributes to a charity which supports the general aims of any organization abroad-the IRA, for example, or foreign anti-abortion groups, or in the days of apartheid, the African National Congress ...

Dworkin went on to claim that the statute permitted the Attorney General to detain aliens on suspicion with no charge noting:

the Justice Department has now detained several hundred aliens, some of them in solitary confinement for twenty­ three hours a day. None of them has been convicted of anything at all. and many of them have been charged with only minor immigration offences that would not by themselves remotely justify detention ... So our country now jails large numbers of people secretly, not for what they have done, nor even w1th case by case evidence that it wouuld be dangerous to leave them at liberty, but only because they fall w1thm a vaguely defined class, of which some members might pose danger.[3]

That of course is a dramatic repudiation of the foundational principle of the Un1ted States. That foundat1onal principle (albeit applied neither to women nor slaves), steeled by resolve that it was right to rebel against an unjust state, was that each citizen possessed Inalienable human rights, not to be 'balanced', against any other consideration, life itself included.

Should we give up liberty to gain safety?

Benjamin Franklin posed this rhetorical quest1on and then answered it in a phrase later inscribed on a plaque in the stairwell of the Statue of Liberty: Those who would give up essential Liberty, to purchase a little tempoltary Safety, deserve neither Liberty nor Safety'.[4]

However, in practice, a balancing theory of rights has become far more influential.

Like the United States, Australia has seen laws proposed, and some passed, that involve the lessening of our traditional concern for civil liberties.

I will return to the detail of those laws but Ifirst want to ask you to think about whether our civil rights are conditional and circumstantial or transcendent and inalienable, as Benjamin Franklin believed them to be.

Is the balancing theory sound?

The 'balancing' theory worked well when Australia faced modest threats, because all that was ever demanded on the other side of the equation was modest concessions.

I freely admit that when I was Attorney General and/or Minister for Justice in the Keating government I often claimed that my object, and the proper object of all parliamentarians, was to find an appropriate balance between law enforcement and civil liberties.

But when we face very grave threats does that really justify a very large lessening of our rights? If as lawyers uphold1ng the rule of law, we think not, we have to work out and explain a justification for civil rights that goes beyond 'balance'. ·

That is a critical task because, applied in circumstances of grave threat, such as terrorism, a 'balancing' theory of rights can lead to Dershowitz's logical conclusion that arbitrary detention and even torture may be acceptable.[5]

And bear in mind that the 'war on terror' is not something that will have a discernable and fin1te end. If it is a war, 1t is a war only in the sense that the 'war on drugs' is a war. Like the 'war on drugs' the 'war on terror' may, and sadly probably will, be with us for decades.[6] Are our basic rights and freedoms also going to be corroded and sacrificed for decades?

I put that threshold question for you to consider because these new circumstances and my role as a parliamentarian have forced me to think about it myself.

The legislative response

What then has been the Australian legislative response so far to our he1ghtened fear of terrorism?

The most obvious aspects of the response to date have been the passage of changes to the Criminal Code (creat1ng the offence of terrorism) and amendments to the ASI0 Act allowing detention without charge for the

purpose of allowing questioning in regard to actual or suspected acts of terrorism.

In both instances the Bills as first introduced by the government were crude examples of legislative overreach.

In shades of the Communist Party Dissolution Act, the Bill intended to create the offence of terrorism that would have allowed a minister, the Attorney General, a virtually unfettered discretion to proscribe organisations thus making membership of any such organisation a criminal offence. It defined terrorism in vague and broad terms akin to the USA Patnot Act.

In the case of the ASIO legislation, the Bill would have allowed 'adults and even children, to be detained and strip searched, and to be held by ASIO for rolling two-day periods that could be extended indefinitely'.[7] Detainees would have been denied access to legal advice and held without judicial supervision. It would have established 'part of the apparatus of a police state'. [8]

Fortunately, unlike the US Congress, the parliament of Australia took a more robust role. Both Bills were substantially amended and the worst elements of each removed.

The definition of the crime of terrorism was substantially narrowed and the necessity for a criminal intent

to be shown 1ncluded. The power of the Attorney General to proscribe political parties was replaced by a regime that required the United Nations Security Council, or a court; to determine that a group is a terrorist organisation before membership of such a group can be criminalised.[9] However, more recently, the Senate agreed to legislation that now permits the Attorney General to proscribe terrorist organisations but only after wider consultation and with extended parliamentary disallowance and judicial review rights.

