Australian Anti-Terrorism Act 2005

Australian Anti-Terrorism Act 2005

The Australian Anti-Terrorism Act 2005 (Revised)cite web
title=An Act to amend the law relating to terrorist acts, and for other purposes
The actual act] is legislation intended to hamper the activities of any potential terrorists in Australia. It was passed by the Commonwealth Parliament on 6 December 2005. [ [ Senate passes counter-terrorism laws. 06/12/2005. ABC News Online ] ]


The bill was prepared by the Liberal-National Coalition government in the wake of a series of terrorist attacks overseas, in particular London, with the stated intent of preventing such events from happening in Australia.

Due to the division of powers in Australia's constitution, the bill needed the support of the states. An outline of the bill was given in-principle support by the State Premiers.

Prior to its reading in federal parliament, a confidential draft of the legislation was published online by ACT Chief Minister Jon Stanhope, who stated "Law of this significance made in this haste can't be good law". The Opposition and minor parties expressed concern that a Senate inquiry would not be given enough time to consider the new laws. cite news
title=Stanhope flags doubts on 'hasty' terrorism bill
author=Nick McKenzie
] Prime Minister John Howard rejected the concern and criticised Stanhope, saying that "the premiers and the other chief minister did not deserve to be hijacked in relation to their ability to participate in consultation." cite news
title=Stanhope under fire over bill leak
work=ABC News Online
] The public exposure saw elements of the bill, including a 'shoot to kill' clause, criticised as excessive. Victorian Premier Steve Bracks noted the 'shoot to kill' clause had not been discussed at the Council of Australian Governments meeting where the draft laws were forged. Community concern arose that Muslims would be unfairly targeted by the new law.

The Australian government planned for the bill to be introduced, debated and passed on 1 November 2005 (Melbourne Cup race day). The Labor Opposition and the minor parties decried the paucity of time allowed for debate. The Prime Minister agreed to allow more time on the proviso that the bill be passed before Christmas 2005.

The bill became law on the 6 December 2005. Measures for greater protection of free speech and greater scrutiny of the law's application, proposed at different stages by individual government members and Labor, were not accommodated. cite news
title=Unease mounts over anti-terrorism laws
author=Michael Gordon, Barney Zwartz & Rachel Kleinman
work=The Age
] Labor voted to support the bill. The Greens and Australian Democrat senators voted against. cite news
title=Anti-terror laws rammed through - minus debate
author=Jewel Topsfield
work=The Age

Constitutional issues

The first three "chapters" of the Australian Constitution separate power between the executive, legislative and judicial arms of government. This "separation of powers" doctrine has been interpreted by the High Court in "Lim v Minister for Immigration" (1992) 176 CLR 1 as granting an immunity for Australian Citizens from involuntary detention by the Government except as a consequence of a finding of criminal guilt before a court. There are some exceptions, such as the detention of a person following their arrest and before they are brought before a court, or whilst on remand awaiting trial where bail is refused. The Federal Government appears to have interpreted as Constitutional periodic detention for up to 48 hours and co-operated with State governments (which do not have the same entrenched separation of powers doctrine) to allow for detention up to 14 days. The Federal government has also introduced "control orders" which allow for a range of restrictions to be placed on an individual (who has not been charged, let alone found guilty of any criminal offence) including subjecting that person to 12 months house arrest. Notwithstanding this, both state and federal preventative detention and federal control orders may still be open to a Constitutional challenge.

Queensland Premier Peter Beattie announced that he has received advice that the blurring of boundaries between the executive and judicial powers is likely to be unconstitutional. This assertion has been rejected by the Prime Minister: "Lawyers often have different opinions as to what the law means." [ [ Lateline - 25/10/2005: Proposed counter-terrorism laws may face constitutional challenge ] ] . Federal Treasurer Peter Costello has adopted a more cautious attitude, stating that "you never really know" the answer to the vexed question of constitutionality "until such time as the courts decide on these things".(SMH, October 27, 2005) According to spokespeople for the Prime Minister, his and the Treasurer's views are compatible, but some media outlets, including the Sydney Morning Herald, have insinuated otherwise.

Deficiencies in the existing law

Attorney General Philip Ruddock said that the new laws are needed [ [ Insiders - 30/10/2005: Labor awaits tabling of anti-terrorism bill ] ] , on advice from the Australian Federal Police that existing laws would not protect Australians from London-style terrorist attacks. [ [ Lateline - 31/10/2005: Keelty puts case for terrorism laws ] ]

