Australian Government: Attorney-General's Department
Australian Government: Attorney-General's DepartmentAchieving a Just and Secure Society

The widening security agenda

PERSPECTIVE FROM THE ATTORNEY-GENERAL’S DEPARTMENT

14 July 2005 - Australian Strategic Policy Institute

 

Speech by Robert Cornall, Secretary, Attorney-General's Department

 

INTRODUCTION

If you watch television, read papers or listen to news broadcasts, you will already know this, but let me state three obvious facts.

One, since September 2001, the Government has put forward a number of bills to strengthen Australia’s counter-terrorism laws.

Two, those bills have been passed by Parliament after careful consideration by members and parliamentary committees and, in many cases, with amendments to meet concerns raised by MPs on both sides of the chamber.

And three, despite being brought into law by that democratic process, the legislation has prompted debate about the balance between individual rights and the protection of the community from terrorism.

Today I would like to offer a perspective from the Attorney-General’s Department on some of the important legal policy issues that are caught up in Australia’s widening security agenda. I do so with a disclaimer that they are complex, can involve conflicting principles that are not capable of easy resolution and do not necessarily have a correct or single answer.

I have collected these issues into four groups:

NEW COUNTER-TERRORISM LAWS

I’ll start with the major counter-terrorism laws which have been introduced over the last three years, that is, laws creating new terrorist offences and laws giving ASIO questioning and detention powers.

Terrorism offences

Prior to September 11, there were existing offences which could apply to terrorist acts, such as murder, hijacking and so on, but none of them squarely addressed the issue of terrorism. The package of counter-terrorism Acts passed in June 2002 remedied that situation.

The new federal terrorism offences include committing a terrorist act, training to commit a terrorist act, preparing to commit a terrorist act and being a member of, or funding, a terrorist organisation.

One of the major challenges in framing that legislation was to establish an acceptable definition of terrorist act. I won’t recite the whole definition but essentially it is an act or threat that causes or is intended to cause serious harm or damage to a person or property to advance a political, religious or ideological cause by intimidating the public or the government.

The definition expressly excludes advocacy, protest, dissent or industrial action that is not intended to cause death or serious harm to a person.

To avoid any issue about the constitutional basis of these laws, the States referred power to the Commonwealth to ensure their constitutional validity.

So I think it is fair to say that the new terrorism laws as they were finally passed have general parliamentary and executive government support.

ASIO powers to question and detain

In addition to terrorist offences, Parliament has also passed laws giving ASIO new powers to question and detain people in connection with possible terrorist activities. These laws have prompted much media comment, some of which has been ill-informed.

For example, the recent searches carried out in Sydney and Melbourne were effected under powers ASIO has had since 1979 to enter and search premises under a warrant from the Attorney-General. They were not carried out under the new powers of questioning and detention passed by Parliament in 2003.

I should also note these four points. First, ASIO has used its new questioning power but it has not used the detention power.

Second, in a television interview last Sunday, Shadow Defence Minister Robert McClelland confirmed the Opposition’s support for the ASIO laws. He said …we do think the balance, after a lot of hard work, is about right.

Third, ASIO’s questioning power is in many ways similar to the compulsory questioning powers vested in the Australian Crime Commission in its investigation of serious crime. Those ACC powers were based on similar powers held by the former National Crime Authority and have been accepted without any, or at least any recent, community complaint.

And fourth, the public criticism of the ASIO powers has made little or no reference to the safeguards built into the legislation. The main safeguards are:

The section Mr Carnell referred to – section 34J – provides that the person being questioned must not be subjected to cruel, inhuman or degrading treatment, which specifically reflects Australia’s obligations under the UN Convention against Torture.

However, even with these safeguards, my view is that these are powers ASIO would not have sought, the Government would not have proposed and the Parliament would not have granted before the terrorist attacks in the United States in September 2001.

Australia had, before the emergence of the current terrorist threat, been a very safe country. It was isolated by distance from many of the conflicts in other parts of the world; insulated from political upheaval by its democracy and economic prosperity; and protected from civil unrest by a generally tolerant society.

But our circumstances changed dramatically when Australia was nominated as a terrorist target and our citizens and interests were subjected to terrorist attacks. This change necessitated a decisive government response. Given that reliable and timely intelligence is the cornerstone of any counter-terrorism strategy, increasing ASIO’s capacity to obtain security information was a crucial part of the response.

So that leads directly to an examination of whether the legislation adequately balances the need to safeguard Australians against terrorism and the preservation of our individual rights in a democratic society.  

HUMAN RIGHTS

This is a topic which generates strong opinions and, despite the fact that our terrorism laws and ASIO’s new powers were passed with Opposition support, there is never likely to be common agreement throughout the community.

