Webdiary - Founded and Inspired by Margo Kingston

G'day. Wild times in Parliament, eh? The IR debate is raging in the Senate with amendments to burn being dumped on Senators left right and centre. The Coalition Partyroom supposedly cleared changes to the IR and Terror legislation at a meeting on Wednesday night, yet there was no detail on terror released yesterday. I understand that negotiations continued after the meeting, and there's still a chance of more movement on sedition. Let's hope Brandis and co find the courage of their convictions and consider following the Moylan precedent. They don't have to cross the floor to support Labor's amendments removing sedition from the package and demanding a five year sunset clause. If they abstained they'd honour their principles and get their way. Why did Brandis and co settle for so little when they had the backing of all parties on the Senate Committee? I hear John Howard dug his heels on sedition and a ten year sunset clause - how long does he intend to be around? - and that was that. Oh dear. For the Senate Committee's recommendations see Senate terror report released. Webdiary's latest sedition piece is Sedition laws - subtle silencing. Our Terror Laws Archive is here.
 

ATTORNEY-GENERAL THE Hon Philip Ruddock MP

News Release

1 December 2005 222/2005

Government enhances Anti-Terror Bill The Government has settled on amendments to improve and strengthen the Anti- Terrorism Bill currently before Parliament. Attorney-General Philip Ruddock said the Government intends to move amendments to further enhance the proposals originally announced by the Prime Minister after the COAG meeting in September. 'I have consistently said that the Government will consider suggestions for improvements to the Bill and after consultation with colleagues we will proceed with the measures," Mr Ruddock said. The amendments respond both to recommendations made by the Senate Legal and Constitutional Legislation Committee and also to suggestions raised by other government members. The Government has confirmed it will proceed with the sedition provisions, which will outlaw the urging of force or violence, while removing any doubt about the ability of people to make political comment and criticisms. 'The amendments have been developed in a constructive way to bring forward these reforms," Mr Ruddock said. "The total package which is now before the Parliament, is a testament to the Government's continuing determination to protect the Australian community. "The Prime Minister has sought the agreement of states and territories to those amendments that require their agreement," Mr Ruddock said, "I'd now urge the Opposition to work with the Government to ensure speedy passage and implementation of the Bill."

DETAILS OF AMENDMENTS

Preventative Detention

The Committee made a number of recommendations clarifying the processes applying to preventative detention orders and the rights of persons who are the subject of such orders. The Commonwealth proposes to make a number of amendments to the bill and explanatory memorandum to the bill to respond to those recommendations as follows:

Detainee's right to present information in relation to an order and to receive a summary of the order (see recommendations 2, 5, 7)

Amend the bill to:

• Provide that detainees be advised they can make representations to the nominated senior AFP member concerning revocation of the preventative detention order.
• Provide that the detainee must be informed that they have a right to put material to the AFP in relation to the preventative detention order and that any such material will be put before the issuing authority in the context of an application for a continued preventative detention order.
• Clarify that the AFP must put any such material before the issuing authority in the context of an application for a continued preventative detention order.
• Clarify that a summary of the grounds on which an order is made will be provided to the detainee and that their lawyer can obtain a copy of the order and the summary.
• Clarify that the issuing officer will clear the summary information provided to a detainee about the reasons for detention.

Detention conditions (see recommendations 3, 10, 12)

Amend the bill to:

• Provide that young people between the ages of 16 and 18 years of age must not be detained with adults while in police custody except in exceptional circumstances and that young people must be segregated from adults in State and Territory facilities.
• Require any questioning that took place during the period of preventative detention to be either video-taped or audio-taped wherever practicable.

Amend the explanatory memorandum to provide:

• Guidelines will be developed by the AFP in consultation with the Commonwealth Ombudsman and the Inspector-General of Intelligence and Security to cover the treatment of people in detention including any special considerations applying to the treatment of young people.

Access and Contact (see recommendations 4, 6, 8, 11, 13)

Amend the bill to:

• Clarify that the AFP assist the detainee to choose and contact a lawyer and to have access to an interpreter if one is needed.
• Clarify that a detainee must be advised that he or she can contact family members.
• Elaborate the grounds on which a prohibited contact order may be made.
• Clarify that the offence for disclosing a preventative detention order does not apply where a parent or guardian discloses the order to another parent or guardian whom the detainee has a right to contact, even if the detainee has not contacted the person.
• Allow the police a limited discretion to allow contact with legal representatives on matters addition to those provided for in the bill in circumstances of bona fide emergencies.

