PROTECTING DEMOCRACY BY PRESERVING JUSTICE: ‘EVEN FOR THE FEARED AND THE HATED’
‘Adhering to the ways of democracy. Upholding constitutionalism and the rule of law. Defending, even under assault, and even for the feared and the hated, the legal rights of suspects.’1
In the years since the tragic events of 11 September 2001, the ‘war on terror’ has come to be considered as ‘one of the defining conflicts of the early 21st century’.2 Yet, unlike other wars, this is an indefinable, infinite and indeterminate war – a war against no clear object but against an abstract noun, ‘terror’.3 The effects of the ‘war on terror’, however, are clear and have been keenly felt both internationally and in Australia. In the post-September 11 security environment in which the interests of security have been deemed to be paramount, many western nations have enacted dramatic and unprecedented domestic counter-terrorism measures as part of what now appears to be an ongoing ‘war on terror’. This rapid expansion in the state’s security powers highlights the need to protect our basic legal and political rights in the face of revised security priorities.
By early 2002, the abrogation of rights and legal protections in the name of countering terrorism had already become so pronounced that the United Nations Commission on Human Rights expressed deep concern over what it called a ‘reckless approach towards human life and liberty’, which would ultimately undermine any counter-terrorism measures that were implemented.4 More recently, the International Committee of the Red Cross (‘ICRC’) reiterated these concerns, stressing that ‘no person captured in the fight against terrorism can be considered outside the law. There is no such thing as a “black hole” in terms of legal protection’.5 The President of the ICRC, Jakob Kellenberger, pointed to the breaches of international humanitarian law and the Geneva Conventions revealed by the appalling abuse, torture and death of Iraqi prisoners held in Abu Ghraib prison under American occupation, citing them as ‘but one example of the violation of these laws and the values they embody’.6
These concerns are not limited to abrogations of human rights in the international arena of security law. The implications of the contraction of established domestic legal and political protections are no less severe. The United Nations Commission on Human Rights report on the state of human rights after September 11 reaffirmed the absolute prohibition against the use of torture in any circumstances, and noted those measures which contribute to its practice:
the wide scope of arrest and detention powers granted to the police; overlapping of jurisdiction of various police and security agencies; secret detention; lack of or inadequate legal infrastructure to deal with allegations of torture; the existence of extensive pre-trial detention powers; the use of administrative or preventive detention for prolonged periods of time; … and the denial of access to lawyers, family and medical personnel.7
Recent developments in domestic counter-terrorism frameworks and practices have established just such conditions.
II POST-SEPTEMBER 11 SECURITY POWERS
Shortly after September 11, the Australian Government announced that tough new measures against terrorism would be introduced. These measures would ‘set up mechanisms that will allow terrorist organisations to be stopped and potential terrorist activity to be stopped before that terrorist activity has actually taken place’.8 The resultant package of seven major legislative initiatives, introduced in March 2002, was the most significant recasting of the relationship between the executive, judicial and legislative arms of government since Liberal Prime Minister Robert Menzies’ Communist Party Dissolution Act 1950 (Cth) (‘CPDA’), which was declared unconstitutional by the High Court.9
Central to the early legislative counter-terrorism momentum was the Security Legislation Amendment (Terrorism) Bill 2002 (No 2) (Cth), an unwieldy multi-faceted Bill of such pervasive innovation that the Australian Democrats Senator Greig described it as ‘an ambit claim for arbitrary executive power at the expense of civil rights and fundamental principles of law’.10 The Security Legislation Amendment (Terrorism) Bill 2002 (No 2) (Cth) defined ‘terrorist act’, created categories of ‘terrorism offences’, introduced a means for executive proscription of ‘terrorist organisations’, and created derivative organisational crimes in relation to membership and other specified connections with ‘terrorist organisations’.
In mid-2002, the Australian Parliament passed this legislation in a greatly amended form, following extensive community consideration and parliamentary debate. Widespread public concerns, reflected in the submissions to and hearings of the Senate Legal and Constitutional Legislation Committee, resulted in significant amelioration of the harshest aspects of the original Bill. The Security Legislation Amendment (Terrorism) Act 2002 (Cth) created important new substantive offences and overturned established legal protections and principles. Individual and organisational crimes classed as ‘terrorism offences’ were introduced for the first time in Australian law. A proposal to allow the Attorney-General the power to proscribe terrorist organisations by his own determination was debated and ultimately rejected. Instead, an attenuated form of the power was introduced which allowed provision for the proscription of organisations listed by the United Nations as ‘terrorist organisations’.11
In June 2003, the second pillar of the early counter-terrorism package was passed – the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth) (‘ASIO Act 2003’). This Act allows the Australian Security and Intelligence Organisation (‘ASIO’), under warrant, to detain for up to seven days and to interrogate for up to 24 hours within that period, Australians not suspected of any involvement in a criminal offence but who ‘may have information relating to a terrorism offence’. Detention and interrogation can be conducted without appropriate access to independent legal advice and, in some cases, incommunicado. Australia remains the only liberal-democratic nation to have proposed the detention and interrogation of non-suspects in this way. The Parliamentary Joint Committee that examined the Bill went so far as to describe it, in its original unamended form, as ‘one of the most controversial pieces of legislation considered by the Parliament in recent times’ and one which ‘would undermine key legal rights and erode the civil liberties that make Australia a leading democracy’.12
The initial counter-terrorism legislative package was just the beginning of the development of counter-terrorism measures on an unsurpassed scale. Since then there have been a total of 17 security-related Acts passed.13 The trajectory of the early counter-terrorism legislation set a clearly defined pattern marked by several elements: the use of sprawling, omnibus legislation by which multiple Acts are amended in a complex web of interlocking changes within a single amendment Bill, which makes extensive debate and parliamentary supervision difficult; an absence of appropriately argued justification for such significant changes; minimal time for consideration of the legislation by parliamentary committees;14 and, finally, a determination on the part of the Government to implement its original proposals in the face of parliamentary and community concerns.
Substantively, the early Bills also established some elements common to subsequent security legislation: the expansion of executive power and discretion at the expense of judicial determination and supervision; the primacy of ‘national security’ imperatives; the truncation of the provision of independent legal advice; the departure from and diminution of long-standing legal and civil rights (presumption of innocence, trial by jury, freedom of association); the removal of certainty through the potential for arbitrary and discretionary application of the laws; the use of ambiguous and broadly defined key terms central to the construction of the particular criminal offence (primarily ‘terrorism’); and the formalisation of a notion of guilt by association through derivative offences such as providing support to, recruitment, providing training to and membership (including ‘informal membership’, which is nowhere defined) of terrorist organisations.15