If we are fortunate enough not to have a terrorist attack on Australian soil or any further attacks involving Australians or against Australian interests overseas, then those people who argue against these laws will claim their opposition was justified.

However, if there is such an attack, particularly an attack in Australia, public opinion would immediately swing the other way. Whenever any tragedy occurs, the first reaction of the media is to seek to apportion blame. The first questions will be who knew what, when and why didn’t they do something to prevent it?

We saw this response following the Bali bombing in October 2002.

This reaction can also be seen very clearly in The 9/11 Commission Report on the terrorist attacks in the United States. The Commission said (at page 340): If the government’s leaders understood the gravity of the threat they faced and understood at the time that their policies to eliminate it were not likely to succeed any time soon, then history’s judgment will be harsh.

We are already seeing the start of this allocation of blame and responsibility in London. An early indicator is last Saturday’s Melbourne Age which carried the banner headline Terrorists struck after London dropped guard.

In developing the new terrorist laws and the ASIO legislation, the Government looked closely at the laws which were in place or were being developed in countries with the same values and democratic traditions as Australia.

While our laws are not identical, there is considerable similarity between the approaches being taken in Britain, Canada and the United States. There is also a lot of resonance in their debates about the balance between community protection and human rights.

One illustration of an overseas view can be found in an article by Brice Dickson, the Chief Commissioner of the Northern Ireland Human Rights Commission, which was published in the European Human Rights Law Review earlier this year.

Mr Dickson said: Bearing in mind that one of those rights (that is, individual rights) is the right to be protected from violence by others, the state is entitled, even obliged, to take steps which on occasions require the rights of individuals to take second place to the right of society as a whole to be secure.

The same point was made this way by Canadian Attorney-General Irwin Cotler – a leading civil rights lawyer: Indeed, as the United Nations put it, terrorism constitutes a fundamental assault on human rights – a threat to international peace and security – while counter-terrorism law involves the protection of the most fundamental of rights – the right to life, liberty and the security of the person – and the collective right to peace.

Mr Cotler has also said an examination of the legislative framework of other free and democratic societies supports the view that not only is anti-terrorism legislation representative of free and democratic societies, but its very purpose is to ensure that such societies remain free and democratic while the rights of its citizenry to live in peace and security are safeguarded.

These views sit comfortably with the Universal Declaration of Human Rights which states in article 3 that Every person has the right to life, liberty and security of the person.

Nonetheless, a contrary view is that, in a liberal democracy, only individuals, not the society as a whole, can bear legal rights and obligations. Individual rights can be enjoyed as long as they do not violate the rights of others.

Despite these differing opinions, the Government’s view is that the safeguards built into the ASIO questioning and detention regime ensure that it achieves the requisite balance between protecting people’s security and protecting individual human rights and therefore meets Australia’s international human rights obligations.

In this regard, it is important to note that the international human rights conventions themselves make it clear that those rights are not absolute. There is a clear recognition of the need to balance those rights and freedoms in some circumstances.

For example, Article 4 of the International Covenant on Civil and Political Rights acknowledges that States may derogate from certain individual rights in times of emergency and many of the individual rights themselves allow qualifications for national security or other reasons.

One illustration is Article 12. It provides that everyone shall have the right of liberty of movement but there is an exception for a restriction that is necessary to protect national security.

Another illustration is Article 9 dealing with freedom from arbitrary detention. It states that no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

As the safeguards built into the ASIO legislation show, the Government recognizes the need to pay particular attention to striking the right balance between preventing terrorism and protecting individual rights.

Achieving this balance is an issue for the international community as well as national governments. To assist in this process, the United Nations has recently established a Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.

But, irrespective of the different opinions that can be put forward in this debate, the essential point is quite simple. In dangerous times, governments cannot prevaricate – they have to make judgments and act on their decisions. In a democracy, citizens agree that their elected government can make laws which respond to community needs, which govern or regulate their behaviour and which can be enforced by the state in the common interest.

CRIMINAL LAW

Now I want to look at the application of the criminal law in terrorism cases, starting with these two preliminary points.

First, while the criminal law has a number of important purposes, as a broad general statement, one of its principal objectives involves the state prosecuting offenders after criminal offences have been committed. But this after the event approach is inadequate to deal with terrorist acts that could cause the loss of many innocent lives.

Second, there are a number of principles which underpin the imprisonment of convicted criminals. It is a deterrent; it is punishment for the offence; it protects society from the offender while he or she is imprisoned; and appropriate treatment in jail can assist in the criminal’s long-term rehabilitation.

