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Article Excerpt
[This article examines the circumstances surrounding the urgent enactment of the Anti-Terrorism Act [No 1] 2005 which broadened the scope of several terrorism offences in the Criminal Code. It considers the necessity of those amendments both as a matter of substance given the original provisions and also as essential so as to enable authorities to move against suspected terrorists. The author argues that despite the drama accompanying the Act's expedited passage through Parliament, this episode was largely typical of the legislative process which has underpinned counter-terrorism in Australia since September 11, 2001. The article concludes by identifying several unsatisfactory trends in law-making on national security issues and argues that their minimisation would reduce the need for more 'urgent legislation' in future.]
CONTENTS I Introduction II One Week in November III Were the Amendments of the Anti-Terrorism Act [No 1] 2005 Necessary? A The Original Legislative Intention B A 'Minor' Amendment? C The Consequences of Caution IV Were the Amendments of the Anti-Terrorism Act [No 1] 2005 Urgently Necessary? A Just How 'Imminent' Was the Threat'? B Selective Urgency V Law-Making and the Law--Trends in Counter-Terrorism VI Conclusion
I INTRODUCTION
The traditional focus of legal scholarship is upon the judicial arm of government. Law is understandably analysed through consideration of how it is either made or interpreted by the courts. While one may turn to parliamentary intention in order to illuminate statutory meaning, generally the law-making power of the legislature is not considered ripe for legal analysis. This article challenges the reluctance of lawyers to acknowledge the often significant legal dimensions which may be integrated with the political aspects of parliamentary activity.
Undoubtedly some law-making by the legislature is more amenable to legal analysis than others. Many Bills are debated on policy grounds alone and the legislation is seen as little more than a means to that end. But in other areas, questions of policy and law are clearly linked, so that parliamentary deliberation is quite directly about the meaning and operation of the law which is being created. In these instances, it is possible to gain significant insights from an examination of the circumstances surrounding enactment.
One area where this is very much the case is anti-terrorism law. Of course, there are a range of policy debates in this field, but perhaps because there exists broad consensus on the need to prevent and severely punish terrorism, significant attention is also given to the detail of laws as they progress through the legislative process. This is often centred upon the intended operation of provisions, their intrusion upon freedoms of the individual and the role of both judicial and parliamentary review. Many of the new laws passed by the Commonwealth Parliament since the attacks of September 11, 2001 have necessarily been subjected to analysis by legal commentators drawing on this sort of material due to the lack--until very recently--of any judicial consideration of the provisions. (1)
This article starts from the premise that the analysis of law-making by legislatures can be, in certain areas, appropriately employed as a tool of legal scholarship. This acknowledges that the Parliament is not a purely political institution but fulfils a significant legal role under the Australian Constitution. (2) It demonstrates the usefulness which such analysis can provide through a legislative case study focusing on the enactment of the Anti-Terrorism Act 2005 (Cth) ('Anti-Terrorism Act [No 1] 2005'). (3)
The circumstances of the Act's passage through the Commonwealth Parliament were highly unusual. Its provisions were found in parts of a draft Bill which dealt with a number of anti-terrorism strategies proposed by the Commonwealth and upon which the states and territories agreed at the Council of Australian Governments in September 2005. (4) Those sections were hurriedly extracted and presented to the Commonwealth Parliament as a short Bill for urgent passage in early November 2005. (5) The justification for this was the announcement by Prime Minister John Howard of a potential terrorist plot uncovered by federal and state authorities through an investigation named 'Operation Pendennis'. (6) The Prime Minister claimed that 'the immediate passage of this bill would strengthen the capacity of law enforcement agencies to effectively respond to this threat.' (7) While there was a degree of cynicism over both the need for the amendments and their urgency, several days after the Bill was enacted a major police operation leading to several arrests took place.
In hindsight, the story of the Act demands proper assessment. This is so for two reasons. First, much was claimed in respect of this legislation, in particular that it was both necessary and urgent in order to stop a terrorist attack. Those assertions as to the adequacy of the pre-existing law and the effect of the amendments made to it by the Act warrant further scrutiny. Second, this examination throws up many more general themes in respect of the way in which anti-terrorism laws have been made in Australia since September 11. As such, the Act provides a case study indicative of wider problems in the area.
The article adopts the following structure. In Part II, a detailed overview is provided of the terrorist threat as it was presented to the public, the amendments which the Act made in order to respond to it, and the arrests which took place a few days later. Part III aims to consider the question of the need for the amendments and whether they were, as was claimed both prior and subsequently to the arrests, of assistance to the police. In Part IV, the matter of urgency is considered, to the extent that this is possible, in isolation from the other factors. The assertion of urgency will be tested and some observations as to its effect upon the legislative process will be offered. In the final section, conclusions will be drawn regarding the circumstances of the enactment of the Act and also the Challenges to parliamentary authority which stem from the executive's responsibility for national security.
