The proposed changes to anti-terrorism laws fail to find a balance between human rights and protecting citizens.
THE draft laws released this week by the Federal Government are the most important package of changes to Australia's anti-terrorism laws since 2005. In the past, anti-terrorism laws have often been rushed through Parliament without adequate scrutiny of the extent to which they infringe basic human rights or of the discretion given to law enforcement or intelligence agencies.
The most extreme example of this occurred in early November 2005 when the Howard government took the extraordinary step of recalling the Senate from a parliamentary recess to pass crucial amendments to the definition of a terrorist act. These meant that a person could be prosecuted for terrorism offences even if they had not formed an intention to carry out a particular terrorist act.
Commendably, the Government has released both the draft laws and a discussion paper to the public, and invited comment. Many (if not most) of the amendments are unsurprising. Since 2006, several inquiries have been held into various aspects of Australia's counter-terrorism laws - by parliamentary committees, by the Australian Law Reform Commission into the sedition offences, and, most recently, by the Clarke inquiry into the bungled prosecution of Dr Mohamed Haneef.
In December last year, the Government publicly stated that it would, in large part, be adopting the recommendations of these inquiries. It proposes to repeal outdated (and never used) offences; to expand the definition of a terrorist act to include psychological, as well as physical, harm, while also creating a new offence of engaging in a terrorism hoax; and to lessen the effect of the laws on the freedoms of speech and association by clarifying what constitutes ''advocacy'' of terrorism, ''support'' of a terrorist organisation and ''training with'' a terrorist organisation.
Attorney-General Robert McClelland has claimed that these draft laws ''propose a balance''. But this is too simplistic. It is not good enough to consider the laws as a whole. Each change - especially one that strengthens the offences or gives new powers to law enforcement and intelligence agencies - must be rigorously scrutinised on its own merits.
The most concerning proposed change would give the Australian Federal Police the power to conduct warrantless searches.
In NSW, laws were recently passed giving police the power to apply to a judge for a covert search warrant to investigate premises connected with organised crime. Such a warrant enables police to delay notifying the occupier of premises of the search for up to three years. These laws were met with outrage from civil libertarian groups.
The Federal Government's proposal is far more intrusive. As in NSW, there would be no ability for the occupier to object to the search or any evidence collected (as they would not be aware that a search had been conducted). But, further, there would be no judicial supervision of the search.
The Government proposes to leave it entirely to the discretion of the police to decide whether they suspect there is material on the premises relating to a terrorism offence and whether there is a threat to public health or safety.
The police are not infallible. In issuing a warrant, a judge acts as a check on the police - to ensure that there is sufficient evidence to justify the violation of a person's basic right to home and privacy and no police misconduct on the premises. In the regime proposed by the Government, the police could enter a person's home essentially at whim.
Before a change like this is made, it should be demonstrated that the current search warrant regime doesn't work. As recently as last week, raids in Victoria resulted in the arrest and charging of five men with terrorism offences. There was no suggestion that the search warrant regime had caused investigators any problems. Rather, those bodies claimed that an ''imminent'' terrorist attack had been prevented.
Even adopting the Attorney-General's flawed description, in no way could this expansion of police power be said to be ''balanced'' by the other proposed changes. These might be best described as tinkering around the edges of Australia's anti-terrorism laws. There is no attempt to tackle many of the most problematic aspects of those laws. The Government does not propose, for example, to repeal the control order or preventative detention regimes (the latter has never been used). Or to repeal the status offences in the Criminal Code - those offences that target a person's identity as a ''member'' or ''associate'' of a terrorist organisation rather than his or her role in assisting a terrorist act.
One of the most significant changes that the Government does make is to amend the pre-charge detention regime. It was this regime that enabled police to detain Haneef for 12 days in July 2007 - indeed, he could have been detained indefinitely. The Government is taking the positive step of placing a cap on the total time a person can be held in detention without charge. Unfortunately, had the proposed changes been in place, Haneef could have been detained for eight days.
The danger with such powers is that they will be used by police to the extent that they are available, and eight days will become the ordinary period of detention for terrorism suspects. A more appropriate cap would be 48 hours.
On the whole, the Government has made a good start in reforming the anti-terrorism laws. The real danger now, however, is that it will regard this work as finished.
The creation of the office of the National Security Legislation Monitor should be of great assistance in carrying this process of reform forward.
Nicola McGarrity is director of the Terrorism and Law Project at the Gilbert + Tobin Centre of Public Law at the University of NSW.