In the case of the ASIO legislation, the Bill subjected the new powers to a credible supervisory regime, removed the power to detain young children and, subject to limited exceptions, allowed detainees access to a lawyer of choice. It also imposed a three-year sunset clause so that these new laws lapse unless explicitly renewed. Despite these improvements many commentators have expressed continuing concerns.

The issue of further warrants was the most contentious remaining. Under the ordinary criminal law, if a person is suspected of a crime, the police can conduct a record of interview. The suspect can be interviewed initially for a period of four hours; once that has been brought to a close, it requires the warrant of a magistrate to extend that period, and it can be extended only for a further eight hours. It is a once only period.

For all serious crimes committed in this country this has proved to be sufficient. Since the fixed period of questioning was introduced, together with videotaping of. records of interview, no case has been made out that any extension is required in the interests of law enforcement.

By contrast, the new ASIO regime provides for a period of detention of up to seven days with periods of questioning within that-albeit with breaks-of up to eight hours and in circumstances where a person is secretly held, not permitted to go home and not allowed to communicate with their family.

People who have not experienced the pressures that go with detention talk about it too glibly, as if it is just a nuisance. Those who practise at the criminal bar know differently.

The possibility, after the expiry of one or more periods of detention, of allowing a further warrant to be issued authorising a further period of detention of the same person, so that ASIO can question that person again on the same set of matters that were the subject of the first period of detention is, in my opinion, one bridge too far.

This is also the view of the Law Council of Australia. In a letter to the Prime Minister dated 25 June 2003, the Law Council recommended that the ASIO Bill not be passed in its current form. Noting that the Bill applies to the questioning and consequent detention of a person not suspected of criminal behaviour the letter stated:

At the very minimum, the Law Council would submit that approvals and a warrant authorising the questioning of a person already subject to questioning under the regime... should not be perm1tted on subsequent occasions unless in addition to the existing tests ...

The Law Council then put five further tests forward. The tests had the following requirements:

• new information, not previously in the possession of security or police agencies at the time of the initial approval for questioning, must be brought before the approving and authorising authorities;

it must be explained why the information was not reasonably available at the time when the initial period of questioning was approved and authorised;

• the information must raise an issue of a substantially different kind from that previously relied upon for

the grant of approval and authority to question the person;

• the information must not have been derived from answers provided by the person as a result of the previous questioning undertaken under the regime established by the Bill; and

• the subject matter must not have been substantively canvassed during the questioning which has previously taken place under the previous warrant

The President of the Law Council of Australia concluded:

the purpose of these requirements is to ensure that the time, limits prescribed in the Bill have meaning. Further questioning on information given during questioning, if not limited, is paramount [SIC] to endless interrogation.

In the event the parliament passed the legislation without the changes recommended by the Law Council of Australia. In consequence, the new ASIO legislation will subject citizen and non-citizen alike to interrogation and administrative detention for long and repeated periods. That has never before been permitted under the laws of this country.

For that reason alone the ASIO legislation ought to be seen as so exceptional that, when the parliament reconsiders these laws in three years (under the sunset clause), it should remove them from the statute book unless a proper case for their continuation can still be made out This is not the sort of legislation, which, once introduced, should be allowed to become just another part of our political and legal landscape.

The only constitutional foundation for such laws is the defence power (or, very doubtfully, the inherent power of nationhood) which requires there be an immediate and substantial threat to national security to permit a government to make such invasions into civil liberties. In the absence of such a continuing threat these new ASIO laws would be likely to fail in the High Court.[10]

Sadly it appears that, until that time, rather than being seen a$ exceptional, once such laws are in place they become instead the starting point for further extensions. Thus the Attorney General has introduced the Anti­ Terrorism Bill 2004 (Cth)[11] that contains provisions that would extend the period of time a person arrested for an alleged terrorism offence can be questioned and would widen (perhaps to the point of curtailing freedom of political association) definitions relating to the offence of being a member of a proscribed or terrorist organisation.

Just the tip of the iceberg

But the two Acts discussed above are only the tip of an iceberg. I use that analogy because most of an iceberg · is invisible, unseen. So too much of the government's legislative response to terrorism has drawn little or no comment even from those organisations, like the bar association, that are the key to harnessing opposition to the corrosion of civil liberties.

