Balancing National Security and Human Rights: Lessons from Australia
University of New South Wales
1. The threat of a terrorist attack has affected Australia's political and legal landscape in ways that, four years ago, were unimaginable. Of course, this is due to events like those of 12 October 2002, when eighty-nine Australians were killed after two bombs exploded in the Sari Club and Paddy's Bar in Bali, Indonesia. My own memories of this attack resurface whenever I walk down to Coogee Beach, close to my home in Sydney, which features a sculpture and memorial to those who died in the attack. Twenty of the Bali dead were from my local area, and the point at Coogee Beach has been renamed Dolphin Point in remembrance of the six Coogee Dolphin rugby league players who died in the blast.
2. Nations remember such events in their own way. However, an important point of similarity between Australia and other nations is how reform of the law has been a front-line response. In this article, I examine the range of new laws enacted in Australia after September 11. My focus is upon the laws introduced into Australia after September 11 and their effect upon the rule of law and human rights.
3. Before I do so, I want to make an important caveat: any attempt to 'balance' national security and human rights is hampered by the fact that we do not possess knowledge of the threat that Australia actually faces. Instead, we are dealing with a faceless and unknown threat encapsulated in the idea that we are now engaged in a 'war on terror'.
4. Australia might seem an unlikely target for a terrorist attack. Indeed, Christopher Michaelson at the Strategic and Defence Studies Centre at the Australian National University has concluded that the actual risk of a terrorist attack on Australia soil is 'rather low'. After assessing the available evidence, he found that 'a large scale terrorist attack appears to be unlikely because of the country's geographical isolation and its effective system of border and immigration control'.
5. Nevertheless, Dennis Richardson, the Director-General of the Australian Security Intelligence Organisation, said in April 2004: 'we now know that al-Qaida had an active interest in carrying out a terrorist attack in Australia well before 11 September and that we remain a target'. This concern is reflected in the Government's 2004 white paper Transnational Terrorism: The Threat to Australia.
6. Such statements must be seen in light of the Government's publicly available information at www.nationalsecurity.gov.au, a website created to inform Australians of the threat and what is being done to meet it. That website says: ' There is presently no known specific threat to Australia.' It also contains a four-level alert system ( Low, Medium, High and Extreme ) that assesses Australia as being at a blue, medium level of alert. The system is particularly unhelpful in defining a 'medium' level of alert to be a 'medium risk of a terrorist attack in Australia'. The national level of alert has been at medium since September 2001. The website states: 'The Government acts on the advice of its intelligence agencies, and should any information come to light which causes the Government to change the assessed level of threat, the public will be advised immediately.'
7. This threat assessment is at odds with community fears. One Newspoll conducted for the Daily Telegraph in Sydney in April 2004 found that sixty-eight per cent of adults (more than two thirds) agreed that terrorists would 'strike before too long' and that a terrorist attack in Australia was inevitable.
8. Australia's new laws must be viewed both in the light of what we know about the threat to Australia as well as community fear of an attack. Even when there has not been an attack on Australian soil and when the Government's own assessment is that there is ' no known specific threat to Australia ', options open up if people believe that an attack is on its way. This is why what had been the unthinkable in terms of law reform is today possible.
Australia's new anti-terrorism laws
9. Australia has little history of enacting laws aimed at terrorism. In fact, before September 2001, only the Northern Territory had such a law.
10. The federal Government's legal response to September 11 was introduced into Parliament in March 2002 as two packages of legislation. The first contained several new Bills, the most important of which was the Security Legislation Amendment (Terrorism) Bill 2002 (the 'Terrorism Bill'). This Bill sought to introduce a definition of 'terrorist act' into the C riminal Code Act 1995 (Cth). Under section 100.1, a 'terrorist act' was an act or threat done 'with the intention of advancing a political, religious or ideological cause' that:
(a) involves serious harm to a person;
(b) involves serious damage to property;
(c) endangers a person's life, other than the life of the person taking the action;
(d) creates a serious risk to the health or safety of the public or a section of the public; or
(e) seriously interferes with, seriously disrupts, or destroys, an electronic system.
