TWO DECADES OF AUSTRALIAN COUNTERTERRORISM LAWS.

• Date: 01 December 2022
• Author: Hardy, Keiran

CONTENTS I Introduction II The First Decade: 2001-11 III The Second Decade: 2011-21 A Volume and Speed of Lawmaking B Scope of Counterterrorism Laws 1 Special Intelligence Operations 2 Intelligence Disclosures 3 Foreign Incursions Offences 4 Advocacy Offence 5 Expanded Control Orders 6 Metadata 7 Citizenship Stripping 8 Continuing Detention 9 Encryption Laws 10 Espionage and Foreign Interference 11 Temporary Exclusion Orders 12 Abhorrent Violent Material C Counterterrorism Laws in the Courts 1 Pre-Emption and Prediction 2 Prejudicial Evidence 3 Deterrence and Denunciation 4 Constitutional Challenges D Review of Counterterrorism Laws IV The Second Decade: Key Themes A Whistleblowers and Public Interest Journalism B Politics and Bipartisanship C Laws That Apply beyond Terrorism D Unnecessary and Ineffective Laws V Conclusion VI Appendix A: Australia's Counterterrorism Laws, 11 September 2001-10 September 2021 I INTRODUCTION

11 September 2021 marked 20 years since al-Qaeda attacked New York City and Washington DC. The attacks had a profound impact not only on global security, but also on domestic law. In response to September 11, Australia enacted its first national counterterrorism laws and in the years since has developed a substantial legal framework that continues to expand. These laws represent some of the most contentious and far-reaching statutes ever enacted in Australia. They extend traditional notions of criminal responsibility, grant intrusive powers to police and intelligence agencies, limit media reporting in the public interest, and allow for secretive trials. (1) They challenge democratic values and fundamental rights, including those to liberty, free speech, freedom of the press, a fair trial and freedom from arbitrary detention. (2)

In this article, we map two decades of Australian counterterrorism laws. We focus on laws made by the federal Parliament, though we note that a significant number have also been enacted by the states and territories. The sheer volume of the federal laws is striking, and so is their scope. (3) In the first decade after September 11, the federal Parliament enacted 55 laws in response to terrorism. (4) Roach dubbed this 'hyper-legislation', (5) as Australia's counterterrorism laws far outnumbered those in other countries, including those with a higher threat level. (6) Many of Australia's laws were pushed through Parliament in haste, leaving little time for debate. (7) This problematic pattern of counterterrorism lawmaking continued through the second decade--and shows no sign of abating. (8)

One of us has previously written on the first decade of counterterrorism laws, (9) and so we focus in this article on the second decade after September 11, from 11 September 2011 to 10 September 2021. Despite the substantial lawmaking in the first decade, Australia's counterterrorism laws continued to grow in number and scope, as well as in their novelty. For example, the threat from Islamic State ('IS') and foreign fighters led to expansive new offences and powers, including the power to strip the citizenship of dual nationals and keep offenders in prison beyond their original sentence. (10) This power to extend detention, possibly indefinitely, was a clear concession that criminal laws for terrorism cannot eliminate its long-term risks. (11)

In Part II, we explain our method for determining what counts as a counterterrorism law as compared to broader security and policing legislation. (12) We recap key laws enacted in the first decade, including the statutory definition of terrorism, preparatory offences, control orders, preventative detention orders and questioning and detention warrants. Some of these measures were subject to sunset clauses--legislative expiry dates--but they have been routinely renewed, even in the face of repeated calls to repeal or amend them. (13)

In Part III, we catalogue the second decade of Australia's counterterrorism laws. We report the number of laws enacted, on top of the 55 from the first decade, giving the total number of Australia's counterterrorism laws to date. We report the average time the laws were debated in Parliament. We also outline key laws from this period. Many of these newer laws were designed as responses to IS, but their scope is often far wider. (14) Finally, we assess how the laws have been interpreted by courts and reviewed by independent bodies.

