Senate Legal and Constitutional Committee

The Secretary

Senate Legal and Constitutional Committee

Suite S1.108

PARLIAMENT HOUSE

CANBERRA ACT 2600

8 April 2002

Dear Secretary

INQUIRY INTO THE SECURITY LEGISLATION AMENDMENT (TERRORISM) BILL 2002 [NO 2] AND RELATED BILLS

Attached please find the ACTU’s submission to two inqiries – the Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 [No 2] And Related Bills and to the Inquiry into the Provisions of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill.

In making this submission the ACTU notes with extreme concern the tight timeframe given for community input into this legislation. In our conclusion we call for the Committee to recommend rejection of these Bills so as to allow further consultation to take place.

In summary our submission:

• Rejects the concept of a new crime of terrorism;
• Explains our objection to the definition of terrorism, with particular reference to industrial action;
• Opposes the new strict liability crimes of training, possessing a thing or collecting a document in connection with terrorism;
• Opposes the power of the Attorney General to ban organisations, and criminalise membership of banned organisations; and
• Opposes new powers or interrogation and detention, especially of non-suspects, without access to a lawyer, with detention for indefinite period without judicial review, and no right to silence.

The ACTU would welcome the opportunity to appear before the committee.

Yours sincerely

SHARAN BURROW

PRESIDENT

ACTU submission to

Senate Legal and Constitutional Committee

Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 [No 2] and Related Bills

and

Inquiry into the Provisions of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002

8 April 2002

1.INTRODUCTION

1.1The ACTU recognises the intention of the government in proposing this legislation. The ACTU will support genuine measures to protect Australia from real threats of terrorism. The ACTU condones neither violence against persons nor wilful damage to property. Our submissions should be read in that context.

1.2However, the ACTU is concerned that this legislation could be used to limit the civil liberties of our members, to work against political and industrial activism and to weaken unions.

1.3Where government seeks to limit civil liberties, there must be a clearly demonstrated harm which cannot be addressed, “but for” the restriction of liberty.

1.4The existing criminal laws are sufficient for the prosecution and punishment of offences related to harm to persons or property, or conspiracy to commit such offences. Similarly, existing powers of arrest, search, and seizure currently cover situations where police hold a reasonable suspicion that a crime has been committed, or that there is a conspiracy to commit a crime, including conspiracy to aid and abet.

1.5There has been insufficient time for community debate around this package of legislation. Sections of the Bills deliberately undermine basic human rights, in other sections drafting leads to unintended consequences.

1.6The protection of Australia’s borders, and security against terrorism is important, but so too are human rights. There is no evidence that delaying the Bills to allow proper consultation and re-drafting where appropriate will increase any threat to Australia’s security, while there is clear evidence that passing the Bills would undermine basic human rights. Therefore the Committee should recommend that the Bills be rejected to allow proper consultation and revision of the legislation.

1.7The ACTU would welcome the opportunity to appear before the committee.

1. SECURITY LEGISLATION AMENDMENT (TERRORISM) BILL 2002 [NO 2]

2.1The Committee is urged to reject the creation of a separate offence of terrorism. Creating a separate offence of terrorism seeks to criminalise the motive ie. “advancing a political, religious or ideological cause”, rather than the acts involved.

2.2The committee is also urged to uphold Australia’s international obligations, and protect freedom of association. The power to ban political, religious or ideological organisations, and to criminalise membership of organisations should be opposed. Australia debated the propriety of banning political organisations in the early 1950’s and voted against doing so in the referendum held on 22 September 1951. While the target of the legislation has altered, the arguments have not changed in 50 years.

2.3Definition of Terrorist Act

2.3.1Terrorism is defined in the Security Legislation Amendment (Terrorism) Bill 2002 s.100.1. Terrorist act includes any action or threat made with the intention of advancing a political, religious, or ideological cause. Acts include those involving harm to persons or property as well as acts which constitute a risk to the health or safety of a section of the public, or interference with an electronic system, including telecommunications, financial, essential services, public utilities or transport.

2.3.2The Bill exempts industrial action and lawful advocacy protest or dissent from the scope of the offence.

2.3.3The ACTU submits that the Bill casts the net too wide. We say this is so for three reasons:

i)The list of acts which may constitute a terrorist act is too wide;

ii)There is a lack of clarity over what would fall within the protection of the industrial action exemption; and

iii)The lawful dissent exemption will not protect most protest activity

2.4The list of activities is too broad

2.4.1Routine political and industrial activism in this country could fall within the terrorism net.

2.4.2Whether an act constitutes a risk to the health and safety of a section of the public has been considered in the context the Workplace Relations Act, ss 170MW(3) which gives the AIRC power to suspend a bargaining period (and hence remove protection from industrial action) where

A circumstance for the purposes of subsection (1) is that industrial action that is being taken to support or advance claims in respect of the proposed agreement is threatening:

(a) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

(b) to cause significant damage to the Australian economy or an important part of it.

