Environmental values and the Rule of Law

 

Address to the AGM of the National Environmental Law Association 

13 October 2021

At all levels of government, Australia has a range of statutes, regulations, by-laws, standards, codes of practice, principles, international treaties, and other laws designed to protect the environment.

A law without a practical remedy fails to serve its purpose. Such a law also brings disrepute on the law as an entity.

There are many practical obstacles to enforcing environmental laws in Australia. I want to give a few brief case studies.

Trail bikes

Many years ago, my brother was bushwalking along the Alpine Walking Track on Mount Erica, part of the Alpine National Park.

He was shocked to see trail bike riders illegally riding through the bush, churning up mud, and causing a great deal of damage.

He took the trouble to go to Rawson police station to report the matter. The policeman there told him he would not do anything about it. He did not support the ban on recreational vehicles in the area, and would not enforce it.

There, in a microcosm, is the problem with many of our laws designed to protect the environment – they are useless if those charged with their enforcement will not do so.

Orange roughy

Orange roughy (Hoplostethus atlanticus) was first discovered in Tasmanian waters in the 1980s.

It is an orangeish-red fish, reaching a length of almost half a metre. The skin is poisonous to humans and its oil is powerful enough to be used as a degreasing agent.

Orange roughy is a long-lived and slow growing species. They take 20 to 25 years to reach reproductive maturity. They live for 100 years or more – with good evidence of ages over 150 years. They are found at considerable depth – hundreds of metres to over a kilometre.

The meat of orange roughy survives freezing and packing particularly well, and there is strong demand throughout the world for this fish. It is often marketed as ‘sea perch’. 

After initial minor catches, orange roughy was first commercially fished off Tasmania in significant quantities in 1989.

The fish were taken in greatest quantities whilst spawning, and the major spawning site in Australian waters is located east of St Helen’s at an underwater feature known as the St Helen’s Hill. This is a 400-metre-high pinnacle – or ‘sea mount’ – rising from a depth of 1000 meters. The fish formed a continuous ring, or ‘donut’, around the mount while spawning.

At times other than when they are aggregated for spawning over the winter months, orange roughy are sparsely spread over large areas of deeper waters off southern Australia. But when aggregated for spawning, orange roughy can be taken in large quantities in a very short time. When St Helen’s Hill was first fished, roughy were reported to enter nets at the rate of one tonne per second. It was a very lucrative species.

Because of the slow maturing rate and low reproduction rate of these fish, the stock will take an extremely long time to recover from overfishing. 

The fisheries authorities set quotas designed to preserve the fish – the focus being on the fishing stock rather than preserving biodiversity.

However, within eight years, orange roughy was commercially extinct in Australian waters, and the fishery had collapsed – a pattern all too often repeated in Australia.

The reason for the loss of the orange roughy was systematic, fraudulent under-declaration of catch by fishing enterprises.

In the late 1990s and early 2000s I was involved in a series of cases prosecuting both companies and individual fishermen for false statements to the Commonwealth about their orange roughy catch, and conspiracy to defraud the Commonwealth.

There were several convictions, and some jail sentences. 
·  Brinkman v Dix (No 2) [1999] TASSC 65

The cases were complex, and it was due to the dedicated work of a team of police and solicitors that these results were achieved. The work included careful reconciliation of a variety of records, as well as, in some cases, covert filming of the unloading of the fishing catch.

Critical in the orange roughy prosecutions was the fact that after each fishing trip, the holder of a fishing licence was required to file returns as to their catch. Our legal system understands the significance of making false declarations and statements. 

Requiring an active statement of this kind is very helpful for enforcement.

Hill and Henderson

On Easter Sunday, 2015, there was no work being done on any logging coupe in East Gippsland.

That day, Ed Hill and Joe Henderson entered a logging coupe, and conducted a detailed survey of logging operations. Their investigations soon showed that the contractors – under the control of the state-owned logging agency VicForests – had illegally logged protected rainforest. This was a crime.

Hill and Henderson prepared a careful report, documented with maps and photographs.

