Anti-Terrorism Bill 2005 (Cth) and the Human Rights Act (2004) ACT.

• Author: Lasry, Lex
• Position: MEMORANDUM OF ADVICE

1. We are briefed by the ACT Government Solicitor who acts for the Acting Chief Executive of the Department of Justice and Community Safety. We are asked to advise on the following question:

   If the Anti-Terrorism Bill 2005 (Cth) was ACT legislation, please advise whether the Attorney-General may present a statement under section 37(3) of the ACT Human Rights Act stating that the bill is consistent with human rights. If not, please advise how the bill is not consistent with human rights. 2. Our advice addresses the draft Anti-Terrorism Bill 2005 (Cth) identified as B05PG201.v.34.doc 14/10/2005 3.06pm. We note that this version of the Bill refers to 'control orders' in the title to Schedule 4 but the provisions dealing with control orders have been removed from an earlier version of the Bill, which was available on the website of the Chief Minister of the ACT. With respect to the control orders provisions, our advice is based on the draft Anti-Terrorism Bill 2005 (Cth) identified as B05PG201.v.28.doc 20/10/2005 10.31am.

3. We note that the Anti-Terrorism Bill 2005 amends various Commonwealth enactments including the Criminal Code Act 1995, Crimes (Foreign Incursions and Recruitment) Act 1978, Customs Act 1901, Customs Administration Act 1985, Financial Transaction Reports Act 1988, Australian Security Intelligence Organisation Act 1979, Administrative Decisions (Judicial Review) Act 1977, Migration Act 1958, Surveillance Devices Act 2004, Aviation Transport Security Act 2004 and Proceeds of Crime Act 2002 but we are asked to treat the various provisions of the Bill as if they were enacted as ACT Legislation.

4. A proposed amendment to section 100.1(1) of the Criminal Code will include a reference to a 'corresponding State preventative detention law' which means 'a law of a State or Territory that is, or particular provisions of a law of State or Territory that are, declared by the regulations to correspond to Division 105 of this Act'. We have assumed that this provision together with regulations (which we have not been provided with) will be the means by which the ACT will enact laws concerned with preventative detention.

5. For the reasons outlined in this opinion, there are many aspects of the Anti-Terrorism Bill 2005 (Cth), which if enacted as ACT legislation would be inconsistent with the Human Rights Act 2004 (ACT) ('the HR Act'). Accordingly, the Attorney-General could not present a statement under section 37(3) of the Act.

   Anti-Terrorism Bill 2005

6. The Anti-Terrorism Bill will complement existing Commonwealth laws which address national security and terrorism. These Commonwealth laws (1) include:

   * the Anti-Terrorism Act 2004

   * the Anti-Terrorism Act (No. 2) 2004

   * the Anti-Terrorism Act (No. 3) 2004

   * the Australian Security Intelligence Organisation Act 1979

   * the Australian Security Intelligence Organisation Amendment Act 2004

   * the Australian Security Intelligence Organisation Legislation Amendment Act 2003 the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003

   * the Australian Federal Police and Other Legislation Amendment Act 2004

   * the Australian Protective Service Amendment Act 2003

   * the Aviation Transport Security Act 2004

   * the Aviation Transport Security (Consequential Amendments and Transitional Provisions) Act 2004

   * the Border Security Legislation Amendment Act 2002

   * the Crimes Act 1914

   * the Crimes Amendment Act 2002

   * the Crimes (Overseas) Act 1964

   * the Criminal Code Amendment (Anti-Hoax and Other Measures) Act 2002

   * the Criminal Code Amendment (Espionage and Related Matters) Act 2002

   * the Criminal Code Amendment (Offences Against Australians) Act 2002

   * the Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002

   * the Criminal Code Amendment (Terrorism) Act 2003 (Constitutional Reference of Power)

   * the International Transfer of Prisoners Amendment Act 2004

   * the Maritime Transport and Offshore Facilities Security Act 2003

   * the National Security Information (Criminal and Civil Proceedings) Act 2004

   * the Security Legislation Amendment (Terrorism) Act 2002

   * the Suppression of the Financing of Terrorism Act 2002

   * the Telecommunications Interception Legislation Amendment Act 2002

   * the Telecommunications (Interception) Amendment Act 2004

   * the Telecommunications (Interception) Amendment (Stored Communications) Act 2004

