<<

ńňđ. 19
(âńĺăî 23)

ŃÎÄĹĐĆŔÍČĹ

>>

(part 10), navigable waters (part 15), pest control products (part 18), quarantines (part 20),
radiation emitting devices (part 21), and shipping (part 22).
71
National Research Council, Making the Nation Safer: The Role of Science and Technology in
Countering Terrorism (Washington, National Academy Press, 2002).
CANADA’S RESPONSE TO TERRORISM 531

September 11, but also the SARS crisis, black outs, and contamination of food
and water, a new Ministry of Public Safety and Emergency Preparedness was
created in late 2003. The Minister of this department chairs a new Cabinet
committee on Security, Public Health and Emergencies. She also has respon-
sibilities for a new Canada Border Services Agency and the Office of Critical
Infrastructure and Emergency Preparedness. The new Ministry has over
55,000 employees and a $7 billion budget. It was designed in part to allow
for better integration with the new American Department of Homeland
Security.
The new Public Safety ministry has the potential to develop a more
comprehensive and rational approach to the various risks that Canadians
face to their well-being. It could allow for cost effective distribution of limited
resources with a premium placed on strategies that protect Canadians not
only from terrorism but other harms. This all risks approach was adopted in a
national security policy released in April 2004 that includes commitments to
better emergency preparedness, better public health, better transport security
and better peace-keeping, as well as the more traditional terrorism specific
proposals relating to better intelligence and better border security.72 This
national security policy can be contrasted with the new American policy with
its emphasis on the pre-emptive use of military force.73 At the same time, a
recent report by a Senate Committee suggests that Canada, and in particular
the federal Office of Critical Infrastructure and Emergency Preparedness, is
not adequately prepared for emergencies including those caused by
terrorism.74
The creation of the new Ministry of Public Safety is not a guarantee of a
more comprehensive and creative all risks security policy. The new ministry
has traditional responsibilities for policing and security intelligence and new
responsibilities for the border and for security aspects of immigration. There
has been increased spending on security intelligence, but problems remain
with the coordination of multiple intelligence agencies in Canada and the
degree to which they produce useable information. A report by the Auditor
General of Canada found deficiencies in the communication and coordina-
tion of intelligence information within government.75 A proposed new
Parliamentarian committee on security may assist in coordination.


72
‘This system is capable of responding to both intentional and unintentional threats. It is as
relevant in securing Canadians against the next SARS-like outbreak as it is in addressing
the risk of a terrorist attack.’ Canada, Securing an Open Society: Canada’s National Security
Policy, April 2004 at 10.
73
Banks, Chapter 22, in this volume.
74
Standing Senate Committee on National Security and Defence National Emergencies:
Canada’s Fragile Front Lines, March 2004.
75
Report of the Auditor General of Canada to the House of Commons, March 2004 ch. 3.
KENT ROACH
532

The ATA, as well as a new emphasis on intelligence based policing, puts
pressure on the traditional distinction between policing and intelligence by
criminalizing a wide variety of associations and support for terrorism.
Although the government is committed to it in principle, a new independent
review mechanism for the new role of the RCMP in national security remains
to be developed and implemented.
A comprehensive all risks policy for human and national security must still
be carefully monitored to ensure that it does not produce unwarranted
threats to liberty, due process, equality and privacy. Many provisions in the
Public Safety Act76 facilitate the collection and sharing of information within
governments and between governments. Although this may respond to some
concerns that security information is not appropriately communicated
within government, the information sharing provisions also raise concerns
about privacy and transparency, as well as practical concerns about decision-
makers being swamped by too much information. Vast databases can under-
mine privacy while producing information about potential terrorists that
may not be accurate or helpful. At the same time, delays such as the average
forty-eight days delay from publication of Interpol alerts to entry into police
systems and Canadian watchlists are not acceptable either from a security
perspective or from a fairness perspective to those who should be removed
from watchlists.77 The challenge for the new Ministry will be to make optimal
uses of its resources to protect the security of Canadians while also minimiz-
ing intrusions on important democratic values such as equality, fairness and
the right to engage in religious or political dissent.

