Spencer Zifcak. Proportionality Lost in Australia’s new Counter-Terrorism Laws. Part 1

Mar 10, 2015

The Attorney-General, George Brandis, crashed two major tranches of counter-terrorism law through federal parliament recently. As always there are two problems with such an approach: overkill and error. Both tranches demonstrate these deficits in abundance.

It’s important to say that in Australia the threat of terrorist attacks is real. So is the danger posed by fighters returning trained and hardened in Middle Eastern conflicts. The threat and the danger have undoubtedly increased because of the Government’s military commitment to a third Iraq war. The case for some new security laws, specifically targeted at clearly identified threats, is persuasive.

However, new law requires careful deliberation, particularly if it infringes on civil liberties. In this instance it didn’t get it.  Consequently, the parliament has adopted counter terrorism laws that are loosely drafted, disproportionate to the threats they are designed to deter, and that violate human rights unnecessarily.

In this article I deal with the National Security Legislation (Amendment) Bill.  In the next I consider the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill.

The National Security Legislation (Amendment) Bill

The National Security Legislation Amendment Bill (No.1) gives ASIO officers immunity from prosecution for criminal activity in which they may engage in the course of ‘special intelligence operations.’ It creates new offences and severe penalties for the disclosure of information that relates to these operations.

  1. Special Intelligence Operations

The National Security Bill defines a ‘special intelligence operation’ as one established to carry out special intelligence functions in the course of which an ASIO officer or affiliate may engage in criminal conduct or commit a civil wrong. A special intelligence function is one carried out for the purpose of obtaining evidence that may lead to a prosecution for a serious Commonwealth offence. That means, for example, that if during the course of a special intelligence operation an ASIO officer beats up an innocent party or negligently causes them harm, s(he) will be immune from criminal prosecution or any claim for damages.

Nevertheless, special intelligence operations are subject to legal limitations. An operation, tautologically, must be one that will assist ASIO in the performance of a special intelligence function. The unlawful conduct involved in undertaking an operation must be limited to the maximum extent consistent with conducting an operation effectively. The conduct involved must not cause death or serious injury to any person; involve a sexual assault; or result in serious damage to property. An authorized officer must assess and approve a special intelligence operation prior to its commencement.

Even this brief description makes it plain that the special intelligence operation provisions travel far more widely than is consistent with the rule of law. It is unacceptable in principle and practice that ASIO officers should be immune from prosecution for crimes they commit. This violates the fundamental constitutional principle that every person should be treated equally before the law.

The safeguards set in place with respect to the commission of crimes are weak. Unlawful conduct is confined to that required for the successful implementation of an operation. This is no real safeguard at all. The greater the perceived importance of the operation, and the greater the risk in effecting it, the greater the latitude for criminal behavior will be.

Criminal and civil immunity may be provided so long as agents’ conduct does not cause the death of, serious injury to, or the commission of a sexual offence against a person. So, causing injury to a person may be permissible as long as it is not serious injury. Where the line between serious injury and injury is to be drawn is anyone’s guess. The limitation is expressed broadly. Consequently, it could mean that a person may still obtain immunity where (s)he engaged in conduct that was likely to result in, death, serious injury or sexual violation, but did not ultimately engender those consequences. That is insupportable.

Given the clear dangers attached to the conduct of special intelligence operations, not only to ASIO officers but also to members of the general public, one would have expected substantial safeguards to be attached to their authorization. Instead authorization is left to the Director-General or Deputy Director-General of ASIO alone. Plainly, they are judges in their own cause. Authorization should reside with real judges. A judicial warrant should be required to authorize a special intelligence operation. The case for authorization should be subject to scrutiny by a judge of a federal court who can assess an ASIO application independently and impartially. As an additional safeguard a Public Interest Monitor should be appointed to adduce relevant evidence and test each case made by ASIO prior to a judicial decision on a warrant being issued.

  1. Information Disclosure and Freedom of the Press

The National Security Amendment Bill (No.1) prohibits the disclosure by any person of information that relates to a special intelligence operation. It is worth citing the provision in full:

35P. Unauthorized disclosure of information
A person commits and offence if:

The person discloses information; and

The information relates to a special intelligence operation.
Penalty: Imprisonment for 5 years.


This provision could slam the door on investigative journalism. Press freedom exists in part to ensure that government agencies can be held to account for their actions. The accountability principle applies to intelligence organizations no less than to any other entity in the machinery of government. S.35P is a concerted attempt to undermine it.

Take the fiasco of ASIS’s covert recording of the deliberations of the Timor-Leste’s Cabinet. The recording was of the Cabinet’s discussion of legal arguments to be put before the International Court of Justice in Timor’s case against Australia concerning the division of proceeds from oil exploration in the Timor Sea. Journalists alerted by Timor-Leste’s Australian lawyer made the existence of the recording public. The AFP raided the lawyer’s office and legal documents related to the case were confiscated. The Court delivered Australia a stern rebuke.

Now under s.35P, if this had been declared a special intelligence operation, the lawyer and journalist who reported upon the ASIS operation could both be subject to prosecution and substantial terms of imprisonment. As a result, no one would have known about the bugging which, in the legal circumstances that prevailed, was scandalous. No questions would have been asked, no answers required. Accountability would have been defenestrated.

Journalists and whistle-blowers often work in tandem to obtain and expose information about governmental corruption and malfeasance. This activity is clearly in the public interest. Journalists cultivate knowledgeable and expert sources all the time. They promise sources that their identity will not be revealed. They receive and evaluate confidential information. They question and determine its veracity and reliability. They balance the merits and demerits of disclosure.

S.35P, however, is likely to chill these crucial investigative activities. Journalists, lawyers and others who come into possession of specialist intelligence information may be prosecuted not only when they intend to disclose that information but also if they are reckless as to the possibility of its disclosure. All the government now needs to do to stop such disclosures is to warn media organizations that matters in which journalists have an interest may relate to special intelligence operations. Because these are secret, the media will be unable to verify that assertion. And no one will be willing to risk imprisonment for publishing related information for fear of being prosecuted for reckless release. Press freedom, and the accountability that it generates, will be damaged severely.

S.35P should be repealed in its entirety.

Part 2 will be posted tomorrow.

Spencer Zifcak is Professor of International Human Rights Law

This article first appeared in Arena, see Terror Laws: Arena, No 133, 12 2014-01 2015.  www.arena.com.au

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