Law and Liberty in the War on Terror Conference - UNSW - 5 July 2007
Law and Liberty in the War on Terror Conference, UNSW, 5 July 2007
THE EFFECTIVENESS OF THE CRIMINAL LAW AS A TOOL OF PREVENTION OF TERRORISM
INTRODUCTION
A few days after the terrorist attacks in New York and Washington in September 2001, I was asked to chair a whole of government review of Australia’s counter-terrorism arrangements.
It was patently clear to everyone on that interdepartmental committee that our current arrangements were grossly inadequate. We recognised they were conceptually grounded in the past. They were designed to counter out of date terrorist threats, like plane hijacking and hostage taking.
Put simply, we had to propose a new approach to 21 st century terrorism.
We handed our report to the National Security Committee of Cabinet by the end of October.
Essentially, we made four groups of recommendations. They were:
- one, to increase resources to existing counter-terrorism agencies
- two, to consolidate some administrative functions to achieve a more cohesive outcome
- three, to make a wide range of security improvements (including in particular additional security at airports and the border), and
- four, to introduce new laws to deal with this new type of terrorist threat.
NEW TERRORISM
It might be useful to define what I mean by new terrorism.
To me, its key features are that it has only a vague purpose, not a clear political objective; it deliberately attacks innocent citizens and non-military targets at random; and, as at least some of its perpetrators are willing to die for their cause, the prospect of punishment for a crime will have limited or no deterrent effect.
UNDERLYING CAUSES
While we are on this question of definition, it is worth reflecting on what we think are the issues underpinning this lethal extremism.
What is it that links disparate, disaffected groups across the world and inspires them to work with or emulate the terrorist acts of Al Qaida and its affiliates?
I should state emphatically straight away that none of the Australian Government’s policies are an attack on Islam. None of them are an attack on our Muslim citizens or neighbours.
Australia’s policies are a response to extremism which has hidden behind a perversion of what the Prime Minister has rightly described as one of the great religions of the world.
One analysis of the contributing causes is that, within the diversity of Islam, current radical strands share four broad features:
- First is a desire to return to an earlier, pure Islam, purged of outside influences
- Second is the aim to create Islamic states, and ultimately a pan-Islamic caliphate, ruled by strict Islamic law
- Third is a willingness to use violence, and
- Fourth is a virulent anti-Westernism in reaction to grievances ranging from Muslim economic dispossession to what is seen as the contaminating influence of Western culture.
Radical Islam competes with other forms of Islamic belief. It provides not only a theology but an explanation of Muslim disadvantage and how to address it.
This perceived disadvantage includes concerns about cultural and economic globalisation and the power of the United States.
Western countries know they have to respond to both the consequences and the causes of these radical and misguided beliefs to discredit the ill founded ideology that sustains them.
But this will not be easy because this is in essence, in the words of the former British Prime Minister, a battle of values and beliefs.
In his address to the joint Houses of Parliament, Tony Blair said:
It is a struggle about values and about modernity – whether to be at ease with it or in rage at it. To win this struggle we have to win the battle of values as much as arms. We have to show that these are not Western still less American or Anglo-Saxon values, but values in the common ownership of humanity, universal values that should be the right of the global citizen.
CONTROVERSY ABOUT NEW CRIMINAL LAWS
The creation of new criminal laws and increased powers for intelligence and law enforcement agencies over the last five and a half years has provoked considerable controversy.
It has called into question the proper scope and function of the criminal law. It has prompted concern about whether the new laws have gone too far in putting national security ahead of individual freedoms. It has called into question the effectiveness of the criminal law as a response to terrorism.
Today I will attempt to reply to those issues.
PURPOSE OF THE CRIMINAL LAW
A great deal has been written about crime and punishment.
Surprisingly, it is not easy to define crime despite the importance of the criminal law in our society.
One simple definition offered by Peter Gillies is that: Crime is ..... conduct which is recognised by the law (as made by the courts and legislatures) as being criminal[1]. However, he acknowledges as do a number of other authors, that this definition is rather circular.