They submitted their report to the Victorian Department of Environment Land Water and Planning – the appropriate body to enforce the law.

DEWLP conducted its own investigation. They concluded that the rainforest had been subject to ‘unwarranted destruction’. They found that the destroyed forest area was large enough to meet the threshold of protection. They criticised the destruction of the rainforest trees – which had no merchantable value. There was no reason to destroy the rainforest.

However, they did not prosecute or otherwise enforce the law, other than to suggest that VicForests review its own guidelines. They said that, despite their own finding that a crime had been committed, a court might entertain a reasonable doubt.

The story does not end there. The Department then prosecuted Hill and Henderson for illegally entering a ‘Timber Harvesting Safety Zone’ – even though this was on an Easter Sunday when no one was put at risk.

Not only was it left to the community to properly oversee and enforce the laws protecting rainforest, but when they tried to do so, the community members were themselves charged with illegally entering this forest.

I travelled down to Orbost to represent these men. In the result the charges were dismissed, as there had not been proper compliance with the requirements to mark out the Safety Zone. This was a technical defence, of course, and as with so many such cases, the court was not able to deal with the substantive justice issues raised.

But the sequence of events illustrates a pattern that is all too common –  a public affirmation, by way of a law, that certain conduct was prohibited, but the private reality of one rule for those who seek to protect the environment, but another for those who are exploiting it.

 

Bob Brown and Heritage Rivers

Back in 1997-8, I represented Bob Brown – then newly installed in the Senate – on a charge of obstructing lawful forest operations. 

There were no such operations being conducted at the time, and he did nothing to obstruct logging, but we were nevertheless able to show that the coupe which he attended was not a lawful forest operation, as it encroached some 100 metres into a zone protected under the Heritage Rivers Act. 

·       DPP v Brown [1998] VSC 117

Again, no action was taken to prosecute those who had breached this law. Rather, the State government passed retrospective legislation to validate the unlawful logging.

Litigation to restrain logging

There have now been several cases in which environment groups in Victoria have successfully (and in some cases, unsuccessfully) litigated to restrain VicForests  – the Victorian government logging agency – from conducting unlawful logging operations. 

·      Environment East Gippsland Inc v VicForests [2010] VSC 335, per Osborn J

·      Wildlife of the Central Highlands Inc v VicForests [2020] VSC 10, per McMillan J

·      VicForests v Friends of Leadbeater’s Possum Inc [2021] FCAFC 66

The first two cases resulted in VicForests being restrained from logging. On appeal in the third case, the Federal Court found that although the logging was non-compliant with the legal requirements, and this was likely to have a significant impact on protected species, the logging agency had an exemption from the EPBC Act by virtue of the Regional Forest Agreement.

The sequence of cases has demonstrated systemic inadequacy – almost wilful blindness – of flora and fauna surveys prior to logging, and then no system to enforce potential breaches where they are detected. 

Victoria does have an Environment Protection Authority, but it is still left to community groups to take this difficult, expensive and of course risky litigation.

 

EPBC Act

In 2015 and 16, Tiphanie Acreman and I represented the Tasmanian Aboriginal Centre in EPBC litigation against the Tasmanian State Government over its plans to open Four Wheel Drive tracks through the protected Western Tasmanian Aboriginal Cultural Landscape – without approval from traditional owners and without seeking approval from the Federal Government under the EPBC Act. That litigation was, in the result, successful, and the proposal has this year been finally abandoned. I see Adam Beeson in the audience, and he was critical in this litigation.

The relevant Tasmanian Minister had informed the Commonwealth of the proposed action, but also said it was not referring the matter to the Commonwealth, as it did not consider that the proposed action would have any impact on the values of the protected area. The Commonwealth – perhaps with an eye to its political fortunes in the relevant area – did nothing.

·       Tasmanian Aboriginal Centre Incorporated v Secretary, Department of Primary Industries, Parks, Water and Environment (No 2) [2016] FCA 168

Aboriginal midden used as a 4wd jump in the Western Tasmanian Aboriginal Cultural Landscape

Under the EPBC Act, the Commonwealth often imposes conditions on approval, but the enforcement of these conditions is sporadic and relies on a co-operative approach. This is quite inadequate where large sums of money are at stake and the temptations to cut corners are real. 

