Anti-Terrorism Laws in New South
Wales
By Martin Bibby
Committee member, NSW Council for Civil Liberties
January 2006
In December 2005, a new law gave unprecedented powers to the New South Wales
police. The NSW Council for Civil Liberties opposed this new law. So did the
NSW Law Society and the Public Interest Advocacy Centre. Although some improvements
were made while it was passing through Parliament, the Council calls for its
repeal.
The law is called the Terrorism (Police Powers) Amendment (Preventative Detention)
Act 2005.
contents
What the new law does
Please note that the summary below does not cover all the powers that are
given by the law.
1. Detention without trial
The Act permits a person to be put in jail, without charge, for two weeks
at a time, if it is thought that that might prevent a terrorist act.
No real proof is required—just reasonable grounds for suspicion that
the person might be involved in a terrorism plot. Mostly, a policeman’s
word will be enough.
You need not be intending to commit an act of terrorism yourself. It is enough
to be involved in planning one, or to possess something that is connected with
the preparation for such an act. (Nevertheless, there have to be reasonable
grounds to suspect that your detention will substantially assist in preventing
a terrorist act occurring).
You need not intend harm to any person. Planning to disrupt a transport system
will do.
You can also be detained if you possess evidence about a terrorist action
that has already happened and the police believe you need to be detained so
that the evidence will be preserved. You need have no connection with any terrorist
plot at all.
Unless the person detained is younger than 18, they can be held in a prison,
in company with convicted criminals.[1]
The period of time is important. Under the recent
Federal Law,
a person can be held for two days at a time in relation to suspected terrorism
plot. The main point of the NSW law is to increase the time to a fortnight.
2. Keeping you in ignorance of the evidence
Although the Act creates a normal expectation that people will be told
what they are accused of,[2] it also allows this to be concealed from them,
for security reasons. The chances are that the police will seek to have the
reasons concealed in all cases. (But the courts may not do what the police
want.
Let us hope not.)
In a normal trial, the lawyer of an accused person is entitled to examine
all documents that are to be used in evidence. Under this law, that entitlement
is removed. If the documents are spurious or have been misinterpreted,
you won’t be able to show it.
3. Keeping everyone else in ignorance
The hearings, if held at all, will be held in secret—in the absence of
the public. The record of proceedings can be kept secret, on pain of 5 years’ imprisonment.
If you have been accused falsely, no one else will be able to help you.
4. Restrictions on contact
While you are being detained, you are limited in whom you may contact. You
may contact your spouse or partner, someone you live with, your parents
if you are young, but in any case, a family member, employer, employees,
but
not a fiancée or a doctor unless the policeman in charge of your detention
permits you to. You may tell each of these that you are being held, and why—unlike
the situation with the Federal law.
But the court may also issue a prohibited contact order, under which you may
not contact certain persons (which may include any of these). If it does so, you
need not be informed who they are, though it will still be an offence for
you to make contact.
What is wrong with the new law?
The powers given under the Act are open to misuse, by design or by mistake.
Some of these abuses are almost certain to be attempted.
1. The revolving door
A person who has been held for a fortnight can be released, then immediately
rearrested and held for a further two weeks, and then for two more, and
so on. All that is needed is that police choose a new date when a terrorist
offence is supposed to be planned.
2. The mistaken identity
There might be two John Smiths living in the same apartment block, and police
might arrest the wrong one. If the police persuade the court to prevent
John from knowing what is alleged against him, he won’t be able to defend
himself.
3. Revenge
It will be much easier for police to get away with planting evidence than
it is in normal criminal cases. A corrupt cop may thus have a person detained
in order to get back at them.[3] It will be possible also for a person’s
enemies to lie about their involvement in a terrorist organisation. One may
never know who has made the accusation.
4. The election winner
A senior member of a political party could be arrested on trumped up evidence
and with maximum publicity, during an election campaign. Denied access
to the evidence against him or her, he or she is unable to clear him- or
herself till after the election
has been lost by his or her party.
Experience in Australia has been that governments can get away with falsehoods,
even if the falsehoods are exposed by the end of an election campaign.
5. The innocent association
You might arouse police suspicion because you regularly but innocently telephone
a member of a terrorist organisation who does you some service or with
whom you do business. You know nothing of the terrorist connections. All
the police
have is a record of your phone calls.
6. The dying detainee
There is no automatic right to contact a doctor. This is contrary to internationally
recognised civil rights. It is obviously morally wrong. It should be fixed.
7. Disrupting a financial system
The definition of ‘terrorist act’ that the law relies on is
far too wide. It includes serious disruption to a financial system, a transport
system or an information system. While a case can be made for the police
powers
in order to stop an imminent threat to many lives, this is hardly the case
with a threat to a financial system. (For the full definition, click
here.)