Other commentators prefer to define criminal acts by reference to their consequences, which leads on to a consideration of the purposes of criminal sanctions.
In broad terms, those purposes include retribution, general and specific deterrence, rehabilitation, preservation of morality and incapacitation or prevention of harm to others.
The Parliament has made terrorist acts and related conduct a criminal offence based squarely on those principles. The rationale for doing so includes all of those nominated justifications for punishment for criminal actions but in particular deterrence and incapacitation.
This basis for these offences has been accepted by the judges who have heard terrorism trials in Australia over the last few years.
In the Thomas case, Justice Cummins noted: In the matter of terrorism offences the principle of general deterrence is of pre-eminent importance.
And in the Jack Roche case Justice McKechnie quoted this observation from Lord Bingham: In passing sentence for the most serious terrorism offences the object of the Court will be to punish, deter and incapacitate; rehabilitation is likely to play a minor (if any) part.
EXISTING LAWS WERE NOT ADEQUATE
The next issue is whether the laws which existed in Australia on 10 September 2001 were adequate to respond to terrorism as it has manifested itself in the 21 st century.
The unambiguous answer from the Government and from the Parliament is that they were not.
Australia had some counter terrorism legislation before 2001, but it was very limited and directed to specific behaviour. That legislation had its origins mainly in international treaties dealing with particular types of threats like plane hijacking.
This is understandable.
Australia was a very safe country, protected by geography and social cohesion from the disputes that lead to conflict, insurgency and terrorism in other, less fortunate, parts of the world. We did not need sophisticated anti-terrorism offences.
We could rely – if necessary – on traditional State offences such as murder and causing grievous bodily harm.
But those offences are primarily directed at punishing an offender after the event. They are based on the assumption that, in most cases, the threat of conviction and punishment is an effective deterrent.
They suffer from what is, in my view, an almost fatal flaw when related to terrorism. They largely depend on the completion of an act – such as murder – before the offence is committed.
How would the threat of imprisonment deter a suicide bomber?
The judges who have heard recent terrorism cases understand this new legislation is directed to making certain conduct a criminal offence before a terrorist attack occurs.
In Thomas, Justice Cummins said: ….. such offences need to be prevented before they occur; not simply punished after the event.
And in R v Lohdi, Justice Whealy expressed this similar view: The very purpose of the legislation is to interrupt the preparatory stages leading to the engagement in a terrorist act so as to frustrate its ultimate commission.
NEW LEGISLATION
The first batch of new counter-terrorism laws – following on from the October 2001 review – was passed by Parliament in June 2002.
Those laws make it a crime, among other things, to commit a terrorist act, to prepare to commit a terrorist act, to be a member of a listed terrorist organisation, to train with a terrorist organisation or to fund a terrorist organisation.
A terrorist act is defined as an action or threat which is made with the intention of advancing a political, religious or ideological cause with the intent of coercing or intimidating a government or the public and with consequences including loss of life or serious damage to property.
However, a terrorist act does not include advocacy, protest, dissent or industrial action.
A terrorist organisation is an organisation which has been proscribed by the Attorney-General on the advice of ASIO or is found by a court to be a terrorist organisation which threatens Australia or its interests.
The aim of the legislation is to create clear and specific offences relating to modern terrorism and to give intelligence and law enforcement agencies the capacity to intervene earlier than they could under the conventional criminal law.
The focus on preparatory conduct is intentional and essential. Conventional offences (including murder and other serious harm offences, conspiracy and attempt) may still be relevant in some circumstances. But any analysis of the offences alleged in recent or current terrorism cases will show that much of the conduct alleged against the accused would not have constituted a criminal offence under our pre-2001 laws.
The steady stream of new terrorism laws since 2001 culminated in the passage of two significant Anti-Terrorism Acts in December 2005.
They were the 24 th and 25 th Acts passed by Parliament to better protect Australians from terrorism since the dreadful events in September nearly six years ago.