II ONE WEEK IN NOVEMBER
The first Tuesday of November is marked in the Australian calendar as the day on which the country's richest horse race, the Melbourne Cup, is run. The significance of the Cup to national life is summed up in the cliche, tired though it may be, that it is 'the race that stops the nation'. The occasion is a public holiday in Melbourne and, for a variety of reasons, might fairly be said to account for a heightened level of distraction throughout the Australian community. It was for this reason that the Howard Government's initial plan to introduce its new major counter-terrorism package on that Tuesday, (8) as well as sweeping changes to industrial relations law later that same week, (9) were met with outcry. The prospect of the latter had already garnered a huge amount of anticipatory protest from the union movement, vocal political opposition and an unsuccessful High Court challenge to Commonwealth spending on advertisements promoting the reforms, (10) As it turned out, the original terrorism legislation was delayed by state and territory leaders failing to approve the detail of its provisions in time (11) and the Howard Government decided to table its new industrial relations laws the day after the Cup. Accordingly on Wednesday 2 November 2005, the Workplace Relations Amendment (Work Choices) Bill 2005 (Cth) was duly introduced to the House of Representatives.
However, on that same morning, the Prime Minister released a statement to the media which contained, inter alia, the following:
Today the Government will introduce into the House of Representatives an urgent amendment to Australia's counter-terrorism legislation and seek the passage of the amendment through all stages tonight. The President of the Senate will recall the Senate for 2pm tomorrow. It is the Government's wish that the amendment be law as soon as possible. The Government has received specific intelligence and police information this week which gives cause for serious concern about a potential terrorist threat. The detail of this intelligence has been provided to the Leader of the Opposition and the Shadow Minister for Homeland Security. The Government is satisfied on the advice provided to it that the immediate passage of this bill would strengthen the capacity of law enforcement agencies to effectively respond to this threat. The Government is acting against the background of the assessment of intelligence agencies that a terrorist attack in Australia is feasible and could well occur. In ASIO's recently released annual report a warning is contained that specifically cites the threat of home-grown terrorism. ASIO also warned that attacks without warning are feasible.... The substance of these amendments is currently part of the draft Anti-Terrorism Bill which has been circulated to the States and is being presented as a stand-alone bill. The effect of the amendment is to give relevant agencies a greater capacity to respond promptly whenever threats arise. The Government would like all elements of the Anti-Terrorism Bill, when introduced, to become law before Christmas. However, for the reasons I have outlined, these specific elements have taken on a greater degree of urgency and on that basis the Government intends to secure their passage immediately.... Details of amendments Schedule 1 of the Anti-Terrorism Bill amends the terrorism offences in Divisions 101 and 102 of the Criminal Code, and adds a further ground for listing terrorist organisations in regulations. Items 2 to 5 clarify that, in a prosecution for a terrorism offence, it is not necessary to identify a particular terrorist act. The existing offences contain a subsection that provides that a person commits the offence even if 'the' terrorist act does not occur. When the offences were originally drafted, it was not the intention that the prosecution would be required to identify a 'particular' terrorist act. The amendments will clarify that it is not necessary for the prosecution to identify a specific terrorist act. It will be sufficient for the prosecution to prove that the particular conduct was related to 'a' terrorist act. Similarly, item 10 clarifies that, when determining whether an organisation satisfies the definition of a terrorist organisation, it is not necessary to prove the organisation is preparing, planning, assisting in or fostering 'the' particular terrorist act. It will be sufficient if the prosecution can show the organisation is preparing, planning, assisting in or fostering 'a' terrorist act. (12)
Some suggested that the Government's handling of the matter in this way had itself put national security at risk by very publicly alerting the suspects that a swoop by authorities was about to take place. (13) The Commissioner of the Australian Federal Police, Mick Keelty, agreed that there was a danger that suspects might change their behaviour as a result, but took the view that the recall of the Senate--and the attendant publicity--was a necessary step in getting the law changed so that action could be taken against the suspects. (14) The Victorian Chief Commissioner, Christine Nixon, later expressed her view that the investigation had not been compromised as a result. (15)
The day after making the announcement, the Prime Minister admitted that it was a situation where 'you are damned if you do and you are damned if you don't'. (16) The Australian's Political Editor Dennis Shanahan defended the decision to go public as in accordance with the so-called 'Madrid Protocols' by which governments should reveal rather than keep secret the existence of intelligence indicating a threat to the community. (17) It is dubious that there is any kind of fixed rule on such questions, (18) with the particular circumstances in each case surely guiding any decision to publicly announce the possibility of an imminent attack. However, the announcement in this instance could hardly be said to have provided the public with any helpful or even remotely detailed advice, (19) but instead was more clearly directed to explain what was going to occur in the Commonwealth Parliament.