   * the Surveillance Devices Act 2004

   * the Crimes Amendment Act 2005

   * the National Security Information Legislation Amendment Act 2005

   These laws have been the subject of review and concern raised about the impact on human rights. (2)

7. The Anti-Terrorism Bill goes further than previous enactments by providing for control orders and preventative detention. The Bill will introduce the following changes:

   (1) expanding the circumstances in which a person may commit an offence in relation to:

   * providing or receiving training connected with terrorist acts;

   * possessing things connected with terrorist acts;

   * collecting or making documents likely to facilitate terrorist acts;

   * other acts done in preparation for, or planning, terrorist acts;

   * activities of a terrorist organization;

   * financing terrorism

   (2) a regime for imposing obligations and restrictions on persons for a period up to 12 months by way of a control order. The control order may restrict a person's right do a range of activities which are taken for granted by most citizens. A control order will restrict the right to move freely in Australia or overseas, to associate with certain persons, attend certain places, to use the telephone or internet, and attend work. The orders will allow the person's photograph or fingerprints to be taken and also require the person to attend for counselling or other specified education.

   (3) a regime for preventative detention orders which allow for a person to be taken into custody and detained for the purpose of preventing an imminent terrorist act or preserve evidence of or relating to a recent terrorist act. The preventative detention regime will be in place for 10 years unless repealed before then.

   (4) new offences and powers for the Australian Federal Police (AFP), special members of the AFP, (3) and State and Territory police officers in relation to stopping, questioning and searching persons, and seizing any item in relation to terrorist acts;

   (5) new powers for obtaining information and documents;

   (6) new offences of treason and sedition;

   (7) new provisions in relation to surveillance at airports and on board aircraft; and

   (8) new provisions in relation to reporting certain international funds transfers and questioning of persons leaving Australia in relation to the removal of certain funds.

8. The definition of a 'terrorist act' is critical to understanding the application of the proposed amendments. The phrase is defined by section 101 of the Criminal Code as follows:

   terrorist act means an action or threat of action where:

   (1) (a) the action falls within subsection (2) and does not fall within subsection (3); and

   (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

   (c) the action is done or the threat is made with the intention of:

   (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

   (ii) intimidating the public or a section of the public.

   (2) Action falls within this subsection if it:

   (a) causes serious harm that is physical harm to a person; or

   (b) causes serious damage to property; or

   (c) causes a person's death; or

   (d) endangers a person's life, other than the life of the person taking the action; or

   (e) creates a serious risk to the health or safety of the public or a section of the public; or

   (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

   (i) an information system; or

   (ii) a telecommunications system; or

   (iii) a financial system; or

   (iv) a system used for the delivery of essential government services; or

   (v) a system used for, or by, an essential public utility; or

   (vi) a system used for, or by, a transport system.

   (3) Action falls within this subsection if it:

   (a) is advocacy, protest, dissent or industrial action; and

   (b) is not intended:

   (i) to cause serious harm that is physical harm to a person; or

   (ii) to cause a person's death; or

   (iii) to endanger the life of a person, other than the person taking the action; or

   (iv) to create a serious risk to the health or safety of the public or a section of the public.

   (4) In this Division:

   (a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and

   (b) a reference to the public includes a reference to the public of a country other than Australia.

9. An important feature of the legislation already in effect is the significant breadth of the important definitions including 'terrorist act' (referred to above) and 'national security interests' which in combination with the meanings of 'international relations' and 'law enforcement interests' have very broad application.

   Human Rights Act 2004

10. The object of the HR Act, which came into force on 1 July 2004, is to give recognition to basic human rights and freedoms in the ACT. As the Attorney-General noted in his Presentation Speech: (4)

    It is the clear and unequivocal commitment by this Government and this community about those values that bind us together as a democratic, multi cultural and rights respecting people. By passing this Bill we commit ourselves to minimum standards in our law making--it is a bottom line, a floor below which we should not fall. He went on to say:

    Some are nervous about the impact of this law. Let me say this. Rights exist in social contexts, this is world recognised in International Human Rights law but is too frequently lost in debate which...