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«Fighting Words REPORT A Review of Sedition Laws in Australia REPORT 104 July 2006 © Commonwealth of Australia 2006 This work is copyright. You may ...»

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1.9 Although many textbooks and commentaries on Australian law had pronounced the crime of sedition (and related variations) to be ‘archaic’ and ‘defunct’, more recent concerns about the national and international security environment have literally put the matter back on the front page—particularly in the aftermath of the terrorist attacks in New York and Washington on 11 September 2001, and in Bali (12 October 2002), Madrid (11 March 2004), London (7 July 2005) and Mumbai (11 July 2006). The London attack introduced a new dimension to debates about counter-terrorism: the possible presence in Western countries of ‘home grown’ terrorists and suicide bombers, and the degree to which this might warrant increased domestic surveillance 4 H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Offences Relating to the Security and Defence of the Commonwealth, Discussion Paper No 8 (1988), 17.

5 H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report (1991), [32.13].

6 Ibid, [32.17].

7 Ibid, [32.18].

30 Fighting Words and police powers, as well as criminal offences specifically tailored to cover these activities.

Special COAG meeting in September 2005

1.10 At the Special Meeting of the Council of Australian Governments (COAG) convened on 27 September 2005 by the Prime Minister, the Hon John Howard MP, the participants were briefed on the international and national security environment by the Directors-General of the Office of National Assessments and the Australian Security Intelligence Organisation (ASIO). After further discussion and consideration of the risks of a terrorist attack occurring in Australia, the federal, state and territory leaders agreed in principle to cooperate in matters of counter-terrorism and to introduce a common package of legislative measures.

1.11 At the end of the meeting a communiqué was issued setting out the agreed outcomes of the discussions.8 These included: (a) the development of a National Emergency Protocol; (b) continued high priority to be given to the security of mass passenger transport; (c) the development of a national approach to the use of closed circuit television in support of counter-terrorism arrangements; (d) the development of a National Action Plan to combat intolerance and communal violence; (e) improvements to aviation security; (f) the development of a national identity security strategy to combat identity fraud and theft; (g) improvements to private security arrangements, particularly where these impact on Australia’s counter-terrorism arrangements; (h) revision of the first National Counter-Terrorism Plan (2003), which sets out the collaborative arrangements in place for preventing, preparing for and responding to terrorist incidents within Australia; (i) emphasising the importance of Australia’s current regime of regular counter-terrorism exercises at the national, state and territory levels; (j) promoting public understanding of, and confidence in, the national counter-terrorism arrangements and putting in place arrangements to provide the community, business and the media with timely information during a crisis; and (k) development of a national chemical, biological, radiological and nuclear security strategy focused on prevention, preparedness, response and recovery.

1.12 Another key aspect of the Special Meeting was the discussion about the adequacy of existing counter-terrorism laws. COAG noted ‘the evolving security environment in the context of the terrorist attacks in London in July 2005’ and agreed there was ‘a clear case for Australia’s counter-terrorism laws to be strengthened’, with

the proviso that:

any strengthened counter-terrorism laws must be necessary, effective against terrorism and contain appropriate safeguards against abuse, such as parliamentary and judicial review, and be exercised in a way that is evidence-based, intelligence-led and proportionate.9

–  –  –

1.13 State and territory leaders agreed with the Commonwealth that the Criminal Code (Cth) should be amended in a number of respects, including amendments to

provide for:

• ‘control orders’ and ‘preventative detention’ for up to 48 hours, to restrict the movement of those thought to pose a terrorist risk to the community;

• the expansion of the Commonwealth’s ability to proscribe terrorist organisations that advocate terrorism; and • ‘other improvements … including to the financing of terrorism offence’.10

1.14 State and territory leaders also noted they would be consulted by the

Commonwealth in relation to:

• proposed amendments to Part IIIAAA of the Defence Act 1903 (Cth) to enhance and clarify the arrangements for calling out the Australian Defence Force to assist civilian authorities; and

• the possible enactment of laws to prevent the use of non-profit or charitable organisations for the ulterior purpose of financing terrorist activities.11

1.15 Apart from the inherent desirability of developing an integrated, national approach to counter-terrorism, one of the underlying reasons for convening the Special Meeting of COAG was that inter-jurisdictional cooperation was needed because most aspects of criminal law and police powers fall to the states and territories under the Australian Constitution. For example, because of constitutional constraints, the Commonwealth could not itself enact such measures as: (a) preventative detention of suspected terrorists; and (b) stop, question and search powers in areas such as transport hubs and places of mass gatherings.

1.16 Commonwealth, state and territory leaders also agreed that these new laws would be reviewed after five years, and that the legislation would include 10 year ‘sunset clauses’.12 The Anti-Terrorism Bill (No 2) 2005

1.17 The Anti-Terrorism Bill (No 2) 2005 (Cth) was introduced into the Australian

Parliament on 3 November 2005. Key features of the Bill included:

–  –  –

• expansion of the grounds for the proscription of terrorist organisations to include organisations that ‘advocate’ terrorism (Schedule 1);

• a new offence of financing terrorism (Schedule 3) and increased financial transaction reporting obligations on individuals and businesses (Schedule 9);

• a new regime to allow for the imposition of ‘control orders’ (subject to review after a period of up to one year) that place restrictions on the movements and associations of a person suspected of involvement in terrorist activity, and to authorise their close monitoring (Schedule 4);

• a new preventative detention regime to allow police to detain a person without charge for the purposes of interrogation by ASIO, to prevent a terrorist act or to preserve evidence of such an act—with limited ability to disclose such detention, and severe penalties for unlawful disclosure (Schedule 4);

• expanded police powers for searches and seizures without a warrant in ‘Commonwealth places’ and in ‘prescribed security zones’ (Schedule 5);

• police powers to compel disclosure of commercial and personal information (Schedule 6);

• further expansion of information and intelligence gathering powers available to police forces and to ASIO (Schedules 8 and 10); and

• modernisation of the old sedition offences, as recommended by the Gibbs Committee a decade earlier, by replacing them with a suite of five offences built around the basic concept of prohibiting a person from ‘urging’ others to use ‘force or violence’ in a number of prescribed contexts—and with a specific defence of ‘good faith’ (Schedule 7).

