Australian Privacy Foundation
www.privacy.org.au

Briefing on proposed new Anti-Terrorism Bill / powers
(Based on draft Bill made public by the ACT and subsequent public debate)
28 October 2005

General points of principle

1. The lack of opportunity for public debate and scrutiny is wholly unacceptable

2. To invert the common criticism of privacy protection - “if the PM has nothing to hide, he has nothing to fear from greater public scrutiny of these proposals”

3. We applaud ACT Chief Minister’s principled decision to publish the draft Bill in the name of transparency.  However, while very helpful this is no substitute for proper consultation – we are already told that the draft has been superceded. 

4. It is difficult to understand what the Bill actually does – we need a marked-up copy of what the Criminal Code will look like with the proposed changes, and an Explanatory Memorandum that explains the intention behind and purported effect of the changes.

5. The draft Bill includes several example of ‘power grab by stealth’ – provisions which are not confined to terrorism offences but are part of a longstanding government ‘wish’ to give agencies extra powers – examples include the AFP notice to produce information powers for ‘other serious offences’; the changes to the Financial Transaction Reports Act, and the optical surveillance provisions (details below).

6. The attempts at re-assurance so far rest largely on appeals to ‘trust us’.    Surely history (even recent history) tells us that governments and bureaucracies even here in Australia cannot be trusted – particularly with powers as draconian as these - without transparency, constant accountability and safeguards.

7. It is dishonest to pretend that these are only ‘temporary’ measures needed for exceptional circumstances.  The definitions of terrorism being used mean that the threat will remain indefinitely (as it has for at least the last forty years, without the need for these measures).
   
8. Analogies with precedent of emergency powers during previous predictably finite wars are therefore false – governments have defined a war on terror in a way that ensures it will be permanent.  We must therefore debate these powers on the assumption that they will be permanent too.

9. Sunset clauses are better than nothing (and must be shorter) but they are no substitute for proper justification up front.  It is always more difficult to repeal laws once established, even if the powers are not used.

10. In any event, there are no sunset clauses for many of the provisions of the Bill.  While this may be reasonable for some minor technical amendments, it is not acceptable for the significant changes, all of which must be subject to a relatively short sunset period.

11. What is the evidence of the need for these changes?  We have seen no evidence, as opposed to assertions, that the London bombings really change anything about the threat posed to Australia.  The official risk assessment hasn’t changed.  Intelligence agencies have backed away from suggestions that there are hundreds of dangerous extremists in Australia – the figure apparently used to scare the Premiers into their initial agreement.

12. What is the evidence of urgency? Why do we suddenly need to rush these powers in without even adequate debate when we have lived without them until now – even after New York, Madrid, and London? 

13. What is the evidence of effectiveness?  Let us have examples of where the lack of these powers has actually hindered investigation/prevention. Even hypotheticals – not just assertions – it would be helpful to understand possible situations where these powers would be needed.

14. Governments must seriously consider whether the proposals are not actually counter-productive – even dangerous. Many experts think taking such powers will simply act as a recruiting tool for extremists – and that we are simply playing into their hands by making these changes.

15. What is the evidence of proportionality?  We need a debate about whether the loss of everyone’s civil liberties is worth any marginal benefit to law enforcement/intelligence.

16. It is not acceptable to say that any value to police/ASIO is worth the loss of rights and freedoms – governments are always saying no to the agency wish lists, even on grounds of cost, let alone loss of fundamental rights.  Why is this a different situation?

General concerns about the Bill

17. Judicial oversight appears to be limited to judicial review of process – there is no provision for merits review of the basis of the decisions.  Judicial involvement only applies to some of the key provisions and not others.

18. The role of judicial oversight is not only to protect the innocent victim – it is an anti-corruption measure.

19. The role of judges and magistrates in some of the provisions amounts to an executive role in fundamental conflict with their judicial functions.  We were told by this government in the 1990’s that this conflict prevented federal court judges from issuing warrants for telecommunications interception – to justify moving that function to AAT members without the same independence (even though issuing warrants does not amount to punishment as control orders do).  Now it suits the government to co-opt the judiciary into an even more clearly executive role.  We note that this issue has now been raised as a more general criticism of the draft bill.

20. It is misleading to describe the proposed involvement of judges as ‘judicial’ since it is in many cases to be performed in their ‘personal’ capacity.  Also, to the extent that individual judges may decline to take on this role, this further erodes the purported assurance of independence – by definition those involved will be ‘volunteers’ who presumably agree with the legislation, while the sceptics who might bring a more rigorous standard to bear on applications will have excluded themselves.

21. The changes to sedition law in Schedule 7 appear to possibly cover ordinary advocacy activities – by NGOs or unions – which encourage civil disobedience as a peaceful way of advocating for law reform.  It would also appear to threaten the right to disagree with the government about important policy decisions – such as our involvement in Iraq. Many thousands of Australians legitimately challenge that involvement, and many other actions of this and previous governments of all political colours. For example, Clauses 80.2(7) and (8) suggest that certain legitimate views in relation to the involvement in Iraq could fall foul of the Act, and the defence of ‘good faith’ provided by 80.(3) is not a sufficient guarantee that these provisions could not be used by this or future governments to suppress dissent.

