Australia's Anti-Terrorism Legislation: Implications for Community Legal Sector

1. Australia’s Anti-Terrorism Legislation: The National Security State and the Community Legal SectorDr Mark RixGraduate School of Business University of Wollongong • The paper considers the implications for the community legal sector of the Australian Government’s recent national security and anti-terrorism legislation • The series of Bills enacted by the Australian Parliament since September 11 2001 removes many of the rights and freedoms that Australians have been able to take for granted • Other concerns with the legislation relate to the use of force, sedition, and legal representation for those held in preventative detention • Community legal centres (CLCs), that comprise the community legal sector, have the important role of informing citizens of their basic rights • and assisting citizens in exercising their rights • The paper considers what effects the anti-terrorism legislation will have on the community legal sector’s effectiveness in playing this important role RNSA Social Implications Workshop 29 May 2006

2. An Australian National Security State? • The Australian Government’s national security website http://www.nationalsecurity.gov.au is an important source of information • The website is hosted by the Attorney-General’s Department and introduces and explains the anti-terrorism legislation that has been passed into law over the past three years or so • Michael Head (2005) identifies 4 noteworthy features of this legislation: • It defines terrorism in sweeping terms • Permits the banning of political groups • Allows for detention without trial or evidence • Shrouds the intelligence and security agencies in secrecy and permits secret trials • Nevertheless, the terrorist threat to Australia remains relatively minor RNSA Social Implications Workshop 29 May 2006

3. An Australian National Security State? • This is in spite of Australia’s military involvement in Iraq and Afghanistan and its support for the US-led global war on terrorism • Also often overlooked are: • Australia’s relative geographical isolation • its border protection and immigration control system, and • Its lack of a “human infrastructure” with the capacity to mount a major homeland terrorist attack RNSA Social Implications Workshop 29 May 2006

4. Australia’s Anti-Terrorism Laws • The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 • gives ASIO the power “to obtain a warrant to detain and question a person who may have information important to the gathering of intelligence in relation to a terrorist activity” • The act enables ASIO to detain a person without judicial warrant for up to 7 days and to interrogate them for 24 hours within that 7-day period • While being interrogated, a detainee has to • Answer all questions • Provide all information or material requested of them • Prove that they do not have the material requested—if they are unable to do so and do not provide the material they can be imprisoned for up to 5 years RNSA Social Implications Workshop 29 May 2006

5. Australia’s Anti-Terrorism Laws • The National Security Information (Criminal and Civil Proceedings) Act 2004 • Extends the protection from disclosure of “security sensitive information” to include certain civil court proceedings • Permits the prosecution and conviction of individuals on the basis of information which is not tendered in evidence for national security reasons • It also allows for partially or wholly secret trials, evidence to be censored, and defendants and their legal counsel to be excluded from trial proceedings RNSA Social Implications Workshop 29 May 2006

6. Australia’s Anti-Terrorism Laws • The Anti-Terrorism Bill (No. 2) 2005 • According to Attorney-General Philip Ruddock the Bill’s “key features” include • A regime enabling courts to impose controls on persons who pose a terrorist risk to the community • Allowing for the detention of a person for up to 48 hours to prevent an imminent terrorist attack or to preserve evidence of a recent attack • An extension of the stop, question and search powers of the Australian Federal Police • Enhanced powers for the AFP to obtain information and documents enabling it to respond to or prevent a terrorist attack • In issuing a control order, a court can impose conditions on an individual including that they wear a tracking device, are prohibited or restricted from talking to another person including their lawyer, and are prohibited or restricted from using a telephone or the internet • Police can detain without charge a person who they suspect will carry out an imminent terrorist act or is planning to carry out such an attack RNSA Social Implications Workshop 29 May 2006

7. Australia’s Anti-Terrorism Laws • The provision allowing for a person subject to a control order to be informed why it was imposed is weakened by the severe restrictions on the disclosure of information, e.g. when national security would be prejudiced • While the Bill, as amended, gives a person subject to preventative detention and control orders the ability to repudiate the orders, because there is insufficient evidence formally to charge them with an offence they would not know precisely what they were opposing or challenging • The 2005 Bill includes a newly-defined crime of sedition • The authorities have only to suspect a person of seditious intent to use, “urge” or threaten the use of force for them to be able invoke the relevant provisions RNSA Social Implications Workshop 29 May 2006

8. Australia’s anti-terrorism legislation: what are the implications for the community legal sector? • The Australian Government relies on the community legal sector to provide free legal services to some of the most disadvantaged members of the Australia community • The sector has as its raison d’être improving access to justice and equality before the law for all Australians • In providing legal services to disadvantaged individuals and groups the sector is acknowledged to be a key part of the Australian Government’s social justice strategy • However, the sector often finds itself in conflict with the Government and its agencies when seeking to improve access to justice and equality before the law for its clients • The recent national security and anti-terrorism legislation is likely to mean that the conflict and tensions between the Government and sector will become more intense RNSA Social Implications Workshop 29 May 2006

9. Australia’s anti-terrorism legislation: what are the implications for the community legal sector? • There are more than 200 CLCs across Australia • About 129 of these are funded under the Commonwealth Community Legal Services Program (CCLSP) • The CCLSP has a number of significant objectives: • Assist people experiencing some form of systemic or socio-economic barrier to accessing legal services and/or whose interests should be pursued as a matter of public interest • Provide people with early assistance through the provision of appropriate information and referral • Enable clients to gain a practical and improved understanding of the legal and other options available to them • Through providing appropriate casework assist clients in gaining an enhanced opportunity to pursue outcomes consistent with their legal rights and entitlements RNSA Social Implications Workshop 29 May 2006

10. Australia’s anti-terrorism legislation: what are the implications for the community legal sector? • In addition, CLCs undertake Community Legal Education (CLE) and law reform and policy work • CLE is designed to provide individuals and groups with information to improve their knowledge and understanding of the legal system and their ability to use legal processes effectively • CLE also informs people of their rights and how to exercise their rights • Law reform and policy work is designed to enable CLCs more effectively to meet the legal needs of the communities and individuals they serve • Through this work CLCs play an important role in maintaining social order and preventing social fragmentation • It also helps to maintain people’s confidence in and compliance with the law and the legal system RNSA Social Implications Workshop 29 May 2006

11. The community legal sector: protecting Australia’s national security • In ensuring that people have confidence in and comply with the law CLCs help to preserve social order and prevent social fragmentation • They thus have an important role in protecting Australia’s national security • The sector will with greater frequency and urgency be called upon to ensure that ordinary Australian citizens have access to justice and enjoy equality before the law • This is a function that it will have to perform even while it continues to undertake the activities set down for it in CCLSP • The sector’s CLE work will become even more important • focusing on the legislation that makes it possible for the authorities to detain people without trial or evidence RNSA Social Implications Workshop 29 May 2006

12. The community legal sector: protecting Australia’s national security • CLE work will also have to focus on the 2005 Bill’s provisions enabling the authorities to withhold information from a person subject to a control order when they believe that disclosure would, e.g. prejudice national security • Through its CLE work the sector will also have to inform and educate members of Muslim communities, and other so-called ‘suspect’ groups, about the 2005 Bill’s preventative detention and control order provisions • It is these communities and groups who are most at risk from the persecution, harassment and arbitrary detention permitted in the legislation • The crime of sedition can also be used by the authorities to persecute and harass members of these communities • The sector will have to be vigilant and energetic in defending Australia’s national security from the national security authorities whose efforts to protect national security may only serve to undermine it RNSA Social Implications Workshop 29 May 2006