Indeed, the Samuel review into the EPBC Act found:

The compliance and enforcement powers in the EPBC Act are outdated. Powers are restrictive and can only be applied in a piecemeal way across different parts of the Act due to the way it is constructed. The complexity of the legislation, impenetrable terminology and the infrequency with which many interact with the law, make both voluntary compliance and the pursuit of enforcement action difficult.

Strong, independent compliance and enforcement is required

Independent compliance and enforcement functions that are not subject to actual or implied political direction are needed. The functions should be properly resourced and include a full toolkit of powers and systems.

In these cases, in which environment groups undertake litigation to uphold the law, those groups are required, at great expense and personal risk, to go to court when it is usually the accepted role of the State to take action to enforce its laws.

So community groups often find themselves opposed by the resources of government, applied not to uphold the law, but for political ends. 

Where corporate interests are involved (as is usually the case), the corporate parties have the benefit of tax deductibility for their legal expenses, which is not true for community groups who are acting for the public good. In many cases, the risk of adverse costs orders means a real risk of office holders of these organisations losing homes and other assets. It is an extraordinary burden to impose on citizens.

The implicit model behind this is that the government sets out some broad aspirational principles, and then steps back to let those who might be referred to as ‘stakeholders’ fight it out. There is no level playing field: this is stacked in favour of those with the resources to litigate, and with the right political support.

But if that is the model, do our environmental laws really amount to laws as most people would understand them?

It is not enough for governments to espouse environmental values in legislation without establishing its own mechanisms to enforce those laws.

We have a systemic problem, at both State and Federal level, in which powerful interests are able to circumvent environmental laws, and governments have not put in place adequate independent means of enforcing the laws they have enacted.

 

The Rule of Law

The rule of law is one of the fundamental tenets of liberal democracy. 

Australia’s traditions as a democracy depend upon our adherence to the rule of law.

The rule of law doesn’t just mean having laws and requiring people to obey them – even tyrants have laws. Nazi Germany had laws – and a lot of them - but no one would argue that it was a society subject to the rule of law. The rule of law operates as a check on the arbitrary exercise of power. 

The rule of law is not about ever harsher laws to reinforce power, but the independent oversight of the exercise of power. Governments and corporations, like citizens, must be accountable under the law. The law must be clear, well-known and applied without fear or favour. Justice must be timely, efficient and independent.

Having laws to protect the environment that are only sporadically and unevenly enforced undermines not only the environment, but also, I would argue, the rule of law and our democratic traditions.

We should be astute to ensure – at all levels of government – that laws to protect the environment do not merely espouse values in a general way, but have specific enforcement mechanisms that give them teeth.

Protecting the environment is too important for us to accept anything less.

 

The World has Changed?

The recent tranche of terror laws passed Federal parliament with the support of both the government and the Labor party, and with almost no debate. It seems appropriate to dust off this address delivered over eight years ago...

Keynote Address to Australian Lawyers Alliance

Victorian State Conference

13 May 2006

British ships bombard Alexandria in 1883

At 7 am on 11 July 1882, the guns of the British Mediterranean fleet opened fire on the Egyptian shore batteries at Alexandria. By five that evening, most of the inhabitants of the town were streaming south towards Cairo. The British landed a force of 20,000 men under the command of General Sir Garnet Wolseley. The invading army fought a number of skirmishes, and the Battle of Tel-el-Kebir, and soon occupied Egypt, including, most importantly, the Suez Canal.

The rhetoric preceding this conquest has an eerie familiarity. In England the Egyptians were described as “terrorists” who broke all pledges and murdered innocent European civilians. It was said to be imperative to land troops to restore law and order. In Paris and London politicians began to speak of “a dangerous pan-Islamic conspiracy, a resurgence of fanatical Mohammedanism”.

In Cairo, of course, it seemed the other way round – they described themselves as surrounded and menaced by a Pan-Christian movement.