Consider for example the abolition of the National Crime Authority and its replacement with the Australian Crime Commission. This subjects a formerly independent organisation akin to a standing royal commission to the directions of the heads of Australia's police forces and ASIO. This too was done in the name of security.[12]

Consider the amendments to the Australian Protective Services Act that wiII allow APS staff to demand the names and addresses of anyone they suspect may commit an offence. This is a power the Commonwealth Parliament has never before granted, even to the police.

Consider the proposed changes to the Communications Act, which will allow ASIO to ask that Telstra and other carriers w1thdraw telephone and internet services from those they suspect of being security risks.

Consider the proposed changes to the Migration Act that will introduce a 'biometric' identification system for aliens and intrusive security systems far more draconian than ever put forward by the proponents of the Australia Card.

Consider the Attorney General's press release of the 3 April 2003 in which he indicates that 'a range of new measures have been designed for trials involving classified material' including:

• enabling closed hearings on the use of such materials;

• enabling the court to allow summaries as to the facts to be substituted; and

• requiring legal representatives who require access to the information to be security cleared 'at the appropriate level'.

I am told that the Commonwealth Attorney General has already ensured that no grant of legal aid will be provided to a lawyer in a matter involving national security unless that lawyer is security cleared.[13]

The Australian Law Reform Comm1ssion has also been asked to report on other measures to protect security during trials.

A concluding postscript: Tony Abbott and the rule of law

In a recent paper delivered to the usually conservative Centre for Independent Studies, Tony Abbott advanced the argument, with which I substantially agree, that our leaders will never be able to mount an effective defense of Western civilisation unless we, and our community as a whole, are prepared to defend the values of liberal democracy with the same passion and commitment shown by those who attack it.

One of the values Tony Abbott said we have to defend, as a key element of liberal democracy, was the rule of law.

The antithesis of the rule of law is arbitrary executive power.

As Australia edges closer to as establishing what George Williams has described as part of the apparatus of a police state, Tony Abbott's injunctions should ring in the ears of both the Howard Government and in the ears of members of the legal profession.

If parliamentarians and lawyers have no stomach to defend the rule of law, it will become empty rhetoric. Without respect for the rule of law the civil liberties we take for granted can be quickly traded away and, if they are, our commun1ty will be forced to choose between Increasingly authoritarian and repressive governments and their radical opponents'. Ironically that is what the terrorists are counting on.


[1] This paper was given as the Annual Lecture of the Criminal Bar Association of Victoria on 'Advocating for Justice', 26

August 2003.

[*] THE HON DUNCAN KERR MP is a former Minister of Justice and former Attorney General.

© 2004 Duncan Kerr

[2] Ronald Dworkin, The Threat to Patriotism', 28 February 2002, The New York Review of Books

[3] Ibid

[4] Benjamin Franklin, Reply to the Governor, Nov 11. 1755, Leonard W Labaree (ed),

The Papers of Benjamin Franklin (1963) vol 6 242

[5] Alan Dershowitz, 'A choice among evils', 5 March 2003. The Globe and Mall Metro A17

[6] I am indebted to Simon Bronitt for his argument that the rule of law has been threatened by the 'war on drugs' and the 'war on terror' Simon Bronitt, Constitutional rhetoric v Criminal Justice realities Unbalanced

responses to Terrorism? (2003) 14 PLR 69

[7] George Williams, The ASIO Bill, paper delivered 26 August 2002.

[8] Ibid

[9] The parliament later rushed through a special law proscribing the Hezbollah External Terronst Organisation after the government argued that urgent action was required such legislation is of doubtful constitutionally validity given the High Court's reasoning in the Communist Party Dissolution Case [1951] HCA 5; 83 CLR 1

[10] R v Foster. ex parte Rural Bonk of New South Wales [1949] HCA 16; 79 CLR 43

[11] For a more comprehensive statement of the provisions of the Bill see Morag Davidson. Anti-Terrorism Bill 2004 Bills Digest, No 120 2003-04 Parliamentary Library Information and Research Services 19 April 2004

[12] Although the real reason for moving against the NCA may be more mundane The decision followed closely on attacks on the former Chair of the Authority (Mr G Crook QC by the government following modest and hardly surprising assessments of (the failures of) current drug law policy in the Authority's annual report

[13] Information supplied by Lex Lasry QC of the Victorian Criminal Bar Association.

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