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CHRONOLOGY The bill was prepared by the Liberal / National Coalition Government in the wake of a series of terrorist attacks overseas, in particular London, with the stated intent of preventing anything similar from happening in Australia. Because of the Division Of Powers in Australia's constitution, the bill needed the support of the states. An outline of the bill was presented to the State Premiers who gave it in principle backing. A confidential draft of the legislation received public scrutiny prior to its reading in Federal Parliament when it was leaked by ACT Chief Minister Jon Stanhope who declared "Law of this significance made in this haste can't be good law".http://www.abc.net.au/news/newsitems/200510/s1483482.htm The publication received a mixed response. Prime Minister John Howard criticised the ACT Chief Minister, saying that "the premiers and the other chief minister did not deserve to be hijacked in relation to their ability to participate in consultation."http://www.abc.net.au/news/newsitems/200510/s1483113.htm Responses in the Labor Party to the publication of the draft were mixed, some criticising the publication, some defending it, with one member stating that he wouldn't have done it himself, but defended Chief Minister Stanhope's right to do so. Almost immediately, the 'shoot to kill' clause was criticised as excessive, as was much of the rest of the bill. The federal bill was to be introduced to parliament, debated, and passed on November 1, 2005, Melbourne Cup race day. Both the Opposition Labor Party and the minor parties had criticised the paucity of time allowed for discussion. The Prime Minister had agreed to postpone and perhaps adjust the bill, so long as it is passed before Christmas 2005. The bill became law on the 6th December with only Green and Australian Democrat senators voting against. CONSTITUTIONAL ISSUES 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'' (1992) 176 CLR 1 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 Constutional 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 has 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. Notwithstanding this, both state and federal preventative detention and federal control orders may still be open to a Constitutional challenge. Queensland Premier has 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, October 27, 2005) According to spokespeople for the Prime Minister, his and the Treasurer's views are compatible, but some media outlets, including the Sydney Morning Herald , have insinuated otherwise. DEFICIENCIES IN THE EXISTING LAW Attorney General Philip Ruddock said that the new laws are neededhttp://www.abc.net.au/insiders/content/2005/s1493765.htm, on advice from the Australian Federal Police that existing laws would not protect Australians from London-style terrorist attacks. http://www.abc.net.au/lateline/content/2005/s1494855.htm SUMMARY OF CHANGES
THE "SHOOT TO KILL" CLAUSE 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. http://news.yahoo.com/s/nm/20051020/wl_nm/security_australia_laws_dc 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 . http://newsunleashed.com/australia-accused-of-rushing-shoot-to-kill-terror-laws.html John Howard has declared that the whole issue is a "misnomer, a Furphy , a diversion," http://www.theage.com.au/text/articles/2005/10/23/1130006003323.html but has suggested that changes to the clause are possible. THE "RECKLESS FUNDING" CLAUSE Section 103.2 makes it an offence to recklessly provide funds to a person who might be a terrorist, or a supporter of terrorists. It is not a defense that the person is not a terrorist or that you had another reason for handing money to this person, if you are reckless about the possibility that they might be a terrorist. The definition of funds includes money and assets of any kind but does not include goods or services. JUDICIAL OVERSIGHT 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."http://www.theaustralian.news.com.au/common/story_page/0,5744,17031762%5E1702,00.html 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." http://www.lawcouncil.asn.au/read/2005/2418069228.html Similar concerns were raised by the Queensland and Western Australian Premiers and NSW Premier Morris Iemma. http://www.theaustralian.news.com.au/common/story_page/0,5744,17031762%5E1702,00.html. SEE ALSO EXTERNAL LINKS The legislation, proposed and current:
Popular Press Response:
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