These were perilous times for Europe – the underprivileged seethed in opposition to the powerful. The previous year, on 13 March 1881, Tsar Alexander II had been assassinated by a Polish suicide bomber.

Britain also had its bombers – mostly anarchists at that time. In 1903 Joseph Conrad penned his novel The Secret Agent about anarchists in London planning to blow up the Greenwich observatory.

And yet we have this rhetoric that the world changed on 11 September. What on earth does this mean? Of course the world changed on that day, as it does on every day. But there has been no fundamental shift. 11 September saw the perpetration of a shocking crime, but it did not threaten our democracy or our traditions.

Prime Minister Howard commenting on counter-terrorism laws passed in 2005 acknowledged that while the laws were unusual, they were ‘necessary because we live in unusual times’ [1]. The logic seems to be that the ‘extraordinary’ threat of terrorism requires extraordinary measures.

But the Federal Government’s National Counter-Terrorism Alert Level remains, as it has done since before 11 September 2001, on its second lowest level – medium, which indicates “a terrorist attack could occur”. [It moved up a notch in 2014 – but for reasons which were never clearly explained.]

On 27 February 1933, the immense Reichstag (parliament) building, the focal point of Berlin’s imperial district, was set on fire and destroyed. Only the shell remained. It was a shocking act of terrorism.

In the midst of the public alarm that followed, Adolf Hitler, who had been Chancellor for less than a month, and whose coalition ministry contained only two other Nazis, went to President Hindenburg and presented him with an emergency decree, drafted by non-Nazi public servants, “for the protection of the people and the state”.

The decree abrogated basic civil rights. Hitler said that with this decree he could “try enemies of the state legally and deal with them in a way that will put an end to conspiracies.”

The Reichstag fire was also used to justify the passing of the Enabling Act which further consolidated the control of the executive over elected representatives.

These two pieces of legislation were the legal foundation for all the excesses that followed.

Here in Australia, following the 11 September attacks, both Labor and the coalition combined to pass so-called “anti-terror” laws. Not only do these laws deliver extensive new powers to security services, they remove any practical means of public scrutiny of those bodies. No other country in the world has gone as far as Australia in passing such laws.

The rule of law requires that government authority be exercised through precise written laws which avoid arbitrary application - or the rule of whim. The rule of law is intended to operate as a bulwark against tyranny. The rule of law is not served where laws are so broadly expressed that their implementation depends on the particular prejudices and agendas of those empowered to administer them. So it is often said that our so-called “Westminster system” is designed to be a rule of laws, and not of men.

The rule of law embodies many specific principles, including habeas corpus – the principle that a person denied liberty is entitled to know the charge upon which they have been arrested, and to have the lawfulness of their custody reviewed by judicial authority.

The terrorism laws passed by both Federal and State governments since 11 September 2001 are contrary to the concept of the rule of law.

These laws rest on three key planks. First, these laws brought into existence a range of ‘terrorism’ offences.[2] At the base of these offences is the wide statutory definition of a ‘terrorist act’; a concept that, at its margins, embraces certain acts of industrial action like picketing by nurses.[3] These offences travel far beyond acts like bombing and hijackings (already serious criminal offences) not only to criminalise ‘terrorist acts’ but also conduct ancillary to ‘terrorist acts’. Australia’s terror laws now define as terrorism many things that most people would not understand as terrorist crimes.

1.              Recklessly helping an organisation indirectly engage in fostering the doing of a terrorist act is now a crime. (publication of views that are favourable to a particular organization may well be enough)’

2.              Possession of a thing associated with terrorism is a crime – an incredibly vague provision.

3.              Reckless collection of documents likely to facilitate terrorist acts is a crime – how would one know if one was breaching this law?

4.              Deliberate assaults by politically motivated protesters in another country are now a terrorist crime under Australian terror laws.

5.              Violent resistance to any foreign government, regardless of the oppressive nature of the regime, is now a crime in Australia. Under our present laws, the Kurds fighting Saddam Hussein would be guilty of terrorism, and so would anyone raising money to help them. The same may be said of Fretilin in East Timor. If resistance to Mugabe becomes violent in Zimbabwe, our law will treat those opposing his regime as terrorists. Perhaps it is unlikely such people would be prosecuted, but it is contrary to the rule of law for enforcement of criminal offences to be dependent on the foreign policy of the government of the day.