The section provided an exception only for industrial action and lawful advocacy, protest or dissent.
11. This definition lacked a focus on the intent associated with a terrorist act that distinguishes such violence from other non-terrorist acts. The reference to 'with the intention of advancing a political, religious or ideological cause' was so wide that it would have criminalised many forms of unlawful civil protest (unlawful perhaps only due to a trespass onto land) in which people, property or electronic systems were harmed or damaged. The section could have extended to protest by farmers, unionists, students, environmentalists and online protestors. Moreover, a penalty of up to 'Imprisonment for life' applied where a person engaged in a terrorist act.
12. The Terrorism Bill failed to pass in this form. It was substantially amended after being strongly criticised by legal and community groups and after a highly critical, unanimous report by the Senate Legal and Constitutional Committee, an upper house committee composed of members of the each of the major parties. The Bill as amended contains the following additional element as part of definition of terrorism:
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.
In addition, advocacy, protest, dissent or industrial action (whether lawful or not) is excluded so long as it is not intended to, among other things, cause serious physical harm to a person or create a serious risk to the health or safety of the public . This definition provides the basis for a number of new criminal offences. These include committing a 'terrorist act' or even possessing a 'thing' connected with terrorism.
14. In provisions seemingly modelled on the anti-communist legislation of the early 1950s, the Terrorism Bill in its original form also empowered the federal Attorney-General to proscribe (or ban) organisations, accompanied by a penalty of up to of 25 years' imprisonment for their members and supporters and people who have provided training for, or have been trained by, it. Section 102.2 would have enabled the Attorney-General to ban an organisation for reasons including that the organisation 'has endangered, or is likely to endanger, the security or integrity of the Commonwealth or another country'. 'Integrity' could have included the geographical, or territorial, integrity of a nation, and hence this power could have been applied to proscribe an organisation that supported non-violent independence movements within other nations. Over recent years, this would have included bodies supporting independence for East Timor from Indonesia.
15. The power to ban organisations could have been exercised unilaterally by the Attorney-General and not as part of a fair and accountable process, and the Terrorism Bill was amended to remove the proscription power. As enacted, it allowed for the banning of terrorist organisations identified by the United Nations Security Council. However, the Government continued to press for a broader power and a new Act as passed in 2004 to give the Attorney-General the power to determine that a body is a terrorist organisation if ' satisfied on reasonable grounds that the organisation is directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur)' . The law provides that the decision can be reviewed by a p arliamentary committee and can be disallowed by Parliament. The capacity of the Committee to be effective in this role is limited by it only being given an non-extendable period of fifteen days to report.
16. Australia's second major package of anti-terrorism legislation contained only the ASIO Bill 2002, which sought to confer unprecedented new intelligence gathering powers on the Australian Security Intelligence Organisation. In its original form, the Bill allowed adults and even children who were not terrorist suspects, but who may have useful information about terrorism, to be strip searched and detained by ASIO for rolling two day periods that could be extended indefinitely. The detainees could have been denied the opportunity to inform family members, their employer, or even a lawyer of their detention. There was no right to silence and a failure to answer any question put by ASIO would have been punishable by five years in prison. The regime applied to all Australians, including to journalists who could not have protected the confidentiality of their sources. While the Bill stated that detainees 'must be treated with humanity and with respect for human dignity', there was no penalty for ASIO officers who subjected detainees to cruel, inhuman or degrading treatment. In fact, s 92 of the Australian Security Intelligence Organisation Act 1979 still provides that it is an offence (punishable by imprisonment for up to one year) to publish the identity of an ASIO officer.
17. The original ASIO Bill is consistent with the Howard Government's continuing acquiescence in the indefinite detention without trial of Australian David Hicks by the United States military at Camp X-Ray at Guantanamo Bay, Cuba. The ASIO Bill went further, however, in that Australians could have been held not because it was suspected that they had engaged in terrorism or are likely to do so, but because they may 'substantially assist the collection of intelligence that is important in relation to a terrorism offence'.