IV. Conclusion
It remains to be seen the extent to which Canada’s new Ministry of Public
Safety and Emergency Preparedness will follow the pattern established after
September 11 of relying on immigration law and to a lesser extent criminal
law to respond to the risks of terrorism and of responding to American
perceptions about Canada’s vulnerabilities to terrorism. Canada has enacted
broad new criminal laws against terrorism and given police enhanced powers,
but so far has relied on the even broader powers available under immigration
law as a means to deal with terrorist suspects. There are concerns in Canada
about the fairness of immigration law when used to detain suspected



76
S. C. 2004 c.15. For example, Part 5 permits the sharing of information with other
governments and foreign organizations, Part 11 allows the collection and disclosure of
information for national security purposes under immigration law. Part 17 extends the
government databases and agencies that can be consulted in relation to terrorist financing.
77
Report of the Auditor General of Canada to the House of Commons, March 2004 at 3.122.
CANADA’S RESPONSE TO TERRORISM 533

terrorists and about the targeting of people on the basis of their race, religion
or political beliefs and associations.
The enactment of the Public Safety Act, although not without controversy,
may facilitate administrative measures to protect sites and substances that are
vulnerable to terrorism. There is also a potential that Canada’s new national
security policy and its Ministry of Public Safety and Emergency Preparedness
may result in a more creative and comprehensive approach to the broad range
of risks to the security of Canadians.
24

The rule of law and the regulation of terrorism in
Australia and New Zealand
GEORGE WILLIAMS


I. Introduction
Australia and New Zealand might seem unlikely targets for a terrorist attack.1
They are geographically isolated and are only minor players in the ‘War
on Terror’. Nevertheless, Australia is an active military partner in the
‘Coalition of the Willing’ that went to war in Iraq in 2003 and both nations
supplied troops for the conflict in Afghanistan. Australia has also come to the
attention of terrorist organizations, with a recent statement purporting to be
from al Qaeda declaring Australian Prime Minister John Howard to be
‘wicked’. Howard responded: ‘I’ve been insulted by everybody, so I suppose
Al Qaeda can have a go as well.’2
Although there has not been a terrorist attack for more than a decade on
Australian or New Zealand soil, both have been affected by terrorism. Many
New Zealanders regard the 1985 sinking in Auckland Harbour of the
Rainbow Warrior by French agents, with loss of one life, as an example of
state sponsored terrorism. More recently, Australians and New Zealanders
died in the September 11 attack. A year later, on 12 October 2002, 202 people
were killed when two bombs exploded in the Sari Club and Paddy’s Bar in
Bali, Indonesia. Of the dead, 88 were Australian and 3 were from New
Zealand. Like the effect of September 11 on the United States, the Bali
bombing has had an enormous impact upon the culture and politics of
these nations. My own memories of the attack resurface whenever I walk
down to Coogee Beach, close to my home in Sydney, which features a


Thanks to Ben Golder for his research assistance and to Alex Conte for his comments.
1
Compare the statement of the Director-General of the Australian Security Intelligence
Organisation in ‘ASIO Today’, AIAL Forum, April 2004, No. 41, 25 at 25–6: ‘we now know
that al-Qaida had an active interest in carrying out a terrorist attack in Australia well before
11 September and that we remain a target’. See also Transnational Terrorism: The Threat to
Australia (Australian Government White Paper, 2004) at 65–74 < http://www.dfat.gov.au/
publications/terrorism/index.html >.
2
‘‘‘Wicked’’ Howard shrugs off Al Qaeda slur’, www.abc.net.au/news/newsitems/
s1095558.htm. For other such references to Australia, see also Transnational Terrorism,
note 1 above, at 66–7.

