19 December 2013


The latest - and quietly eloquent - report by the Independent National Security Legislation Monitor [PDF] indicates that
Chapter II describes the not completely straightforward international setting in which Australia is obliged to have legislation to counter terrorism financing. 
Chapter III deals with the important provisions of the Charter of the United Nations Act 1945 (Cth) (“UN Charter Act”), being part only of such legislation. The many detailed recommendations made in it are largely directed to enhancing powers (including offence provisions) so as to produce a better fit of these provisions with the other mainstream CT Laws. 
Chapter IV deals with offences under the Criminal Code Act 1995 (Cth) (“Criminal Code”) concerned with financing etc terrorism, and in particular, the system of listing, designation or proscription of terrorist organisations. The system should be streamlined so as to permit the Attorney-General to act more expeditiously than is presently possible in light of practice under the relevant inter-governmental agreement. The controversial approach of listing only part of an organisation as terrorist should stop: an organisation has the character of being terrorist or it does not. Where there are presently partial listings, consideration should be given to replacing them with listings of the whole of those organisations as terrorist organisations. 
Chapter V questions the design of the Criminal Code offences concerning associating with terrorist organisations. Exceptions based on close family or public religious associations should not be available to remove criminal liability. But the relevant provisions should provide an exception for humanitarian activities under the aegis of respected organisations such as the Red Cross. 
Chapter VI doubts the efficacy of our terrorism financing legislation, not so much by reason of defects in design as because there are no persuasive empirical data. We do not really know whether any terrorist activities anywhere have been constrained by Australia’s rarely applied terrorism financing laws. Chapter VII examines the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (“NSI Act”). On balance, it is a worthwhile contribution to meeting the perennial challenge of reconciling the public interest in the proper administration of justice and the public interest in national security. The improvements recommended, while considered valuable by the INSLM, are not fundamental – except that which recommends its extension to all classes of proceedings in which national security considerations with respect to Australia’s counter-terrorist activities may arise.
The Monitor (Brett Walker SC) refers to "existential questions" about the INSLM. He comments that
the questions that the INSLM is required to address about the CT Laws involve value judgements. The facts of the administration and exercise of the powers and authorities under the CT Laws, that would provoke and inform those judgements, change with time and experience. Fourth, considering the effectiveness and appropriateness of the CT Laws is not best carried out by a solitary person. As I have recorded previously, and again in this Report, officers of the Commonwealth and many scholars and other commentators, as well as my professional colleagues, are essential sources of experience, opinion and testing, in carrying out the INSLM’s statutory functions. That exposure and consideration takes time. 
For these reasons, and in this sense, the three INSLM’s Annual Reports to date are cumulative, intended to be understood together. In that context, given the continued level of terrorist threat, it is appropriate to note the following examples of previous recommendations (all in the INSLM’s Second Annual Report) to enhance the CT Laws with respect to their effectiveness in countering terrorism. Recommendation II/4 was for consideration of authorizing control orders against persons convicted of terrorism, after their release from any imprisonment to which they have been sentenced, if they are shown to have been unsatisfactory with respect to their rehabilitation and continued dangerousness. The intention was to make available a form of protection against the threat posed by such proven offenders, upon their release into the community. The proposal was for a much more simply obtained form of control order than is presently the case, including for such proven offenders. It drew on established analogues with respect to recalcitrant sexual offenders. When the recommendation was made, there were about ten terrorist convicts already released, and about thirteen still imprisoned, of whom about three are quite likely to be released in the next five years. 
Indirect support for such an approach may be seen in the following UK experience. The Court of Appeal of England and Wales has considered notification requirements (imposed for 10 years from the date of release from imprisonment) on convicted terrorists. The Court held the notification requirements to be appropriate and not disproportionate, and upheld them as compliant with the European Convention on Human Rights. The Court held that the scheme is not disproportionate when set against the legitimate aim of the prevention of terrorism and considering “the relatively moderate intrusion caused by the interference with the private lives of convicted terrorists”. The Court held that terrorism offences fall into a special category and that “even if it is the case that there may be exceptional cases [where a terrorist offender can be said to pose] “no significant future risk”, their possible existence does not preclude a general requirement of relatively moderate interference in a context such as this”. 