18. I described the original ASIO Bill as being 'rotten to the core' and as one of the worst Bills ever introduced into the federal Parliament. It would have conferred unprecedented new powers upon a secret intelligence organisation that could have been used in ten, twenty or even fifty years' time against the Australian people by an unscrupulous government. In its original form, the ASIO Bill would not have been out of place in former dictatorships such as General Pinochet's Chile. The Parliamentary Joint Committee on ASIO, Australian Secret Intelligence Service and Defence Signals Directorate unanimously found that the ASIO Bill 'would undermine key legal rights and erode the civil liberties that make Australia a leading democracy'.
19. The ASIO Bill was finally passed fifteen months after it was introduced after one of the longest and most bitter debates in Australian parliamentary history. At one point in a continuous 27 hour debate in December 2000, the Government and Labor Opposition accused each other of wearing the blame for any Australian blood that might be spilt by terrorists because of the deadlock on the Bill. The original Bill is different in important respects from the final Act. As amended, the detention regime in the Australian Security Intelligence Organisation Act 1979 only applies to people aged 16 years and over. Detainees have access to a lawyer of their choice, although ASIO may request that access be denied to a particular lawyer where the lawyer poses a security risk. Australians may be questioned by ASIO for 24 hours over a one week period. They must then be released, but can be questioned again if a new warrant can be justified by fresh information. A person can only be held and questioned under the Act when ordered by a judge, and the questioning itself will be before a retired judge. The questioning must be videotaped and the whole process will be subject to the ongoing scrutiny of the Inspector-General of Intelligence and Security (who is effectively the Ombudsman for ASIO).
20. These additional protections in the hands of independent people blunt some of the worst excesses of the original Bill. However, even in this form, the Act can be justified only as a temporary response to the threat to national security posed by terrorism. This is reflected in the sunset clause added to the law, which means that it will lapse after three years (that is, in 2006) unless it is re-enacted.
21. The passage of the Terrorism and ASIO Bills has not seen the end of new Australian anti-terrorism laws. Indeed, there has been a steady steam of new proposals and laws. In 2003, the ASIO Legislation Amendment Act was passed to increase the time allowed for the questioning of non-suspects by ASIO from 24 to 48 hours when an interpreter is involved. Another change brought about by that Act made it an offence, for two years after someone has been detained, to disclose 'operational information' about detention under the Act. The penalty for doing so, even if the information is provided as part of a media story on the detention regime, is imprisonment for up to five years. The impact of this provision upon freedom of the press is of great concern. It means that two years must pass before abuses involving the operational activities of ASIO under the regime can be exposed through media reporting.
22. In all of the new federal law, there was a surprising omission. No attempt was made until 2004 to increase the time that police can question a terrorist suspect before the person must be charged or released. As the law stood, any criminal suspect could be questioned for up to 12 hours. By contrast, i n the United Kingdom, the police may detain suspected terrorists for 48 hours extendable for a further 5 days, and in Canada police may detain suspected terrorists for 24 hours extendable for a further 48 hours. The United States legislation provides for the detention of 'inadmissible aliens' and any person who is engaged in any activity 'that endangers the national security of the United States' with detention for renewable six month periods. The Anti-Terrorism Act 2004 has since doubled the questioning time for terrorist suspects to 24 hours. In light of the time limits in other nations, this is surprisingly modest.
23. The way that Australia has dealt with the issues of law and policy raised by the 'war of terror' suggests two important lessons.
24. First, Australian political institutions can play an important role in achieving the right balance between national security and human rights. Despite the stringent nature of some of the laws as enacted, the original Bills were far worse. We did not end up with those original Bills because they sparked a well-organised campaign lead by a range of community and legal groups and individuals. Their concerns fed into the robust scrutiny provided by the two parliamentary committees that examined the Bills and produced bi-partisan reports recommending substantial changes. In many, but not all, respects those recommendations were implemented in the legislation. The bottom line is that, without this parliamentary process, the outcome would have been far worse. Indeed, even Prime Minister John Howard was moved to say in his National Press Club Address on the first anniversary of the September 11 attack that 'through the great parliamentary processes that this country has I believe that we have got the balance right'.