6.              Under our laws, a striking worker who assaults a scab while manning a picket line against a certain government policy would be guilty of terrorism.

7.              A person who is believed to have information relating to terrorism may be detained by ASIO for questioning for 7 days, and a further warrant may be obtained for further questioning if new information comes to light - indefinitely. Only Australia has authorized detention of non-suspects in this way.

Second, powers have been conferred on the Government to ban ‘terrorist’ organisations. Part 4 of the Charter of the United Nations Act 1945 (Cth) requires the Foreign Minister to list a person or entity if satisfied, among others, that such a person or entity is involved in a ‘terrorist act’; a term that is not defined by the Act.[4] If an entity or person is listed, it is illegal to use or deal with the assets of the listed person or entity. It will also be an offence to directly or indirectly provide assets to a listed person or entity.[5]

Under the Criminal Code Act 1995 (Cth) (‘Criminal Code’), regulations can be passed listing an organisation as a ‘terrorist organisation’ if the federal Attorney-General is satisfied, on reasonable grounds, that the organisation is ‘directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur)’.[6] Last year, the Anti-Terrorism Act (No 2) 2005 (Cth)[7] expanded this banning power to include organisations that ‘advocate’ the doing of a ‘terrorist act’. ‘Advocate’ was defined broadly to include in/directly counselling or urging the doing of a ‘terrorist act’ as well as directly praising such acts where there is a risk that such praise might lead another to engage in such acts.[8]

This proscription regime captures organisations that many would not consider ‘terrorist’ organisations. The definition of ‘terrorist organisation’ is not restricted to organisations whose principal activities are the promotion and engagement of extreme acts of ideological/religious violence. A ‘terrorist’ organisation can, for example, be an organisation which is predominantly involved in charitable work but is also indirectly involved in a ‘terrorist’ act.[9]

Once listed, a particularly far-reaching set of ‘terrorism’ offences will apply to the organisation. The ‘terrorist organisation’ offences under Criminal Code basically impose criminal liability upon the entire group and persons who engage in certain forms of association with the proscribed group. Membership of such organisations, for instance, is punishable by a maximum of ten years in prison.[10] Take another example: an aid worker providing ‘first aid’ training to a predominantly charitable organisation s/he knows has, on a few past occasions, engaged in an extreme act of ideological/political violence would clearly be committing the offence of providing training to a ‘terrorist organisation’. It is no defence to this crime that the training was not related to a ‘terrorist act’. The crime is committed so long as training, whatever its content, is received or provided to a ‘terrorist’ organisation.[11] Hence, an aid worker providing humanitarian training to movements such as Gerakan Aceh Merdeka or the Liberation Tigers of Tamil Eelam, groups believed to have resorted to acts of ideological/political violence, in the wake of the tsunami disaster would be culpable under this offence despite having no direct involvement with such violence. Given that there is knowledge that the organisation is a ‘terrorist’ organisation, the aid worker in both scenarios presently faces the prospect of 25 years in jail.[12]

The third plank of Australia’s anti-terrorism laws are unprecedented powers conferred upon security and police organisations. Since mid-2003, the Australian Security Intelligence Organisation (‘ASIO’) has had powers to compulsorily question and detain persons suspected of having information related to a ‘terrorism’ offence. Such persons can be detained for up to a week in largely incommunicado circumstances.[13]

With the passage of the Anti-Terrorism Act (No 2) 2005 (Cth), the Australian Federal Police (AFP) acquired a new set of powers. A senior AFP officer (without the necessity of judicial warrant) can now issue a preventative detention order authorising the imprisonment of a person for up to 24 hours when there are reasonable grounds to suspect the person is engaged in various ‘terrorism’ offences and the order will substantially assist in preventing a ‘terrorist act’ and is reasonably necessary for this purpose. Such detention may be extended for another 24 hours by a current or retired judicial officer.[14]