That legislation included provisions relating to control orders and preventative detention.
As you know, a control order allows a court to impose restrictions on a person’s movements or activities for the purpose of protecting the public from a terrorist act without that person having been convicted of any offence.
Preventative detention allows a court to order a person to be detained for the same reason for up to 14 days (under a combination of Commonwealth and State laws), subject to compliance with a number of strict safeguards, once again without having committed a criminal offence.
Taken together, those 25 Acts represent the evolution of a whole new area of criminal law and law enforcement procedure.
DO THESE LAWS GO TOO FAR?
This process has, of course, not been free from criticism.
Many commentators see these laws as eroding established civil liberties and legal protections.
They argue that they give intelligence and law enforcement agencies unacceptably intrusive and unjustified additional powers.
However, as far as I can tell, many of the critics do not offer any constructive options or counter-proposals. Most of the time they simply argue, either directly or by implication, for the retention of the status quo.
This approach doesn’t wash with the Weekend Australian which has characterized some of the criticism as a polemical campaign by the legal and civil liberties lobby to de-legitimise and strike down the recent provisions of the Criminal Code, a campaign enthusiastically embraced by sections of a gullible media[2].
The Australian Government does not accept these criticisms either. It sees the new laws differently.
It sees them as balancing civil liberties with its most basic responsibility to keep the whole community safe and secure.
It recognizes that the relationship between individual rights and community safety has altered since September 11 but believes that it has achieved the right balance in the changed security environment.
In doing so, the Attorney-General has pointed out that these laws are consistent 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.
The Government’s approach has been that individual rights have to sit comfortably with this overriding human right to which everyone in our community is entitled.
Other Western countries have taken a similar view.
This point was made very eloquently by the former Canadian Attorney-General, Irwin Cotler. As you may know, Mr Cotler is a leading civil rights lawyer who acted in the past for Nelson Mandela.
Mr Cotler has said this: 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.
And on 12 September 2006, the Hon John von Doussa QC, the President of the Human Rights and Equal Opportunity Commission, delivered an address at James Cook University in which he said:
It is self-evident that terrorism is a gross violation of fundamental human rights. Only the mad or the bad would suggest otherwise. The threat of terrorism is patently legitimate. The Government has both a right and a duty to take action to protect its citizens.
I think that point is worth stressing. Governments have a duty to take action to protect their citizens.
OTHER ARGUMENTS
In addition to this argument, I would make four further points in response to these criticisms.
The first is that there is nothing unusual about evolving or adapting the criminal law – like any other area of law – to meet changing circumstances. That happens all the time.
Apart from counter-terrorism, some other notable areas of development of Australian criminal law over the last few years include legislation outlawing cybercrime, people trafficking, money laundering and child sex tourism.
The second observation is that changes were plainly necessary. Our existing laws had been drafted to meet different threats. They had become inadequate for the task.
Journalist Paul Kelly put it this way: One sign of a mature democracy is its ability to change its security laws in response to an unprecedented threat to its society. What else would a mature nation do? Denial is not an option[3].
The third observation is that many other countries have also changed their laws to deal more effectively with the threat of modern terrorism.
LAWS OF AUSTRALIA
The fourth – and I think the most important – observation is that the changes to our counter-terrorism laws were the subject of intense public debate and parliamentary scrutiny.
Anyone who has carefully followed the development of these new laws will know that there have been a number of parliamentary inquiries into the major pieces of counter-terrorism legislation over the past five years.
The draft laws as originally put forward were amended by the Government in the light of the parliamentary committee reports.
They were also amended as a result of internal party consideration and negotiation with the Opposition parties.
In other words, the legislation was negotiated through a complex process that meant there was a considerable level of support for the final form of the new laws.
Let’s look, for example, at the major package of counter-terrorism legislation passed by the Senate on 27 June 2002. The four bills passed at that time recorded 51 ayes, 12 noes - a majority of 39.