25. The second lesson is the capacity of our political institutions to protect human rights at a time of community fear of a terrorist attack is limited, and indeed is insufficient. Even after a long and difficult parliamentary process that produced significant changes and compromises, there are many aspects of the new laws that go far beyond what can be justified. These include the imposition of a 5 year jail term for the speaking about or reporting of the detention of a person by ASIO, including where that person has been mistreated. Another example is that non-suspect Australians can be detained at the behest of ASIO for one week, whereas suspects can only be held for 24 hours before being charged. Indeed, it even seems possible that that the current sunset clause on these ASIO powers will be removed and these exceptional powers made a permanent part of the law.
26. One reason for these outcomes is that, even though our political system has many strengths, it also has a key weakness. That is, Parliament often does not proceed from an understanding of human rights principles, in part because human rights can lack legitimacy in political debate. Put simply, our political process will sometimes fail to protect human rights because human rights lack real political weight. When they are needed most, they can be absent from debate.
27. Human rights lack political effectiveness in Australia in part because they also lack legal force. Unlike every other democratic nation, Australia must search for answers to fundamental questions about civil liberties and national security without the benefit of a Bill of Rights.
28. As other nations have shown, a Bill of Rights does not form an impenetrable barrier to bad law. However, it can be especially important when, as after September 11, new laws are made and old laws amended with great haste in response to community fear. At such a time, legal systems, and the basic principles that underlie them, such as the rule of law and the liberty of the individual, can come under considerable strain.
29. At such a time Bills of Rights can remind governments and communities of a society's basic values and of the principles that might otherwise be compromised at a time of grief and fear. After new laws have been made, a Bill of Rights can also allow courts to assess the changes against human rights principles. This can provide a final check on laws that, with the benefit of hindsight, ought not to have been passed.
30. In Australia, there can occasionally be a role for judges in assessing new terrorism laws, but this is usually at the margins of the debate, such as where constitutional provisions are relevant to human rights enforcement or in the interpretation of legislation. However, Parliament can depart from fundamental rights by passing a law that operates within constitutional limits and is clear in its intent. For example, the High Court held just last year that it was possible to pass a law for the indefinite detention of asylum seekers.
31. The lack of a legal check meant that political and legal debate in the 'war on terror' is largely unconstrained by fundamental human rights principles. Instead, as was demonstrated by the legislation introduced into the federal Parliament after September 11, the contours of debate may match the majoritarian pressures of Australian political life rather than the principles and values upon which the democratic system depends. This means that any check upon the power of parliament or governments to abrogate human rights derives from political debate and the goodwill of political leaders. This is not a check that is regarded as acceptable or sufficient in other nations.
32. Australia has passed important new laws in response to September 11 and the Bali attack. These laws demonstrate some of the strengths of our system of government. Even in the absence of a Bill of Rights, parliamentarians and parliamentary committees played a crucial role in tempering some of the worst excess of the Government's proposed response to September 11.
33. However, Australia also demonstrates the weaknesses of a political and legal system in which human rights do not have a firm foothold. If Parliament gets the balance wrong there may be no role for the courts to assess the new laws and, with the benefit of hindsight, consider whether the right balance has been achieved. Hence, unlike in nations such as Canada, the United Kingdom and the United States, Australia has not seen major cases assessing post-September 11 laws and whether they are consistent with democratic and human rights principles.
34. Unfortunately, the capacity of our political system to protect rights is about to be lessened and our lack of a Bill of Rights further exposed. In little over a week (on 1 July 2005) the federal Government of John Howard will gain control of the Senate in addition to the House of Representatives--and thus gain control over both houses of the Commonwealth (federal) Parliament. This will be the first time a government has achieved this in a quarter of a century. Unless courageous individuals within the governing parties take a stand, this will leave Australian vulnerable to the sorts of laws that were rejected in the months after the September 11 attack.
George Williams is the Anthony Mason Professor and Director, Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales and a Barrister at the New South Wales Bar. This article is a revised version of the Fulbright Public Lecture delivered at the University of Melbourne on 21 June 2005. Email: firstname.lastname@example.org
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