534
THE REGULATION OF TERRORISM 535

sculpture and memorial to those who died in the attack. Twenty of the Bali
victims were from my local area and the point at Coogee Beach has been
renamed Dolphin Point in remembrance of the six Coogee Dolphin rugby
league players who died in the blast.
Australians and New Zealanders remember these terrorist attacks in their
own way. However, an important point of similarity between them and other
nations is how the law has formed a central part of their response. In this
chapter I examine the range of new laws enacted after September 11 by the
parliaments of Australia and New Zealand. My primary focus is upon the laws
introduced into Australia and their effect upon the rule of law and basic
principles of human rights. In the case of Australia, I also explore an historical
parallel with the anti-communist legislation of more than half a century ago.
In the next section I begin with the legal context in which Australia has
enacted new terrorism laws.


II. The rule of law and human rights in Australia
Terrorism is an attack on our most basic human rights. It can infringe our
rights to life and personal security and our ability to live our lives free of fear.
Our response to terrorism also raises important human rights issues. Indeed,
it poses some of the most important questions of law and policy of our time.
Should we protest that the Bali bombers received the death penalty in
Indonesia or should the death penalty be reintroduced into Australia and
New Zealand for terrorism offences? Should, as Alan Dershowitz has argued,3
the law provide for a ‘torture warrant’ whereby a terrorist suspect might be
tortured to gain information about a large-scale, imminent danger to the
community? Should the police be able to detain terrorist suspects without
charge for one or more days? Should governments be able to access our emails
without our knowledge to search for information? The list goes on.
Unfortunately, unlike New Zealand and every other western nation,
Australia must search for answers to these questions without the benefit of
a Bill of Rights.4 This is made even more difficult when, after September 11,
new laws have been made and old laws amended, often with great haste. These
changes demonstrate how legal systems, and the basic principles that underlie
them, such as the rule of law and the liberty of the individual, can come under
considerable strain in the aftermath of a terrorist attack. Bills of Rights can
play an important role at such a time. They remind governments and com-
munities of a society’s basic values and of the principles that might otherwise

3
Alan Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the
Challenge (Yale University Press, 2002).
4
See generally George Williams, Human Rights under the Australian Constitution (Oxford
University Press, 1999).
GEORGE WILLIAMS
536

be compromised at a time of grief and fear. After new laws have been made, a
Bill of Rights can also allow courts to assess the changes against human rights
principles. This can provide a final check on laws that, with the benefit of
hindsight, ought not to have been passed. The absence of such a check is one
reason why Australian law after September 11 is stringent in its impact upon
individual rights. The situation differs in New Zealand, in part because the
New Zealand Bill of Rights Act 1990 shapes legislative, executive and judicial
decision-making in this and other fields.
In Australia, there can occasionally be a role for judges in assessing new
terrorism laws, but this is usually at the margins of the debate, such as where
constitutional provisions are relevant to human rights enforcement or in the
interpretation of legislation. In the latter context, the courts have developed the
common law so that the infringement of rights is minimized. According to Chief
Justice Mason and Justices Brennan, Gaudron and McHugh of the High Court of
Australia in Coco v. The Queen:5 ‘The courts should not impute to the legislature
an intention to interfere with fundamental rights. Such an intention must
be clearly manifested by unmistakable and unambiguous language.’ Hence,
‘a statute or statutory instrument which purports to impair a right to personal
liberty is interpreted, if possible, so as to respect that right’.6
Of course, this means that parliaments can still depart from fundamental
rights by passing a new law if it operates within constitutional limits and is
clear in its intent. There is no mechanism through which to analyse whether
such abrogation is appropriate. Unlike in every other western nation, the
issue in Australia is purely political. Moreover, without a Bill of Rights,
political and legal debate is usually unconstrained by fundamental human
rights principles and the rule of law. Instead, as was demonstrated by the
legislation introduced into the federal Parliament after September 11 (dis-
cussed below), the contours of debate may match the majoritarian pressures
of Australian political life rather than the principles and values upon which
the democratic system depends. This means that any check upon the power of
parliament or governments to abrogate human rights derives from political
debate and the goodwill of political leaders. This is not a check that is
regarded as acceptable or sufficient in some other nations.
The lack of a domestic reference point for basic rights in Australia means
that it is difficult to determine the extent to which, if at all, rights and the rule
of law should be sacrificed in the name of national security and in the fight
against terrorism.7 As in many other debates, the absence of a domestic Bill of
Rights means that Australians turn to international law. The United Nations

