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→See also: + Terrorism in Australia#Anti-terrorism Legislation covering new laws in 2014 – 2015
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{{short description|Counter-terrorism Act of the Parliament of Australia in 2005}} |
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{{Infobox legislation |
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| legislature = [[Parliament of Australia]] |
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| ⚫ | | long_title = An Act to amend the law relating to terrorist acts, and for other purposes |
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| citation = {{URL|https://www.legislation.gov.au/Details/C2005A00127|No. 127 of 2005}} |
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| territorial_extent = [[States and territories of Australia]] |
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| royal_assent = 3 November 2005 |
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| bill = Anti-Terrorism Bill 2005 |
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| status = in force |
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}} |
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{{Terrorism in Australia}} |
{{Terrorism in Australia}} |
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| ⚫ | The '''''Anti-Terrorism Act 2005'' (Cth)'''isan [[Act of Parliament|Act]] of the [[Parliament of Australia]], which is intended to hamper the activities of any potential [[terrorists]] in the country. The [[counter-terrorism]] [[Statute|law]] was passed on 6 December 2005.<ref>[http://www.abc.net.au/news/newsitems/200512/s1525147.htm Senate passes counter-terrorism laws. 06/12/2005. ABC News Online] {{webarchive |url=https://web.archive.org/web/20090113162831/http://www.abc.net.au/news/newsitems/200512/s1525147.htm |date=13 January 2009 }}</ref> |
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== Background == |
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=== History === |
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The '''Anti-Terrorism Act 2005'''<ref name="theact"> |
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| ⚫ | The Bill was prepared by the [[Howard government]] in the wake of a series of terrorist attacks overseas, in particular London, with the stated intent of preventing such events from happening in [[Australia]]. |
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{{cite web |
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| url=http://www.comlaw.gov.au/ComLaw/Legislation/Act1.nsf/0/53D2DEBD3AFB7825CA2570B2000B29D5?OpenDocument |
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| date=03/11/2005}} The actual act |
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| ⚫ | Due to the [[division of powers]] in Australia's constitution, the Bill needed the support of the states. An outline of the Bill was given in-principle support by the State Premiers. |
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== Chronology == |
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The |
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The then [[Attorney General of Australia]], [[Philip Ruddock]], on advice from the [[Australian Federal Police]] that existing laws would not protect Australians from London-style terrorist attacks,<ref>[http://www.abc.net.au/lateline/content/2005/s1494855.htm Lateline – 31/10/2005: Keelty puts case for terrorism laws] {{webarchive|url=https://web.archive.org/web/20120910032509/http://www.abc.net.au/lateline/content/2005/s1494855.htm |date=10 September 2012 }}</ref> said that the new laws were needed.<ref>[http://www.abc.net.au/insiders/content/2005/s1493765.htm Insiders – 30/10/2005: Labor awaits tabling of anti-terrorism bill] {{webarchive|url=https://web.archive.org/web/20120910032503/http://www.abc.net.au/insiders/content/2005/s1493765.htm |date=10 September 2012 }}</ref> |
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Due to the [[division of powers]] in Australia's constitution, the |
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Prior to its reading in federal |
Prior to its reading in federal Parliament, a confidential draft of the legislation was published online by [[Australian Capital Territory|ACT]] Chief Minister [[Jon Stanhope]], who stated "Law of this significance made in this haste can't be good law". The Opposition and minor parties expressed concern that a Senate inquiry would not be given enough time to consider the new laws.<ref name="ABCNews20051017_StanhopeDoubtsBill">{{cite news |
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|url=http://www.abc.net.au/news/newsitems/200510/s1483482.htm |
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|title=Stanhope flags doubts on 'hasty' terrorism bill |
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|date=17 October 2005 |
