On Monday the Attorney-General held a press conference in which he provided more information on the two ‘tranches’ of counter terrorism legislation he is bringing into the Parliament this week. NSWCCL like other concerned organisations is struggling to stay on top of the fast moving agenda and is increasingly disturbed at what appears to be hasty decision making.
On the basis of yesterday's press conference we have put out a statement updating our reactions to AG's latest information. This covers the Government's response to the PJCIS report on its review of the National Security Legislation Amendment Bill 2014 (Tranche 1) and the so called bundle of new laws to deal with the threat of Australian jihardist fighters here and overseas - the 'Foreign Fighters Bill (Tranche 2).
While we, of course, support ASIO and the AFP having adequate powers and resources to protect Australians against the real threat of terrorist activity - as long as it is consistent with the maintenance of a healthy democracy - there is much to be concerned about in the proposals coming forward.
Tranche No 1 The National Security Legislation Amendment Act
- Torture and ASIO immunity in Special Intelligence Operations context
NSWCCL joined others in protesting the potential for the proposed immunity provisions to permit ASIO officers to carry out acts of torture. We therefore welcomes the AG’s decision to explicitly prohibit torture from the immunity provisions associated with the proposed ‘Special Intelligence Operation’.
The explicit prohibition in the legislation is necessary as the existing draft legislation clearly encompassed the possibility of ASIO officers having immunity for acts of torture. The issue was not a ‘red herring’ as the AG claimed, but a significant and relevant concern to remove serious ambiguity from the legislation.
- Special Intelligence Operations (SIO)
Notwithstanding this change- NSWCCL remains strongly opposed to the SIO regime for ASIO. It is not appropriate, or necessary for ASIO to do its work.
ASIO is a domestic intelligence agency and should not have legal immunity for covert, unlawful acts. The fact that the federal police have such immunity does not set a relevant precedent. ASIO is not a law enforcement agency. It is an intelligence agency. It quite properly lacks the public visibility and the stronger and more transparent oversight and accountability framework that apply to law enforcement agencies like the AFP.
The current system, based on collaboration between the AFP and ASIO and reliance on the discretionary prosecution power of the Commonwealth DPP, seems to have been working. The current arrangements should be maintained.
Tranche no 2 The ‘Foreign Fighters’ bill
- Extension of the sunset clause on extraordinary and short term laws
It is disturbing that the Government has made a decision, on the run, to extend the sunset clauses for the ASIO extraordinary counter-terrorism powers for another ten years. These powers breach longstanding rights and freedoms- hard won over centuries. That’s why Parliament determined they were ‘extraordinary’ and only enacted them for a short term –initially 3 years.
An extension to 2025 will embed these laws as normal and almost certainly ‘permanent’.
These extraordinary powers are unnecessary- and will undermine important assumptions about protection from arbitrary arrest and detention that have long been central to our sense of justice.
They should be allowed to lapse as scheduled.
If there is to be any extension of these extraordinary powers, it should only be after a public review and for a maximum duration of 3 years.
- New offence of entering or staying in a ‘declared’ area
The AG addressed the widespread concern that persons who travel to proposed ‘declared’ areas will have to prove they were there for legitimate reasons. He assured Australians there would be no reversal of the onus of proof from the prosecution to the defendant.
This was a welcome assurance.
However, the AG’s further explanation suggests the proposal will nonetheless shift the balance of proof significantly towards the accused. The legislation will include a defence of legitimate purpose. A person travelling to a declared area will have the evidentiary burden of demonstrating that they had a legitimate/good reason for so doing.
- Hasty legislation
The Government is apparently intent on rushing through these new and, as yet unseen, ‘Foreign Fighters’ laws in the super hyped atmosphere post the major counter-terrorism raids in Sydney last Thursday. This is not sound and considered process.
Australia has one of the most extensive suites of counter-terrorism laws among liberal democratic nations. These will be significantly extended by the National Security Legislation Amendment Bill already currently before Parliament. The Australian Parliament and the Australian people must be given ample time to understand the new laws and their implications and to decide whether they are needed and whether they do unacceptable harm to our liberties an democratic values.
NSWCCL urges the Government and the Parliament to slow down the hype-driven rush to legislate further counter-terrorism powers and offences.
The ‘Foreign Fighters’ bill should be referred to a Parliamentary Committee and community and independent expert views should be sought. A reasonable period of at least two months is essential to allow the public and community organisations to properly analyse and respond to the proposals.