The ''Anti-Terrorism Act 2005'' (Cth) is an
Act of the
Parliament of Australia
The Parliament of Australia (officially the Federal Parliament, also called the Commonwealth Parliament) is the legislature, legislative branch of the government of Australia. It consists of three elements: the monarch (represented by the ...
, which is intended to hamper the activities of any potential
terrorists
Terrorism, in its broadest sense, is the use of criminal violence to provoke a state of terror or fear, mostly with the intention to achieve political or religious aims. The term is used in this regard primarily to refer to intentional violen ...
in the country. The
counter-terrorism
Counterterrorism (also spelled counter-terrorism), also known as anti-terrorism, incorporates the practices, military tactics, techniques, and strategies that governments, law enforcement, business, and intelligence agencies use to combat or el ...
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
was passed on 6 December 2005.
Background
History
The Bill was prepared by the
Howard government in the wake of a series of terrorist attacks overseas, in particular London, with the stated intent of preventing such events from happening in
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
.
Due to the
division of powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
in Australia's constitution, the Bill needed the support of the states. An outline of the Bill was given in-principle support by the State Premiers.
The then
Attorney General of Australia
The Attorney-GeneralThe title is officially "Attorney-General". For the purposes of distinguishing the office from other attorneys-general, and in accordance with usual practice in the United Kingdom and other common law jurisdictions, the Aust ...
,
Philip Ruddock
Philip Maxwell Ruddock (born 12 March 1943 in Canberra) is an Australian politician and the current mayor of Hornsby Shire.
Ruddock is a member of the Liberal Party of Australia and currently the state president of the party's New South W ...
, on advice from the
Australian Federal Police
The Australian Federal Police (AFP) is the national and principal federal law enforcement agency of the Australian Government with the unique role of investigating crime and protecting the national security of the Commonwealth of Australia. Th ...
that existing laws would not protect Australians from London-style terrorist attacks, said that the new laws were needed.
Prior to its reading in federal Parliament, a confidential draft of the legislation was published online by
ACT Chief Minister
Jon Stanhope
Jonathan Donald Stanhope (born 29 April 1951) is a former Australian politician who was Labor Chief Minister of the Australian Capital Territory from 2001 to 2011. Stanhope represented the Ginninderra electorate in the ACT Legislative Assembl ...
, who stated "Law of this significance made in this haste can't be good law". The Opposition and minor parties expressed concern that a Senate inquiry would not be given enough time to consider the new laws.
Prime Minister
John Howard
John Winston Howard (born 26 July 1939) is an Australian former politician who served as the 25th prime minister of Australia from 1996 to 2007, holding office as leader of the Liberal Party. His eleven-year tenure as prime minister is the s ...
rejected the concern and criticised Stanhope, saying that "the premiers and the other chief minister did not deserve to be hijacked in relation to their ability to participate in consultation."
The public exposure saw elements of the Bill, including a '
shoot to kill' clause, criticised as excessive.
Victorian Premier
Steve Bracks
Stephen Phillip Bracks (born 15 October 1954) is a former Australian politician and was the 44th Premier of Victoria. He first won the electoral district of Williamstown in 1994 for the Labor Party and was party leader and premier from 1999 ...
noted the 'shoot to kill' clause had not been discussed at the
Council of Australian Governments
The Council of Australian Governments (COAG) was the primary intergovernmental forum in Australia from 1992 to 2020. Comprising the federal government, the governments of the six states and two mainland territories and the Australian Local Go ...
meeting where the draft laws were forged. Community concern arose that Muslims would be unfairly targeted by the new law.
The Australian government planned for the Bill to be introduced, debated and passed on 1 November 2005 (
Melbourne Cup
The Melbourne Cup is a Thoroughbred horse race held in Melbourne, Australia. It is a 3200-metre race for three-year-olds and over, conducted by the Victoria Racing Club on the Flemington Racecourse in Melbourne, Victoria as part of the Melbou ...
race day). The
Labor
Labour or labor may refer to:
* Childbirth, the delivery of a baby
* Labour (human activity), or work
** Manual labour, physical work
** Wage labour, a socioeconomic relationship between a worker and an employer
** Organized labour and the labour ...
Opposition and the minor parties decried the paucity of time allowed for debate. The Prime Minister agreed to allow more time on the proviso that the Bill be passed before Christmas 2005.
The Bill became law on 6 December 2005. Measures for greater protection of free speech and greater scrutiny of the law's application, proposed at different stages by individual government members and Labor, were not accommodated.
Labor voted to support the Bill. The Greens and Australian Democrat senators voted against.
Constitutional issues
The first three "chapters" of the Australian Constitution
separate power between the executive, legislative and judicial arms of government. This "separation of powers" doctrine has been interpreted by the High Court in ''Lim v Minister for Immigration'', as granting an immunity for Australian Citizens from involuntary detention by the Government except as a consequence of a finding of criminal guilt before a court. There are some exceptions, such as the detention of a person following their arrest and before they are brought before a court, or whilst on remand awaiting trial where bail is refused. The Federal Government appears to have interpreted as Constitutional periodic detention for up to 48 hours and co-operated with State governments (which do not have the same entrenched separation of powers doctrine) to allow for detention up to 14 days. The Federal government also introduced "control orders" which allow for a range of restrictions to be placed on an individual (who has not been charged, let alone found guilty of any criminal offence) including subjecting that person to 12 months house arrest.
