Adam
10-14-02, 06:20 AM
I just found some of the stuff on this (http://www.aph.gov.au/library/pubs/rp/2001-02/02rp12.htm) page interesting, and thought some of you might also like to read it.
Terrorism
The expression 'terrorism' appears in a very limited number of Commonwealth statutes. For example, it is included in the text of incorporated international instruments.(16) It is also used in the context of crisis planning agreements between defence authorities and carriers or carriage service providers under the Telecommunications Act 1997 and in the context of a ministerial power to declare a state of emergency in relation to safety of life, vessels or installations under the Petroleum (Submerged Lands) Act 1967.(17) In addition, it appears in the Crimes Regulations 1990 to define a 'serious Commonwealth offence' for the purposes of controlled operations under the Crimes Act 1914 and the Air Navigation Regulations 1947 to define qualification requirements for security force personnel.(18)
In State and Territory legislation, 'terrorism' is also seldom used. It appears in the context of a defence against prosecution and recovery of costs arising from maritime pollution, and emergency use of surveillance devices.(19) But it forms a specific division of 'offences against public order' under the Criminal Code in the Northern Territory which was modelled on the Prevention of Terrorism (Temporary Provisions) Act 1974-76 (UK).
Politically Motivated Violence
Significantly, 'terrorism' once appeared in the Australian Security Intelligence Organisation Act 1979. It was included in a list of matters incorporated by the definition of 'security' (see below). It was defined to mean 'acts of violence for the purpose of achieving a political objective in Australia or in a foreign country'; 'training, planning, preparations or other activities for the purposes of [such acts or] violent subversion in a foreign country' and offences related to internationally protected persons or aviation.(20)
In 1986, following the Second Hope Royal Commission,(21) 'terrorism' was deleted from the legislation, and merged with 'subversion', to form a wider expression 'politically motivated violence'. The definition was not intended to exclude any matters originally covered. It would cover 'terrorism and related activities of the kind covered by the present definition' including 'threats of or acts causing unlawful harm to achieve a political end'.(22) Thus, 'politically motivated violence' is defined to mean acts that include or may include acts or threats of violence or harm for the purpose of influencing domestic or foreign governments or overthrowing or destroying a domestic government or constitutional system. It also includes offences related to foreign incursions, hostages, ships and fixed platforms and aviation and offences related to internationally protected persons.(23)
Following the Honan and Thompson review in 1993,(24) the broader expression was incorporated into the National Anti Terrorist Plan (NATP) alongside the older, narrower expression 'in recognition that many of the preventative measures applicable to countering terrorism are also appropriate against other forms of politically motivated violence'.(25) So, 'terrorism' is defined in the NATP as 'an extreme form of politically motivated violence'.(26)
Treason, Treachery and Foreign Incursions
Allied to 'politically motivated violence' are offences such as 'treason', 'treachery' and 'foreign incursions'. 'Treason' covers levying war against the Commonwealth, assisting an identified enemy at war with the Commonwealth or instigating a foreigner to invade the Commonwealth. 'Treachery' covers attempts to overthrow the Constitution, attempts by force or violence to overthrow an established government in Australia or abroad, and acts of treason directed against certain proclaimed countries. 'Foreign incursions' covers attempts to overthrow a government by force or violence, armed hostilities in a foreign state, acts which place a foreign public in fear or damage foreign public property. All of these offences are covered in discrete criminal laws which are dealt with in Section 1.5.7.
National Security
While 'terrorism' is rarely used in federal statutes, 'national security' is fairly common.
The expression is used in a wider variety of statutory contexts. It is used to describe the purposes for which assistance must be provided by telecommunications carriers or carriage service providers; limits on functions of intelligence agencies; limits on access by the Inspector General of Intelligence and Security to documents; control over various space activities; a range of exempt documents for the purposes of freedom of information legislation; limits on disclosure of information in economic and fiscal reports, annual reports of selected agencies, and suppression orders relating to pre-trial proceedings; circumstances empowering a call out of the Reserves; definition of 'serious Commonwealth offences'; conditions for refusal or cancellation of visas; exceptions to the application of environment protection laws and measures to the Commonwealth; exemptions from various copyright restrictions; and other matters.
However, while the expression 'national security' may be often used, it is seldom defined. The Australian Security Intelligence Organisation Act 1979 defines 'security' as 'the protection of, and of the people of, the Commonwealth and the several States and Territories from espionage, sabotage, politically motivated violence, promotion of communal violence, attacks on Australia's defence system, or acts of foreign interference whether directed from, or committed within, Australia or not'. It includes 'the carrying out of Australia's responsibilities to any foreign country' in these matters.(27) This definition is incorporated, where relevant, into the Intelligence Services Act 2001 which defines and regulates the activities of Australia's foreign intelligence agencies.(28)
Equally, while the courts have often been called upon to consider the impact of national security on the exercise of legislative, executive and judicial power, they have seldom sought to define the concept. From what little has been said it seems clear that 'national security' is not limited to external threats but encompasses internal threats as well. It also 'looks to matters affecting the country in general rather than individual persons'.(29)
Academically, at least, 'national security' would seem to have a double meaning. In a narrow sense it is generally used to mean intelligence and related law enforcement activity. In a wider sense it is 'capable of referring to political, social, economic, financial or military security'.(30) Thus, it may encompass 'all that is associated with the preservation of vital national interests' including 'important policy aspects of defence, foreign relations, trade, science and technology, and relevant aspects of general economic policy'.(31) In this context, the references to 'national security' above probably relate to physical security.