2.4.3In Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1997) 77 IR 269.the Commission decided that industrial action by coal miners in the Hunter Valley satisfied both ss 170(3) (a) and 170MW(3)(b). The decision was overturned on appeal to the Full Bench, but later upheld by a second Full bench following orders of the Federal Court. (These orders were subsequently set aside by the High Court) For the purpose of this Committee it is sufficient to note that disruption to cola supplies could, under this precedent, be considered terrorism.

2.4.4Even more objectionable is the potential scope of “interference with an electronic signal electronic system, including telecommunications, financial, essential services, public utilities or transport”.

2.4.5Under this definition finance sector workers who ‘jam the fax” of their CEO, or telecommunications workers who ban repairs to faults could be deemed to have engaged in a terrorist act, punishable by life imprisonment.

2.5The industrial action protection lacks certainty

2.5.1The exemption of industrial action from the scope of the offence is inadequate. Should the Bill become law, the courts would have regard to definitions of Industrial action found elsewhere in legislation and in case law.

2.5.2Three pieces of Commonwealth legislation define industrial action- the Workplace Relations Act 1996, the Trade Practices Act 1974, and the Social Security Act 1991. These definitions are appended. Each definition is different. This very fact must alert the committee to the prospect of uncertainty in what constitutes industrial action.

2.5.3The Workplace Relations Act 1996, and its predecessor Acts, have contained different definitions of industrial action. The definitions have varied, driven partly by the need to attract constitutionality, and partly to place activity inside or outside the scope of the different remedies available from time to time under the Act. The remedies under the Workplace Relations Act include injunctions and fines, and are directed at preventing and settling industrial disputes. These considerations are quite different to those which might apply when determining the criminality or otherwise of certain action.

2.5.4The example of picketing illustrates this point. The AIRC has had difficulty with whether picketing constitutes industrial action. During the course of Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1997) 77 IR 269 Boulton J held that picketing may constitute industrial action. However on appeal, (1998) 80 IR 14, Giudice J held that picketing did not constitute industrial action: at 32; Munro J held that picketing may constitute industrial action: at 53; and Larkin C expressed no view.

2.5.5The Federal Court in Davids Distribution Pty Ltd v National Union of Workers defined ‘picket’ in the industrial relations setting as ‘a person who stands outside an establishment to make a protest, to dissuade or to prevent employees, suppliers, clients or customers of the employer from entering the establishment’: (1999) 91 FCR 463, 490.

2.5.6In this case, the Court had to decide whether a picket fell within the protection of protected industrial action under the Workplace Relations Act. The Court decided that where the picketers do nothing but communicate their views the picket does not constitute industrial action, even if they persuade others not to perform, offer or accept work.

2.5.7The Court also found that a picket that actually hindered people from performing, accepting or offering work, though perhaps literally industrial action, wasn’t industrial action within the Act, because the Act is directed against those imposing a ban, not others.

As we have already observed, picketing which does not involve obstruction and besetting does not fall within the definition of "industrial action"; it does not relate to the performance of work in the circumstances specified in paragraphs (a), (b), (c) or (d) of the definition. Such conduct does not need the protection of s 170MT(2) because it is not actionable by anyone. Only picketing which involves obstruction and besetting, and is therefore an actionable tort, gives rise to policy considerations as to whether it was intended to be protected from suit, or should be so covered if the language will permit.

2.5.8Under David’s case information pickets, and pickets by persons other than the employees involved are not industrial action, and therefore would not be protected by the industrial action exemption in the Bill. If the Bill becomes law, participating in an information picket involving a public utility, health provider or other essential service provider, would become punishable by life imprisonment. Such a result cannot be intended by the Parliament.

2.6The lawful protest exemption will not protect activism

2.6.1Contrary to widely held community beliefs, many of the activities involved in protest action attract some element of unlawfulness.

2.6.2The example of pickets is again instructive. At common law a picket is not necessarily unlawful but may become so if it involves obstruction and `besetting': Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 767 (Mason JA)

2.6.3Similarly rallies and marches which interfere with a person's liberty and freedom of movement may infringe a person's common law rights; in particular, the right to free passage in public places and on public roads and footpaths: Williams v Hursey at 78 - 79; Melbourne Corporation v Barry (1922) 31 CLR 174 at 196, 206; City of Keilor v O'Donohue (1971)126 CLR 353 at 363; Fourmile v Selpam Pty Ltd (1998) 80 FCR 151 at 186.

2.6.4Rallies such as the reconciliation marches, peace vigils, Palm Sunday walks, and reclaim the night marches would all be caught within the Bill. It is inappropriate that such activity be treated as unlawful. It is certainly unacceptable that such activity be classified as a terrorist act, punishable by life imprisonment.