None of these principles is relevant to a terrorist who aims for the deliberate mass murder of civilians in public places – like office buildings, bars, trains and buses – and is prepared to lose his or her life in doing so.

So the aim of the government’s counter-terrorism strategy is to detect, disrupt and prevent terrorist attacks from occurring.

This approach is similar to the British strategy which is to reduce the risk from international terrorism so people can go about their business freely and with confidence. That strategy is also known as the Contest or Four Ps strategy: Prevent, pursue, protect and prepare.

Our new 2002 terrorism laws reflect this strategy. As I have said, the offences include being a member of a terrorist organization; training to commit a terrorist act; preparing to commit a terrorist act; being in possession of a thing which could be used in a terrorist act and so on.

All of these offences are committed and can be prosecuted and punished without a terrorist act actually occurring. So there is a risk that, because of their preparatory nature, courts may view them as less serious offences than Parliament intended.

However, their seriousness can be gauged from the penalties specified in the terrorist legislation. These offences attract penalties of 10, 15 and 25 years as well as, in some cases, life imprisonment. The issue will be whether the courts – which are more used to punishing completed crimes – will assess them with the expected severity.

Two recent cases

Two recent cases give us some insight into how this issue could be dealt with by the courts.

Jack Roche was prosecuted in Western Australia for conspiracy to destroy the official premises of internationally protected persons with explosives with intent to endanger lives. He pleaded guilty and was sentenced to nine years imprisonment to serve four years and six months.

Both the Director of Public Prosecutions and the defence appealed against the penalty (one for inadequacy, the other for harshness) but the Court of Criminal Appeal dismissed both appeals.

The other case involved former intelligence officer Simon Lappas. Mr Lappas was found guilty in what I understand was Australia’s first successful prosecution for espionage but his sentence was wholly suspended and he was placed on a good behaviour bond.

In the course of his sentence, the trial judge observed that espionage is an offence which can have serious consequences to society but the judge focused most of his comments on Mr Lappas’ health and personal circumstances.

The DPP appealed against the lightness of the sentence in this case as well. The appeal resulted in Mr Lappas being re-sentenced and imprisoned for six months.

In the course of his appeal judgment, Chief Justice Higgins looked beyond the psychiatric evidence that had so influenced the trial judge and adverted to the serious consequences of Mr Lappas’ actions. He said: Any betrayal by an intelligence officer of his or her duty to keep confidential information secure, irrespective of the objective value of the information in question, can lead to loss of confidence by cooperating agencies in the ability of the Australian intelligence agencies to maintain security.

The other appeal judges – Justices Cooper and Weinberg – observed that Espionage is almost inevitably bound to be a crime of the utmost gravity and Mr Lappas’ actions involved a massive breach of trust.

I should note here that the Lappas case was partly responsible for a review of the offence of espionage which led to the statutory penalty being increased from seven to 25 years.

Justices Cooper and Weinberg also commented that the old maximum penalty of seven years for an offence as serious as espionage is obviously out of kilter with the penalties for that offence which exist in many other countries.

This appeal decision provides a sound foundation for the determination of appropriate penalties in the event of other espionage prosecutions in future.

But you can test your own reactions to this problem of an appropriate penalty.

Imagine the perpetrators of the London bombings were discovered by the British authorities in June, one month before the terrorist attack last week. And imagine they were caught in a flat in Leeds with clearly documented plans and all of the explosive equipment necessary to execute them. What penalty do you think would be appropriate?

What if they were caught early on the morning of the attack, putting the bombs in place, ready to be detonated? What penalty would you impose in that situation?

And what if they are caught and convicted for the murderous attack that killed and injured so many innocent civilians? How much harsher is the penalty you would impose now?

Protection of classified information in court proceedings

The other matter I want to touch on in relation to criminal proceedings is the difficulty the prosecution faces in putting national security material before a court to establish its case.

This is not a new problem. One reason why there have been so few prosecutions for offences like espionage is that there has not been until recently a process to protect national security material in a court case which was acceptable to intelligence agencies. The Lappas case clearly illustrated the difficulties posed in prosecuting a case where key documents have a national security classification.

The National Security Information (Criminal Proceedings) Act which was passed by Parliament in 2004 addresses this issue. It provides a regime in which classified information can be sufficiently protected to enable it to be put before a court and therefore allow an accused person to be tried in accordance with all the standard protections of the criminal law.

The procedure outlined in the Act is detailed and I do not need to go through it fully today. The key principles are that the Attorney-General can certify that the disclosure of particular information in a court case may prejudice national security.

The court then considers the position in relation to that information in a closed preliminary hearing from which people who are not security cleared can be excluded.