The Australian Intelligence Community
The Australian Intelligence Community comprises: the Australian Security Intelligence Organisation (ASIO), Australian Secret Intelligence Service (ASIS), Defence Signals Directorate (DSD), Office of National Assessments (ONA), Defence Intelligence Organisation (DIO), and the Defence Imagery and Geospatial Organisation (DIGO).
Broadly, ASIO, ASIS and DSD collect intelligence which is analysed by ONA, DIO and DIGO. ASIS collects intelligence outside Australia whereas ASIO collects intelligence inside Australia. ASIS collects human intelligence while DSD collects signals or communications intelligence. While ASIS collects and analyses intelligence, ASIO may also advise government(s) regarding security threats and take action to address those threats. DSD also advises government(s) regarding security of electronic information. ONA exists under the auspices of the Department of the Prime Minister and Cabinet, ASIO under the Attorney-General's Portfolio, ASIS under the Department of Foreign Affairs and Trade Portfolio whereas DSD, DIO and DIGO come under the control of the Department of Defence (DoD). Generally, the activities of these agencies are subject to scrutiny by the Inspector-General of Intelligence and Security (IGIS).
Until recently, the Australian Intelligence Community was largely ignored by statute. Thus, for seven years after its foundation in 1949, ASIO existed as a purely executive organisation until it was placed on a statutory footing in 1956.(40) Similarly, for nearly fifty years after it was established in 1952, ASIS existed pursuant to an executive order until it was given statutory clothing by the Intelligence Services Act 2001.(41)
Proceeds of Crime
Under the Proceeds of Crime Act 1987 authorities have the power to confiscate assets or money used in, or acquired as a result of, serious offences against Commonwealth or Territory laws. Assets may be frozen to prevent them being dissipated or removed from the jurisdiction. Authorities also have extra powers of search and seizure to trace and identify the proceeds, benefits or property of crime. Property that remains confiscated or restrained six months after conviction is forfeited automatically to the Commonwealth.
Asset Freezing and Transaction Blocking
One of the first responses in the United States to the September 11 attacks was to freeze the assets of organisations associated with Al-Qa'ida. On September 23 President Bush issued the Terrorist Financing Executive Order 13224 which imposed financial sanctions on a list of proscribed organisations. The President described these measures as 'a major thrust of our war on terrorism'(65) and as 'the first strike in the war against terror'.(66) On November 7 the President announced that the United States had blocked assets of a further 62 organisations and individuals under the authority of Executive Order 13224. Executive Order 13224 was issued pursuant to various statutory authorities dealing with national security and foreign relations,(67) particularly in light of United Nations Security Council Resolutions (see Supporting Materials, 'Document 4: Terrorism and the United Nations').
While there is no Commonwealth Act expressly permitting asset-freezing or transaction-blocking in respect of terrorism and terrorist activities, the Commonwealth has also been able to take measures to implement various international resolutions. As indicated above, the Government has made regulations designed to implement aspects of the United Nations Security Council Resolutions 1267 and 1333 under the Charter of the United Nations (Anti-Terrorism Measures) Regulations 2001. Under the Charter of the United Nations Act 1945 the Government has power to give effect to resolutions of the United Nations in domestic law. The Governor-General may make regulations giving effect to binding decisions that the Security Council has made under Chapter VII of the Charter of the United Nations in so far as those decisions require Australia to apply measures not involving the use of armed force (s. 6).
The Charter of the United Nations (Anti-terrorism Measures) Regulations 2001 allow the Minister (currently the Foreign Minister) to 'proscribe' a person or entity involved in terrorist acts. The Minister may also list assets or classes of assets that are owned or controlled by such persons. The regulations provide that a legal person (for example a bank) who holds assets that are owned or controlled by a proscribed person or entity must not use or deal with or allow an asset to be used or dealt with. A fine of up to $5500 applies for a breach. It is also an offence if a person makes an asset available to a proscribed person and is reckless to whether or not the person or entity is proscribed. The provision requires institutions such as banks to thoroughly examine their accounts to ensure that they do not hold assets belonging to a proscribed person. Use or dealings can be authorised to allow humanitarian activities to take place.