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|publisher=[[Australian Broadcasting Corporation|ABC]] |
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|work=AM |
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|author=Nick McKenzie |
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|archiveurl=https://web.archive.org/web/20090727121318/http://www.abc.net.au/news/newsitems/200510/s1483482.htm |
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| ⚫ | }}</ref> Prime Minister [[John Howard]] rejected the concern and criticised Stanhope, saying that "the premiers and the other chief minister did not deserve to be hijacked in relation to their ability to participate in consultation."<ref name="ABCNews20051015_HowardOnStanhope">{{cite news |
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|url=http://www.abc.net.au/news/newsitems/200510/s1483113.htm |
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|archiveurl=https://web.archive.org/web/20110211232033/http://www.abc.net.au/news/newsitems/200510/s1483113.htm |
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|archivedate=11 February 2011 |
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| ⚫ | }}</ref> The public exposure saw elements of the Bill, including a '[[Deadly force|shoot to kill]]' clause, criticised as excessive. [[Victoria (Australia)|Victorian]] Premier [[Steve Bracks]] noted the 'shoot to kill' clause had not been discussed at the [[Council of Australian Governments]] meeting where the draft laws were forged. Community concern arose that Muslims would be unfairly targeted by the new law.<ref name="TheAge20051019_LawUneaseMounts" /> |
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The Australian government planned for the |
The Australian government planned for the Bill to be introduced, debated and passed on 1 November 2005 ([[Melbourne Cup]] race day). The [[Australian Labor Party|Labor]] Opposition and the minor parties decried the paucity of time allowed for debate. The Prime Minister agreed to allow more time on the proviso that the Bill be passed before Christmas 2005. |
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The |
The Bill became law on 6 December 2005. Measures for greater protection of free speech and greater scrutiny of the law's application, proposed at different stages by individual government members and Labor, were not accommodated.<ref name="TheAge20051019_LawUneaseMounts">{{ cite news |
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| url=http://www.theage.com.au/news/national/unease-mounts-over-antiterrorism-laws/2005/10/18/1129401259010.html |
| url=http://www.theage.com.au/news/national/unease-mounts-over-antiterrorism-laws/2005/10/18/1129401259010.html |
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| title=Unease mounts over anti-terrorism laws |
| title=Unease mounts over anti-terrorism laws |
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| date=19 October 2005 |
| date=19 October 2005 |
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| location=Melbourne |
| location=Melbourne |
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}}</ref> Labor voted to support the |
}}</ref> Labor voted to support the Bill. The Greens and Australian Democrat senators voted against.<ref name="TheAge20051207_LawsRammedThrough">{{ cite news |
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| url=http://www.theage.com.au/news/national/antiterror-laws-rammed-through--minus-debate/2005/12/06/1133829596080.html |
| url=http://www.theage.com.au/news/national/antiterror-laws-rammed-through--minus-debate/2005/12/06/1133829596080.html |
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| title=Anti-terror laws rammed through |
| title=Anti-terror laws rammed through – minus debate |
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| author=Jewel Topsfield |
| author=Jewel Topsfield |
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| publisher=Fairfax |
| publisher=Fairfax |
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}}</ref> |
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== Constitutional issues == |
=== Constitutional issues === |
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The first three |
The first three "chapters" of the Australian Constitution [[Separation of powers in Australia|separate power]] between the executive, legislative and judicial arms of government. This "separation of powers" doctrine has been interpreted by the High Court in ''Lim v Minister for Immigration'',<ref>{{cite AustLII|HCA|64|1992|litigants=Lim v Minister for Immigration |parallelcite=(1992) 176 [[Commonwealth Law Reports|CLR]]1 |courtname=auto}}.</ref> as granting an immunity for Australian Citizens from involuntary detention by the Government except as a consequence of a finding of criminal guilt before a court. There are some exceptions, such as the detention of a person following their arrest and before they are brought before a court, or whilst on remand awaiting trial where bail is refused. The Federal Government appears to have interpreted as Constitutional periodic detention for up to 48 hours and co-operated with State governments (which do not have the same entrenched separation of powers doctrine) to allow for detention up to 14 days. The Federal government also introduced "control orders" which allow for a range of restrictions to be placed on an individual (who has not been charged, let alone found guilty of any criminal offence) including subjecting that person to 12 months house arrest.<ref>''Criminal Code Act 1995'' (Cth) div 104.</ref> |