5
(1994) 179 CLR 427 at 437.
6
Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523 per Justice Brennan.
7
For the view of the current Australian Attorney-General on this issue, see P. Ruddock,
A New Framework: Counter Terrorism and the Rule of Law (Speech delivered to the Sydney
THE REGULATION OF TERRORISM 537

has been a focus of debate and activity in responding to terrorism, and a
number of international instruments are important, such as Resolution 1373
of the United Nations Security Council, made on 28 September 2001, which
determines that States shall ‘prevent and suppress the financing of terrorist
acts’ and ‘take the necessary steps to prevent the commission of terrorist acts’.
Other instruments ratified by Australia such as the International Covenant
on Civil and Political Rights affirm that governments have an obligation to
take action to protect their citizens from terrorism, but that any such action
must be in accordance with accepted human rights principles.
Further guidance on the balance between national security and domestic
freedoms has been provided by the Council of Europe, which has forty-four
member States, including all members of the European Union. On 11 July 2002
the Council adopted Guidelines of the Committee of Ministers of the Council of
Europe on Human Rights and the Fight Against Terrorism.8 According to the
Secretary General of the Council of Europe, Walter Schwimmer, the Guidelines
‘enable our member States, and other countries, to combat terrorism whilst also
observing the Council’s fundamental values of human rights, democracy and the
rule of law’.9 In a resolution made on 16 December 2002, the United Nations
General Assembly commended the Council of Europe ‘for its contribution to the
implementation of Security Council resolution 1373’, taking note in this context
of the Council of Europe Guidelines.
Although these instruments could provide useful assistance on human rights
issues and national security, they do not form part of Australian law and lack
political and legal legitimacy in Australia. For example, when there was criticism in
2000 from the United Nations Human Rights Committee of the mandatory
sentencing regime for minor property offences then in operation in the
Northern Territory, its Chief Minister Denis Burke stated: ‘This is designed to
cause embarrassment. This is designed to shame Australians. And to my mind an
opportunity for Australians to tell them to bugger off .’10 The response of the
federal government was less direct, but the message was the same.11 Prime
Minister Howard rejected any international pressure, stating on Perth radio that
‘we are mature enough to make decisions on these matters ourselves full stop’.12


Institute on 20 April 2004) http://www.ag.gov.au/www/ministerruddockhome.nsf/Web +
Pages/B046617DB08691D9CA256E7D000ED953?OpenDocument.
8
See http://portal.coe.ge/downloads/terrorism.en.pdf.
9
‘Council of Europe Adopts the First International Guidelines on Human Rights and Anti-
Terrorism Measures’ (Media Release, 15 July 2002), at http://press.coe.int/cp/2002/
369a(2002).htm.
10
‘NT under fire again for mandatory sentencing’, http://www.abc.net.au/pm/stories/
s154694.htm.
11
See generally D. Hovell, ‘The Sovereignty Stratagem: Australia’s Response to UN Human
Rights Treaty Bodies’ (2003) 28 Alternative Law Journal 6.
12
http://www.pm.gov.au/news/interviews/2000/6PR2502.htm.
GEORGE WILLIAMS
538