So far as the recall of the upper house was concerned--an event which according to the Leader of the Opposition in the Senate had occurred only three times previously in the history of the Parliament (20)--it is worth noting that it was due to sit just five days later on Monday 7 November 2005. (21) The Opposition, whether as an attempt to one-up the Government or in all sincerity accepting the claim of urgency, indicated its willingness to recall the Senate on the very evening of 2 November so the Bill could be passed that day. (22) The Shadow Minister for Homeland Security expressed concern that any delay 'may give notice and opportunity to people to do things that they would not otherwise be able to do' if the Bill was passed in a single day. (23) That offer was declined and the Senate met to consider the legislation on 3 November 2005 as originally announced. The Act was passed without a call for a division by the Senate just before 5 pm that afternoon. (24)
Just a few hours separated the Prime Minister's original statement and the reading of the Bill in the House of Representatives, yet enough time surely existed to ensure parity between the stated objectives of the former and the contents of the latter. In the details of the provisions given in the Prime Minister's statement, (25) the references to items in sch 1 are to the draft of the planned single Anti-Terrorism Bill 2005 (Cth), which had been leaked to the public by the Australian Capital Territory's Chief Minister via his website. (26) Items 2 to 5 were amendments to a number of the individual offences in Division 101 of the Criminal Code (27) and these were faithfully lifted from the draft and placed in sch 1 of the Anti-Terrorism Bill [No 1] 2005 which eventually passed.
But despite the Prime Minister's emphasis that 'organisational offences' also required urgent amendment, (28) no such offences were incorporated in the eventual first Bill. Instead, the eventual amendment to the definition of a 'terrorist organisation' in s 102.1 was made by sch 1 of the Anti-Terrorism Act [No 2] 2005 (Cth), passed almost a month later. (29)
This was a remarkable oversight--and one which attracted no comment from either the Government or Opposition in what passed for debate over the laws in both Houses. Only the Australian Democrats expressed concern over the disparity between the Government's stated intentions and the law which was supposed to give effect to them. (30) Senator Lyn Allison actually argued that the Prime Minister had been 'deliberately misleading' in order 'to confuse and to frighten people and the media'. (31) She was undoubtedly on safer ground when she opined that the media was unlikely to pick up the discrepancy given the pace of events. (32) It is revealing that even having spotted the failure of the Bill to do all which lay behind the justification for its urgent passage, the senator attributed this to dishonesty, rather than incompetence, on behalf of the Government. No-one in Parliament or the media was prepared to say that the Attorney-General had simply not got the Bill right. (33)
The critical change which the Act did make became known as the '"the" to "a"' change. The Prime Minister's statement gave a reliable description of what was being done and why, but it is useful to consider an example of one of the provisions altered. Section 101.4 of the Criminal Code makes it an offence to possess 'a thing' connected with terrorist acts. As originally introduced by Security Legislation Amendment (Terrorism) Act 2002 (Cth) sch 1 item 4, it provided:
(1) A person commits an offence if:
(a) the person possesses a thing; and
(b) the thing 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) knows of the connection described in paragraph (b).
Penalty: Imprisonment for 15 years.
(2) A person commits an offence if:
(a) the person possesses a thing; and
(b) the thing 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 10 years.
(3) A person commits an offence under subsection (1) or (2) even if the terrorist act does not occur.
The sole purpose of the Anti-Terrorism Act [No 1] 2005 was to make it explicit that the later reference to 'the terrorist act' in s 101.4(3) did not mean that the earlier references to 'a terrorist act' in the preceding offence subsections were to be read as applying only to terrorist activities which had developed to a certain level of specificity. The Attorney-General claimed that the change would ensure that the provisions were interpreted 'as they were originally intended ... [that] in a prosecution for a terrorist offence, it is not necessary to identify a particular terrorist act.' (34) The effect of the Act upon s 101.4 was to retain the offences but replace the final clarifying subsection with:
(3) A person commits an offence under subsection (1) or (2) even if:
(a) a terrorist act does not occur; or
(b) the thing is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or
(c) the thing is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act.
An equivalent substitution was made by the Anti-Terrorism Act [No 1] 2005 in ss 101.2(3) (training connected with a terrorist act), 101.5(3) (possessing a document connected with a terrorist act), 101.6(2) (preparing or planning a terrorist act) and 103.1(2) (financing terrorism).
Although several parliamentarians complained that they were essentially being asked to legislate in the dark, media outlets provided...
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