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| ⚫ | Then Queensland Premier [[Peter Beattie]] announced that he had received advice that the blurring of boundaries between the executive and judicial powers was likely to be [[Australian Constitution|unconstitutional]].{{Citation needed|date=November 2022|reason=Please cite the source(s) where this is reported.}} This assertion was rejected by the then Prime Minister, John Howard: "Lawyers often have different opinions as to what the law means.".<ref>[http://www.abc.net.au/lateline/content/2005/s1490610.htm Lateline – 25/10/2005: Proposed counter-terrorism laws may face constitutional challenge] {{webarchive|url=https://web.archive.org/web/20120910032448/http://www.abc.net.au/lateline/content/2005/s1490610.htm |date=10 September 2012 }}</ref> Then federal Treasurer [[Peter Costello]] adopted a more cautious attitude, stating that "you never really know" the answer to the vexed question of constitutionality "until such time as the courts decide on these things".(SMH, 27 October 2005){{Full citation needed|date=November 2022}} According to spokespeople for the then Prime Minister, his and the Treasurer's views were compatible, but some media outlets, including the [[Sydney Morning Herald]], insinuated otherwise.{{Citation needed|date=November 2022|reason=Please cite the source(s) where this is reported.}} |
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== Deficiencies in the existing law == |
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[[Attorney General]] [[Philip Ruddock]] said that the new laws are needed,<ref>[http://www.abc.net.au/insiders/content/2005/s1493765.htm Insiders - 30/10/2005: Labor awaits tabling of anti-terrorism bill] {{WebCite|url=http://www.webcitation.org/5v91ZY43I|date =21 December 2010}}</ref> on advice from the Australian Federal Police that existing laws would not protect Australians from London-style terrorist attacks.<ref>[http://www.abc.net.au/lateline/content/2005/s1494855.htm Lateline - 31/10/2005: Keelty puts case for terrorism laws] {{WebCite|url=http://www.webcitation.org/5v91Zgtad|date =21 December 2010}}</ref> |
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== |
== The Act == |
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{{anchor|Anti-Terrorism Act 2005#Summary of changes}} <!-- redirect here from [[Control orders (Australia)]] --> |
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* Potential for [[preventive detention]]: detention for named individuals. Without evidence and without criminal involvement the detainee may be interrogated by [[Australian Security Intelligence Organisation]] (ASIO). Disclosing that an individual has been so detained or interrogated is, in almost all circumstances, a crime. |
* Potential for [[preventive detention]]: detention for named individuals. Without evidence and without criminal involvement the detainee may be interrogated by the [[Australian Security Intelligence Organisation]] (ASIO). Disclosing that an individual has been so detained or interrogated is, in almost all circumstances, a crime. |
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* [[Control order]]s: Potential for restrictions on named individuals including; freedom of movement, freedom of association (including one's lawyer), banning the performing of named actions and owning named items, unlimited requirements to be (or not to be) at specified places at any or all times of the day and week, wear a tracking device, encouragement to submit to re-education. These restrictions are referred to as "control orders", and may be granted for a period of one year before review. |
* [[Control order]]s: Potential for restrictions on named individuals including; freedom of movement, freedom of association (including one's lawyer), banning the performing of named actions and owning named items, unlimited requirements to be (or not to be) at specified places at any or all times of the day and week, wear a tracking device, encouragement to submit to re-education. These restrictions are referred to as "control orders", and may be granted for a period of one year before review. |