Further, upon a request by a senior AFP officer, a control order may be issued by a court against persons not suspected of any crime. If satisfied on the balance of probabilities that the order will substantially assist in preventing a ‘terrorist act’ or the person has provided or received training from a listed ‘terrorist organisation’, the court may issue such an order if it is reasonably necessary to protect the public from a ‘terrorist act’. These orders can last up to a year and result in house arrest.[15]

The Anti-Terrorism Act (No 2) 2005 (Cth) also enacted a ‘notice-to-produce’ regime. This regime included provisions allowing the AFP to issue a notice requiring the production of documents including those disclosing financial, telephone, travel and residential details if a senior AFP officer was satisfied that such documents were relevant and would assist the investigation of ‘terrorism’ offences. Once subject to such a notice, a person must produce the documents with failure to do so punishable by a fine.[16]

The Victorian terror laws quietly passed parliament during the Commonwealth Games. This was despite a damning critique from the Privacy Commissioner, and many concerns expressed by the Scrutiny of Acts and Regulations Committee. Victoria’s 2002 legislation was due to sunset in 2006, and there was to be an inquiry that year to consider whether to extend them. The 2006 legislation removed the requirement for an inquiry and removed the sunset provisions. The new laws were more draconian that any other terror laws, permitting, for example, the detention without charge of citizens for 14 days, without court supervision. Once again the hysteria in relation to terrorism was used to sweep away long established human rights which are fundamental to our democratic system of government and the rule of law.

Under Australian anti-terrorism laws broad criminal offences are accompanied by executive power to trigger such offences. Also hinging upon these offences are coercive powers to investigate and prevent these offences. Together these planks evidence a shift from preventing terrorism in conformity with the rule of law to a model based on pre-emption.

Counter-terrorist measures were not brought into existence by these laws. Prior to the enactment of these laws, however, ‘a counter-terrorism structure (was) developed within the existing criminal justice system which treats terrorism as essentially a peace-time, criminal, matter’.[17] Being indigenous to the existing criminal justice system, the previous set of counter-terrorism measures was informed by what could be dubbed a rule of law model.[18] Various elements constitute this model. First, terrorism was to be punished by traditional criminal offences. For instance, Sir Victor Windeyer who advised the Protective Security Review emphatically rejected the enactment of ‘terrorism’ offences and said:

all forms of violent wrongdoing that are called terrorism are punishable as crimes under Commonwealth or State laws. The best safeguard against new terrors and apprehensions may lie in the rigorous enforcement of existing criminal law rather than in making new laws expressly about ‘terrorism’.[19]

Second, these criminal offences were set out in statute and typically only made illegal intentional conduct causing serious physical harm or property damage. Third, an accused was presumed innocent with the onus on the prosecution to prove its case beyond reasonable doubt. Fourth, detention being ‘penal or punitive in character’ was seen to ‘exists only as incident of the exclusively judicial function of adjudging and punishing criminal guilt’.[20] Arrest of those charged with crimes was a qualification to this notion but a heavily qualified one: those arrested were to be promptly brought before a court. Fifth, prevention of criminal activity (and not only its prosecution after the fact) was clearly a legitimate aim of policing and to that end, police were not only granted arrest powers but also investigative powers of search, questioning and interception. These powers could only be exercised with some proof of criminal activity and were typically supervised by independent authorities.

With the enactment of the post-September 11 terrorism laws, the aim of prevention has become dominant. The model then becomes of one of pre-emption. This model is pre-emptive in the sense that prevention of the risk of terrorism comes to the fore. And in preventing this risk, it is legitimate under this model to launch anticipatory strikes. The model is also pre-emptive in a different sense: prevention takes priority over other considerations whether it be the rights of the accused or the need for proper proof.