Three years later, on 7 December 2005, the House of Representatives accepted Senate amendments to the Anti-Terrorism Bill (No 2) 2005 and, as there were only three No votes, the Deputy Speaker declared the question resolved in the affirmative.
These statistics illustrate the support this legislation eventually had in the Australian Parliament.
In the second reading debate on the Anti-Terrorism Bill, the then Shadow Attorney-General, Nicola Roxon said: Labor are convinced that the terrorist threat does require tough new laws, but we demand that their use be circumscribed carefully.
Later on, talking about amendments to the process for obtaining a control order, Ms Roxon said: These are very important improvements. They protect our basic freedoms without in any way compromising the effectiveness of the regime to fight terrorists.
These quotes from Ms Roxon’s speech demonstrate that the changes which were made to the Bill as originally introduced resulted in it receiving Opposition support.
The current Shadow Attorney-General, Senator Joe Ludwig, confirmed this position when I spoke with him at the Australian Legal Convention in March this year. When I told him I was speaking about control orders, he said I could say that The Opposition supports them.
I should also add that much of the legislation is underpinned by a referral of constitutional power from the States and some of it is reinforced by complementary Acts of the Parliaments of the States and Territories.
In short, I think these new laws are a very clear example of democracy in action.
They have involved all Australian governments and parliaments in an extraordinary display of national cooperation.
NATIONAL SECURITY INFORMATION
There is one other recent enactment that deserves particular mention and that is the National Security Information (Criminal and Civil Proceedings) Act 2004.
I think it is worth taking a little time to look at the background to that Act and its underlying justification, because the ability to get evidence before the court is a hugely important practical issue in any criminal trial.
It is a fundamental principle among intelligence and security agencies that classified information can only be seen by people with the appropriate level of security clearance.
Intelligence is shared between friendly countries strictly on this basis.
Indiscriminate disclosure of classified information could reveal sources of intelligence or intelligence gathering capabilities. That disclosure could damage or destroy both current and future operations. It could put people’s safety at risk.
It is largely for this reason – because there has generally been no way to put classified information before a criminal court and protect it at the same time – that there have been so few prosecutions for espionage and similar offences in Western countries.
This shortcoming was only too obvious in the prosecution of Simon Lappas in the Australian Capital Territory a few years ago. Because some classified documents could not be lead in evidence, some charges against Mr Lappas had to be withdrawn.
It is easy to see the dilemma this evidentiary problem could pose in a terrorism prosecution.
It is clearly possible that a terrorism charge could rely on classified material supplied by another country or on Australian material that would be highly prejudicial if made public.
Australians would be outraged if a prosecution for a terrorist act committed here or against our citizens or interests overseas could not proceed because there was no way to put relevant but classified material into open court.
The National Security Information Act addresses this problem. It steers a path between the opposing policy demands of public trials and the need to protect any classified information that forms part of the prosecution case.
I won’t go into all of the mechanics of the process.
The essence of it is that the classified material is to be handled by court staff and lawyers with appropriate levels of security clearance.
The judge may then hold a closed hearing to determine the best way to present the classified information before the jury in open court while at the same time protecting the elements of the material that cannot be disclosed in public.
The security cleared lawyers will see all of the classified material and take part in the closed hearing.
One way the information could be protected is by blacking out or redacting the classified or sensitive information from the document that is produced in court.
This approach would be similar to blacking out or deleting material from documents disclosed under the Freedom of Information Act.
Another way to do it could be to agree on a summary of the classified information and present the summary in evidence in the trial.
The point is that, once that is done – once a way has been found to put the essential evidence before the jury in a way that protects the sensitive or classified parts of the information – the trial will proceed in public in the usual way.
One problem is that some lawyers have taken exception to the requirement that they should be subjected to a security clearance. Their objections seem to be based on two main arguments.
The first is that their professional qualification should be sufficient reassurance of their trustworthiness. The answer to this objection is that it is not to the point. Security clearances are about assessing risk not professional standing or competence and they are the accepted basis on which intelligence and security agencies world wide agree to share information. Quite a few lawyers already hold security clearances and they do not appear to feel their professional integrity has been diminished as a result.