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* Significant restrictions on the right of any citizen to express certain opinions, including; criticism, or "urging disaffection", of the sovereign, the constitution, the government, the law, or 'different groups'. Exemptions may exist where the target of criticism is agreed to be 'in error'. Exemptions appear to exist where the claim is that a feature of a group of people is in some way offensive to the mainstream of society. Onus of proof is on the defendant, the presumption is not of innocence. |
* Significant restrictions on the right of any citizen to express certain opinions, including; criticism, or "urging disaffection", of the sovereign, the constitution, the government, the law, or 'different groups'. Exemptions may exist where the target of criticism is agreed to be 'in error'. Exemptions appear to exist where the claim is that a feature of a group of people is in some way offensive to the mainstream of society. Onus of proof is on the defendant, the presumption is not of innocence. |
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* A legislative provision for 'hoax offences' created a more serious charge for people who cause chaos for the public and emergency services by dreaming up devastating terrorist-inspired hoaxes. |
* A legislative provision for 'hoax offences' created a more serious charge for people who cause chaos for the public and emergency services by dreaming up devastating terrorist-inspired hoaxes. |
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=== Shoot to kill clause === |
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The "[[Deadly force|Shoot to kill]]" clause instructs police to treat people wanted under detention orders in the same way that an equivalent clause in the current law treats wanted suspects. |
The "[[Deadly force|Shoot to kill]]" clause instructs police to treat people wanted under detention orders in the same way that an equivalent clause in the current law treats wanted suspects. |
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The clause in particular has raised the concern of some state premiers, the so-called "Shoot to kill" clause, where police may use lethal force if they perceive a threat to life. The clause was not put to the premiers in the original discussions between the States and Federal Governments.<ref>Andrew Clennell and Louise Dodson [http://www.smh.com.au/news/national/states-draw-the-line-at-shoottokill-laws/2005/10/20/1129775902652.html "States draw the line at shoot-to-kill laws"], [[Sydney Morning Herald]], 21 September 2005, retrieved 4 August 2011</ref> |
The clause in particular has raised the concern of some state premiers, the so-called "Shoot to kill" clause, where police may use lethal force if they perceive a threat to life. The clause was not put to the premiers in the original discussions between the States and Federal Governments.<ref>Andrew Clennell and Louise Dodson [http://www.smh.com.au/news/national/states-draw-the-line-at-shoottokill-laws/2005/10/20/1129775902652.html "States draw the line at shoot-to-kill laws"], [[Sydney Morning Herald]], 21 September 2005, retrieved 4 August 2011</ref> |
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Law Council of Australia president John North, suggested that such powers were designed to protect police in the event of a mistaken fatal shooting such as that of [[Jean Charles de Menezes]].<ref>[http://newsunleashed.com/australia-accused-of-rushing-shoot-to-kill-terror-laws.html newsunleashed.com] {{ |
Law Council of Australia president John North, suggested that such powers were designed to protect police in the event of a mistaken fatal shooting such as that of [[Jean Charles de Menezes]].<ref>[http://newsunleashed.com/australia-accused-of-rushing-shoot-to-kill-terror-laws.html newsunleashed.com] {{webarchive|url=https://web.archive.org/web/20110714174659/http://newsunleashed.com/australia-accused-of-rushing-shoot-to-kill-terror-laws.html |date=14 July 2011 }}</ref> |
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John Howard has declared that the whole issue is a "misnomer, a [[furphy]], a diversion,"<ref>{{cite news| title=Terror shoot law may alter|newspaper=The Age|url=http://www.theage.com.au/news/war-on-terror/terror-shoot-law-may-alter/2005/10/23/1130006003323.html |date=24 September 2005| location=Melbourne|author=Michelle Grattan|accessdate= 4 August 2011| archiveurl= |
John Howard has declared that the whole issue is a "misnomer, a [[furphy]], a diversion,"<ref>{{cite news| title=Terror shoot law may alter|newspaper=The Age|url=http://www.theage.com.au/news/war-on-terror/terror-shoot-law-may-alter/2005/10/23/1130006003323.html |date=24 September 2005| location=Melbourne|author=Michelle Grattan|accessdate= 4 August 2011| archiveurl= https://web.archive.org/web/20110623143907/http://www.theage.com.au/news/war-on-terror/terror-shoot-law-may-alter/2005/10/23/1130006003323.html| archivedate= 23 June 2011 | url-status= live}}</ref> but has suggested that changes to the clause are possible. |