The Court held it was “important to keep in mind the gravity of the disorder or crime which is being sought to be prevented” finding that terrorism offences have unique features which compound concern (acts committed by someone motivated by extreme political or religious fanaticism) and if anything calls for a precautionary approach it is counter-terrorism. The INSLM’s recommendation was made on 20th December 2012. Nothing has come to the attention of the INSLM about any governmental or official response to it.
Recommendation IV/1 was to lower the requirement for the issue of ASIO questioning warrants, so as to eliminate the excessive last resort test and replace it with the satisfaction of the Attorney-General and the issuing authority that the issue was reasonable in all the circumstances. 
Again, the INSLM has heard nothing about a governmental or official response to this suggestion. It may be that no opportunity to obtain intelligence has been lost by the last resort test remaining the law, but that would hardly justify leaving the position as it is, given the unpredictable urgency with which such occasions are apt to arise. 
Recommendation VI/3 was for the exclusion from the definition of “terrorist act” of conduct governed by international humanitarian law concerning armed conflict. In effect, it would ensure the plain impossibility of terrorism being alleged against soldiers, including Australian soldiers. (Such persons being, of course, subject to the relevant laws of war including Australia’s own legislation with respect to war crimes and crimes against humanity.) 
A similar view has been expressed by the INSLM’s counterpart in the UK, Mr David Anderson QC, who is the statutory Independent Reviewer of Terrorism Legislation. In turn, the UK Independent Reviewer’s concerns and suggestions to this effect were expressly noted in the unanimous reasons of the UK Supreme Court in R v Gul [2013] UKSC 64 at [61], [62]. Their Lordships expressly noted the UK Independent Reviewer’s mention of the INSLM’s recommendation. The suggestion conveyed by it was one of those that their Lordships regarded as meriting “serious consideration”. 
Again, there is no governmental or other official response to this recommendation known to the INSLM. 
It should be said that the three recommendations noted above are not unique in the lack of response – there has been no apparent response to any of the twenty-one recommendations made on 20th December 2012 by the INSLM (nor indeed to any of the forty-seven recommendations made by the COAG Review of Counter-Terrorism Legislation delivered on 1st March 2013). 
The functions of the INSLM go no further than review, report and recommendation. The INSLM Act was enacted explicitly in recognition of the grave threat of terrorism and the significance of widespread concerns that the best balance be struck by Australia’s legislation to counter terrorism. When there is no apparent response to recommendations that would increase powers and authority to counter terrorism, some scepticism may start to take root about the political imperative to have the most effective and appropriate counter-terrorism laws. That would be, in the opinion of the INSLM, a regrettable atmosphere in which future and continued assessment and improvement of Australia’s CT Laws are undertaken.
He goes on to note that
The regrettable history of international non-achievement in relation to the definition of terrorism for the purposes of important international obligations has been touched on in earlier Reports. It produces something of an anomaly when considering the ensemble of Australia’s legislative responses to its international counter-terrorism obligations. In particular, the fact and nature of the differences between the definition of terrorism for the purposes of the Criminal Code and the definition of terrorism found in the Terrorism Financing Convention are difficult to justify. 
On the one hand, the Criminal Code definition, by means of the statutory term “terrorist act” and its detailed elements, broadens the concept by comprehending dangers beyond immediate threats to life and limb, and narrows the concept by requiring motive as well as purpose. On the other hand, the Terrorism Financing Convention, as discussed in Chapter II, includes one of the rare international agreements to define terrorism, focussing on threats to life and limb but content with intimidatory political purpose without requiring ideological motive. 
However, the listing system under sec 15 of the UN Charter Act does not rely explicitly on the Terrorism Financing Convention, and so the lack of a definition of terrorism in the UN Charter Act itself is unlikely to be easily supplied by judicial borrowing from the Terrorism Financing Convention. Rather, the approach, as noted above, looks to 1373 and the like. Unfortunately, 1373 notoriously lacks any definition of terrorism. 