Then Queensland Premier
Peter Beattie
Peter Douglas Beattie (born 18 November 1952) is an Australian former politician who served as the 36th Premier of Queensland, in office from 1998 to 2007. He was the state leader of the Labor Party from 1996 to 2007.
Beattie was born in Sy ...
announced that he had received advice that the blurring of boundaries between the executive and judicial powers was likely to be
unconstitutional
Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
. This assertion was rejected by the then Prime Minister, John Howard: "Lawyers often have different opinions as to what the law means.". Then federal Treasurer
Peter Costello
Peter Howard Costello (born 14 August 1957) is an Australian businessman, lawyer and former politician who served as the treasurer of Australia in government of John Howard from 1996 to 2007. He is the longest-serving treasurer in Australia' ...
adopted a more cautious attitude, stating that "you never really know" the answer to the vexed question of constitutionality "until such time as the courts decide on these things".(SMH, 27 October 2005) According to spokespeople for the then Prime Minister, his and the Treasurer's views were compatible, but some media outlets, including the
Sydney Morning Herald
''The Sydney Morning Herald'' (''SMH'') is a daily compact newspaper published in Sydney, New South Wales, Australia, and owned by Nine. Founded in 1831 as the ''Sydney Herald'', the ''Herald'' is the oldest continuously published newspaper i ...
, insinuated otherwise.
The Act
* Potential for
preventive detention
Preventive detention is an imprisonment that is putatively justified for non-punitive purposes, most often to prevent (further) criminal acts.
Types of preventive detention
There is no universally agreed definition of preventive detention, and mu ...
: detention for named individuals. Without evidence and without criminal involvement the detainee may be interrogated by the
Australian Security Intelligence Organisation
The Australian Security Intelligence Organisation (ASIO ) is Australia's national security agency responsible for the protection of the country and its citizens from espionage, sabotage, acts of foreign interference, politically motivated vio ...
(ASIO). Disclosing that an individual has been so detained or interrogated is, in almost all circumstances, a crime.
*
Control order A control order is an order made by the Home Secretary of the United Kingdom to restrict an individual's liberty for the purpose of "protecting members of the public from a risk of terrorism". Its definition and power were provided by Parliament in ...
s: Potential for restrictions on named individuals including; freedom of movement, freedom of association (including one's lawyer), banning the performing of named actions and owning named items, unlimited requirements to be (or not to be) at specified places at any or all times of the day and week, wear a tracking device, encouragement to submit to re-education. These restrictions are referred to as "control orders", and may be granted for a period of one year before review.
* Significant restrictions on the right of any citizen to express certain opinions, including; criticism, or "urging disaffection", of the sovereign, the constitution, the government, the law, or 'different groups'. Exemptions may exist where the target of criticism is agreed to be 'in error'. Exemptions appear to exist where the claim is that a feature of a group of people is in some way offensive to the mainstream of society. Onus of proof is on the defendant, the presumption is not of innocence.
* To recklessly provide funds to a potential terrorist is a criminal offence. Funds include money and equivalents and also assets. It is not necessary that the culprit know the receiver is a terrorist, only that they are reckless about the possibility. It is not necessary that the receiver be a terrorist, only that the first person is reckless about the possibility that they might be.
* Police can request information from any source about any named person: any information about the person's travel, residence, telephone calls, financial transactions amongst other information; professional privilege does not apply. It can be an offence to disclose that such documents have been obtained.
* A legislative provision for 'hoax offences' created a more serious charge for people who cause chaos for the public and emergency services by dreaming up devastating terrorist-inspired hoaxes.
Shoot to kill clause
The "
Shoot to kill" clause instructs police to treat people wanted under detention orders in the same way that an equivalent clause in the current law treats wanted suspects.
The clause in particular has raised the concern of some state premiers, the so-called "Shoot to kill" clause, where police may use lethal force if they perceive a threat to life. The clause was not put to the premiers in the original discussions between the States and Federal Governments.
Law Council of Australia president John North, suggested that such powers were designed to protect police in the event of a mistaken fatal shooting such as that of
Jean Charles de Menezes
Jean may refer to:
People
* Jean (female given name)
* Jean (male given name)
* Jean (surname)
Fictional characters
* Jean Grey, a Marvel Comics character
* Jean Valjean, fictional character in novel ''Les Misérables'' and its adaptations
* Jean ...
.
John Howard has declared that the whole issue is a "misnomer, a
furphy
A furphy is Australian slang for an erroneous or improbable story that is claimed to be factual. Furphies are supposedly heard from reputable sources, sometimes secondhand or thirdhand, and widely believed until discounted. The word is said to ...
, a diversion," but has suggested that changes to the clause are possible.