We are thus forced to rely on the police to be honest and very careful, and
on the judges to take on the role of defence lawyers in probing witnesses and
testing evidence, and to refuse to apply the act where there is no threat to
life.
But even if the powers are used as intended and nothing goes wrong with
the processes, they are still wrong. If the police (or ASIO) cannot show that they
will be able to prove beyond reasonable doubt that an offence has been committed,
the person should be left free. There are other things that can be done to
prevent terrorism. The Act should be repealed.
Freedom matters
What the Government is playing with is dangerous stuff.
Over the past 800 years, many people have died fighting for and defending
the right not to be imprisoned without a fair trial. That right is fundamental
to a democracy in this sense, that if people can be jailed without trial, in
the long run (or sooner) they will be jailed because of their opposition to
government actions. The right to a fair trial is a crucial defence against
tyranny.
It is also a defence against a perversion of democracy, the so-called “managed” democracy,
in which only one side is ever allowed to win elections. Singapore and Malaysia
are both managed democracies in this sense. Both use their security legislation
to prevent serious opposition to government policies being heard, or to have
the opponents jailed.
Freedom also is fundamentally important in its own right.
Why then has the Act been passed?
In the current time when fear over terrorist activity has been high, governments
have argued:
The right to life is more important than the right not to be imprisoned without
a fair trial, and therefore in the defence of people’s lives freedom
may be taken away. Any action we can take that will protect us against terrorism
is justified, even if it reduces freedom. It is better to have an innocent
person in jail for a fortnight than to have many people killed.
The argument looks persuasive. Nevertheless, it is invalid. To see that it
is, consider the following parallel argument.
Worse things can happen to a country than a terrorist attack. They include
civil war and tyranny. Accordingly we must defend ourselves against the possibility
of tyranny, even at the risk of terrorist attack. Any action we can take to
protect ourselves against tyranny is justified, even if it exposes us to the
risk of terrorism.
The premise of this argument is true. Tyranny is more terrible than terrorism.[4]
But it does not follow from that alone, that everything that might protect
freedom at the cost of not defending against terrorism is permissible.
Similarly, even though terrorism is terrible, and the right to life is more
important than the right to freedom, it does not follow that whatever might
save life is justified, whatever the cost to freedom.
For more discussion of this argument, see "A
bad argument".
The response of the NSW Government to such concerns has been to incorporate
a number of safeguards into the legislation. These are intended to reduce the
chances that it will be misused. Every one of them is important.
What safeguards are included in the law? Are they adequate?
1. In the normal situation, an application will be presented to the NSW Supreme
Court. The person against whom a preventative detention order or a prohibited
contact order is sought will be entitled to be present. His or her lawyers
can come too.
It is hoped that judges will resist revolving door applications,[5] and that
they will ensure that the suspicions which police have are at least reasonable.
The CCL also hopes that judges will resist requests that the evidence be kept
secret; and where they accept that it should be kept secret, that they will
resist admitting it at all.
It will depend, of course, on the individual judge.
Also in the normal situation, the application will be in writing, and the
police officer who makes it will have to swear its contents.[6] False evidence
will thus be punishable by imprisonment.
But where the case is deemed urgent, these safeguards are omitted. Evidence
can be given over the telephone, or even by fax or email, with the result that
there is no opportunity for the judge to question the evidence. An interim court order may be made over the telephone, and the police can then arrest
and detain a person at once. The first that they may learn that an application
for detention has been made may be when they are arrested. They may never know
the evidence that has been adduced against them.
2. An interim order lasts at most 48 hours, unless a hearing is held sooner.
By then, though, irreparable damage may have been done to the detainee.
Moreover, the law says that one interim order may be followed by another in
relation
to the same alleged plot.
3. The police officer who applies for an order is required to fully disclose
all matters of which the applicant is aware that would tell against the making
of the order (as well as, of course, those that favour it).[7]
This helps to make sure that the police officer’s suspicion is reasonable.
It protects against those who erect guesses into facts.
It is not much protection against a misguided officer who is anxious to secure
a detention order at all costs, and none against a corrupt one.
4. When an application is made to a judge for a detention order, permission
must be obtained from a senior police officer—an Assistant Commissioner
or higher.
This will help to discourage a corrupt policeman from misusing the power.
The safeguard is useful, but only as long as the senior police temper their
zeal to prevent terrorism with their duty to preserve democracy and to avoid
wrongful imprisonment.
It is a worry though that successive New South Wales Police Commissioners
have broken the law or turned a blind eye to its breach, in their zeal
to catch
criminals.[8] It is to be remembered,
also, that corruption has at times crept into these higher ranks.