Our purpose in mapping these laws is not simply to quantify their number, but to provide a record of Australia's federal legislative response to terrorism since 2001 and to identify persistent themes and challenges. The 20th anniversary of September 11 affords an opportunity to take stock and to identify areas for reform and improvement. In Part IV, we identify four key areas of concern, including that, to an even greater extent than in the first decade, Australia's counterterrorism laws threaten free speech, freedom of the press, and the health of our democracy. Significant doubts also remain as to whether Australia has the most effective measures in place to combat the long-term risks of terrorism.

II THE FIRST DECADE: 2001-11

In the first decade after September 11, from 11 September 2001 to 10 September 2011, the federal Parliament enacted 55 counterterrorism laws. (15) These are set out in Appendix A. They include laws in four categories:

1 laws introduced in response to threats of terrorism; (16)

2 laws addressing procedural issues associated with the Category 1 laws, including evidence rules and review mechanisms; (17)

3 substantive amendments to laws in Categories 1 and 2; (18) and 4 laws needed to enable laws in Categories 1, 2 or 3. (19)

This method captures all the laws enacted by the federal Parliament that were introduced in response to terrorism or that are necessary parts of that legal framework. It includes amending legislation, as most of Australia's counterterrorism laws inserted changes to longstanding primary Acts. (20) The method is conservative in that it does not include a significant number of laws on related topics, such as cybersecurity, immigration, customs and organised crime. (21) The count also does not include federal legislative instruments and the many state and territory laws or regulations made in response to terrorism. (22)

Of the 55 laws in the first decade, 48 were enacted under Prime Minister John Howard's Liberal-National Coalition government between 2002-07, at a startling rate of one every 6.7 weeks. (23) Between 2007-11, when the Labor government was in power, the federal Parliament enacted only seven counterterrorism laws. This was a significant drop in Australia's 'hyper-legislating' for terrorism, with a greater focus on strengthening accountability. (24) A major development was the creation of the Independent National Security Legislation Monitor ('INSLM'). (25) The INSLM is an independent statutory office that assesses whether Australia's counterterrorism laws are necessary and proportionate, and contain sufficient safeguards to protect individual rights. (26)

The starting point of Australia's counterterrorism laws is a broad statutory definition of terrorism in s 100.1 of the schedule to the Criminal Code Act 1995 (Cth) ('Criminal Code'). This defines a 'terrorist act' as any threat or action intended to influence a government by intimidation or to intimidate a section of the public, and which is intended to advance a political, religious or ideological cause. (27) A terrorist act can cause any in a list of harms, including death, serious bodily injury, serious property damage, serious risks to health or safety, or serious interference with electronic systems. (28) There is an exemption for political protest, advocacy, dissent or industrial action, though the scope of this is yet to be tested. (29)

Stemming from this definition, the laws enacted in the first decade created a substantial counterterrorism law framework. They were introduced primarily in response to September 11, the Bali bombings in 2002 and the London bombings in 2005, with the greatest number of laws enacted in 2002 (14) and 2004 (12). (30) Several were based on laws first enacted in the United Kingdom ('UK'), (31) though Australia went beyond that template in several respects. This was possible because Australia lacks a national human rights framework like the Human Rights Act 1998 (UK). (32) A prominent example of an Australian law that went beyond the UK template was the power for the Australian Security Intelligence Organisation (ASIO')--Australia's domestic intelligence organisation --to detain people not suspected of any crime for the purposes of gathering intelligence. (33) Another is the power for Australian police to detain people under preventative detention orders. (34) Those measures illustrate what is possible in a democracy without national, enforceable protections for human rights.

The major powers, offences and processes introduced in the first decade include:

* An offence for committing a 'terrorist act'; (35)

* Preparatory offences, which make it an offence to provide or receive terrorist training, possess 'things' connected with preparation for terrorism, collect or make terrorist documents, or do any other act in preparation or planning for a terrorist act; (36)

* Group-based offences, stemming from the definition or proscription of a 'terrorist organisation, which make it an offence to direct the activities of, be a member of, recruit for, train with, fund, support or associate with a member of such an organisation; (37)

* Questioning and detention warrants, which allowed ASIO to detain non-suspects for up to seven days, and to coercively question them in eight-hour blocks (38) where this would 'substantially assist the collection of intelligence that is important in relation to a terrorism offence'; (39)

* Control orders, which impose significant restrictions on individual liberty, including curfews and electronic monitoring, without...