The second argument is that this requirement could lead to the Government choosing the lawyers for the defence. The fact is that several solicitors who were chosen by the accused in terrorist cases before they applied for a security clearance have obtained a clearance without difficulty. So this fear has not been realised.
The requirement to obtain a clearance in appropriate cases is not new. Sir Laurence Street told me that he – and other leading counsel – were required to obtain security clearances to appear in The Voyager Inquiry in the 1960s which they did without hesitation.
I pose these two questions. Is it better that lawyers obtain security clearances so trials involving classified information can be heard before a jury in open court? Or is justice better served by simply letting those prosecutions drop because crucial material can’t be put in evidence?
JUDICIAL CONSIDERATION
Of course, passing new laws is only the first step in a process.
Oversight by the courts is an essential element in determining their constitutionality, scope and proper application.
The judges who conducted the Lohdi and Thomas trials made a number of useful observations about the new counter-terrorism laws.
Justice Whealy said in Lodhi: …the obligation of the Court is to denounce terrorism and voice its stern disapproval of activities such as those contemplated by the offender here …. The community is owed this protection even if the obstinacy and madness of extreme views may mean that the protection is a fragile or uncertain one.
Justice Philip Cummins said: Australia has a deep duty to protect its citizens from terrorism and so far as in its power to protect humanity from terrorism. That is why the Commonwealth Parliament enacted the laws against terrorism … and why the States of the Commonwealth likewise have enacted laws. The most fundamental right is the right to life. The law must protect that right. Australians are entitled to security. However, security is a necessary but not sufficient condition for a just society. Security is not enough. There must also be justice – for all citizens, including the weak, the marginalised, the unpopular and the alienated.
PROPER ROLES OF PARLIAMENT, THE EXECUTIVE AND THE COURTS
Finally I want to look at those criticisms of the anti-terrorism legislation which propose, as an alternative to the present arrangements, that some powers, such as the proscription of a terrorist organisation, should be exercised by the courts rather than the executive.
To my mind, those proposals blur the proper roles of the Parliament, the executive and the courts.
Parliament has passed our anti-terrorism laws after very careful debate and consideration. It retains the right to monitor and, if it so decides, to amend or revoke them.
In relation to proscribing terrorist organisations, the Parliament supervises executive decisions taken by the Attorney-General through its power to disallow the proscribing regulations.
The executive implements the laws, taking decisions that are properly executive or administrative decisions. They include a timely assessment of the sufficiency of the information supporting a proposal to proscribe a terrorist organisation through direct dealings with ASIO and the Australian Public Service.
In my view, these administrative decisions are properly made by the executive, not the courts.
It is also impractical to suggest they should be made by the courts after notice to all affected parties, on the basis of unrealistic criteria that are to be established beyond reasonable doubt and subject to possibly lengthy appeals.
The proper role of the courts is to fairly and impartially interpret and apply the law and to correct or overrule any unauthorised action by the executive. This role sits comfortably with the positivist proposition that Questions of what the criminal law is are primarily technical legal matters for the courts. Questions of what the law should be are political matters for the legislature[4].
CONCLUSION
So, in conclusion, I say governments have to make decisions about difficult problems. They can’t sit on the fence or be paralysed into inaction.
These laws are an effective response to modern terrorism because they are working in practice.
In fact, I go further and say they are essential to provide an adequate legal basis to deal with this unprecedented terrorist threat.
But I readily accept that new offences and criminal penalties are only part of a comprehensive governmental response to this complex crime. They must be accompanied by other measures directed at removing the root causes of modern terrorism and not just its terrible consequences.
ROBERT CORNALL AO
1 Peter Gillies, Criminal Law, Fourth Edition, page 5
2 The Weekend Australian, 2 September 2006, page 16
3 The Weekend Australian, 2 September 2006, page 18
4 Simon Bronitt and Bernadette McSherry, Principles of Criminal Law, 2005, page 16.