5. The police officer in charge of your detention must be a different one
from the one who swore the application. This reduces the likelihood of physical
abuse.
There are penalties on inhumane treatment (two years’ imprisonment);
and what you say during detention cannot be used in evidence against you
in any subsequent trial. These requirements reduce the likelihood of forced
confessions
being extracted.
6. A detainee (or the police officer responsible for your detention) can apply
to the Supreme Court to have an order revoked. But only if he/she can produce
new evidence.
If the original evidence is kept secret, the detainee would be guessing
what was relevant.
7. A detainee has the right to complain to the Ombudsman and the Police Integrity
Commission about their detention and about their treatment in detention.[9] After
two years and then after five years, the Ombudsman is required to report to
the State Parliament. In addition the Commissioner of Police must report to
the Attorney General, the Minister for Police and the State Parliament once
a year on the number of successful and unsuccessful applications for orders.
Those reports are too infrequent, and not detailed enough.
Furthermore, there has been an unfortunate tendency in Australian politics
recently for those who report adversely on the effects of Government policy
to be vilified and their reports ignored. A series of United Nations reports,
for example, have been met by assertions that ‘we will decide our own
policies’—a juvenile response, but a popular one. Reports by the
Federal Auditor General have been attacked as interfering.
In the case of misuse, we are going to have to rely heavily on the willingness
of Australia’s limited media chains to publish the details. Since
publication can be forbidden by the court, we will rely on journalists being
willing to
risk imprisonment. What if that fails? (Suppose that a media baron is allowed
to take over further papers and TV channels, and became Prime Minister.)[10]
Even if the safeguards work, this is a bad law
The Council for Civil Liberties does not consider that this law is a good
idea at all. The biggest risk comes from the idea that it is acceptable at
all to put anybody in prison without proof established beyond reasonable
doubt at a trial. Until June 2005, the idea would have been declared inconceivable.
Now people have accepted the idea, they may accept proposals to weaken or abandon
the safeguards. They may no longer react with horror to proposals for detention
for other reasons. We risk following other countries down a
slippery slope.
The protection of Australian democracy depends in part on the Constitution.
But it also depends on a web of values being widely shared and defended vigorously.
Each strand of the web contributes to its overall strength. This law imperils
not one but five of the most important strands:
- the right to a trial if one is imprisoned;
- the requirement that guilt be proven, and proven beyond reasonable doubt;
- the exclusion of hearsay as evidence;
- the requirement that trials be held in public, so that abuse and mistakes
can be detected;
- the right to confidentiality of communications between a person
and his/her lawyer.
It is not for nothing that people now talk of the risk of a police state.
Is the law necessary in any case?
No. Where there is serious evidence against a person and a need to protect
the public, police have the power to arrest a person and to charge them with
a crime or with conspiracy to commit a crime. The courts have the power to
deny bail, and will do so where an alleged criminal is a danger to others’ safety.
But such a person will have the right to a trial.
what to know more?
You can read the new law at: http://www.austlii.edu.au/au/legis/nsw/consol_act/tpada2005613/index.html.
You can read CCL's
submission on these laws.
footnotes
[1] If the person is under 18, they will be held in a detention centre, again
with other criminals. Not only is this contrary to international law, it is
also contrary to common decency. Children under 16, however, cannot be detained
under this law.
[2]This requirement was a late amendment to the Act.
[3] Regrettably, it can’t be assumed in New South Wales that no police
officer would falsely accuse anyone.
[4] Though many people have died defending freedom.
[5] The State Attorney General is quoted as conceding
that they are still possible, but that oversight by the Supreme Court would
be rigorous. (Sydney Morning Herald 3-4/12/2005 p.26).
[6] This was a late amendment to the Bill, after submissions had been received.
[7] This was also a late amendment.
[8]
Justice Stewart, in his Report of the Stewart Royal Commission of Inquiry
into Alleged Telephone Interceptions in 1986, which examined the provenance
of the "Age Tapes", found:
From 1967 or 1968, over a period of some fifteen or sixteen years, a
sophisticated system for the illegal interception of telephone conversations
was developed within the NSW Police at the direction of the Commissioner of
that police force. The existence of the system was known to and either expressly
or tacitly approved by each succeeding Commissioner who held office prior to
the present Commissioner. It was known to many senior officers and to many
detectives. Officers of the Victoria Police knew of the system and were prepared
to use it. Even members of the AFP were prepared to use the system when the
AFP’s limited powers did not permit a particular interception to be made.
[9] The police officer doing the detaining must give this information when
the person is first detained, on penalty of two years’ imprisonment.
[10] Italy has this problem now. There are proposals before the Federal Government
to allow more concentration of media power.
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