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=== Reckless funding clause === |
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As a result of the Anti-Terrorism Act 2005, Division 103 of the Criminal Code makes it an offence to provide funds to a person who may use those funds to facilitate or engage in a terrorist act. These funds must be intentionally made available to another person (e.g., a donation or cash transfer). The definition of funds includes money and assets of any kind but does not include goods or services.<ref>''Criminal Code (Cth)'' s 100.1</ref> The mental element for the crimes created under Division 103 is subjective [[Recklessness (law)|recklessness]].<ref>''Criminal Code (Cth)'' ss 103.1(1)(b), 103.2(1)(b)</ref> This means that the accused must know that there is a substantial risk of the funds being used for terrorism but still makes those funds available regardless of the risks involved in the matter. |
As a result of the Anti-Terrorism Act 2005, Division 103 of the Criminal Code makes it an offence to provide funds to a person who may use those funds to facilitate or engage in a terrorist act. These funds must be intentionally made available to another person (e.g., a donation or cash transfer). The definition of funds includes money and assets of any kind but does not include goods or services.<ref>''Criminal Code (Cth)'' s 100.1</ref> The mental element for the crimes created under Division 103 is subjective [[Recklessness (law)|recklessness]].<ref>''Criminal Code (Cth)'' ss 103.1(1)(b), 103.2(1)(b)</ref> This means that the accused must know that there is a substantial risk of the funds being used for terrorism but still makes those funds available regardless of the risks involved in the matter. |
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== Judicial oversight == |
== Judicial oversight == |
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The published version of the Anti-Terrorism Bill has attracted the criticism that it does not respect the [[separation of powers]] and is thus unconstitutional. Prime Minister John Howard has declared, "Speaking for the Commonwealth, and based on the advice I have received from the Crown law authorities at a Commonwealth level, these laws are quite constitutional."<ref name="autogenerated1">{{cite news |
The published version of the Anti-Terrorism Bill has attracted the criticism that it does not respect the [[separation of powers]] and is thus unconstitutional. Prime Minister John Howard has declared, "Speaking for the Commonwealth, and based on the advice I have received from the Crown law authorities at a Commonwealth level, these laws are quite constitutional."<ref name="autogenerated1">{{cite news|title=Anti-Terrorism Bill Constitutional |url=http://www.theaustralian.news.com.au/common/story_page/0,5744,17031762%5E1702,00.html }}{{dead link|date=May 2016|bot=medic}}{{cbignore|bot=medic}}</ref> John North, President of the Law Council of Australia, said "The power to make control orders is to be given to federal courts and is clearly non-judicial. Judicial power requires a fair procedure, including notice of the proceedings and disclosure of the basis upon which orders are sought and made. None of this occurs in relation to control orders."<ref>[http://www.lawcouncil.asn.au/read/2005/2418069228.html Law Council of Australia – Media Release – Anti-Terror Bill: Judiciary Compromised – 25 October 2005] {{webarchive |url=https://web.archive.org/web/20060113092629/http://www.lawcouncil.asn.au/read/2005/2418069228.html |date=13 January 2006 }}</ref> Similar concerns were raised by the Queensland and Western Australian Premiers and NSW Premier Morris Iemma.<ref name=autogenerated1 /> |
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== See also == |
== See also == |
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{{Wikinews|Australian PM says proposed Anti-Terror Laws are Constitutional}} |
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* [[Australian anti-terrorism legislation, 2004]] |
* [[Australian anti-terrorism legislation, 2004]] |
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* [[Terrorism in Australia#Anti-terrorism |
* [[Terrorism in Australia#Anti-terrorism legislation|Terrorism in Australia]] |
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* [[Australian sedition law]] |
* [[Australian sedition law]] |
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* [[USA PATRIOT Act]] |
* [[USA PATRIOT Act]] |
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* [[ |
* [[Outlawed terror organisations in Australia]] |
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*[[Terrorism Suppression Act 2002]] (New Zealand) |
*[[Terrorism Suppression Act 2002]] (New Zealand) |
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== References == |
== References == |
