: Counter-Terrorism Legislation: Reform without substance or direction

Counter-Terrorism Legislation: Reform without substance or direction

Mark Rix

Since September 11 2001, Australia has enacted a vast quantity of counter-terrorism legislation. During the Howard government’s time in office (1996 to 2007) there was a virtual avalanche of counter-terror bills that were introduced, totalling 44 separate pieces of legislation. Professor George Williams has aptly described this as a ‘frenzy of lawmaking.’ The legislation contains many harsh provisions including removal of the right to remain silent, detention without trial extending to detention of non-suspects merely for intelligence-gathering purposes, and infringements on media freedom and freedom of expression generally.

In March 2010, the Rudd Labor government introduced the National Security Legislation Amendment Bill which many hoped would water down some of these harsher provisions. The Bill implemented the recommendations of several inquiries and reviews of some of the more important pieces of legislation underpinning Australia’s national security and counter-terrorism regime. These include the Review of Sedition Laws conducted by the Australian Law Reform Commission (July 2006), the Review of Security and Counter-Terrorism Legislation by the Parliamentary Joint Committee on Intelligence and Security (‘PJCIS’) (December 2006), the Inquiry into the proscription of ‘terrorist organisations’ under the Australian Criminal Code by the PJCIS (September 2007) and the Inquiry by the Hon John Clarke QC into the Case of Dr Mohamed Haneef which presented its final report to Parliament in November 2008. The Act passed through parliament in November 2010 with some portions commencing shortly thereafter, or in May 2011.

Among the amendments contained in the new Act are: new powers enabling the police to enter a premises without a warrant in an emergency related to a terrorism offence where material is located that is believed to present a risk to public health or safety; an extension of the time from one to twelve hours that is available to the police to re-enter a premises in emergency circumstances; and, establishment of a seven-day detention period that nevertheless may be disregarded when a person is arrested for a terrorism offence.

Welcoming the passage of the Act the Federal Attorney-General Robert McClelland commented that the Bill ‘seeks to achieve an appropriate balance between the government’s responsibility to protect Australia, its people and its interests and instilling confidence that our national security and counter-terrorism laws will be exercised in a just and accountable way.’

However, the Act fails to amend such provisions as the power of ASIO to detain and interrogate individuals not suspected of involvement in any terrorism offence, for up to seven days, simply to enable it to collect unspecified intelligence. Most of the other harsh provisions contained in the legislation were similarly overlooked or ignored in the Act.

In March 2010, the Independent Monitor of National Security Legislation Act passed through the federal Parliament. This was a welcome development, even to many who doubted that the Monitor, once appointed, would have either the independence or the resources necessary to subject Australia’s counter-terrorism legislation to the rigorous scrutiny and critique that 
it deserves. It was not until April 2011 that the first Monitor, Brett Walker SC, was appointed by the Gillard government. 
Mr Walker has much to do, but unless he has the political backing from the government to reform Australia’s counter-terrorism legislation to bring it more into line with accepted international human rights norms, he will not be able to achieve much.

MARK RIX teaches in the Sydney Business School at the University of Wollongong.

(2011) 36(3) AltLJ 204
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