Ombudsman's role and parliamentary oversight (see recommendations 9, 16)

Amend the bill to:

• Require the Senior AFP officer to notify the Ombudsman when a preventative detention order and a prohibited contact order is made and provide the Ombudsman with a copy of the order and summary of grounds.
• Specify that the Attorney-General's annual report to Parliament on preventative detention orders must include the number of orders voided or set aside by the AAT

Control Orders

The Committee made a number of recommendations clarifying the processes applying to control orders. The Commonwealth proposes to make a number of amendments to the bill to respond to those recommendations as follows:

Processes for final control orders hearings (see recommendations 20, 22, 23)

• Clarify that the day of the hearing to confirm, vary or revoke the order must be set as soon as is reasonably practicable after the making of the order.
• Clarify that reliance on hearsay evidence in a proceeding for the grant of a continued control order is not permitted.
• Specify that the issuing court will clear the summary information provided about the reasons for the control order.
• Where the AFP elects to confirm a control order, the person in relation to whom the order is made must be served with notification of the decision to confirm the order, a statement of facts, an explanation of why the restrictions should be imposed and any details that may assist the person to understand the basis of the order. The provision would not require the disclosure of any information that is likely to prejudice national security, be protected by public interest immunity, put at risk ongoing law enforcement or intelligence operations or the safety of the community. Similar requirements will apply if the AFP seeks a variation of a control order.

Terrorist Organisations

In relation to the definition of terrorist organisations the government proposes to:

• Amend the definition of 'advocates', in relation to praising the doing of a terrorist act, to require that the praise be made with the intention, or in circumstances where it is likely to have the effect, of creating a substantial risk of a terrorist act occurring. (see recommendation 31)

Stop, Search and Question powers (see recommendations 33, 34, 35, 36)

The committee made a number of recommendations regarding the conduct of stop, search and question powers. The government proposes to amend the explanatory memorandum to the bill to:

• Make it clear that proper protocols and training for officers will be undertaken for the exercise of these powers.
• Refer to the need to provide for protocols to deal with the particular sensitivities of some religious groups in relation to frisk searches, including providing for conduct of officers of the same sex where practicable.
• Refer to the need to keep appropriate records pertaining to the exercise of the new powers.

Sedition (see recommendations 27 - 29)

In relation to the provisions dealing with sedition, the Government proposes to amend the bill to:

• Insert the phrase 'by means of force or violence' after the word 'effect' in the definition of 'seditious intention' to make clear that a seditious intention necessarily involves the intention to use force or violence to achieve a particular outcome
• Remove the phrase 'by any means whatsoever' in the offences of urging a person to assist the enemy and urging a person to assist those engaged in armed hostilities.
• Make clear that recklessness only applies to being reckless as to the consequences of the offence of urging the overthrow of the Constitution or Government, not the behaviour of an individual to ensure consistency with the other sedition offences.
• Insert an additional good faith defence in relation to publishers of material who do so in good faith and in the public interest

In addition, the Attorney-General has agreed that to a detailed review of the sedition offence.

Notice to produce (see recommendations 40 - 42)

In relation to the provisions dealing with notices to produce, the Government proposes to amend the bill to ensure that issuing magistrates ensure that the authorisation is properly focussed.

In addition, the Attorney-General will ensure that guidelines re developed in consultation with the Privacy Commission to govern the collection, use, handling and disposal of personal information acquired under a notice to produce.

ASIO warrants (see recommendations 45 - 47)

In relation to the provisions dealing with ASIO warrant powers, the Government proposes to amend the bill to make clear that a warrant, once obtained, does not give ASIO the right to retain confiscated material indefinitely.

Terrorist financing (see recommendation 50)

In relation to the provisions dealing with terrorist financing (schedule 9 of the Bill), the Government proposes to amend the bill to provide that schedule 9 will commence on a date to be proclaimed but no later than 12 months after Royal Assent.