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Proportionality Lost, Australia’s New Counter-Terrorism Laws, by Spencer Zifcak

New law requires careful deliberation, particularly if it infringes on civil liberties. In this case, it didn’t get it.

Attorney-General George Brandis crashed two major tranches of counter-terrorism law through federal parliament recently. As always there are two problems with such an approach: overkill and error. Both tranches demonstrate these deficits in abundance.

It’s important to say that in Australia the threat of terrorist attacks is real. So is the danger posed by fighters returning trained in and hardened by Middle Eastern conflicts. The threat and the danger have undoubtedly increased because of the government’s military commitment to a third Iraq war. The case for some new security laws, specifically targeted at clearly identified threats, is persuasive.

However, new law requires careful deliberation, particularly if it infringes on civil liberties. In this instance it didn’t get it. Consequently, the parliament has adopted counter-terrorism laws that are loosely drafted, that are disproportionate to the threats they are designed to deter and that violate human rights unnecessarily.

The National Security Legislation (Amendment) Bill

The first of two tranches of counter-terrorism legislation was contained in the National Security Legislation Amendment Bill (No.1). The legislation amended several existing Acts to strengthen the powers of Australia’s intelligence agencies. Within the framework of the Australian Security Intelligence Organisation Act (ASIO Act), it permits ASIO officers to disrupt the operation of targeted computers and also to use the computers of third parties to access targeted computers. It gives ASIO officers immunity from prosecution for criminal activity in which they may engage in the course of ‘special intelligence operations’. It creates new offences and severe penalties for the disclosure of information that relates to these operations.

  1. Special intelligence operations

The National Security Bill defines a ‘special intelligence operation’ as one established to carry out special intelligence functions in the course of which an ASIO officer or affiliate may engage in criminal conduct or commit a civil wrong. A special intelligence function is one carried out for the purpose of obtaining evidence that may lead to prosecution for a serious Commonwealth offence. That means, for example, that if during the course of a special intelligence operation an ASIO officer beats up an innocent party or negligently causes them harm, s(he) will be immune from criminal prosecution or any claim for damages.

Nevertheless, special intelligence operations are subject to legal limitations. An operation, tautologically, must be one that will assist ASIO in the performance of a special intelligence function. The unlawful conduct involved in undertaking an operation must be limited to the maximum extent consistent with conducting an operation effectively. The conduct involved must not cause death or serious injury to any person, involve sexual assault or result in serious damage to property. An authorised officer must assess and approve a special intelligence operation prior to its commencement.

Even this brief description makes it plain that the special intelligence operation provisions travel far more widely than is consistent with the rule of law. It is unacceptable in principle and practice that ASIO officers should be immune from prosecution for crimes they commit. This violates the fundamental constitutional principle that every person should be treated equally before the law.

The safeguards set in place with respect to the commission of crimes are weak. Unlawful conduct is confined to that required for the successful implementation of an operation. This is no real safeguard at all. The greater the perceived importance of the operation, and the greater the risk in effecting it, and the greater the latitude for criminal behaviour.

Criminal and civil immunity may be provided so long as agents’ conduct does not cause the death of, serious injury to or commission of a sexual offence against a person. So, causing injury to a person may be permissible as long as it is not a serious injury. Where the line between serious injury and injury is to be drawn is anyone’s guess. The limitation is expressed broadly. Consequently, it could mean that a person may still obtain immunity where (s)he engaged in conduct that was likely to result in death, serious injury or sexual violation but did not ultimately engender those consequences. That is insupportable.

Given the clear dangers—not only to ASIO officers but also to members of the general public—attached to the conduct of special intelligence operations, one would have expected substantial safeguards to be attached to the authorisation of such operations. Instead authorisation is left to the director-general or deputy director-general of ASIO alone. Plainly, they are judges in their own cause. Authorisation should reside with real judges. A judicial warrant should be required to authorise a special intelligence operation. The case for authorisation should be subject to scrutiny by a judge of a federal court who can assess an ASIO application independently and impartially. As an additional safeguard, a public interest monitor should be appointed to adduce relevant evidence and test each case made by ASIO prior to a judicial decision on a warrant being issued.

Recently, the UK home secretary launched an inquiry into the conduct of British undercover agents who, while infiltrating environmental campaign groups, had formed intimate relationships with women upon whom they had been spying. Six officers presently stand accused of having sexual relationships with the political campaigners. The women have launched civil claims for damages against the agents for misconduct in public office, deceit, assault and negligence. The presiding judge in the case described the allegations, if proven, as a grave and unprecedented interference with the women’s fundamental rights. In Australia, if an equivalent surveillance program were declared a special intelligence operation, the women defiled would have no remedy.

The essential point remains that ASIO operatives should not be exempted from the law. In the 1984 case of A v Hayden, former chief justice of the High Court Sir Anthony Mason put the point succinctly:

For the future, the point needs to be made loudly and clearly, that if counter-espionage activities involve breaches of the law they are liable to attract the consequences that ordinarily flow from breaches of the law.

That principle is sacrificed at our peril.