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{{Reflist |
{{Reflist}} |
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== External links == |
== External links == |
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* [http://www.chiefminister.act.gov.au/docs/B05PG201_v281.pdf Draft legislation] on the ACT Chief Minister's [http://www.chiefminister.act.gov.au/ website] |
* [http://www.chiefminister.act.gov.au/docs/B05PG201_v281.pdf Draft legislation] on the ACT Chief Minister's [http://www.chiefminister.act.gov.au/ website] |
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* [http://www.comlaw.gov.au/comlaw%5Cmanagement.nsf/lookupindexpagesbyid/IP200401867?OpenDocument Current Australian Criminal Code] at [[ComLaw]] |
* [http://www.comlaw.gov.au/comlaw%5Cmanagement.nsf/lookupindexpagesbyid/IP200401867?OpenDocument Current Australian Criminal Code] at [[ComLaw]] |
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* [http://www.nswccl.org.au/docs/pdf/Anti-Terrorism%20Bill%202005%20 |
* [https://web.archive.org/web/20070928062717/http://www.nswccl.org.au/docs/pdf/Anti-Terrorism%20Bill%202005%20%28consolidated%29.pdf the new bill side by side with the old bill] |
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Popular press response: |
Popular press response: |
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* [http://www.smh.com.au/news/national/antiterrorism-bill-splits-politics/2005/10/10/1128796467082.html ''Sydney Morning Herald'', 11 October 2005, 'Anti-terrorism bill splits politics'] |
* [http://www.smh.com.au/news/national/antiterrorism-bill-splits-politics/2005/10/10/1128796467082.html ''Sydney Morning Herald'', 11 October 2005, 'Anti-terrorism bill splits politics'] |
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* [http://www.theage.com.au/news/war-on-terror/should-we-be-afraid-of-the-terror-laws/2005/10/17/1129401197536.html The Age Melbourne |
* [http://www.theage.com.au/news/war-on-terror/should-we-be-afraid-of-the-terror-laws/2005/10/17/1129401197536.html The Age Melbourne – Should we be afraid of the terror laws] |
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* [http://www.abc.net.au/mediawatch/transcripts/s1489465.htm ABC TV Media Watch |
* [http://www.abc.net.au/mediawatch/transcripts/s1489465.htm ABC TV Media Watch – Seditious opinion? Lock 'em up] |
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* [http://www.theage.com.au/news/National/Terrorism-laws-in-place-before-Xmas/2005/10/23/1130005987837.html Terrorism laws in place before XMAS ] |
* [http://www.theage.com.au/news/National/Terrorism-laws-in-place-before-Xmas/2005/10/23/1130005987837.html Terrorism laws in place before XMAS ] |
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* [ |
* [https://news.yahoo.com/s/nm/20051020/wl_nm/security_australia_laws_dc Security Australia Laws]{{dead link|date=July 2019|bot=medic}}{{cbignore|bot=medic}}. |
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* [http://www.abc.net.au/news/newsitems/200510/s1490489.htm Australia accused of rushing shoot-to-kill terror laws] |
* [https://web.archive.org/web/20090113160904/http://www.abc.net.au/news/newsitems/200510/s1490489.htm Australia accused of rushing shoot-to-kill terror laws] |
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* [http://www.theaustralian.news.com.au/common/story_page/0 |
* [https://web.archive.org/web/20051227170318/http://www.theaustralian.news.com.au/common/story_page/0%2C5744%2C17066880%5E12250%2C00.html Paul Kelly, " More power to the PM"] |
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Other commentary: |
Other commentary: |
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* [http://www.smh.com.au/news/opinion/laws-for-a-secret-state-without-any-safeguards/2005/10/19/1129401313470.html Former PM Malcolm Fraser, Stephen Murray-Smith Memorial Lecture of 19 October 2005] |
* [http://www.smh.com.au/news/opinion/laws-for-a-secret-state-without-any-safeguards/2005/10/19/1129401313470.html Former PM Malcolm Fraser, Stephen Murray-Smith Memorial Lecture of 19 October 2005] |
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* [http://www.nswccl.org.au/issues/terrorism.php NSW Council for Civil Liberties] |
* [https://web.archive.org/web/20040813064307/http://www.nswccl.org.au/issues/terrorism.php NSW Council for Civil Liberties] |
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* [http://www.freespeechoz.com/ Free Speech Australia] |
* [https://web.archive.org/web/20060305174630/http://www.freespeechoz.com/ Free Speech Australia] |
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* [http://www.chiefminister.act.gov.au/docs/Stanhope_advice_20051018.pdf Human rights implications of the Anti-Terrorism Bill 2005] Prof. Andrew Byrnes, Prof. Hilary Charlesworth and Gabrielle McKinnon [[Australian National University]], 18 October 2005 |