22. What guarantees are there that individuals will not fall foul of the offence provisions ‘retrospectively’ e.g. by supporting an organisation that is subsequently declared to be a ‘terrorist’ organisation?

23. The prohibition in clause 105.38 on third parties contacted by a detainee disclosing even the fact that the individual has been detained is inherently objectionable, and the application of this prohibition to other family members is simply absurd and impracticable.

24. One example of apparent absurdity, which better public scrutiny might expose: 
•	Proposed new clause 101.2(3), in conjunction with current sub-(2) (attached) – suggests that if a person providing training is reckless (e.g. did not somehow check if her students might be preparing for an act of terrorism???), she would be guilty of an offence – even if there is absolutely no connection between the training she offers and her students’ terrorism plans.  For just providing training on any subject, the trainer could face 15 years imprisonment.  The new para (3) directly contradicts para (2).
•	Furthermore, the AFP could place a control order on the trainer as someone who has provided training to a terrorist organisation – even if she didn’t know they were a terrorist organisation, and she trained them in something which doesn’t assist their terrorist activities

Particular privacy concerns

25. The Bill has serious implications for several aspects of privacy:

•	Bodily & Territorial privacy – including the control order provisions, but also the provision for an escalating scale of intrusions from searches through physical restraint to violent action up to and including ‘shoot to kill’
•	Communications privacy – including provisions for monitoring communications and banning communications even between family members about the whereabouts of their children
•	Information privacy – including the mandatory collection of information about both suspects and wholly innocent ‘associates’, the uses and disclosures of which will not be ‘transparent’, and which can be expressly kept secret from the individuals concerned

26. Because of the looseness of the definition of terrorism, and the fact that powers can be exercised in relation to third parties other than those suspected of any intent to commit violence, the privacy implications extend well beyond such suspects.  The breadth of the legislation would appear to catch, potentially, anyone whom the intelligence agencies or police think might have relevant information or might be involved in any way even without knowing.  This is not only unacceptable in its own terms but is likely to have a major ‘chilling’ effect on freedom of speech and legitimate dissent.

Identification, questioning, search, restraint etc powers

27. The extent to which the provisions in various schedules to the Bill relating to identification, information gathering, search, entry to premises, restraint and lethal force provisions are ‘new’ or differ from existing powers is not clear.  If they are different, then this must be better justified.  What is clear is that the powers will apply to a much wider range of individuals, including those who are not even suspected of criminal offences.  There must be more debate about the proportionality of applying these powers to such people.

Control and preventative detention orders

28. Many of the obligations, prohibitions and restrictions that can be included in a control order are highly intrusive into the subject’s territorial and communications privacy  and, in the case of the tracking device, into their bodily privacy as well (such a device will presumably take the form of an irremovable bracelet).  Further privacy intrusions would be necessary in order to monitor compliance with some elements of a control order such as limitations on telecommunications use.  We strongly believe that no-one should be subjected to these intrusions who has not been charged with a specific offence and given the opportunity to challenge the charges in a court of law, with full legal representation. 

29. If control orders are to be allowed in any form, they should certainly not be for a renewable period of twelve months – that is far too long a time for the authorities not to have to demonstrate the continued need for the order.  We note that a maximum period of 3 months is to apply to 16-18 year olds.  In our view, the authorities should be required to re-apply for a control order on any individual after no more than one month.  The provision of the right for a subject to apply for revocation of a control order is no substitute for a regular requirement on the authorities to justify the need.  Because a subject is only able to see the control order itself and not the justification, how could they know what arguments or evidence to use in support of an application to revoke?  The whole control order regime offends against fundamental legal principles and rights. 

30. If the need for these new powers is so urgent and justified by the allegedly heightened risk of terrorism, it is difficult to see why the government sees no need for control orders or preventative detention orders to apply to children under the age of 16.  Surely there are enough precedents for children being involved in terrorism for this to be a glaring anomaly and expose a major weakness in the justification for the new powers.  If an arbitrary age limit is applied – presumably to assist the ‘saleability’ of the proposals - then one must question how necessary they really are?

31. It is difficult to see the value of the supposed safeguard of clause 104.9(1)(c) in light of clause 104.9(2), and similarly the value of clauses 105.28 (1)(3) & (6) in light of 105.28(11).

32. Clause 105.41 suggests that a person may be held in preventative detention for up to 12 months – otherwise there would be no need for 105.41(3) about the destruction of identification material.  This undermines the impression given elsewhere that preventative detention would only be used as a very temporary measure before charges are laid.