Once the court rules on whether, and in what form, the information can be disclosed, the case goes ahead in open court in the normal way. However, in making its ruling, the court must give greatest weight to the national security considerations.

Finally, the court retains the right to stop the trial if it believes that a party would not be guaranteed a fair hearing.

As with other moves to improve our legal framework to deal with terrorism cases, this legislation has also been the subject of close public scrutiny.

One concern was the breadth of the definition of national security, which includes Australia’s defence, security, international relations or law enforcement interests.

The definition had to be quite broad to encompass all of the possible circumstances it needed to cover, but it should be noted that the ultimate application of the definition in any particular case is a matter for the court.

Perhaps the most strident criticism of this Act was the legal profession’s objection to the requirement that lawyers involved in such cases have to obtain a security clearance.

The Government had to decide whether the community interest was best served by requiring lawyers to be security cleared so classified information could be put in evidence in a terrorism prosecution and the alleged terrorist could be properly tried in accordance with all the protections that our criminal justice system offers. This was the course the Government took.

The option was to leave the law as it stood with the possible outcome that charges might not be brought at all – and the alleged terrorist go free – because the prosecution had no way to protect classified information in the court room.

Recent experience in cases where private lawyers have had to obtain a security clearance is that the process has gone smoothly.

Two instances that come immediately to mind involve the lawyers acting for David Hicks and Mamdouh Habib. Both of them were granted a security clearance without any difficulty. The fear that the Government would be handpicking lawyers for the defence by refusing to grant security clearances has proven to be unfounded.

OUR EXPANDING INTERNATIONAL AGENDA 

Finally I want to touch on the Department’s expanding security agenda in the international arena. As a starting point, I note that Australia is a party to eleven of the now 13 international conventions on terrorism and is in the process of becoming a party to the twelfth - the MARPLEX Convention which deals with plastic explosives.

Australia and Indonesia co-hosted a ministerial forum on counter-terrorism in Bali in February 2004. The forum was attended by all of the major countries in our region and generally recognized that there has to be international cooperation to effectively counter terrorism.

The forum established a Legal Issues working Group that is chaired by the Attorney-General’s Department. Over the last year or so, that group has been working to improve the counter-terrorism laws throughout our region.

This work has included drafting a counter-terrorism Bill for Cambodia which can be used as a template for similar laws in other regional countries which do not presently have their own terrorism laws.

We are also working hard to establish arrangements for extradition of offenders and for mutual assistance in criminal cases with countries in our region where we do not presently have those arrangements to facilitate the investigation and prosecution of criminal cases including terrorism.

Extradition policy

That is not as straight forward as it may sound because, while Australia has abolished and is opposed to the death penalty, many countries still retain capital punishment.

The policy also has to take account of Australia’s condemnation of torture in all its forms.

Against this policy background, our extradition policy is to extradite people charged with criminal offences – including our own nationals – so they can be tried in the country where the alleged offence took place without the need to provide proof of the crime.

As a result, we will only enter into an extradition treaty or agreement with another country where we are satisfied about its legal system and law enforcement and prosecution processes.

Even where we have an extradition arrangement in place, the response to any extradition request is subject to a number of very important safeguards. Those safeguards include that the charges do not involve a prosecution for political, racial or religious reasons, that the person extradited won’t be tortured and that he or she won’t face the death penalty (or the receiving country provides an undertaking it will not be enforced).

The last area of international cooperation I want to mention today is the Enhanced Cooperation Program for Papua New Guinea.

The ECP aims to assist PNG in a number of ways. One of them is support that country’s law and justice system to protect the citizens of PNG and ensure that the country does not become a haven for terrorist and criminal activity.

Under the ECP, the Attorney-General’s Department agreed to provide judges, prosecutors, a solicitor-general and legal policy officers to work in PNG and some of them are already on the ground and working in those roles.

As you know, we are presently working through the effect of the constitutional challenge to some aspects of the Enhanced Cooperation Program in the Wenge Case. Nonetheless, the ECP is one illustration of the Department’s expanding role in counter-terrorism and broader law and order and security programs in our region.

CONCLUSION

In conclusion, I hope this overview provides an insight into some aspects of the Department’s policy role in Australia’s expanding security agenda.

But, to use the phrase favoured by the Attorney-General, Philip Ruddock, this work is an unfinished canvas or, as the Prime Minister put it last weekend, these things are constantly under review and I don’t rule out a further strengthening of security measures.

However, one thing is certain. The Department will continue to contribute in future to new laws, new policies, new international treaties and new international assistance programs as the need and the opportunity arise.

Robert Cornall
Secretary
Attorney-General’s Department