The Charter of the United Nations (Sanctions-Afghanistan) Regulations 2001 prohibit a person in Australia or a citizen of Australia from doing anything that assists, or results in:
- arms or related materiel being sold, supplied or transferred to Taliban territory; or
- technical advice, training and other assistance in relation to the military activities of the armed personnel of the Taliban being sold, supplied or transferred to the Taliban;
- acetic anhydride, a chemical used in the cultivation of opium poppy, being sold, supplied or transferred to a person in Taliban territory, or to a person for the purpose of an activity carried on in, or operated from, Taliban territory.
The regulations also prohibit the use of Australian aircraft or ships in relation to points 1 or 2 above and prohibit a person in Australia, or a citizen of Australia, from dealing with financial assets of the Taliban or Osama bin Laden, or individuals associated with them. A fine of up to $5500 applies for a breach of the regulations.
Listening Devices
Three Commonwealth laws govern the issuing and use of listening device warrants. They are the Customs Act 1901, the Australian Federal Police Act 1979 and the Australian Security and Intelligence Organisation Act 1979. Under the Customs Act, listening device warrants can be obtained for the investigation of narcotics offences. Under the Australian Federal Police Act, listening device warrants can be obtained for the investigation of non-narcotics offences categorised as either class 1 general offences or class 2 general offences. Class 1 offences include murder and kidnapping. Class 2 offences include offences carrying a penalty of 7 years or more imprisonment which involve a risk of loss of life, serious personal injury or serious damage to property and drug trafficking.
Under the Australian Federal Police Act 1979, a judge or, following amendments to the Act in 1997, certain nominated members of the Administrative Appeals Tribunal may issue listening device warrants.(78) They may relate to a particular person, particular premises, or, following amendments in 2001, a particular item.(79) Under the Australian Security and Intelligence Organisation Act 1979 the Minister may issue listening device warrants.(80) The Act provides expressly for warrants in relation to a particular person or a particular premises, but is silent as to whether devices can be used for particular items. It is possible that such warrants could not be issued by the Minister under the Act.(81)
Tracking Devices
The Australian Security and Intelligence Organisation Act 1979 provides for warrants which allow ASIO to use devices to track persons or objects where the Attorney-General is satisfied there is a reasonable suspicion of activities prejudicial to security and a likelihood that the device will assist ASIO in gathering intelligence.(82)
Computer Access
The Australian Security and Intelligence Organisation Act 1979 provides for search warrants which allow ASIO to use computers to access data relevant to security, to print copies to take away from the premises, to make electronic copies and to alter, add to or delete data. It also provides for 'computer access warrants' which permit the use of electronic means to access data relevant to security which is stored in a target computer.(83) This includes the ability to add, delete or alter data in the target computer, copy data, do anything necessary to conceal activities under the warrant and do anything else reasonably incidental. A note in the legislation makes clear that acting under a warrant will exempt an ASIO operative from criminal liability which would otherwise apply.
Controlled Operations
It is often thought that convictions cannot be obtained by 'entrapment'. In Ridgeway v. Queen the High Court clarified this misconception, rejecting the suggestion that there was a substantive defence of 'entrapment' in the common law,(84) but confirming that evidence obtained by criminal inducement could be ruled inadmissible as a matter of public policy.(85) As a result most jurisdictions passed statutory 'controlled operations' regimes.(86)
Under the Crimes Act 1914 law enforcement officers are protected from civil and criminal liability arising from conduct undertaken in a 'controlled operation' for the prosecution of a 'serious Commonwealth offence'. To be protected, the officer must act in accordance with a controlled operations certificate and must not intentionally induce a person to commit an offence that they would not otherwise have intended to commit. An authorised officer may issue a 'controlled operation' certificate if he or she is satisfied, among other things, that the controlled operation is justified and there are limits or controls on the extent of unlawful activity, possession of illicit goods or harm to others.(87) Controlled operations are subject to some ministerial and parliamentary scrutiny.(88)
'Serious Commonwealth offences' include crimes subject to 3 or more years imprisonment that involve money laundering, armament dealings, espionage, sabotage, threats to national security, misuse of computer or electronic communications and importation of prohibited imports or exportation of prohibited exports. They also include offences subject to 3 or more years imprisonment that involve 'violence' or 'terrorism'.(89)
Assumed Identities
The Measures to Combat Serious and Organised Crime Act 2001 enables intelligence officers and law enforcement officers(90) to use a statutory regime for assumed (false) identities. The Minister's Second Reading Speech explained the assumed identities provisions in the following way: 'Assumed identities are false identities adopted to facilitate intelligence and investigative functions, or infiltration of a criminal, hostile or insure environment with a view to collecting information and investigating offences'.(91)
Terrorism
