Terror laws and their impacts
In the wake of the attacks in the United States of America on 11 September 2001 governments throughout the "west" have implemented a huge range of measures to protect against future terrorist attacks.
Some of these measures are directed specifically against such attacks, but many are not and directly affect the fundamental rights of the people living in these countries.
There is little doubt that the legislation Australia has introduced and the way it is being applied has impacted disproportionably on the Muslim community in Australia.
If anti-terrorism legislation undermines some of our most basic rights and freedoms, we risk the very democratic and legal structures that we are supposedly protecting from terrorism.
Warning: Currently available editions of the AMCRAN and UTS guides no longer up to date. AMCRAN and UTS Sydney Community Law Centre are in the process of producing new editions which will incorporate the latest developments. Â
Proposed new anti-terror laws and potential impacts
 On the 8 September 2005, the Prime Minister introduced a 12-point plan outlining new anti-terror laws which were largely approved by the Council of Australian Governments (COAG) meeting two weeks later.This was before any review of existing laws has been completed.
A draft of the legislation was released on the website of ACT Chief Minister Jon Stanhope on 14 October. Since then, leading legal experts, academics, politicians and civil rights groups have been carefully analysing the proposed legislation.
It is clear that there are serious human rights concerns with the draft legislation, that it is open to abuse in its application and that it does not carry the safeguards that the Prime Minister promised.
The Anti-Terrorism Act 2005 was passed by Parliament on 3 November and is now law. According to the Prime Minister, the Act is intended to clarify that it is not necessary to identify a particular terrorist act to secure prosecution for a terrorism offence.The Anti-Terrorism Bill (No.2) 2005, which contains the substantive bulk of the proposed new legislation, has been referred to the Senate Legal and Constitutional Legislation Committee, which will report on the Bill by 28 November 2005.
The information below is based on the draft legislation released by ACT Chief Minister Jon Stanhope on 14 October 2005, and is reproduced courtesy of the Australian Muslim Civil Rights and Advocacy Network (AMCRAN). The actual legislation currently before Parliament can be viewed here.
Control orders
Control orders allow a person to be put under house arrest, to be forced to wear a tracking device, to be stopped from using phones or internet, or a number of other measures. Violating a control order carries a 5 year penalty. Control orders can last for up to a year, or 3 months if you are between 16 and 18. But the new legislation specifically allows for "rolling" control orders; i.e., one control order finishes, and the next one begins. This means that it is possible that someone could have control orders apply to them for the term of their natural life; with control orders issued year after year after year.
The judge can make control orders if the order would substantially assist in preventing a terrorist act; or if the person has provided training to, or received training from, a banned terrorist organisation.
When control orders are issued, the police don't have to meet the usual standards of "beyond reasonable doubt" for criminal charges. It is a "balance of probabilities" test; in other words, the judge only has to believe it is more likely than not that the person meets the above criteria. Hence control orders can be seen as a "back door" to imprisoning someone if you don't have enough evidence to charge them with a normal offence.
What's more, it is a "guilty until proven innocent" approach. A police officer, with the Attorney General's permission, goes to a judge and requests a control order. The subject of the order is then taken into custody. Only once they are in custody can they apply for the order to be revoked, with the limitations of the control order imposed on them (for example, if you can't use the phone and you can't leave home, trying to contact a lawyer may be difficult).
Muslim community impact: Because it's a "balance of probabilities" test, rather than "beyond reasonable doubt" test, and because the subject of the order isn't even there at the time the decision is made there is the potential for stereotypes and racial profiling. This could lead to many innocent people being imprisoned.
Also, the "training with a terrorist organisation" clause is retrospective, so it would apply to people who might have -- many years ago -- worked with Hamas or Lashkar-e-Taiba, before they were outlawed and before September 11. There is already a crime for "training with a terrorist organisation", but this seems to be a backdoor way to limit the freedoms of people who can't be found guilty of a crime.
Preventative detention
The police can get a preventative detention order to hold a person for up to 24 hours. This initial preventative detention order can be issued by the Federal Police alone without judicial approval. This can then be extended later to up to 48 hours. It can only be applied if police think there is a terrorist attack likely in the next 14 days, or there was a terrorist attack in the last 28 days. It is planned that the states will introduce legislation for the preventative detention to be extended for an additional 12 days.