Information gathering powers

33. The AFP ”notice to produce” powers would have the effect of overriding privacy protections, as disclosure required or authorised by law is an exception in the disclosure principles applying to both Commonwealth agencies and the private sector under the Privacy Act 1988. Not content with this, Clause 3ZQR expressly provides that notices to produce overrule not only privacy laws but also legal professional privilege, duties of confidence and any other public interest.

34. Clause 3ZQN provides the AFP with a notice to produce power in relation to serious terrorist offences without any independent judicial involvement.  No justification has been provided as to why information cannot be obtained by using existing search warrant provisions, subject to judicial oversight. If time is a factor, why not just spend resources on the availability of judges to approve warrants?

35. Clause 3ZQO provides for notices to produce in relation to serious offences other than terrorist offences.  While these would require authorisation by a federal magistrate, no justification is provided for including this power in an anti-terrorism Bill.  We note that the AFP asked for this power in its submission to the recent reviews of the Privacy Act, without specific reference to terrorism.  The list of matters to which a notice to produce can relate (in Clause 3ZQP) includes matters which would clearly be of interest to police in a wide range of other investigations.  Why is the government dealing with this in the context of the rushing-through anti-terrorism legislation instead of in its hopefully considered response to the Privacy Act reviews?  This is an example of ‘a power grab by stealth’ i.e. slipping provisions into
legislation that go well beyond the apparent objective of that legislation,
to prevent separate debate about those provisions in the proper context.  This smacks of rank opportunism –- and should be strongly resisted. 

36. Clause 3ZQT prevents someone served with a ‘notice to produce’ from informing any other person (other than those involved in responding, and the person’ own legal advisers).
Financing Terrorism powers

37. The financing terrorism provisions in Schedule 3 would criminalise ‘inadvertent’ contributions to organisations which themselves may contribute to legitimate political activity without knowing about any associations with violent extremists. Individuals, and organisations acting in good faith cannot be expected to know enough about these potential links to make a judgement.  Criminal offences should only apply to financial contributions made in the full knowledge that they will be used to fund criminal activity.   Otherwise, two things will happen - a vast number of individuals will inadvertently expose themselves to criminal prosecution, and some people will be deterred from contributing to legitimate social and political movements which criticise current government policies or even those that don’t.  Both are undesirable. 

Surveillance devices

38. The effect of the provisions in Schedule 7 amending the Surveillance Devices Act 1984 is not clear and must be explained so that the provisions can be properly debated.  Schedule 8 provides for a Code regulating and authorising optical surveillance at airports and on aircraft. However, Clause 74J expressly provides for the purposes of the optical surveillance to include prevention etc of any Commonwealth offences.  This is another example of a ‘power grab by stealth’ – introducing powers with much wider reach, which deserve much wider debate by the many interested parties, as part of supposedly purpose specific anti-terrorism legislation.  Another danger here lies in the balance that any Code would strike between authorisation on the one hand and regulation, with safeguards on the other.  It is not clear if a Code issued under this Schedule would be a disallowable instrument. If not, it should be.

Financial Transaction Reporting

39. The extensive changes to the Financial Transaction Reports Act 1988 proposed in Schedule 9 are yet another example of ‘a power grab by stealth’ – introduction of provisions with much wider reach, which deserve much wider debate by the many interested parties, as part of supposedly purpose specific anti-terrorism legislation.  The appropriate place for these provisions are in the proposed anti money-laundering legislation, which have quite properly been the subject of recent  consultation at least with industry (albeit with limited opportunity for wider community input). 

ASIO powers

40. The changes to ASIO powers contained in Schedule 10 are not explained.  We have not been able to assess the implications of these changes – another reason for a longer period of debate. The last round of amendments to ASIO powers benefited greatly from a lengthy period of Senate inquiries.

State and Territory Legislation

41. Our concerns obviously extend to any parallel or complementary changes to State and Territory legislation that may be proposed in order to implement the COAG agreement.
Conclusion

42. We call on all politicians of conscience to very carefully examine this legislation (by firstly insisting on a longer period of debate), and only vote for suitably modified legislation if they truly believe, on the basis of much better evidence and argument than we are being offered, that the legislation:
•	is necessary, 
•	will have the net effect of reducing the likelihood of terrorism in Australia, and
•	is a proportionate response to that threat
 
43. Governments must not trade real rights and freedoms which protect all Australians from the abuses of government power – all for an illusion of greater security.

For further information contact 

*************************************************************
Nigel Waters, Board Member and Policy Coordinator
Australian Privacy Foundation
Telephone: 0407 230342
E-mail: enquiries@privacy.org.au
APF Web site: http://www.privacy.org.au 
*************************************************************

Attachment:

Current Criminal Code law:

101.2

2) A person commits an offence if: 
(a) the person provides or receives training; and 
(b) the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and 
(c) the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b). 
Penalty: Imprisonment for 15 years. 

New proposed sub-section (3):

(3) A person commits an offence under this section even if: 
(a) a terrorist act does not occur; or 
(b) the training is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or 
(c) the training is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act.