As indicated, there is no Commonwealth offence of 'terrorism', but it is worth considering the law in the Northern Territory. Under the Criminal Code (NT) it is an offence to commit a terrorist act, which is liable to imprisonment for life. A terrorist act involves 'the use or threatened use of violence to procure or attempt to procure the alteration, cessation or doing of any matter or thing established by a law of ... a legally constituted government or other political body'. It is an offence to obtain or procure goods or services for the purposes of a terrorist act and a court may order that such property be forfeited. It is also an offence to knowingly belong to, be involved in, or assist, support an unlawful organisation. It is even an offence to address a meeting of an unlawful organisation. An 'unlawful organisation' is one that, in the opinion of the court, 'uses, threatens to use or advocates the use of unlawful violence in the Territory to achieve its ends'.(94)
According to the Northern Territory Government the provisions were enacted in response to various domestic and international concerns: 'Darwin was only 320 kilometres from Indonesia; there had been considerable terrorist action around the world by Moluccan guerillas; and there had been an aeroplane hijacking incident in Alice Springs in 1972'.(95) According to its drafters, the terrorism provisions were drafted so as to take into account 'the Territory's isolation and its geographical position as a gateway to Australia'.(96) While it is difficult to measure the significance of these arguments or incidents in retrospect,(97) it seems clear that any of these concerns could have been dealt with under Commonwealth law. Some two years later, in correspondence with the Prime Minister, the Chief Minister suggested 'there are acts that are not and cannot be the subject of Commonwealth law', citing a hypothetical example 'where a person threatened to set off explosions in public places unless a demand-such as the release of a prisoner-was complied with'.(98) At the time the Northern Territory Opposition Leader, acknowledging that the Commonwealth might have 'constitutional limitations', recommended that it assume jurisdiction through a referral of powers by the States under section 51(xxxiii) of the Constitution.(99)
Treason, Treachery, Sabotage and Sedition.
The Crimes Act 1914 deals with a number of offences against the government including treason, treachery, sabotage and sedition. These offences were largely codified from the common law in a wholesale reform of the Crimes Act 1914 by the Crimes Act 1960. The reform implicitly acknowledged the threat of 'non-conventional' or 'asymmetric' warfare and the need to address external threats to the Constitution, government or defence of Australia and internal threats to the government or defence of foreign countries. 'Treason' covers levying war against the Commonwealth, assisting an identified enemy at war with the Commonwealth or instigating a foreigner to invade the Commonwealth. 'Treachery' includes any act done with the intent to overthrow the Constitution by revolution or sabotage. It includes 'the overthrow by force or violence of the established government of the Commonwealth, of a State or of a proclaimed country' and acts of treason committed within the Commonwealth directed against a proclaimed country. (These are similar acts to those covered in 'politically motivated violence' and unlawful associations provisions.) 'Sabotage' includes destroying or damaging weapons or articles used by the ADF with the intention of prejudicing the safety or defence of the Commonwealth (s. 24AB).
The Crimes Act 1914 also contains offences of unlawful drilling, espionage, official secrets, being in a prohibited place, harbouring spies, and taking unlawful soundings.(100) Before Parliament was dissolved for the 2001 General Election, the Government introduced a Criminal Code Amendment (Espionage and Related Offences) Bill 2001 which would have reformed the law relating to espionage and similar activities, introduced some increased penalties and repealed some existing offences (eg harbouring spies and unlawful drilling). The Minister's Second Reading Speech stated that the Government sought 'to ensure that the offences in the Bill establish an effective legal framework that both deters, and punishes, people who intend to betray Australia's security interests':
As part of our review we have considered such things as technological advances in information management and communication as well as international standards and experience. As a result, the proposed offences are consistent with equivalent provisions in the United States, the United Kingdom, New Zealand and Canada.(101)
The Bill lapsed when Parliament was dissolved.
Foreign Incursions
The Crimes (Foreign Incursions and Recruitment) Act 1978 makes it an offence to recruit people, or to train and organise in Australia, for armed incursions or operations on foreign soil. It is an offence to 'engage in hostile activity in a foreign state' or to 'enter a foreign state with intent to [do so]'. It is also an offence to do preparatory things for the same purposes. And it is an offence to 'give money or goods to, or perform services for, any other person or any body or association of persons for the purpose of supporting or promoting [these activities]'. 'Hostile activities' include any acts done for the purpose of overthrowing a government by force or violence, engaging in armed hostilities in a foreign state, placing a foreign public in fear and causing damage to foreign public property. They exclude activities undertaken in the service of a foreign power's armed forces.(102)
In essence this corresponds to the offence of treason committed against a foreign power.
The offender must be an Australian citizen, ordinarily resident in Australia or resident in Australia for at least a year for purposes connected to these acts. Proceedings may not commence unless the Attorney-General has given his or her consent. Pending this consent, a person may lawfully be arrested, charged or remanded in custody or on bail.(103)
Other Offences
Aside from these specific offences there are a wide range of other general offences which may apply to a particular terrorist incident. These include offences relating to (federal) property, computers, postal and telecommunications services, hostage taking, heads of state and other internationally protected persons, aviation, shipping, biological, chemical and nuclear weapons and weapons of mass destruction.
