Oz Politics Blog

Yesterday, the Senate’s Legal and Constitutional Legislation Committee handed down its 300 page report on the Provisions of the Anti-Terrorism Bill (No. 2) 2005 (ATB2). In a fairly gutsy move from the Coalition senators, the committee made 52 bipartisan recommendations; most recommended changes to the government’s proposed anti-terrorism laws. On reading the report, the recommendations seemed eminently sensible.

ATB2 is based on an agreement between the Commonwealth, State and Territory Governments adopted at the Council of Australian Government’s (COAG) Terrorism Summit held in Canberra on 27 September 2005. Under the COAG Agreement, Premiers and Chief Ministers agreed to introduce complementary legislation for the purpose of introducing preventative detention for a period of up to 14 days and search powers. Key features of the Bill include:

• the expansion of the grounds for the proscription of terrorist organisations to include organisations that ’advocate’ terrorism (Schedule 1 of the Bill);
• a new offence of financing terrorism (Schedule 3);
• a new regime to allow for ’control orders’ to authorise the overt close monitoring of terrorist suspects (Schedule 4);
• a new police preventative detention regime to allow detention without charge to prevent a terrorist act or to preserve evidence of such an act (schedule 4);
• wider police powers for warrantless search and seizure in Commonwealth places and in ’prescribed security zones’ (Schedule 5);
• police powers to compel disclosure of commercial and personal information (Schedule 6);
• updated sedition offences (Schedule 7);
• increased financial transaction reporting obligations on individuals and businesses (Schedule 9); and
• the expansion of information and intelligence gathering powers available to police and ASIO (Schedules 8 and 10).

Many of the committee’s recommendations go to ensuring people under control orders and preventative detention have adequate protections and appeal mechanisms. Other recommendations dealt with the new powers for ASIO. But for my money, the chapter on sedition and advocacy was the one to read. In summary the committee agreed with the repeal of the current sedition provisions in sections 24A to 24E the Crimes Act, but could not see a reason to replace those provisions as proposed.

5.167 The committee received an overwhelming amount of evidence in relation to the sedition provisions in Schedule 7 of the Bill. With the exception of the evidence from the Department and the AFP, this evidence indicated strong opposition to the sedition offences from all sectors of the community.

5.168 The committee agrees with many of the concerns raised in relation to the sedition provisions. The committee recognises that Schedule 7 is an attempt to update and modernise the existing offences of sedition already contained in the Crimes Act. However, the committee agrees with the evidence received that the removal of Schedule 7 from this Bill, pending the review foreshadowed by the Attorney-General, would not weaken Australia’s anti-terrorist capacity given the nature of the existing law in this area. In particular, the committee is not convinced of an urgent need for the provisions in light of existing laws such as the offence of treason (in section 80.1 of the Criminal Code) and the crime of incitement (in section 11.4 of the Criminal Code).

5.169 The committee acknowledges concerns about the potential impact of the sedition provisions on freedom of speech in Australia. Despite the Department’s various reassurances on this issue during the committee’s inquiry, the committee is troubled by evidence of the potential for ’self-censorship’ by a community cautious of the potential breadth of the provisions. The committee also notes the extensive expert legal evidence to this inquiry raising serious concerns about the provisions, including the clarity of various aspects, such as the fault elements and defences.

5.170 The committee acknowledges that the Attorney-General has committed to reviewing the sedition (and advocacy) provisions of the Bill next year. In that light, the committee agrees with the evidence received that it is inappropriate to enact legislation which is considered to be in need of review.

5.171 The committee therefore recommends that Schedule 7 be removed from the Bill in its entirety, pending a full and independent review.

The other big amendment suggested by the committee was a five-year sunset clause for the new anti-terrorism provisions, rather than the ten-year sunset clause agreed by COAG. The committee argued that there was no precedent for a ten-year sunset clause.