Summary of changes

* Potential for preventive detention: short term detention for named individuals: without evidence; and without criminal involvement; the detainee may be interrogated by Australian Security Intelligence Organisation (ASIO); disclosing that an individual has been so detained or interrogated is, in almost all circumstances, a crime.
* Control orders: Potential for almost unlimited restrictions on named individuals: freedom of movement; freedom of association (including one's lawyer); banning the performing of named actions and owning named items, including actions and things necessary to earn a living; unlimited requirements to be, or not to be, at specified places at any or all times of the day and week; wear a tracking device; and including encouragement to submit to re-education. These restrictions are referred to as "control orders", and may be granted for a period of one year before review.
* Significant restrictions on the right of any citizen to express certain opinions: including criticism, or "urging disaffection", of the sovereign, the constitution, the government, the law, or 'different groups'; exemptions may exist where the target of criticism is agreed to be 'in error'; exemptions appear to exist where the claim is that a feature of a group of people is in some way offensive to the mainstream of society; onus of proof of goodwill is on the defendant - the presumption is not of innocence.
* It becomes a crime, punishable by life imprisonment, to recklessly provide funds to a potential terrorist: funds include money and equivalents and also assets; it is not necessary that the culprit know the receiver is a terrorist, only that they are reckless about the possibility; it is not even necessary that the receiver is a terrorist, only that the first person is reckless about the possibility that they might be.
* Police can request information from any source about any named person: any information about the person's travel, residence, telephone calls, financial transactions amongst other information; professional privilege does not apply; it can be an offence to disclose that such documents have been obtained.
* A legislative provision for 'hoax offences' will create a more serious charge for people who cause chaos for the public and emergency services by dreaming up devastating terrorist-inspired hoaxes.

The "Shoot to Kill" Clause

The "Shoot to kill" clause instructs police to treat people wanted under detention orders in the same way that an equivalent clause in the current law treats wanted suspects.

The clause in particular has raised the concern of some state premiers, the so-called "Shoot to kill" clause, where police may use lethal force if they perceive a threat to life. The clause was not put to the premiers in the original discussions between the States and Federal Governments. [ [] Dead link|date=March 2008]

Law Council of Australia president John North, suggested that such powers were designed to protect police in the event of a mistaken fatal shooting such as that of Jean Charles de Menezes. []

John Howard has declared that the whole issue is a "misnomer, a furphy, a diversion," [] but has suggested that changes to the clause are possible.

The "Reckless Funding" Clause

As a result of the Anti-Terrorism Act 2005, Division 103 of the Criminal Code makes it an offence to provide funds to a person who may use those funds to facilitate or engage in a terrorist act. These funds must be intentionally made available to another person (e.g., a donation or cash transfer). The definition of funds includes money and assets of any kind but does not include goods or services. ["Criminal Code (Cth)" s 100.1] The mental element for the crimes created under Division 103 is subjective recklessness. ["Criminal Code (Cth)" ss 103.1(1)(b), 103.2(1)(b)] This means that the accused must know that there is a substantial risk of the funds being used for terrorism but still makes those funds available regardless of that risk.

Judicial oversight

The published version of the Anti-Terrorism Bill has attracted the criticism that it does not respect the separation of powers and is thus unconstitutional. Prime Minister John Howard has declared, "Speaking for the Commonwealth, and based on the advice I have received from the Crown law authorities at a commonwealth level, these laws are quite constitutional.",5744,17031762%5E1702,00.html] John North, President of the Law Council of Australia, said "The power to make control orders is to be given to federal courts and is clearly non-judicial. Judicial power requires a fair procedure, including notice of the proceedings and disclosure of the basis upon which orders are sought and made. None of this occurs in relation to control orders." [ [ Law Council of Australia - Media Release - Anti-Terror Bill: Judiciary Compromised - 25 October 2005 ] ] Similar concerns were raised by the Queensland and Western Australian Premiers and NSW Premier Morris Iemma. .

See also

* Australian anti-terrorism legislation, 2004
* Australian sedition law
* New South Wales Council for Civil Liberties
* List of terrorist organisations outlawed in Australia

External links

The legislation, proposed and current:
* [ Draft legislation] on the ACT Chief Minister's [ website]
* [ Current Australian Criminal Code] at ComLaw
* [ the new bill side by side with the old bill]

Popular press response:
* [ "Sydney Morning Herald", 11 October 2005, 'Anti-terrorism bill splits politics']
* [ The Age Melbourne - Should we be afraid of the terror laws]
* [ ABC TV Media Watch - Seditious opinion? Lock 'em up]
* [ Terrorism laws in place before XMAS ]
* [ Security Australia Laws] .
* [ Australia accused of rushing shoot-to-kill terror laws]
* [,5744,17066880%5E12250,00.html Paul Kelly, " More power to the PM"]

Other commentary:
* [ Former PM Malcom Fraser, Stephen Murray-Smith Memorial Lecture of October 19, 2005]
* [ NSW Council for Civil Liberties]
* [ Free Speech Australia]
* [ Human rights implications of the Anti-Terrorism Bill 2005] Prof. Andrew Byrnes, Prof. Hilary Charlesworth and Gabrielle McKinnon Australian National University, October 18, 2005
* [ George Williams, "Responding to Terrorism without a Bill of Rights: The Australian Experience", AsiaRights Journal]
* [ ACT Chief Minister Jon Stanhope, "Rights at Risk: My Dissent from the Australian Anti-Terror Bill"] , JURIST
* [ Anti-terrorism Legislation Public Forum - Quaker Peace & Justice Committee] : Audio recording of Sydney public forum discussing the bill with speakers including Lance Collins and Warren Reed
* [ Legislating with urgency — The enactment of the anti-terrorism act [No 1] 2005] Melbourne University Law Review. Detailed review of the legislation, including the process of its enactment.


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