Schedule 7: the new sedition offences

1.18 The recommendations of the Gibbs Committee were expressly acknowledged as influencing the drafting of the new sedition offences in late 2005. The Explanatory

Memorandum accompanying the Anti-Terrorism Bill (No 2) 2005 (Cth) noted that:

The inclusion of sedition in the Criminal Code is consistent with the general policy of moving serious offences to the new Criminal Code when they are updated. These offences have been update[d] in line with a number of recommendations of Sir Harry Gibbs in the Review of Commonwealth Criminal Law, Fifth Interim Report, June 1991 (the Gibbs Report).13

–  –  –

1.19 Similarly, in his Second Reading Speech, the Attorney-General, the Hon Philip Ruddock MP, noted that ‘the sedition amendments are modernising the language of the provisions and are not a wholesale revision of the sedition offence’.14

1.20 The Attorney-General also stated that the provisions were the product of extensive consultation with national leaders and senior government officers at all levels through the COAG process, and were needed to ensure that we have the toughest laws possible to prosecute those responsible should a terrorist attack occur.

Second and of equal importance, the bill ensures we are in the strongest position possible to prevent new and emerging threats, to stop terrorists carrying out their intended acts.15

1.21 In relation to the sedition provisions in particular, the Attorney-General further

noted that:

The bill also addresses those in our community who incite terrorist acts.

It does this by expanding upon the Australian government’s ability to proscribe terrorist organisations that advocate terrorism and also updates the sedition offence.

The updated sedition offence will address problems with those who incite directly against other groups within our community.16 Senate Legal and Constitutional Legislation Committee report

1.22 On 3 November 2005, the Senate referred the provisions of the Anti-Terrorism Bill (No 2) 2005 to the Senate Legal and Constitutional Legislation Committee (the 2005 Senate Committee inquiry) for inquiry and report by 28 November 2005.

1.23 The 2005 Senate Committee inquiry, chaired by Senator Marise Payne, held three days of public hearings in Sydney in mid-November 2005 and—indicative of the high level of public interest—received nearly 300 written submissions.

1.24 In relation to the security environment, the Senate Committee inquiry noted that

it had been advised by the Director-General of ASIO, Mr Paul O’Sullivan, that:

It is a matter of public record that Australian interests are at threat from terrorists. It is also a matter of public record that ASIO has assessed that a terrorist attack in Australia is feasible and could well occur.... [T]he threat has not abated and we need to continue the work of identifying people intent on doing harm, whether they are already in our community, seeking to come here from overseas or seeking to attack Australian interests overseas. I would also point out that the nature of the threat we face is not static. Just as terrorist organisations and groups learn from past experience 14 Commonwealth, Parliamentary Debates, House of Representatives, 3 November 2005, 102 (P Ruddock—Attorney-General), 103.

15 Ibid, 102.

16 Ibid, 103.

34 Fighting Words and adapt to counter the measures that governments implement, so also do we need to continually revise the way we go about the business of countering terrorist threats.

Part of that process involves ensuring that the legislative framework under which we operate is commensurate with the threat we face.17

1.25 Similarly, the Australian Federal Police argued before the 2005 Senate Committee inquiry that the clandestine nature of terrorism activity and its catastrophic consequences mandated enhanced powers and new tools for police and intelligence agencies.

Together, the proposals for control orders, preventative detention and stop, search and seizure powers represent additional powers for police to deal with situations that are not covered by the existing legal framework. Since the events of 2001, the AFP and other agencies have been in constant dialogue with the government on the appropriateness of the legal framework for preventing and investigating terrorism as our understanding of the terrorist environment has developed. … The proposals in the bill … address limitations in that framework which have become apparent recently, in particular the need for the AFP to be able to protect the community where there is not enough evidence to arrest and charge suspected terrorists but law enforcement has a reasonable suspicion that terrorist activities may be imminent or where an act has occurred.18

1.26 The Committee’s report defined its role in the following terms:

No witnesses questioned the responsibility of the government to evaluate national security information and to make a judgment about the actual level of threat to Australia. However, many questioned whether the obligation to protect the community justifies creating a separate system to deal with ‘terrorist suspects’ who may otherwise be dealt with by the criminal justice system. … [Submissions] and witnesses urged the committee to consider: whether the current Bill is necessary to combat terrorism; whether existing powers and offences are sufficient to deal with acts of terrorism and related activity; and whether the removal of traditional safeguards is a proportionate response.19

1.27 The report made 51 recommendations for amendment to the Bill, with a final recommendation to pass the Bill if the Committee’s recommendations were taken up by the Government. Most recommendations had substantial cross-party support, although a dissenting report was filed by Greens Senators Bob Brown and Kerry Nettle;20 additional comments were supplied by Labor Senator Linda Kirk;21 and additional comments and a partial dissent were supplied by Australian Democrats Senator Natasha Stott Despoja.22

–  –  –

1.28 In relation to Schedule 7, dealing with sedition laws, the Committee made these

four recommendations:

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