Well, those are some of the bits I found interesting. Please feel free to read further, if you want to know our government's legal situation regarding terrorism and foreign nations.
Terrorism
The expression 'terrorism' appears in a very limited number of Commonwealth statutes. For example, it is included in the text of incorporated international instruments.(16) It is also used in the context of crisis planning agreements between defence authorities and carriers or carriage service providers under the Telecommunications Act 1997 and in the context of a ministerial power to declare a state of emergency in relation to safety of life, vessels or installations under the Petroleum (Submerged Lands) Act 1967.(17) In addition, it appears in the Crimes Regulations 1990 to define a 'serious Commonwealth offence' for the purposes of controlled operations under the Crimes Act 1914 and the Air Navigation Regulations 1947 to define qualification requirements for security force personnel.(18)
In State and Territory legislation, 'terrorism' is also seldom used. It appears in the context of a defence against prosecution and recovery of costs arising from maritime pollution, and emergency use of surveillance devices.(19) But it forms a specific division of 'offences against public order' under the Criminal Code in the Northern Territory which was modelled on the Prevention of Terrorism (Temporary Provisions) Act 1974-76 (UK).
Politically Motivated Violence
Significantly, 'terrorism' once appeared in the Australian Security Intelligence Organisation Act 1979. It was included in a list of matters incorporated by the definition of 'security' (see below). It was defined to mean 'acts of violence for the purpose of achieving a political objective in Australia or in a foreign country'; 'training, planning, preparations or other activities for the purposes of [such acts or] violent subversion in a foreign country' and offences related to internationally protected persons or aviation.(20)
In 1986, following the Second Hope Royal Commission,(21) 'terrorism' was deleted from the legislation, and merged with 'subversion', to form a wider expression 'politically motivated violence'. The definition was not intended to exclude any matters originally covered. It would cover 'terrorism and related activities of the kind covered by the present definition' including 'threats of or acts causing unlawful harm to achieve a political end'.(22) Thus, 'politically motivated violence' is defined to mean acts that include or may include acts or threats of violence or harm for the purpose of influencing domestic or foreign governments or overthrowing or destroying a domestic government or constitutional system. It also includes offences related to foreign incursions, hostages, ships and fixed platforms and aviation and offences related to internationally protected persons.(23)
Following the Honan and Thompson review in 1993,(24) the broader expression was incorporated into the National Anti Terrorist Plan (NATP) alongside the older, narrower expression 'in recognition that many of the preventative measures applicable to countering terrorism are also appropriate against other forms of politically motivated violence'.(25) So, 'terrorism' is defined in the NATP as 'an extreme form of politically motivated violence'.(26)
Treason, Treachery and Foreign Incursions
Allied to 'politically motivated violence' are offences such as 'treason', 'treachery' and 'foreign incursions'. 'Treason' covers levying war against the Commonwealth, assisting an identified enemy at war with the Commonwealth or instigating a foreigner to invade the Commonwealth. 'Treachery' covers attempts to overthrow the Constitution, attempts by force or violence to overthrow an established government in Australia or abroad, and acts of treason directed against certain proclaimed countries. 'Foreign incursions' covers attempts to overthrow a government by force or violence, armed hostilities in a foreign state, acts which place a foreign public in fear or damage foreign public property. All of these offences are covered in discrete criminal laws which are dealt with in Section 1.5.7.
National Security
While 'terrorism' is rarely used in federal statutes, 'national security' is fairly common.
The expression is used in a wider variety of statutory contexts. It is used to describe the purposes for which assistance must be provided by telecommunications carriers or carriage service providers; limits on functions of intelligence agencies; limits on access by the Inspector General of Intelligence and Security to documents; control over various space activities; a range of exempt documents for the purposes of freedom of information legislation; limits on disclosure of information in economic and fiscal reports, annual reports of selected agencies, and suppression orders relating to pre-trial proceedings; circumstances empowering a call out of the Reserves; definition of 'serious Commonwealth offences'; conditions for refusal or cancellation of visas; exceptions to the application of environment protection laws and measures to the Commonwealth; exemptions from various copyright restrictions; and other matters.
However, while the expression 'national security' may be often used, it is seldom defined. The Australian Security Intelligence Organisation Act 1979 defines 'security' as 'the protection of, and of the people of, the Commonwealth and the several States and Territories from espionage, sabotage, politically motivated violence, promotion of communal violence, attacks on Australia's defence system, or acts of foreign interference whether directed from, or committed within, Australia or not'. It includes 'the carrying out of Australia's responsibilities to any foreign country' in these matters.(27) This definition is incorporated, where relevant, into the Intelligence Services Act 2001 which defines and regulates the activities of Australia's foreign intelligence agencies.(28)
Equally, while the courts have often been called upon to consider the impact of national security on the exercise of legislative, executive and judicial power, they have seldom sought to define the concept. From what little has been said it seems clear that 'national security' is not limited to external threats but encompasses internal threats as well. It also 'looks to matters affecting the country in general rather than individual persons'.(29)
Academically, at least, 'national security' would seem to have a double meaning. In a narrow sense it is generally used to mean intelligence and related law enforcement activity. In a wider sense it is 'capable of referring to political, social, economic, financial or military security'.(30) Thus, it may encompass 'all that is associated with the preservation of vital national interests' including 'important policy aspects of defence, foreign relations, trade, science and technology, and relevant aspects of general economic policy'.(31) In this context, the references to 'national security' above probably relate to physical security.