2.7The ACTU urges the committee to reject the wide definition of terrorist act included in this Bill. If there are gaps in the existing criminal code, they should be identified and specifically criminalised, rather than casting a wide net.

2.8New Strict Liability Offences

2.8.1We urge the Committee to refuse to introduce new strict liability offences. Generally, strict liability offences are inappropriate where imprisonment is included in penalty.

2.8.2Section 101.2 of the Security Legislation Amendment (Terrorism) Bill introduces three new strict liability offences, punishable by life imprisonment. It is a crime to:

• provide training in the use of firearms, explosives or other weapons in connection with a terrorist act;
• possess a thing and the thing is connected with a terrorist act; and
• collect or make a document and the document are connected with a terrorist act.

2.8.3A TAFE teacher providing training in explosives to miners would be vulnerable, as would the owner of a PC running distributed computing software. Academics researching terrorism would be liable for merely collecting a pamphlet produced by an organisation engaged in terrorist activity.

2.8.4In all three cases, the normal criminal onus of proof is shifted to the defendant to prove that he/she did not know/was reckless in providing training, possessing the thing or collecting or making the document.

2.8.5The ACTU submits that these offences are too broadly cast and should be rejected or modified. If these offences remain, the onus should be on the prosecution to prove that the person had the requisite mens rea, ie. that the person knew or should have known that the training, thing, or document was to be used in connection with the criminal activity.

2.9Banning of Organisations

2.9.1Under s 102.2 the Attorney General is given power to ban organisations if the Attorney General is satisfied that:

i)the organisation, or a member on behalf of the organisation, is committing terrorist acts;

ii)the organisation is on the UN Security Council list of international terrorist organisations; or

iii)the organisation has or is likely to endanger the security of the Commonwealth or another country.

Once banned, it is an offence, punishable by 25 years in prison, to belong to, assist, provide funds to, or provide training to a banned organisation.

2.9.2The defendant bears the legal burden of proving that he/she did not know about the activities of the organisation, or that he she took steps to resign from the organisation.

2.9.3The ACTU is opposed to the banning of organisations, and submits that the provision is an unjustified infringement on freedom of association.

2.9.4In particular, the ACTU opposes s102 1(d). Had this been law in Australia over the past two decades, it is possible that membership of organisations that supported the East Timor Independence movement, or the anti-apartheid movement in South Africa could be deemed as endangering the security of another country, and thus be banned.

1. AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION LEGISLATION AMENDMENT (TERRORISM) BILL

3.1The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill provides for the issuing of warrants against people for the purpose of collecting information. Unlike usual powers of arrest and detention, there is no requirement that person be suspected of, or charged with any crime. The warrant may require attendance before an authority or may authorise detention if the person, and the search of the person, including strip-search.

3.2The ACTU opposes the detention of persons who are not suspected of committing a criminal act.

3.3The ACTU acknowledges the safeguards in the proposals. However the separation of powers in inadequate in this scheme. The role of the AAT should be replaced with a judicial officer.

3.4There appears to be no limit on the period of detention. The only safeguard is the requirement to seek further warrants beyond 48 hours, and to seek warrants from a Deputy President of the AAT for the third and subsequent warrants.

3.5The ACTU opposes the potential for extended detention of persons for the purpose of collection of evidence. If the power is retained, there should be an absolute limit on the period of detention.

3.6Section 34F(8) states that a person cannot contact anyone whist they are in custody unless the warrant specifically allows the detained person to make such contact. Thus, unless legal representation is specifically provided for, the person cannot contact a lawyer. If this provision is retained it should include a right to legal representation.

3.7A person before an authority for questioning can be imprisoned for up to 5 years for failing to give information, or giving false or misleading evidence.

3.8The ACTU opposes this provision. In particular, certain occupations such as lawyers and journalists should not be obliged to divulge confidential information.

3.9The law would apply to minors aged 10-18. Where children are strip-searched, there must be an adult present to represent the child’s interests. However, the adult may be a police officer or ASIO officer.

3.10The ACTU opposes the application of these laws to minors, and submits that the safeguards are inadequate to ensure the rights of the child are protected.

1. CONCLUSION

4.1The ACTU submits that there a key parts of these Bills that should be rejected by the Committee. The ACTU believes that these provisions jeopardise key tenets of the democracy, which they seek to safeguard.

4.2The ACTU encourages the committee to ensure that there are no unintended consequences of the legislation.

4.3The ACTU calls on the Committee to:

4.3.1Recommend that the Senate reject these two Bills, and the complementary legislation such that it relies on the definition of terrorism contained in the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill

4.3.2Recommend that appropriate consolation take place, including community input, before the development of any replacement legislation

Security Inquiry - final submissioncath Page 109/22/2018