III. Australia’s new anti-terrorism laws
Australia has little history of enacting laws aimed at terrorism.13 In fact,
before September 2001, only the Northern Territory had such a law.14
Australia has now passed many anti-terrorism laws, although their impact
has yet to be felt as the occasion to use many of them has thankfully not
arisen. A consequence of this is that these laws have not yet been subject to
judicial interpretation or to constitutional challenge. I examine the laws
below, beginning with the form in which they were introduced into the
federal Parliament.
The federal Government’s legal response to September 11 was introduced into
Parliament in March 2002 as two packages of legislation. The first contained
several new Bills, the most important of which was the Security Legislation
Amendment (Terrorism) Bill 2002 (the ‘Terrorism Bill’).15 This Bill sought to
introduce a definition of ‘terrorist act’ into the Criminal Code Act 1995 (Cth).
Under section 100.1, a ‘terrorist act’ was an act or threat done ‘with the intention
of advancing a political, religious or ideological cause’ that:
(a) involves serious harm to a person;
(b) involves serious damage to property;
(c) endangers a person’s life, other than the life of the person taking the
action;
(d) creates a serious risk to the health or safety of the public or a section of
the public; or
(e) seriously interferes with, seriously disrupts, or destroys, an electronic
system.

The section provided an exception only for industrial action and lawful
advocacy, protest or dissent.
This definition lacked a focus on the intent associated with a terrorist act
that distinguishes such violence from other non-terrorist acts. The reference
to ‘with the intention of advancing a political, religious or ideological cause’
was so wide that it would have criminalized many forms of unlawful civil
protest (unlawful perhaps only due to a trespass onto land) in which people,
property or electronic systems were harmed or damaged. The section could
have extended to protest by farmers, unionists, students, environmentalists

13
For a history of terrorism laws in Australia, see J. Hocking, Terror Laws: ASIO, Counter-
Terrorism and the Threat to Democracy (Sydney, UNSW Press, 2003).
14
Criminal Code Act (NT), Pt. III Div. 2. The provisions were modelled on the Prevention of
Terrorism (Temporary Provisions) Act 1974 (UK).
15
The others were the Suppression of the Financing of Terrorism Bill 2002; Criminal Code
Amendment (Suppression of Terrorist Bombings) Bill 2002; Border Security Legislation
Amendment Bill 2002; Telecommunications Interception Legislation Amendment Bill
2002.
THE REGULATION OF TERRORISM 539

and online protestors. Moreover, a penalty of up to ‘imprisonment for life’
applied where a person engaged in a terrorist act.
The Terrorism Bill failed to pass in this form. It was substantially amended
after being strongly criticized by legal and community groups and after a
highly critical, unanimous report by the Senate Legal and Constitutional
Committee,16 an upper house committee composed of members of each of
the major parties. The Bill as amended contains the following additional
element as part of the definition of terrorism:
the action is done or the threat is made with the intention of:
(i) coercing, or influencing by intimidation, the government of the
Commonwealth or a State, Territory or foreign country, or of part of
a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.

In addition, advocacy, protest, dissent or industrial action (whether lawful or
not) is excluded so long as it is not intended to, among other things, cause
serious physical harm to a person or create a serious risk to the health or safety of
the public. This definition provides the basis for a number of new criminal
offences. These include committing a ‘terrorist act’ or even possessing a ‘thing’
connected with terrorism.
In provisions seemingly modelled on the anti-communist legislation of the
early 1950s (discussed below), the Terrorism Bill in its original form also
empowered the federal Attorney-General to proscribe (or ban) organizations,17
accompanied by a penalty of up to twenty-five years’ imprisonment for their
members and supporters and people who have provided training for, or have
been trained by, it.18 Section 102.2 would have enabled the Attorney-General to
ban an organization for reasons including that the organization ‘has endangered,
or is likely to endanger, the security or integrity of the Commonwealth or
another country’. ‘Integrity’ could have included the geographical, or territorial,
integrity of a nation, and hence this power could have been applied to proscribe
an organization that supported non-violent independence movements within
other nations. Over recent years, this would have included bodies supporting
independence for East Timor from Indonesia.


