Wednesday, October 26, 2005

Leaked draft Anti-Terrorism Bill 2005

The draft Anti-Terrorism Bill 2005 (Cth) - proposed changes to the Criminal Code and other Acts

These are some notes that I have been preparing while going through the draft Anti-Terrorism Bill leaked by the ACT Chief Minister. Note: the latest draft version of the Bill has yet to be made public, so some things may have changed.

Outstanding questions: (1) what kind of review would be possible of the executive decisions under the Bill? It exempts the decisions of the Attorney-General from AD(JR) review. But what about those of the “issuing authorities”? What is the nature of the remedies available from a federal court under s 105.28(2)(f)? What is the Ombudsman complaints mechanism (see Complaints (Australian Federal Police) Act 1981 (Cth) Part III)?

(2) How do these powers compare with those already exercisable by the police/AFP? In particular: what kind of institutional practices might affect our reading of the powers granted here?

Here’s some of what the Bill does (some of this only makes sense when you already know what the current legislation looks like):

Changes to the Criminal Code

Widens definition of a proscribable "terrorist organization" to include organizations that "advocate" (= "directly or indirectly counsels or urges" or "directly or indirectly provides instruction on" or "directly praises") the doing of a "terrorist act".

s. 104 inserted: CONTROL ORDERS on application by AFP to Federal (Magistrates) Court in respect of any person where the order would "substantially assist in preventing a terrorist act" and the court is satisfied that the controls are "resonably necessary, appropriate and adapted to the purpose of protecting the public from a terrorist act". 12 months max duration - 16 years and older - Controls include: house arrest, tracking devices, photographing of person, restrictions on movement and association, etc. - urgent orders: phone the Court - person may apply to issuing court for revocation - annual reports tabled in Parliament - sunset provision: 10 years.

s. 105 inserted: provides for PREVENTATIVE DETENTION ORDERS (PDOs) - either INITIAL or CONTINUED.

INITIAL - AFP apply to "issuing authority", in this case can be an AFP member of, or above, the rank of Superintendent. 24 hrs max duration. Can be extended and further extended but only up to 24 hrs after first taken into custody.

CONTINUED - AFP apply to "issuing authority" = a person who is also a judge, but who does not function in a judicial capacity. Rather, they are appointed by the Minister and function in their personal capacity (with the same "protection and immunity" as a High Court Justice). (## Judicial review of this decision?) 48 hrs max duration. (Can be similarly extended within 48hr limit.)

I.e.: custody begins under initial order -- 24 hrs -- continued order granted -- 24 hrs -- release. (48 hrs total in custody.)

PROHIBITED CONTACT ORDER (s 105.16) - allows AFP to apply (similarly) for an order prohibiting the person, while in preventative detention, to contact a specified person.

AFP powers and obligations under PREVENTATITVE DETENTION ORDERS (PDOs)

AFP powers to take custody under PDOs:
- power to enter, search premises: May enter premises at any time "using such force as is necessary and reasonable in the circumstances" for the purpose of searching or taking into custody. May enter dwelling b/w 9pm - 6am if not "practicable" to take into custody at another time, or if necessary to prevent the loss of evidence.
- power to use "force": may use "force" and subject person to "indignity" so far as is "necessary and reasonable". May endanger the person's life to protect the life of, or prevent serious injury to, another, or if the person is fleeing and AFP member "believes on reasonable grounds that the person cannot be apprehended in any other manner."

- Powers to frisk search or search hat, coat, jacket, gloves, shoes.

Person may be transferred from AFP to ASIO custody where ASIO warrant in effect. (Does not extend duration of PDO) Compare ASIO Act 1979 (Cth) section 34D.

A person may be "released" and then, immediately after being informed of release, "taken into custody on some other basis." (105.27(4))

A detained person must be informed of the order, its period, restrictions, further applications, and of their rights to make a complaint to the Ombudsman (see below), a federal court (to seek a remedy relating to the order or to the treatment of the person by the AFP-- ## merits review?) and to contact a lawyer (see below). The AFP's failure to fulfill these obligations is an offence (carrying a penalty of 2 years' imprisonment) but will not affect the lawfulness of the detention. It is a defence to this offence if the AFP member can show that compliance with the obligations would have been "impractical" because of the actions of the detained person. (105.28)

A copy of any PDOs (but not of any prohibited contact orders) must be given to the detained person and to a lawyer they may nominate (if contact with that person is not prohibited). Failure to comply is here not an offence, and does not make detention unlawful.

A person detained must be "treated with humanity and respect for human dignity" and must not be subjected to cruel, inhuman or degrading treatment." An offence carrying a 2-year jail term applies.

The detained person may have no contact with other people, except as provided:
- Family member: can contact a family member to confirm that person is safe, but nothing else.
- Ombudsman: can make complaint to Ombudsman under Complaints (AFP) Act 1981 (Cth) section 22.
- Lawyer: Can contact preferred lawyer if not barred by prohibited contact order, in which case the AFP must give the person "reasonable assistance to choose another lawyer." In so doing, the AFP may "give priority to lawyers who have been given security clearance at an appropriate level by the Department." (105.34(3))

All such contact is subject to any prohibited contact orders. The AFP may monitor all contact, including the content and meaning of the communication.

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