Criminal laws and police powers then become less about criminal justice, that is, bringing the accused to trial for the purpose of conviction and punishment, but rather about reducing the chance of terrorism. Not surprisingly, key elements of the rule of law model are displaced. Under the pre-emption model, not only are there ‘terrorism’ offences but some of these offences can be triggered by executive decisions. The powers to ban ‘terrorist’ groups do precisely this. The ambit of these offences also goes far beyond intentional conduct causing serious physical harm or property damage. Indeed, in many instances, in particular the offences relating to ‘terrorist organisations’, there is no need to demonstrate a nexus between the conduct of the accused and violence or damage. For example, breaching ‘(a)n important premise behind the rule of law . . . that governments should punish criminal conduct, not criminal types’,[21] the ‘terrorism’ offences provides for status crimes, most notably, by making mere membership of a ‘terrorist organisation’ an offence.[22]

Significant inroads have been also made into the presumption of innocence. Many ‘terrorism’ offences provide for strict liability elements which place the onus on the defendant to disprove a circumstance.[23] More strikingly perhaps there is now a presumption against granting bail to those charged with ‘terrorism’ offences. This presumption operates by way of statutory fiat and draws no distinction between ‘terrorism’ offences involving serious violence and those that do not. For instance, ten Melbourne men were charged with terrorism offences late last year with none of the charges alleging any violent acts or attempts to commit violent acts. Yet all have been refused bail because of their failure to demonstrate ‘exceptional circumstances’[24] and, as a result, are now in solitary confinement in Barwon Prison’s maximum-security Acacia unit.[25]

Further, detention is no longer seen as largely the function of criminal punishment. ASIO’s compulsory questioning and detention powers are ostensibly aimed at intelligence-gathering. Control orders (which may in the extreme result in house-arrests) and preventative detention orders may be issued without the need for any criminal charges, let alone proof of criminal guilt.

Broad investigative powers have also been conferred in the name of fighting ‘terror’. No longer are investigative powers restricted to situations where there is some proof of criminal conduct. ASIO’s questioning and detention powers can be exercised against persons suspected of having information relating to a ‘terrorism’ offence. A control order can be issued against a person so long as the relevant authorities are satisfied that the order will substantially assist in preventing a ‘terrorist act’ regardless of whether person subject to the order is suspected of a crime. These powers, at least, are subject to some independent oversight. This, however, is not the case with initial preventative detention powers and key aspects of the 'notice-to-produce’ regime.

By departing from many established principles of criminal law, the model of pre-emption underlying the ‘terrorism’ laws then must necessarily be seen as exceptional. Are they justified?

As Lord Hoffmann said when the House of Lords found that legislation permitting the administrative detention of foreign terrorist suspects violated human rights:

Terrorist crime, serious as it is, does not threaten our institutions of government or our existence as a civil community.

The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.

That is the true measure of what terrorism may achieve. It is for parliament to decide whether to give the terrorists such a victory.

---

[1] (Age 18 October 2005).

[2] Before the September 11 attacks, federal laws did not criminalise ‘terrorism’ as such. See generally Ben Golder and George Williams, “‘What is ‘Terrorism’? Problems of Legal Definition” University of New South Wales Law Journal 27(2) (2004): 271.

[3] While the definition of a ‘terrorist act’ excludes ‘industrial action’ (Criminal Code Act s 100.1), this is unlikely to afford any protection to picketing which has been found not to be ‘industrial action’ under the Workplace Relations Act 1996 (Cth): Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR, 550, 575 per Wilcox and Cooper JJ (with whom Burchett J agreed at  586) (‘Davids’). For commentary on this case, see John Howe, “Picketing and the Statutory Definition of ‘Industrial Action’” Australian Journal of Labour Law 13 (2000): 84-91. The ruling in Davids has subsequently been applied in Auspine Ltd v CFMEU (2000) 97 IR 444; (2000) 48 AILR [4-282] and Cadbury Schweppes Pty Ltd v ALHMWU (2001) 49 AILR [4-382].

[4] Charter of the United Nations Act 1945 (Cth) s 15 and Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 (Cth) reg 6(1).

[5] Such conduct is not illegal if authorised by the Foreign Minister: Charter of the United Nations Act 1945 (Cth) ss 20-1.

[6] Criminal Code, s 102.1(2)(a). This power was conferred by the Criminal Code Amendment (Terrorist Organisations) Act 2004 (Cth).