16
Senate Legal and Constitutional Legislation Committee, Parliament of Australia,
Consideration of Legislation Referred to the Committee: Security Legislation Amendment
(Terrorism) Bill 2002 [No. 2] (2002).
17
See for an extended summary of the legislative history of this proscription power,
Parliamentary Joint Committee on ASIO, ASIS and DSD, Review of the listing of the
Palestinian Islamic Jihad (PIJ) (June 2004), at http://www.aph.gov.au/house/committee/
pjcaad/pij/report.htm, Chapter 1.
18
The Anti-terrorism Bill (No. 2) 2004 would also introduce a new offence in s. 102.8 of
associating with terrorist organizations.
GEORGE WILLIAMS
540

The power to ban organizations could have been exercised unilaterally by
the Attorney-General and not as part of a fair and accountable process. The
Attorney-General’s decision to ban would not have been subject to mean-
ingful independent review (although judicial review upon limited, essentially
procedural, administrative law grounds would have been possible under the
Administrative Decisions (Judicial Review) Act 1977).19 By contrast, the
separation of powers in Australia, including the notion that power should
not be concentrated in any one arm of government, suggests instead that the
decision to ban organizations should be made by an independent judge, or at
least should be subject to strict scrutiny by a court. The dangers of not doing
so were expressed by Justice Dixon of the High Court of Australia in 1951 in
the Communist Party Case:20
History and not only ancient history, shows that in countries where
democratic institutions have been unconstitutionally superseded, it has
been done not seldom by those holding the executive power. Forms of
government may need protection from dangers likely to arise from within
the institutions to be protected.
The Terrorism Bill was also amended to remove the Attorney-General’s pro-
scription power. As enacted, it did not grant the Attorney-General a unilateral
power of proscription but allowed for the banning of terrorist organizations
identified by the United Nations Security Council. However, the Government
continued to press for a broader power. After Parliament passed specific legisla-
tion to enable the banning of the Hizballah, Hamas and Lashkar-e-Tayyiba
organizations, it agreed to the Criminal Code Amendment (Terrorist
Organizations) Act 2004. This Act gives the Attorney-General the power to
determine that a body is a terrorist organization if ‘satisfied on reasonable
grounds that the organisation is directly or indirectly engaged in preparing,
planning, assisting in or fostering the doing of a terrorist act (whether or not
the terrorist act has occurred or will occur)’. While it would be difficult, if
not impossible, to challenge the decision to make such a regulation in court,
s. 102.1A of the Criminal Code Act as amended provides that the decision can be
reviewed by a parliamentary committee and can be disallowed by Parliament.
The first review undertaken by the Parliamentary Joint Committee on ASIO
Australian Security and Intelligence Organization, ASIS Australian Secret
Intelligence Service and DSD Defence Signals Directorate into the proscription
of Palestinian Islamic Jihad was encouraging. The Committee decided its role

19
Even if a judge were to proceed to review a decision made under s. 102.2, the grounds of
review under the Act are narrow and procedural. There would be no scope for review on
broader proportionality grounds. In other words, it could not be argued that a decision
was wrongly made because it was not ‘reasonably appropriate and adapted’ to the relevant
purpose or object.
20
Australian Communist Party v. Commonwealth (1951) 83 CLR 1 at 187.
THE REGULATION OF TERRORISM 541