  1. Information disclosure and freedom of the press

The National Security Amendment Bill (No.1) prohibits the disclosure by any person of information that relates to a special intelligence operation. It is worth citing the provision in full:

35P. Unauthorised disclosure of information

Unauthorised disclosure of information

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the information relates to a special intelligence operation.
Penalty: Imprisonment for 5 years.

This provision could slam the door on investigative journalism. Press freedom exists in part to ensure that government agencies can be held to account for their actions. The accountability principle applies to intelligence organisations no less than to any other entity in the machinery of government. Section 35P is a concerted attempt to undermine it.

Take the fiasco of ASIS’s covert recording of the deliberations of the Timor-Leste cabinet. The recording was of the cabinet’s discussion of legal arguments to be put before the International Court of Justice in Timor’s case against Australia concerning the division of proceeds from oil exploration in the Timor Sea. Journalists alerted by Timor-Leste’s Australian lawyer made the existence of the recording public. The AFP raided the lawyer’s office and legal documents related to the case were confiscated. The court delivered Australia a stern rebuke.

Now under s35P, if this had been declared a special intelligence operation, the lawyer and journalist who reported upon the ASIS operation could both be subject to prosecution and substantial terms of imprisonment. As a result, no one would have known about the bugging, which, in the legal circumstances that prevailed, would have been scandalous. No questions would have been asked, no answers required. Accountability would have been defenestrated.

Journalists and whistle-blowers often work in tandem to obtain and expose information about governmental corruption and malfeasance. This activity is clearly in the public interest. Journalists cultivate knowledgeable and expert sources all the time. They promise sources that their identity will not be revealed. They receive and evaluate confidential information. They question and determine its veracity and reliability. They balance the merits and demerits of disclosure. For the most part, they are careful when publishing information concerning surveillance operations, particularly when they relate to the protection of national security.

Section 35P, however, is likely to chill these crucial investigative activities. Journalists, lawyers and others who come into possession of specialist intelligence information may be prosecuted not only when they intend to disclose that information but also if they are reckless as to the possibility of its disclosure. All the government now needs to do to stop such disclosures is to warn media organisations that matters in which journalists have an interest may relate to special intelligence operations. Because these are secret, the media will be unable to verify that assertion. And no one will be willing to risk imprisonment for publishing related information for fear of being prosecuted for reckless release. Press freedom, and the accountability that it generates, will be damaged severely.

Having been made aware of such concerns, the attorney-general, Senator Brandis, attempted to allay them. He failed. The assurance that he gave was that no journalist would be prosecuted for an offence under s35P on his watch: the final decision would be one for the attorney-general himself. This is a most fragile shield. The ASIO Act provides no legislative authority for the attorney-general in this respect. The explanatory memorandum notes that the director of public prosecutions may take the public interest into consideration in determining whether to prosecute, but there is nothing in the legislation about that either. Even if the attorney-general were to assume this prosecutorial discretion, it would still be a discretion exercised by the same person who introduced the draconian non-disclosure provisions in the first place.

And then there is Senator Brandis himself. As Jonathan Holmes noted in a recent article in The Sydney Morning Herald, this is the man who branded those who denied that Edward Snowden was a traitor as either of the ‘self-loathing left’ or the ‘anarcho-libertarian right’. How likely is it that he will bring an independent and impartial mind to the task?

Section 35P should be repealed in its entirety.

The Foreign Fighters Bill

The second tranche of counter-terrorism legislation was encased in the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill. This Bill (now passed into law) amended several Commonwealth Acts, most notably the Criminal Code Act. The primary purpose of the new laws is to enable the investigation, arrest, prosecution and punishment of people supporting foreign conflicts. The secondary purpose is to limit the opportunities of Australian residents to engage in foreign fighting and domestic support for foreign fighters. Speaking generally, there is no problem with criminalising such activities. The problematical issues are different. They include the following:

  • Several of the crimes created are so loosely worded that they may capture either innocent activity or activity that falls far short of the commission of serious crime;
  • The penalties imposed in relation to several of the crimes are seriously disproportionate in comparison to those that apply domestically for similar offences;
  • The exercise of ministerial discretion to declare matters that then form the basis of the crimes defined is cast far too widely.
  1. Foreign incursion offences

Each of the foreign incursion offences pivots on the definition of ‘to engage in hostile activity’. A person engages in hostile activity in a foreign country if they engage in conduct intending to:

  • overthrow the government of the country, or any other country, by force of violence; or
  • subvert society in that or any other country; or
  • intimidate the public in that or any other country.

This definition substantially expands the one formerly contained in the Crimes (Foreign Incursions) Act 1978. The expansion is achieved by the inclusion of the subversion and intimidation components. Consequently, every offence added to the Criminal Code Act that turns on the broader conception of ‘engaging in hostile conduct’ has a much expanded scope from that in existing foreign incursion laws.