The Australian Intelligence Community
The Australian Intelligence Community comprises: the Australian Security Intelligence Organisation (ASIO), Australian Secret Intelligence Service (ASIS), Defence Signals Directorate (DSD), Office of National Assessments (ONA), Defence Intelligence Organisation (DIO), and the Defence Imagery and Geospatial Organisation (DIGO).
Broadly, ASIO, ASIS and DSD collect intelligence which is analysed by ONA, DIO and DIGO. ASIS collects intelligence outside Australia whereas ASIO collects intelligence inside Australia. ASIS collects human intelligence while DSD collects signals or communications intelligence. While ASIS collects and analyses intelligence, ASIO may also advise government(s) regarding security threats and take action to address those threats. DSD also advises government(s) regarding security of electronic information. ONA exists under the auspices of the Department of the Prime Minister and Cabinet, ASIO under the Attorney-General's Portfolio, ASIS under the Department of Foreign Affairs and Trade Portfolio whereas DSD, DIO and DIGO come under the control of the Department of Defence (DoD). Generally, the activities of these agencies are subject to scrutiny by the Inspector-General of Intelligence and Security (IGIS).
Until recently, the Australian Intelligence Community was largely ignored by statute. Thus, for seven years after its foundation in 1949, ASIO existed as a purely executive organisation until it was placed on a statutory footing in 1956.(40) Similarly, for nearly fifty years after it was established in 1952, ASIS existed pursuant to an executive order until it was given statutory clothing by the Intelligence Services Act 2001.(41)
Proceeds of Crime
Under the Proceeds of Crime Act 1987 authorities have the power to confiscate assets or money used in, or acquired as a result of, serious offences against Commonwealth or Territory laws. Assets may be frozen to prevent them being dissipated or removed from the jurisdiction. Authorities also have extra powers of search and seizure to trace and identify the proceeds, benefits or property of crime. Property that remains confiscated or restrained six months after conviction is forfeited automatically to the Commonwealth.
Asset Freezing and Transaction Blocking
One of the first responses in the United States to the September 11 attacks was to freeze the assets of organisations associated with Al-Qa'ida. On September 23 President Bush issued the Terrorist Financing Executive Order 13224 which imposed financial sanctions on a list of proscribed organisations. The President described these measures as 'a major thrust of our war on terrorism'(65) and as 'the first strike in the war against terror'.(66) On November 7 the President announced that the United States had blocked assets of a further 62 organisations and individuals under the authority of Executive Order 13224. Executive Order 13224 was issued pursuant to various statutory authorities dealing with national security and foreign relations,(67) particularly in light of United Nations Security Council Resolutions (see Supporting Materials, 'Document 4: Terrorism and the United Nations').
While there is no Commonwealth Act expressly permitting asset-freezing or transaction-blocking in respect of terrorism and terrorist activities, the Commonwealth has also been able to take measures to implement various international resolutions. As indicated above, the Government has made regulations designed to implement aspects of the United Nations Security Council Resolutions 1267 and 1333 under the Charter of the United Nations (Anti-Terrorism Measures) Regulations 2001. Under the Charter of the United Nations Act 1945 the Government has power to give effect to resolutions of the United Nations in domestic law. The Governor-General may make regulations giving effect to binding decisions that the Security Council has made under Chapter VII of the Charter of the United Nations in so far as those decisions require Australia to apply measures not involving the use of armed force (s. 6).
The Charter of the United Nations (Anti-terrorism Measures) Regulations 2001 allow the Minister (currently the Foreign Minister) to 'proscribe' a person or entity involved in terrorist acts. The Minister may also list assets or classes of assets that are owned or controlled by such persons. The regulations provide that a legal person (for example a bank) who holds assets that are owned or controlled by a proscribed person or entity must not use or deal with or allow an asset to be used or dealt with. A fine of up to $5500 applies for a breach. It is also an offence if a person makes an asset available to a proscribed person and is reckless to whether or not the person or entity is proscribed. The provision requires institutions such as banks to thoroughly examine their accounts to ensure that they do not hold assets belonging to a proscribed person. Use or dealings can be authorised to allow humanitarian activities to take place.