When detained, the police can impose limits on who you can talk to. They can even stop you talking to your lawyer and your family. You are only allowed to communicate by fax, phone or e-mail, and all your communications are monitored. If you want to talk to your lawyer in a language other than English, then there has to be a translator there so the police can hear what you are saying. Even if you are allowed to call your family, you can only tell them that you are ok, and that you are not contactable -- if you say any more, you can go to prison for 5 years. The person you call will also be prohibited from telling another person, or they could go to gaol for five years also.
Once you are held under preventative detention, there is no provision for review of the decision.
Muslim community impact: It is possible that in the aftermath of a terrorist attack, many Muslims will be arrested to "preserve evidence", while the police try to work out what is going on and apply a "better safe than sorry" approach to detaining people. Indeed, in the aftermath of September 11, at least 70 people (all but one Muslim) were detained using the "material witness" laws in the US, the effect of which is similar to preventative detention. This is the most conservative estimate, because of secrecy, we don't how many were detained, but some estimates are as high as 1200.
Random stop and search powers
Police can stop you, ask you your name, address, proof of who you are, why you are somewhere and can search you, your vehicle or anything under your control; if they think that you "might have just committed, might be committing, or might be about to commit a terrorist act." If you fail to cooperate or if you give a false answer, you could fined for up to $2,200. If the police find something that they think can be used as part of a terrorist act, they can take it from you.
In addition, the Attorney General can declare an area (there is no limit on the size, could be "the Opera House", or could be "Lakemba") to be a "security zone" for up to 28 days. This declaration of a security zone, on the grounds of "preventing a terrorist act occurring; or in responding to a terrorist act that has occurred," means police don't have to have suspicion, they can just search everyone.
Muslim community impact: This opens a huge door for racial profiling -- it is more likely that Muslims will be searched. Furthermore, it may cause community backlash against Muslims as people blame Muslims for being subject to these measures. There is also a particular issue for women who wear hijaab or niqaab who might be requested to remove their hijaab as part of a search. There is no requirement that the search be conducted in private.
Incitement, sedition and "advocating" terrorism
There are a number of complex measures relating to incitement and sedition. This would limit people's ability to speak openly about any armed conflict in the world, if it includes Australia or Australia's allies. For example, if a person said that "Iraqis have the right to resist the occupation of Iraq by Western occupiers," this statement could be considered seditious and would carry a sentence of up to 7 years.
Furthermore an organisation that adopted a stance such as the above, would be considered to be "advocating terrorism". Advocating terrorism is defined as "praising the doing of a terrorist act", "directly or indirectly counseling or urging the doing of a terrorist act, or directly or indirectly providing instructions on the doing of a terrorist act".
If that is the case, the organisation can be proscribed, which carries with it many offences. For example, being an informal member of such an organisation would carry a sentence of 10 years.
Muslim community impact: Muslims often express solidarity with the Muslim brothers and sisters elsewhere in the world, in places such as Iraq, Kashmir, Afghanistan and Palestine, and want their brothers and sisters to be free. In some cases, they express the point of view that these people have the right to use violence as a means of achieving their goals, just as the Australian Government advocated the use of violence to protect itself from weapons of mass destruction from Saddam Hussein. Such statements would now possibly illegal under these proposed laws.
Charity
The new provisions for financing of a terrorist organisation mean that many innocent people trying to support worthwhile causes could end up in prison for up to 15 years.
Under the new measures, if someone asks you for help collecting charity for a cause and you help them, you have to check they are not using it for terrorist causes. For example, X asks you to help him raise money for victims of an earthquake in Pakistan. You help X to raise funds, but X then gives the funds to an organisation in Pakistan that as well as helping with the earthquake, also engages in activities the government thinks are illegal. You are now guilty of a crime that could find you in prison for 15 years.
Muslim community impact: There is the serious potential for innocent people with a sincere intention to help others will end up in prison for having done no wrong except for having taken someone's word. Furthermore, existing anti-terror laws have seen donations to charities in Australia decrease. These laws would reduce charity even more, and would create feelings of ill-will and suspicion among the community.
