Australia’s new legislative counter terrorism proposals after Haneef inquiry

An Australian judicial inquiry led by former judge John Clarke into the arrest of Mohammed Haneef, wrongly linked to the Glasbow airport bomb plot, has recommended sweeping changes to Australia’s anti-terrorism laws and its police procedures.

In its 310 page report the inquiry found the Australian Federal Police (AFP) had no intelligence to justify the arrest of Dr Haneef who was held for nearly a month without charges, based on his cousin’s alleged participation in a terrorist attack in Scotland; and eventually charged with providing support to a terrorist organization and then released, but whose visa was revoked. The report found “no evidence that [Haneef] was associated with or had foreknowledge of the terrorist events” and also indicated that the Howard government had made mistakes but not engaged in wrongdoing.

On the same day the Australian Government put before the country’s Parliament new proposals to counter terrorism. According to a press release, the proposals are a comprehensive response to recommendations on and reviews of the national security legislation of the former government led by John Howard, made over the last three years, but “[t]he focus of the laws will remain on preventing a terrorist attack from occurring in the first place – not just waiting to punish those who would commit such heinous crimes until after they occur.”

The press release outlines six major aspects of the proposals:

• Improvement of counter-terrorism offenses. The Government seeks to ensure that these “cover psychological as well as physical harm” and “apply clearly to threats of terrorist action.” There will also be recognition that international organizations can be the target of terrorist violence and the creation of a new offense for “terrorist-related hoaxes committed without the use of the post or a telecommunications network.”
  

• Establishment of a National Security Legislation Monitor. This “independent statutory office within the Prime Minister’s portfolio … will report to Parliament” to conduct an annual review of counter-terrorism legislation’s operation in practice. Two particular issues in the counter-terrorism legislation would be referred to the Monitor: the offense of associating with a terrorist organization and strict liability aspects of other terrorist offenses.

• Implementation of Parliamentary Oversight of the Australian Federal Police. The oversight would be conducted by means of a new Parliamentary Joint Committee on Law Enforcement. In addition, the Parliamentary Joint Committee on Intelligence and Security (PJCIS), which oversees security and intelligence agencies, would be enabled to extend its inquiries to include the Australian Federal Police, with the Attorney-General’s consent, in situations “where a security or intelligence issue can only satisfactorily be examined by going beyond the Australian Intelligence Community.”

• Extension of the mandate of the Inspector-General of Intelligence and Security (IGIS). This is designed to enable the IGIS to extend inquiries to cover other agencies, in the same circumstances as set forth for the PJCIS described immediately above.

• Implementation of the Australian Law Reform Commission recommendations on sedition. The recommendations include using the title “urging violence” for this offense instead of “sedition” modernizing the elements of the offense and repealing obsolete and never-used provisions proscribing “unlawful associations” and providing for an offense of “urging violence against a group or individual on the basis of race, religion, nationality, national origin or political opinion.”

• Implementation of all 10 recommendations of the Clarke Inquiry. By accepting and implementing the recommendations, the government seeks “to improve the operation of relevant legislation and promote cooperation and information sharing among government departments and agencies in counterterrorism matters.” (Id.) The measures include a review of how police investigative detention powers for counter-terrorism offenses operate. The Government’s proposals will be included in the above-mentioned discussion paper slated for 2009.

A discussion paper and draft version of the legislation are planned for release during the first half of 2009.

(Excellent overview over Australia’s existing preventive detention laws here. Overview on the laws regulating questioning warrants here.)

In the meantime Australia has signed a memorandum of understanding that provides a framework for the cooperation in the fight against terrorism with Bangladesh, in which a court recently has sentenced three members of an outlawed terrorist Islamic group to death by hanging for a deadly bomb attack on a former British envoy four-and-a-half years ago. It is also discussing with the United Arab Emirates to expand a recently signed defence pact to include counter-terrorism cooperation.

Recently Australia also signed an intelligence sharing agreement with Japan.