The Charter of the United Nations (Sanctions-Afghanistan) Regulations 2001 prohibit a person in Australia or a citizen of Australia from doing anything that assists, or results in:
- arms or related materiel being sold, supplied or transferred to Taliban territory; or
- technical advice, training and other assistance in relation to the military activities of the armed personnel of the Taliban being sold, supplied or transferred to the Taliban;
- acetic anhydride, a chemical used in the cultivation of opium poppy, being sold, supplied or transferred to a person in Taliban territory, or to a person for the purpose of an activity carried on in, or operated from, Taliban territory.
The regulations also prohibit the use of Australian aircraft or ships in relation to points 1 or 2 above and prohibit a person in Australia, or a citizen of Australia, from dealing with financial assets of the Taliban or Osama bin Laden, or individuals associated with them. A fine of up to $5500 applies for a breach of the regulations.
Listening Devices
Three Commonwealth laws govern the issuing and use of listening device warrants. They are the Customs Act 1901, the Australian Federal Police Act 1979 and the Australian Security and Intelligence Organisation Act 1979. Under the Customs Act, listening device warrants can be obtained for the investigation of narcotics offences. Under the Australian Federal Police Act, listening device warrants can be obtained for the investigation of non-narcotics offences categorised as either class 1 general offences or class 2 general offences. Class 1 offences include murder and kidnapping. Class 2 offences include offences carrying a penalty of 7 years or more imprisonment which involve a risk of loss of life, serious personal injury or serious damage to property and drug trafficking.
Under the Australian Federal Police Act 1979, a judge or, following amendments to the Act in 1997, certain nominated members of the Administrative Appeals Tribunal may issue listening device warrants.(78) They may relate to a particular person, particular premises, or, following amendments in 2001, a particular item.(79) Under the Australian Security and Intelligence Organisation Act 1979 the Minister may issue listening device warrants.(80) The Act provides expressly for warrants in relation to a particular person or a particular premises, but is silent as to whether devices can be used for particular items. It is possible that such warrants could not be issued by the Minister under the Act.(81)
Tracking Devices
The Australian Security and Intelligence Organisation Act 1979 provides for warrants which allow ASIO to use devices to track persons or objects where the Attorney-General is satisfied there is a reasonable suspicion of activities prejudicial to security and a likelihood that the device will assist ASIO in gathering intelligence.(82)
Computer Access
The Australian Security and Intelligence Organisation Act 1979 provides for search warrants which allow ASIO to use computers to access data relevant to security, to print copies to take away from the premises, to make electronic copies and to alter, add to or delete data. It also provides for 'computer access warrants' which permit the use of electronic means to access data relevant to security which is stored in a target computer.(83) This includes the ability to add, delete or alter data in the target computer, copy data, do anything necessary to conceal activities under the warrant and do anything else reasonably incidental. A note in the legislation makes clear that acting under a warrant will exempt an ASIO operative from criminal liability which would otherwise apply.
Controlled Operations
It is often thought that convictions cannot be obtained by 'entrapment'. In Ridgeway v. Queen the High Court clarified this misconception, rejecting the suggestion that there was a substantive defence of 'entrapment' in the common law,(84) but confirming that evidence obtained by criminal inducement could be ruled inadmissible as a matter of public policy.(85) As a result most jurisdictions passed statutory 'controlled operations' regimes.(86)
Under the Crimes Act 1914 law enforcement officers are protected from civil and criminal liability arising from conduct undertaken in a 'controlled operation' for the prosecution of a 'serious Commonwealth offence'. To be protected, the officer must act in accordance with a controlled operations certificate and must not intentionally induce a person to commit an offence that they would not otherwise have intended to commit. An authorised officer may issue a 'controlled operation' certificate if he or she is satisfied, among other things, that the controlled operation is justified and there are limits or controls on the extent of unlawful activity, possession of illicit goods or harm to others.(87) Controlled operations are subject to some ministerial and parliamentary scrutiny.(88)
'Serious Commonwealth offences' include crimes subject to 3 or more years imprisonment that involve money laundering, armament dealings, espionage, sabotage, threats to national security, misuse of computer or electronic communications and importation of prohibited imports or exportation of prohibited exports. They also include offences subject to 3 or more years imprisonment that involve 'violence' or 'terrorism'.(89)
Assumed Identities
The Measures to Combat Serious and Organised Crime Act 2001 enables intelligence officers and law enforcement officers(90) to use a statutory regime for assumed (false) identities. The Minister's Second Reading Speech explained the assumed identities provisions in the following way: 'Assumed identities are false identities adopted to facilitate intelligence and investigative functions, or infiltration of a criminal, hostile or insure environment with a view to collecting information and investigating offences'.(91)
Terrorism
As indicated, there is no Commonwealth offence of 'terrorism', but it is worth considering the law in the Northern Territory. Under the Criminal Code (NT) it is an offence to commit a terrorist act, which is liable to imprisonment for life. A terrorist act involves 'the use or threatened use of violence to procure or attempt to procure the alteration, cessation or doing of any matter or thing established by a law of ... a legally constituted government or other political body'. It is an offence to obtain or procure goods or services for the purposes of a terrorist act and a court may order that such property be forfeited. It is also an offence to knowingly belong to, be involved in, or assist, support an unlawful organisation. It is even an offence to address a meeting of an unlawful organisation. An 'unlawful organisation' is one that, in the opinion of the court, 'uses, threatens to use or advocates the use of unlawful violence in the Territory to achieve its ends'.(94)
According to the Northern Territory Government the provisions were enacted in response to various domestic and international concerns: 'Darwin was only 320 kilometres from Indonesia; there had been considerable terrorist action around the world by Moluccan guerillas; and there had been an aeroplane hijacking incident in Alice Springs in 1972'.(95) According to its drafters, the terrorism provisions were drafted so as to take into account 'the Territory's isolation and its geographical position as a gateway to Australia'.(96) While it is difficult to measure the significance of these arguments or incidents in retrospect,(97) it seems clear that any of these concerns could have been dealt with under Commonwealth law. Some two years later, in correspondence with the Prime Minister, the Chief Minister suggested 'there are acts that are not and cannot be the subject of Commonwealth law', citing a hypothetical example 'where a person threatened to set off explosions in public places unless a demand-such as the release of a prisoner-was complied with'.(98) At the time the Northern Territory Opposition Leader, acknowledging that the Commonwealth might have 'constitutional limitations', recommended that it assume jurisdiction through a referral of powers by the States under section 51(xxxiii) of the Constitution.(99)
Treason, Treachery, Sabotage and Sedition.