Other measures
Other measures in the anti-terror laws give police extensive powers to ask you to produce personal and private documents such as financial records and to find out about your travel patterns. Safeguards that ASIO have to meet when tapping phone calls and monitoring mail have also been weakened.
Further information:
Current antiterror legislation
Follow these links to view:
Commonwealth legislation
State and Territory Legislation
Terrorism offences
The anti-terrorism legislation enacted in Australia after the terrorist attacks in the U.S.A. in September 2001 rests on three key planks. [1]
A range of terrorism' offences came into existence. At the base of these offences is the broad statutory definition of a terrorist act'; a term which, at its margins, embraces certain acts of industrial action like picketing by nurses. [2] These offences travel far beyond acts like bombing and hijackings to not only criminalise terrorist acts' but also conduct ancillary to terrorist acts'. For example, a terrorism' offence is committed by merely possessing a thing in connection with engagement in a terrorist act' . [3]
Terrorist organisations
Powers have been conferred on the government to ban terrorist' organisations. Part 4 of the Charter of the United Nations Act 1945 (Cth ) requires the Foreign Minister to list a person or entity if satisfied, among others, that such a person or entity is involved in a terrorist act'; a term that is not defined by the Act. [4] Such a listing will mean that it becomes illegal to use or deal with the assets of the listed person or entity. It will also be an offence to directly or indirectly provide assets to a listed person or entity. [5]
Moreover, under the Criminal Code Act 1995 (Cth), regulations can be passed listing an organisation as a terrorist organisation' so long as the Attorney-General is 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)'. [6]
Such a listing means that the terrorist organisation' offences under this Act will apply to the organisation. These offences mean, for example, that membership of such organisations is punishable by a maximum of 10 years in prison. [7]
ASIO powers
The Australian Security Intelligence Organisation (ASIO) now has unprecedented powers to compulsorily question and detain persons suspected of having information related to a terrorism' offence. [8] Furthermore, the exercise of such powers by ASIO is now virtually cloaked with secrecy, with the law now making it illegal to disclose information relating to most of ASIO's activities. [9]
This survey demonstrates the breadth of current anti-terrorism measures. Built upon the base of a terrorist act' is a superstructure of broad criminal offences and sweeping executive power. The former imposes guilt by association and criminalises conduct peripherally connected with extreme acts of ideological/religious violence.
The Parliamentary Joint Committee on ASIO, ASIS and DSD is currently reviewing the ASIO laws. It is due to report on the operation, effectiveness and implications of the laws in January 2006.
For more information about the powers of ASIO officers to question or search you, go to What to do if ASIO visit.
The Civil Rights Network
The Civil Rights Network (CRN) is a network of concerned individuals who aim to bring the increasing erosion of civil liberties in the War on Terror' to the attention of the broader Australian public. Its membership draws upon a wide cross-section of society with trade unionists, lawyers, academics and members of faith organisations being part of the CRN.
The CRN website is a useful resource at www.civilrightsnetwork.org
Email: info@civilrightsnetwork.org .
Undermining democracy
The net of criminal liability has grown even wider since the enactment of the ASIO Legislation Amendment Act 2003 (Cth). It is now an offence to dis close information relating to ASIO's investigations into persons suspected of having information concerning a terrorism' offence . There are more than seven degrees of separation between such offences and acts like bombing and hijackings.