* [http://www.chiefminister.act.gov.au/docs/Stanhope_advice_20051018.pdf Human rights implications of the Anti-Terrorism Bill 2005] Prof. Andrew Byrnes, Prof. [[Hilary Charlesworth]] and Gabrielle McKinnon [[Australian National University]], 18 October 2005 |
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* [http://rspas.anu.edu.au/asiarightsjournal/Williams.html George Williams, "Responding to Terrorism without a Bill of Rights: The Australian Experience", AsiaRights Journal] |
* [http://rspas.anu.edu.au/asiarightsjournal/Williams.html George Williams, "Responding to Terrorism without a Bill of Rights: The Australian Experience", AsiaRights Journal] |
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* [http://jurist.law.pitt.edu/forumy/2005/11/rights-at-risk-my-dissent-from.php ACT Chief Minister Jon Stanhope, "Rights at Risk: My Dissent from the Australian Anti-Terror Bill"], [[JURIST]] |
* [https://web.archive.org/web/20051111145211/http://jurist.law.pitt.edu/forumy/2005/11/rights-at-risk-my-dissent-from.php ACT Chief Minister Jon Stanhope, "Rights at Risk: My Dissent from the Australian Anti-Terror Bill"], [[JURIST]] |
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* [ |
* [https://archive.org/audio/http://audio-details-db.php?collection=opensource_audio&collectionid=Public_Forum_Anti-Terror_Legislation_NSW_Quaker_Peace_and_Justice_20051108 Anti-terrorism Legislation Public Forum – Quaker Peace & Justice Committee]: Audio recording of Sydney public forum discussing the bill with speakers including Lance Collins and Warren Reed |
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* |
* {{cite journal |author=Lynch, A |url=http://www.austlii.edu.au/au/journals/MULR/2006/24.html |title=Legislating with urgency – The enactment of the anti-terrorism act (No 1) 2005|journal=Melbourne University Law Review |year=2006 }}] (2006) 30(3) Melbourne University Law Review 747 . Detailed review of the legislation, including the process of its enactment. |
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[[Category:2005 in Australian law]] |
[[Category:2005 in Australian law]] |
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[[Category:Terrorism laws in Australia]] |
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[[Category:Terrorism in Australia]] |
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[[Category:Acts of the Parliament of Australia]] |
[[Category:Acts of the Parliament of Australia]] |
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| Anti-Terrorism Act 2005 | |
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| Parliament of Australia | |
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| Citation | No. 127 of 2005 |
| Territorial extent | States and territories of Australia |
| Royal assent | 3 November 2005 |
| Legislative history | |
| Bill title | Anti-Terrorism Bill 2005 |
| Status: In force | |
The Anti-Terrorism Act 2005 (Cth) is an Act of the Parliament of Australia, which is intended to hamper the activities of any potential terrorists in the country. The counter-terrorism law was passed on 6 December 2005.[1]
The Bill was prepared by the Howard government in the wake of a series of terrorist attacks overseas, in particular London, with the stated intent of preventing such events from happening in Australia.
Due to the division of powers in Australia's constitution, the Bill needed the support of the states. An outline of the Bill was given in-principle support by the State Premiers.
The then Attorney General of Australia, Philip Ruddock, on advice from the Australian Federal Police that existing laws would not protect Australians from London-style terrorist attacks,[2] said that the new laws were needed.[3]
Prior to its reading in federal Parliament, a confidential draft of the legislation was published online by ACT Chief Minister Jon Stanhope, who stated "Law of this significance made in this haste can't be good law". The Opposition and minor parties expressed concern that a Senate inquiry would not be given enough time to consider the new laws.[4] Prime Minister John Howard rejected the concern and criticised Stanhope, saying that "the premiers and the other chief minister did not deserve to be hijacked in relation to their ability to participate in consultation."[5] The public exposure saw elements of the Bill, including a 'shoot to kill' clause, criticised as excessive. Victorian Premier Steve Bracks noted the 'shoot to kill' clause had not been discussed at the Council of Australian Governments meeting where the draft laws were forged. Community concern arose that Muslims would be unfairly targeted by the new law.[6]
The Australian government planned for the Bill to be introduced, debated and passed on 1 November 2005 (Melbourne Cup race day). The Labor Opposition and the minor parties decried the paucity of time allowed for debate. The Prime Minister agreed to allow more time on the proviso that the Bill be passed before Christmas 2005.