was to examine the decision not only according to procedural criteria but also as
to its merits (in part because of the lack of merits review by a judicial body.)21
However, the capacity of the Committee to be effective in this role is limited by it
only being given a non-extendable period of fifteen days to report.
Australia’s second major package of anti-terrorism legislation contained
only the Australian Security Intelligence Organisation Legislation Amendment
(Terrorism) Bill 2002, which sought to confer unprecedented new intelligence
gathering powers on ASIO. In its original form, the Bill allowed adults and even
children who were not terrorist suspects, but who may have useful information
about terrorism, to be strip searched and detained by ASIO for rolling two-day
periods that could be extended indefinitely. The detainees could have been
denied the opportunity to inform family members, their employer, or even a
lawyer of their detention. There was no right to silence and a failure to answer
any question put by ASIO would have been punishable by five years in prison.
The regime applied to all Australians, including journalists who could not have
protected the confidentiality of their sources. While the Bill stated that detainees
‘must be treated with humanity and with respect for human dignity’, there was
no penalty for ASIO officers who subjected detainees to cruel, inhuman or
degrading treatment. In fact, s. 92 of the Australian Security Intelligence
Organisation Act 1979 still provides that it is an offence (punishable by impri-
sonment for up to one year) to even publish the identity of an ASIO officer.
The original ASIO Bill is consistent with the Howard Government’s con-
tinuing acquiescence in the indefinite detention without charge of Australian
David Hicks by the United States military at Camp X-Ray at Guantanamo
Bay, Cuba. The ASIO Bill went further, however, in that Australians could
have been held not because it was suspected that they had engaged in terror-
ism or were likely to do so, but because they may ‘substantially assist the
collection of intelligence that is important in relation to a terrorism
offence’.22
I described the original ASIO Bill as being ‘rotten to the core’ and as one of
the worst Bills ever introduced into the federal Parliament.23 It would have
conferred unprecedented new powers upon a secret intelligence organization
that could have been used in ten, twenty or even fifty years’ time against the
Australian people by an unscrupulous government. In its original form, the
ASIO Bill would not have been out of place in former dictatorships such as


21
Parliamentary Joint Committee on ASIO, ASIS and DSD, Review of the listing of the
Palestinian Islamic Jihad (PIJ) (June 2004), at para 2.8, http://www.aph.gov.au/house/
committee/pjcaad/pij/report.htm.
22
Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill
2002 (Cth), cl 34G(3).
23
For example, George Williams, ‘Why the ASIO Bill is Rotten to the Core’, The Age
(Melbourne), 27 August 2002, 15.
GEORGE WILLIAMS
542

General Pinochet’s Chile. The Parliamentary Joint Committee on ASIO,
Australian Secret Intelligence Service and Defence Signals Directorate unan-
imously found that the ASIO Bill ‘would undermine key legal rights and
erode the civil liberties that make Australia a leading democracy’.24
The ASIO Bill was finally passed fifteen months after it was introduced
after one of the longest and most bitter debates in Australian parliamentary
history. At one point in a continuous 27-hour debate in December 2000, the
Government and Labour Opposition accused each other of bearing the blame
for any Australian blood that might be spilt by terrorists because of the
deadlock on the Bill. The original Bill is different in important respects
from the final Act. As amended, the detention regime in the Australian
Security Intelligence Organisation Act 1979 only applies to people aged
sixteen years and over. Detainees have access to a lawyer of their choice,
although ASIO may request that access be denied to a particular lawyer where
the lawyer poses a security risk. Australians may be questioned by ASIO for
24 hours over a one week period. They must then be released, but can be
questioned again if a new warrant can be justified by fresh information.
A person can only be held and questioned under the Act when ordered by a
judge, and the questioning itself will be before a retired judge. The question-
ing must be videotaped and the whole process will be subject to the ongoing
scrutiny of the Inspector-General of Intelligence and Security (who is effec-
tively the Ombudsman for ASIO).
These additional protections in the hands of independent people blunt
some of the worst excesses of the original Bill. However, even in this form, the
Act can be justified only as a temporary response to the threat to national
security posed by terrorism. This is reflected in the sunset clause added to the
law, which means that it will lapse after three years unless it is re-enacted. In
this form, the law will hopefully not create a long-term precedent for law
enforcement and intelligence gathering in Australia. Apart from other con-
siderations, the Act conferred greater powers of detention over non-suspect
Australians than the then federal Crimes Act 1914, which allowed only for the
detention without charge of terrorist and other criminal suspects for a max-
imum of 12 hours.25
The passage of the Terrorism and ASIO Bills has not seen the end of new
Australian anti-terrorism laws. Indeed, there has been a steady stream of new
proposals and laws. In 2003, the ASIO Legislation Amendment Act was
passed to increase the time allowed for the questioning of non-suspects by
ASIO from 24 to 48 hours when an interpreter is involved. Another change