The Crimes Act 1914 deals with a number of offences against the government including treason, treachery, sabotage and sedition. These offences were largely codified from the common law in a wholesale reform of the Crimes Act 1914 by the Crimes Act 1960. The reform implicitly acknowledged the threat of 'non-conventional' or 'asymmetric' warfare and the need to address external threats to the Constitution, government or defence of Australia and internal threats to the government or defence of foreign countries. 'Treason' covers levying war against the Commonwealth, assisting an identified enemy at war with the Commonwealth or instigating a foreigner to invade the Commonwealth. 'Treachery' includes any act done with the intent to overthrow the Constitution by revolution or sabotage. It includes 'the overthrow by force or violence of the established government of the Commonwealth, of a State or of a proclaimed country' and acts of treason committed within the Commonwealth directed against a proclaimed country. (These are similar acts to those covered in 'politically motivated violence' and unlawful associations provisions.) 'Sabotage' includes destroying or damaging weapons or articles used by the ADF with the intention of prejudicing the safety or defence of the Commonwealth (s. 24AB).
The Crimes Act 1914 also contains offences of unlawful drilling, espionage, official secrets, being in a prohibited place, harbouring spies, and taking unlawful soundings.(100) Before Parliament was dissolved for the 2001 General Election, the Government introduced a Criminal Code Amendment (Espionage and Related Offences) Bill 2001 which would have reformed the law relating to espionage and similar activities, introduced some increased penalties and repealed some existing offences (eg harbouring spies and unlawful drilling). The Minister's Second Reading Speech stated that the Government sought 'to ensure that the offences in the Bill establish an effective legal framework that both deters, and punishes, people who intend to betray Australia's security interests':
As part of our review we have considered such things as technological advances in information management and communication as well as international standards and experience. As a result, the proposed offences are consistent with equivalent provisions in the United States, the United Kingdom, New Zealand and Canada.(101)
The Bill lapsed when Parliament was dissolved.
Foreign Incursions
The Crimes (Foreign Incursions and Recruitment) Act 1978 makes it an offence to recruit people, or to train and organise in Australia, for armed incursions or operations on foreign soil. It is an offence to 'engage in hostile activity in a foreign state' or to 'enter a foreign state with intent to [do so]'. It is also an offence to do preparatory things for the same purposes. And it is an offence to 'give money or goods to, or perform services for, any other person or any body or association of persons for the purpose of supporting or promoting [these activities]'. 'Hostile activities' include any acts done for the purpose of overthrowing a government by force or violence, engaging in armed hostilities in a foreign state, placing a foreign public in fear and causing damage to foreign public property. They exclude activities undertaken in the service of a foreign power's armed forces.(102)
In essence this corresponds to the offence of treason committed against a foreign power.
The offender must be an Australian citizen, ordinarily resident in Australia or resident in Australia for at least a year for purposes connected to these acts. Proceedings may not commence unless the Attorney-General has given his or her consent. Pending this consent, a person may lawfully be arrested, charged or remanded in custody or on bail.(103)
Other Offences
Aside from these specific offences there are a wide range of other general offences which may apply to a particular terrorist incident. These include offences relating to (federal) property, computers, postal and telecommunications services, hostage taking, heads of state and other internationally protected persons, aviation, shipping, biological, chemical and nuclear weapons and weapons of mass destruction.
Well, those are some of the bits I found interesting. Please feel free to read further, if you want to know our government's legal situation regarding terrorism and foreign nations.