A major reason for the Criminal Code to have defined terrorism was the lack of a definition in 1373. In principle, even if there had been a definition of terrorism in 1373, as a matter of international practice and explicit expectation in 1373 itself, Australia would in any event stipulate a definition for the purposes, and in the style, of Australia’s municipal criminal laws. As it was done, it has the defect of including motive, leading to the INSLM’s Recommendation VI/1 in the Second Annual Report. 
Does the definition of terrorism in and for the purposes of the Criminal Code also provide the definition for the UN Charter Act? Are they cognate statutes so as to share the meaning and central concepts? (Both the Criminal Code definition and Part 4 of the UN Charter Act, lacking its own definition, were enacted in 2002 by the Suppression of the Financing of Terrorism Act 2002 (Cth)). One technical difficulty in the way of that solution is the apparently designed absence of the Criminal Code definition from the UN Charter Act provisions. One strong indication in favour of that solution is the common route in 1373. 
These fundamental questions should not be left in this much doubt. As neither 1373 or the UN Charter Act define “terrorist act” it is unclear what definition of terrorism is to be applied in determining which individuals or entities must be proscribed, and which assets may be proscribed, under sec 15 of the UN Charter Act. While Art 2(b) of the Terrorism Financing Convention contains a definition of “terrorist act”, the Australian legislature made the decision to implement the Convention by applying the definition of “terrorist act” under sec 100.1 to the terrorism financing offences in the Criminal Code. 
The definition of “terrorist act” forms the basis of the definition of “terrorist organisation” under the Criminal Code - an organisation “directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act” or where the organisation is proscribed by regulation, an organisation meeting that definition or who “advocates the doing of a terrorist act”.There is no policy reason for different definitions of “terrorist act” to apply to the proscription régimes under the UN Charter Act and the Criminal Code. The merits of carving out conduct covered by the law of war from the definition of terrorism were canvassed in the INSLM’s Second Annual Report. It was recommended that there be an exclusion of such conduct. It is to be noted that, as well as the Canadian precedent discussed in the INSLM’s Second Annual Report in this regard, the terms of the Terrorism Financing Convention (discussed in Chapter II) efficiently accomplishes the same carve out. 
Another defect in the Criminal Code definition of terrorism is its failure explicitly to include hostage taking, notwithstanding the strong international and operational reasons for doing so, noted in the INSLM’s Second Annual Report. 
The virtue of consistency in the definition of terrorism for the purposes of all of Australia’s legislative responses to the evil of financing terrorism is self evident. It is not, however, so great as to mandate resort to a defective definition, consistently. But the unsatisfactory and unjustified difference between the position under the UN Charter Act and the position under the Criminal Code should not continue. It bespeaks a badly crafted legislative exercise. It would be better if the central definition was improved, and then made uniform in all contexts to which it should apply. 
It bears emphasis by repetition that improvements to the definition of terrorism in the Criminal Code recommended in the INSLM’s Second Annual Report are straight forward. They can be summarized as follows. The removal of motivation as opposed to purpose would ease the burden of prosecutors and reduce if not eliminate invidious evidence and argument. The inclusion of hostage taking would reflect the weight of international opinion and practice, and meet the vicious conduct of current terrorists. The carved out for armed conflict covered by International Humanitarian Law would usefully advance the coherent and principled placement of counter-terrorist legislation in the context of international control and disapproval of certain forms of violence. 
Nor has there been any official presentation of a view hostage taking should not be regarded as potentially terrorist. Meanwhile hostages continue to be taken by terrorists internationally, such as the Libyan Prime Minister in October 2013. 
In short, last year’s recommendations were designed to sharpen the legislative response by Australia to terrorism. They were the opposite of slackening the national resistance to terrorism. The entire lack of any response to them officially, in the context of the publication of them being officially delayed until the very last moment, raises existential questions about the rôle of the INSLM. 
Be that as it may, the position produced by official inaction involves a dual but conflicted recommendation for consistency, of a better definition of terrorism than presently exists.