So, for example, under the former law, the penalty for incursion into a foreign state with the intention of engaging in hostile activity was twenty years. Under the new law, the penalty for the more widely defined offence is life imprisonment. Similarly, the former law provided for a penalty of ten years’ imprisonment for actions in preparation for hostile activity, whether or not that hostile activity occurred. In the Foreign Fighters legislation, the much broader offence again attracts a life sentence. The idea that preparatory conduct will attract a life sentence is of particular concern. It might, for example, catch a family member in Australia whose only relevant act is sending medicines to a relative engaged in an incursion abroad. This prospect is entirely undesirable.

‘Subverting society’ is also defined extraordinarily widely. It may for instance apply to serious damage to property, serious interference with an information system or serious disruption to transport infrastructure. Such activities may legitimately be criminalised, but the attachment of a life sentence to them is manifestly excessive.

Importantly, too, the new subversion offences are not tied directly to terrorism. Subversive activity encompasses a range of actions that need neither be intended to influence a government by intimidation nor be motivated by the advancement of a political, ideological or religious cause. Subversion takes in the disruption of electronic, communications, transport and postal systems and any and every infringement of property rights, whether or not they form part of a terrorist attack. To avoid substantial legal overreach, therefore, these offences must be tied directly to the explicit definition of a terrorist act in the Commonwealth Criminal Code.

To appreciate the breadth of what is proposed, one might take another Timorese example. An East Timorese person who had been granted Australian citizenship or permanent residency and who returned to East Timor in the 1990s to participate in the rebellion against the genocidal Suharto regime’s oppression of the country would have been caught by the Foreign Fighters law and faced a life term. Jose Ramos Horta was resident in Australia for some time while carrying on his diplomatic work in pursuit of Timorese independence at that time. No doubt his activities consisted of advocating for, making preparations for and supporting the commission of hostile activity against the Indonesian government. It would have been a pity, given his subsequent receipt of the Nobel Peace Prize, if he had had to serve a long term of imprisonment in Australia for those pursuits.

  1. Declared area offences

The problems attached to overly broad ministerial discretion are illustrated graphically by the offences attached to travelling to ‘no-go zones’. Pursuant to the Foreign Fighters law, it is an offence for a person to enter an area in a foreign country that has been declared by the minister for foreign affairs as a no-go zone, where the minister is satisfied that a listed terrorist organisation is operating there. To enter or remain in a declared area attracts a penalty of ten years’ imprisonment.

The relevant provisions create a list of exceptions that include, for instance, cases in which a person has entered an area to engage in humanitarian or journalistic activities or for bona fide family reasons. Nevertheless the scope is wide. It means that a person will be liable to prosecution for crossing an artificial geographical line, determined at the minister’s discretion and drawn, in any part of the world, according to the minister’s judgement as to the nature, extent and national security implications of a civil conflict occurring there. The exceptions are narrow, however. They may not, for instance, cover business travellers, pilgrims, adventurers, ill-informed tourists, people who enter inadvertently, people in transit, others who have gone to visit or support friends and so on. The exception for journalists extends only to those who are working in a professional capacity. Social-media correspondents, bloggers, researchers, independent camera crews and others are unlikely to fall into the professional category.

A person picked up in a declared area is also placed at a significant legal disadvantage. To make out a case against her, a prosecutor need only demonstrate that she has been found in a zone and that the minister has declared the zone. Once those two requirements have been met, it becomes a matter for the accused to prove that she falls within a lawful exception. Not only that, but she is required to demonstrate that the excepted purpose for her presence in the zone is the sole purpose for her being there.

This is not strictly a case in which the presumption of innocence is negated, but it comes pretty close. The accused person must prove that they are in an area for a legitimate reason rather then the prosecution having to demonstrate that the accused’s purpose falls outside the mandated exceptions. Further, for a person to prove a negative—that is, that they are not in an area for a nefarious purpose—presents formidable evidentiary difficulties.

The declared area offence should be excised from the legislation. Alternatively, parliament should include a general defence for a person who has travelled to the area for an innocent purpose that nevertheless falls outside the present narrowly defined, legitimate reasons for travel.

Conclusion

It will be clear that in critical respects the new counter-terrorism laws are a disproportionate response to real but manageable threats. While it is highly unlikely that the laws canvassed here will be reviewed in the foreseeable future, a number of supplementary reforms should be considered. These would strengthen the mechanisms through which the legislation could be continuously reviewed and amended when that is found necessary.

A new person should be appointed to the office of independent national security legislation monitor immediately. The inspector-general of intelligence and security should be given stronger powers to monitor Australia’s domestic and international intelligence agencies, particularly in relation to their conduct of special intelligence operations. Parliament’s Joint Committee on Intelligence and Security should report annually on issues and problems arising from the implementation of counter-terrorism laws.

It is imperative, finally, that the laws analysed here should be subject to sunset terms of no longer than three years. The great problem with counter-terrorism legislation is that no government will ever wish to court the blame for a terrorist attack if ever it occurs. There is consequently no political incentive for such legislation ever to be repealed. With all its disproportionality and violations of civil liberties, it will stay on the books indefinitely unless, by law, it must be brought to an end when national security and human rights considerations suggest that it is justified to do so.

 

Spencer Zifcak is Professor of international human rights law at ACU and immediate past president of Liberty Victoria.

 

 

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