Moreover, the panoply of sweeping executive powers means that Australia now has a detention without trial regime with respect to terrorism' offences; a regime that is veiled by a thick shroud of secrecy - it is an offence to disclose the fact that you or someone else has been subject to an ASIO questioning or detention warrant (for up to 28 days) or any information at all about the warrant (for up to 2 years). It also has a proscription regime under the Criminal Code Act that bears disturbing similarity' to the Communist Party Dissolution Act 1950 (Cth) . [10]
The breadth of these measures also reveals how these laws have departed from established community standards. They make serious inroads into long-standing principles such as the prohibition on detention without trial, the presumption of innocence and the freedom of speech and association'. [11]
This is apparent with ASIO's compulsory questioning and detention powers. These powers differ only in modest ways from those originally proposed by the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 [No 2] (Cth); a Bill that has been denounced as not being out of place in former dictatorships such as General Pinochet's Chile'. [12]
The undemocratic impact of these powers has also been deepened with the newly-enacted secrecy offences; offences that were condemned by the major media organisations as:
pos(ing) a grave threat to Australian democracy, by gagging the media and its ability to report on national security issues involving ASIO and totally remove from public scrutiny, all discussion of ASIO's activities in relation to terrorism. [13]
The departure from established community standards is similarly evidenced by the government's power to proscribe terrorist' organisations under the Criminal Code Act 1995 (Cth); a power which bears close parallels with the proposal previously condemned by the Senate Legal and Constitutional Legislation Committee on the basis that it conferred a broad and effectively unreviewable power'. [14]
In sum, the terrorist' legal infrastructure established since the September 11 attacks is based on broad criminal liability and sweeping executive powers; both of which involve significant departures from established community standards.
Labelling activists as terrorists'
It is likely that in the war on terror', public debate and media coverage will be manipulated to suggest that activist groups are potential or actual terrorists.
In 2001 in America, the FBI listed numerous nonviolent, citizen based activist organisations and networks, including Reclaim the Streets' and many global justice networks amongst the "Threats of Terrorism to the United States".
In a May 10 statement before the Senate Committees on Appropriations, Armed Services and Select Committee on Intelligence, FBI director Louis Freeh listed these groups as a "potential threat" to the United States along with assorted terrorists from Egypt and Lebanon.
The report reads in part : "Anarchists and extreme socialist groups many of which, such as the Workers' World Party, Reclaim the Streets, and Carnival Against Capitalism have an international presence and, at times, also represent a potential threat in the United States.
For example, anarchists, operating individually and in groups, caused much of the damage during the 1999 World Trade Organisation ministerial meeting in Seattle."
The list also included "extreme fringes of animal rights, environmental, anti-nuclear, and other political and social movements" as well as the Animal Liberation Front (ALF) and the Earth Liberation Front (ELF).
Reclaim the Streets is actually more of a tactic than a movement or an organisation. In 1996, activists in England decided to hold the first RTS "street party" by holding a day-time rave, complete with sound system, dancing, and party games, all with a political spin in a busy intersection.
The party aimed to temporarily "reclaim" the street from cars and point out how capitalism and car culture deprive people of public space and opportunities for public festivals.
The brilliant tactic rapidly caught on, and Reclaim the Streets street parties are now regularly carried out all over the globe including Melbourne and Sydney.
Is dancing in the streets a form of terrorism? The concern is that increasingly paranoid governments and security forces will begin to think it is.
Shrinking our political space
A secondary, and perhaps more pertinent, danger lies not with the workings of any particular piece of anti-terrorism legislation but their combined impacts on both the psychology and mindset of the security forces within Australia and upon the diverse social change movements and activists themselves.
It is when the mechanisms and policies of state terror become institutionalised, in the minds of police, security forces, intelligence bodies and bureaucrats, that the scope for widespread abuses of human rights can increase.
By generating fear and paranoia, these anti-terror laws may well have a dampening effect on the level of political activisim in Australia. The psychological impact of these changes on social change activists in Australia may create an atmosphere that discourages activism.
Fewer groups may be willing to engage in civil disobedience or high risk direct actions. The fear of being targeted by anti-terror legislation may cause activists to curtail their legitimate or usual activities.
The fear and concern generated by heightened levels of surveillance and police scrutiny may also alter activist behaviour and organising approaches. More groups may choose to work clandestinely rather than in open organising structures and the possibility of open, nonviolent resistance is lessened.
In this way, the impact of the anti-terror laws may go beyond their legal powers and actually reduce our political space available in Australia.
Keeping informed of anti-terror legislation
Australia is currently being herded in a dangerous direction faster than most activists can keep track.
The drastic erosion of basic civil and political rights that the huge array of antiterror legislation represents is sometimes treated as a side issue alongside other injustices, such the devastating and escalating war in Iraq.
Now is the time, however, for social change activists in Australia to inform themselves of their changing rights, and to be vigilant in what these changes may mean in terms of the political space we have in Australia.