Reckless funding clause
As a result of the Anti-Terrorism Act 2005, Division 103 of the Criminal Code makes it an offence to provide funds to a person who may use those funds to facilitate or engage in a terrorist act. These funds must be intentionally made available to another person (e.g., a donation or cash transfer). The definition of funds includes money and assets of any kind but does not include goods or services. The mental element for the crimes created under Division 103 is subjective
recklessness. This means that the accused must know that there is a substantial risk of the funds being used for terrorism but still makes those funds available regardless of the risks involved in the matter.
Judicial oversight
The published version of the Anti-Terrorism Bill has attracted the criticism that it does not respect the
separation of powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
and is thus unconstitutional. Prime Minister John Howard has declared, "Speaking for the Commonwealth, and based on the advice I have received from the Crown law authorities at a Commonwealth level, these laws are quite constitutional."
John North, President of the Law Council of Australia, said "The power to make control orders is to be given to federal courts and is clearly non-judicial. Judicial power requires a fair procedure, including notice of the proceedings and disclosure of the basis upon which orders are sought and made. None of this occurs in relation to control orders."
Law Council of Australia – Media Release – Anti-Terror Bill: Judiciary Compromised – 25 October 2005
Similar concerns were raised by the Queensland and Western Australian Premiers and NSW Premier Morris Iemma.
See also
* Australian anti-terrorism legislation, 2004
Three anti-terrorism bills were enacted in the Australian Parliament in 2004 by the Howard Coalition government with the support of the Labor Opposition. These were the ''Anti-terrorism Bill 2004'', the ''Anti-terrorism Bill (No 2) 2004'' and ...
* Terrorism in Australia
Terrorism in Australia deals with terrorist acts in Australia as well as steps taken by the Australian government to counter the threat of terrorism. In 2004 the Australian government has identified transnational terrorism as also a threat to ...
* Australian sedition law
* USA PATRIOT Act
The USA PATRIOT Act (commonly known as the Patriot Act) was a landmark Act of Congress, Act of the United States Congress, signed into law by President of the United States, President George W. Bush. The formal name of the statute is the Uniti ...
* Outlawed terror organisations in Australia
Designated terrorist organisations in Australia are organisations that have been designated by the Australian government as terrorist organisations. A list of terrorist organisations was first created under the ''Security Legislation Amendment ...
*Terrorism Suppression Act 2002
The Terrorism Suppression Act 2002 is New Zealand counter-terrorism legislation passed under the Clark-led Labour government. Enacted following the September 11 attacks in the United States, the Act was designed to better address contemporary ...
(New Zealand)
References
External links
The legislation, proposed and current:
Draft legislation
on the ACT Chief Minister'
website
Current Australian Criminal Code
at ComLaw
The Office of Parliamentary Counsel (OPC) is an Australian Commonwealth government agency established under the ''Parliamentary Counsel Act 1970'' (Cth) within the Commonwealth Attorney-General's portfolio. OPC drafts all government Bills that ...
the new bill side by side with the old bill
Popular press response:
* ttp://www.theage.com.au/news/war-on-terror/should-we-be-afraid-of-the-terror-laws/2005/10/17/1129401197536.html The Age Melbourne – Should we be afraid of the terror laws
ABC TV Media Watch – Seditious opinion? Lock 'em up
Security Australia Laws
Other commentary:
* ttps://web.archive.org/web/20040813064307/http://www.nswccl.org.au/issues/terrorism.php NSW Council for Civil Liberties
Free Speech Australia
Human rights implications of the Anti-Terrorism Bill 2005
Prof. Andrew Byrnes, Prof. Hilary Charlesworth
Hilary Christiane Mary Charlesworth (born 28 February 1955) is an Australian international lawyer. She has been a Judge of the International Court of Justice since 5 November 2021, and is Harrison Moore Professor of Law and Melbourne Laureate ...
and Gabrielle McKinnon Australian National University
The Australian National University (ANU) is a public research university located in Canberra, the capital of Australia. Its main campus in Acton encompasses seven teaching and research colleges, in addition to several national academies and ...
, 18 October 2005
George Williams, "Responding to Terrorism without a Bill of Rights: The Australian Experience", AsiaRights Journal
ACT Chief Minister Jon Stanhope, "Rights at Risk: My Dissent from the Australian Anti-Terror Bill"
JURIST
A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholar, mostly (but not always) with a formal qualification in law and often a legal practitioner. In the Uni ...
Anti-terrorism Legislation Public Forum – Quaker Peace & Justice Committee
Audio recording of Sydney public forum discussing the bill with speakers including Lance Collins and Warren Reed
* {{cite web , author=Lynch, A , url=http://www.austlii.edu.au/au/journals/MULR/2006/24.html , title=Legislating with urgency – The enactment of the anti-terrorism act (No 1) 2005] (2006) 30(3) Melbourne University Law Review 747 . Detailed review of the legislation, including the process of its enactment.
2005 in Australian law
Terrorism laws in Australia
Acts of the Parliament of Australia