[7] For a detailed analysis of the Anti-Terrorism Bill (No 2) 2005 (Cth), see Senate Legal and Constitutional Legislation Committee, Provisions of the Anti-Terrorism Bill (No. 2) 2005 (2005) and Sue Harris et al, Anti-Terrorism Bill (No. 2) 2005: Parliamentary Library Bills Digest No. 64/2005-06 (2005). For an earlier analysis of the government’s proposals, see Agnes Chong et al, Laws for Insecurity? A Report on the Federal Government’s Proposed Counter-Terrorism Measures (2005) (available at http://www.amcran.org on 26 January 2006).

[8] Criminal Code ss 102.1(1A), 102.1(2)(b). This amendment was inserted by the Anti-Terrorism Act (No 2) 2005 (Cth).

[9] Criminal Code  s 102.1.

[10] Criminal Code, s 102.3.

[11] Criminal Code s 102.5. For an excellent discussion of the training offences, see Patrick Emerton, “Paving the Way for Conviction Without Evidence – A Disturbing Trend in Australia’s ‘Anti-Terrorism’ Laws” Queensland University of Technology Law Journal 4(2) (2004): 1, 5-14.

[12] For an analysis of the constitutional issues relating to the proscription regimes, see Joo-Cheong Tham, ‘Possible Constitutional Objections to the Powers to Ban ‘Terrorist’ Organisations’ (2004) 27 University of New South Wales Law Journal 482.

[13] Division 3, Part II, Australian Security Intelligence Organization Act 1979 (Cth) (‘ASIO Act’). A recent analysis of these powers can be found in Parliamentary Joint Committee on ASIO, ASIS and DSD, ASIO’s Questioning and Detention Powers: Review of the operation, effectiveness and implications of Division 3 of Part III in the Australian Security Intelligence Organisation Act 1979 (2005). For an analysis of the constitutional issues relating to these powers, see Greg Carne, ‘Detaining Questions or Compromising Constitutionality? The ASIO Legislation Amendment (Terrorism) Act 2003’ (2004) 27(2) University of New South Wales Law Journal 524.

[14] Anti-Terrorism Act (No 2) 2005 (Cth) Schedule 4. For a thorough review of the Anti-Terrorism Bill (No 2) (Cth), see Sue Harris Rimmer et al, Anti-Terrorism Bill (No 2) 2005: Australian Parliamentary Library Bills Digest No 64/2005-6 (2005).

[15] Anti-Terrorism Act (No 2) 2005 (Cth) Schedule 4.

[16] Ibid Schedule 6.

[17] Jenny Hocking, Terror Laws: ASIO, Counter-terrorism and the Threat to Democracy (2004) 193 (emphasis added).

[18] David Cole, ‘Are We Safer’ 15, (2006) Volume LIII (4) The New York Review of Books 15, 17.

[19] Victor Windeyer, ‘Opinion on certain questions concerning the position of members of the Defence Force when called to aid the civil power’ in Justice Hope, Protective Security Review, Appendix 9, 292.

[20] Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 27.

[21] Bernadette McSherry, ‘Terrorism Offencesin the Criminal Code: Broadening theBoundaries of Australian Criminal Laws’ (2004) 27(2) UNSW Law Journal 354, 364.

[22] Criminal Code s 102.1.

[23] For example, section 102.5 of the Criminal Code. See generally Bernadette McSherry, ‘Terrorism Offences in the Criminal Code: Broadening the Boundaries of Australian Criminal Laws’ (2004) 27(2) UNSW Law Journal 354, 369-70; PatrickEmerton, ‘Paving the Way for Conviction Without Evidence – A Disturbing Trendin Australia’s ‘Anti-Terrorism’ Laws’ (2004) 4(2) Queensland University of Technology Law Journal 1.

[24] See Jamie Berry, ‘No bail accused terror pair’, The Age, 23-4 December 2005, 3.

[25] See Kate Lahey, ‘Terror suspects doingit tough in solitary, says lawyer’, The Age, 29 December 4.