The Howard government, already an accomplished adversary of legitimate dissent, has taken advantage of fear and often-reasonable anti-terrorism sentiments and has been reworking our justice system in such a way that basic democratic ideals and understandings of freedom are lost.
Activists may feel helpless, and think that any action against such a powerful piece of legislation would be futile. However, information is a form of power in itself, and Australia's civil rights activists and lawyers need to stay alert and informed to the implications and ramifications of the terror laws. Every law can be resisted. The state and its security apparatus is not, and never will be, omnipotent.
If we can't stop the passing of such monumental pieces of legislation, the least we can do is keep ourselves informed on abuses of these new powers and the impact they have on activists' sense of their own political space, and be aware of the widespread grassroots opposition already developing in this country and in all others faced with similar legislation. Activist legal information, support and solidarity become even more important.
Popular, widespread and open opposition to the repressive policies and abuses by governments continues throughout the world and shows no sign of slowing. There is no reason to believe that mere legislation will prevent protest in Australia.
[1] This piece was written in April 2004. At the time of writing, the Anti-Terrorism Bill 2004 (Cth) was before federal Parliament. Included among the changes proposed by the Bill is the doubling of maximum interrogation/detention period for persons suspected of terrorism' offences.
[2] While the definition of a terrorist act' excludes industrial action' (Criminal Code Act s 100.1), this is unlikely to afford any protection to picketing which has been found not to be industrial action' under the Workplace Relations Act 1996 (Cth): Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR, 550, 575 per Wilcox and Cooper JJ (with whom Burchett J agreed at p. 586). For commentary on this case, see John Howe, Picketing and the Statutory Definition of Industrial Action'' (2000) 13 Australian Journal of Labour Law 84-91. The ruling in Davids has subsequently been applied in Auspine Ltd v CFMEU (2000) 97 IR 444; (2000) 48 AILR 4-282 and Cadbury Schweppes Pty Ltd v ALHMWU (2001) 49 AILR 4-382.
[3] Criminal Code Act (Cth) (Criminal Code Act') s 101.4.
[4] Charter of the United Nations Act 1945 (Cth) s 15 and Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 (Cth) reg 6(1).
[5] Such conduct is not illegal if authorised by the Foreign Minister: Charter of the United Nations Act 1945 (Cth) ss 20-1.
[6] Criminal Code Act s 102.1. This power was conferred by the Criminal Code Amendment (Terrorist Organisations) Act 2004 (Cth).
[7] Criminal Code Act s 102.3.
[8] Division 3, Part II, Australian Security Intelligence Organisation Act 1979 (Cth).
[9] These offences were inserted by the ASIO Legislation Amendment Act 2003 (Cth).
[10] George Williams quoted in Senate Legal and Constitutional Legislation Committee, Consideration of Legislation Referred to the Committee: Security Legislation Amendment (Terrorism) Bill 2002 [No. 2] etc (2002) 47.
[11] Michael Head, Counter-Terrorism' Laws: A Threat to Political Freedom, Civil Liberties and Constitutional Rights' (2002) 26 Melbourne University Law Review 666, 688.
[12] George Williams, Australian Values and the War Against Terrorism' (2003) 26 University of New South Wales Law Journal 191, 196.
[13] Letter from Bruce Wolpe, Manager, Corporate Affairs, John Fairfax Holdings Limited; Warren Beeby, General Editorial Manager, News Limited; Julie Eisenberg, Head of Policy, Special Broadcasting Service; Joan Warner, Chief Executive Officer, Commercial Radio Australia Limited; Professor Ken McKinnon, Chairman, Australian Press Council and Stephen Collins, Corporate Counsel, Australian Broadcasting Corporation to the Senators, 3 December 2003 (copy on file with author). See also Sophie Morris, More terrorists on loose, ASIO warns', The Australian, Sydney, 4 (available at http://www.theaustralian.news.com.au/common/story_page/0,5744,8056307%255E2702,00.html on 5 December 2003).
[14] Senate Legal and Constitutional Legislation Committee, above n 10, 58. The Criminal Code Act's proscription regime prior to the enactment of the Criminal Code (Terrorist Organisations) Act 2004 (Cth) has also been criticised as for being subversive of the rule of law': Jenny Hocking, Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy (2003) 211.
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