The Bill became law on 6 December 2005. Measures for greater protection of free speech and greater scrutiny of the law's application, proposed at different stages by individual government members and Labor, were not accommodated.[6] Labor voted to support the Bill. The Greens and Australian Democrat senators voted against.[7]
The first three "chapters" of the Australian Constitution separate power between the executive, legislative and judicial arms of government. This "separation of powers" doctrine has been interpreted by the High Court in Lim v Minister for Immigration,[8] as granting an immunity for Australian Citizens from involuntary detention by the Government except as a consequence of a finding of criminal guilt before a court. There are some exceptions, such as the detention of a person following their arrest and before they are brought before a court, or whilst on remand awaiting trial where bail is refused. The Federal Government appears to have interpreted as Constitutional periodic detention for up to 48 hours and co-operated with State governments (which do not have the same entrenched separation of powers doctrine) to allow for detention up to 14 days. The Federal government also introduced "control orders" which allow for a range of restrictions to be placed on an individual (who has not been charged, let alone found guilty of any criminal offence) including subjecting that person to 12 months house arrest.[9]
Then Queensland Premier Peter Beattie announced that he had received advice that the blurring of boundaries between the executive and judicial powers was likely to be unconstitutional.[citation needed] This assertion was rejected by the then Prime Minister, John Howard: "Lawyers often have different opinions as to what the law means.".[10] Then federal Treasurer Peter Costello adopted a more cautious attitude, stating that "you never really know" the answer to the vexed question of constitutionality "until such time as the courts decide on these things".(SMH, 27 October 2005)[full citation needed] According to spokespeople for the then Prime Minister, his and the Treasurer's views were compatible, but some media outlets, including the Sydney Morning Herald, insinuated otherwise.[citation needed]
The "Shoot to kill" clause instructs police to treat people wanted under detention orders in the same way that an equivalent clause in the current law treats wanted suspects.
The clause in particular has raised the concern of some state premiers, the so-called "Shoot to kill" clause, where police may use lethal force if they perceive a threat to life. The clause was not put to the premiers in the original discussions between the States and Federal Governments.[11]
Law Council of Australia president John North, suggested that such powers were designed to protect police in the event of a mistaken fatal shooting such as that of Jean Charles de Menezes.[12]
John Howard has declared that the whole issue is a "misnomer, a furphy, a diversion,"[13] but has suggested that changes to the clause are possible.
As a result of the Anti-Terrorism Act 2005, Division 103 of the Criminal Code makes it an offence to provide funds to a person who may use those funds to facilitate or engage in a terrorist act. These funds must be intentionally made available to another person (e.g., a donation or cash transfer). The definition of funds includes money and assets of any kind but does not include goods or services.[14] The mental element for the crimes created under Division 103 is subjective recklessness.[15] This means that the accused must know that there is a substantial risk of the funds being used for terrorism but still makes those funds available regardless of the risks involved in the matter.
The published version of the Anti-Terrorism Bill has attracted the criticism that it does not respect the separation of powers and is thus unconstitutional. Prime Minister John Howard has declared, "Speaking for the Commonwealth, and based on the advice I have received from the Crown law authorities at a Commonwealth level, these laws are quite constitutional."[16] John North, President of the Law Council of Australia, said "The power to make control orders is to be given to federal courts and is clearly non-judicial. Judicial power requires a fair procedure, including notice of the proceedings and disclosure of the basis upon which orders are sought and made. None of this occurs in relation to control orders."[17] Similar concerns were raised by the Queensland and Western Australian Premiers and NSW Premier Morris Iemma.[16]
The legislation, proposed and current:
Popular press response:
Other commentary:
