Australia, since 2001, has introduced over 54 pieces of anti-terrorist legislation. Professor George Williams AO called the increased powers of ASIO under the 2012 legislation as “…the greatest assault on civil liberties in Australia since World War II” and that “…the powers are more consistent with the apparatus of a police state, such as General Pinochet’s Chile, than the laws of a modern democracy”. With the final debate regarding the National Security Legislation Amendment Bill (No.1) (“the National Security Bill”) occurring in the senate in a matter of weeks and the introduction of the Counter-Terrorism legislation Amendment (Foreign Fighters) Bill, the civil liberties and fundamental human rights of ordinary and everyday Australian’s is under threat. They go further than the 2012 legislation. This is not an issue that concerns only the Australian Muslim Community, but has deep consequences for all Australians for generations to come.
Australia has one of the most developed counter terrorism laws of the developed countries; however on 16 July 2014, the Australian Government introduced the National Security Legislation Amendment Bill (No.1) (“the National Security Bill”). Day’s prior to the debate regarding this Bill, the Government conducted the biggest counter terrorism operation (known as Operation Hammerhead) in Australia’s history. The National Security Legislation is currently before the senate and is expected to become law in a very short amount of time.
The Muslim Legal Network, along with the other organisations concerned with Civil Liberties, have made lengthy submissions in respect of the proposed laws and criticised the erosion of civil liberties. Some of the proposals in that Bill include:
Changing the definition of ‘computer’ in relation to computer warrants including ‘more than one computer’ and ‘computer networks’. It is important to note that ‘computer network’ has not been defined in the Bill and would potentially evade the privacy of large groups of people who are not specifically subject to the warrant, but part of the same ‘network,’ including an entire workplace or uses of the same ‘wifi’ network.
To create new disclosure offences and increase the maximum penalties for offences where intelligence officers disclose confidential information. (Otherwise known as ‘the whistleblower offences.’)
The creation of a ‘named person warrant.’ This would enable ASIO to seek one warrant specifying a number of powers against the identified person. Currently, the law requires ASIO to separately justify and apply for different types of warrants, such as telephone intercept warrants, optical device warrants, computer warrants etc. This further raises concerns of privacy and lack of accountability within intelligence agencies.
Providing ASIO officers and their human sources with immunity from criminal and civil liability for certain conduct within the course of authorised intelligence operations.
The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill was introduced to parliament on Wednesday 24 September, one week after the largest counter-terror operation in Australian history. The parliamentary Joint Committee on Intelligence and Security has commenced an inquiry into this Bill. A Bill is a document of the proposed laws, however it does not become law unless it is voted on in parliament.
The explanatory Memorandum of the Bill states that the purpose of the Bill is in “response to fighters who have fought overseas alongside listed terrorist organisations may “return to Australia with enhanced terrorism capabilities and ideological commitment”. The Bill addresses the issue of foreign fighters and makes the following proposes:
The Minister for Foreign Affairs has the right to suspend a person’s travel documents temporarily (14 days) if ASIO suspects on reasonable grounds that the suspected person may leave Australia to engage in conduct that might prejudice the security of Australia or a foreign country”. This essentially lowers the threshold for ASIO to satisfy. There will also be no notification of your passport’s suspension. After 14 days, ASIO would need to apply for the cancellation of the suspected person’s passport.
The power of Customs Officers to detain somebody is also significantly expanded. The power of detention will now be on the basis that they are satisfied on reasonable grounds that the person “is, or is likely to be, involved in an activity that is a threat to national security or the security of a foreign country”. Again, the threshold test is lowered.
Making it a crime to travel to any area designated by the Minister because a terrorist organisation operates within that area. The designation power is expansive, with the possibility of entire countries being designated areas. This offence carries a maximum of 10 years’ imprisonment. To avoid prosecution and/or conviction, you would have to prove beyond reasonable doubt that you travelled to a designated reason for a legitimate reason (such as visiting family, performing aid work or journalism). This has effectively shifted the burden of proof from the prosecution to the accused person and signals a major departure from the principle that the prosecution has the onus to prove you are guilty beyond reasonable doubt. Alarmingly, this could have grave effects on journalists and charity workers.
If you return to Australia after engaging in “hostile activities”, you could be subject to control orders and could include restrictions such as curfews, reporting requirements and telecommunications restrictions. You do not need to be convicted of an offence to be placed under a control order, but a court will need to be satisfied that a control order is “reasonably necessary and reasonably appropriate” to protect the public from a terrorist act.
Centrelink payments can be cancelled if your passport or visa have been refused or cancelled on national security grounds. There is no obligation to serve notice or reasons for cancellation.
A new offence of “advocating terrorism” that would have a chilling effect on political discussions and the right to protest and criticise oppressive regimes, not to mention on whistle-blowers and journalists. It carries a term of imprisonment.
The Muslim Legal Network will be making our concerns known to the Australian parliament regarding our deep concerns over the erosion of civil liberties and the potential impact of the proposed legislation on the Australian Community.