24
Parliamentary Joint Committee on ASIO, ASIS and DSD, Parliament of Australia, An
Advisory Report on the Australian Security Intelligence Organisation Legislation Amendment
(Terrorism) Bill 2002 (2002), vii.
25
Crimes Act 1914 (Cth), ss. 23C and 23D.
THE REGULATION OF TERRORISM 543

brought about by that Act made it an offence, for two years after someone has
been detained, to disclose ‘operational information’26 about detention under
the Act. The penalty for doing so, even if the information is provided as part
of a media story on the detention regime, is imprisonment for up to five years.
The impact of this provision upon freedom of the press is of great concern. It
means that two years must pass before abuses involving the operational
activities of ASIO under the regime can be exposed through media reporting.
In all of the new federal law in Australia, there has until recently been a
surprising omission. No attempt was made until 2004 to increase the time
that police can question a terrorist suspect before the person must be charged
or released. As the law stood, any criminal suspect could be questioned for up
to 12 hours. By contrast, in the United Kingdom, the police may detain
suspected terrorists for 48 hours extendable for a further 5 days,27 and in
Canada police may detain suspected terrorists for 24 hours extendable for a
further 48 hours.28 The United States legislation provides for the detention of
‘inadmissible aliens’ and any person who is engaged in any activity ‘that
endangers the national security of the United States’ (detention is for renew-
able six month periods).29 The Anti-Terrorism Act 200430 has now doubled
the questioning time for terrorist suspects to 24 hours. In light of the time
limits in other nations, this is surprisingly modest.
Other terrorism laws have been passed in Australia at the State level. These
include laws31 that refer legislative power to the Commonwealth to enable the
federal Parliament to pass national terrorism laws that might otherwise be
outside of federal constitutional competence.32 Other State laws are the
Terrorism (Police Powers) Act 2002 in New South Wales and the Terrorism

26
This is defined by s. 34VAA as ‘information indicating one or more of the following:
(a) information that the Organisation [ASIO] has or had;
(b) a source of information (other than the person specified in the warrant mentioned in
subsection (1) or (2)) that the Organisation has or had;
(c) an operational capability, method or plan of the Organisation’.
27
Terrorism Act 2000 (UK), s. 41.
28
Anti-Terrorism Act, SC 2001, c. 41 s. 4, inserting ss. 83.3(6) and (7) into Criminal Code,
RS 1985, c C-46.
29
USA Patriot Act 2001, Pub. L. No. 107–56, x 41, 115 Stat 272 (2001).
30
Further changes to federal terrorism law are also contained in the Anti-Terrorism Bill
(No. 2) 2004 and Anti-Terrorism Bill (No. 3) 2004.
31
For example, South Australia’s Terrorism (Commonwealth Powers) Act 2002.
32
This is possible under s. 51(xxxvii) of the Australian Constitution, which enables the
federal Parliament to pass laws with respect to ‘Matters referred to the Parliament of the
Commonwealth by the Parliament or Parliaments of any State or States, but so that the law
shall extend only to States by whose Parliaments the matter is referred, or which after-
wards adopt the law’. As the authors of Terrorism and the Law in Australia: Legislation,
Commentary and Constraints (Department of the Parliamentary Library (Cth), Research
Paper No. 12, 2001–2002) at 5 note, federal ‘legislative power to deal with terrorism may
GEORGE WILLIAMS
544

(Community Protection) Act 2003 in Victoria. Queensland is the most recent
reformer, with the Terrorism (Community Safety) Amendment Act 2004
designed, according to Premier Peter Beattie, to deal with ‘the ugly realities
of the post-September 11 world’.33 These new State laws reflect the fact that
separate police forces exist in Australia at both the State and federal level and
that in the event of a terrorist attack it would likely be the larger, locally based
State police forces that would provide the first law enforcement response.
The State laws challenge accepted understandings of the rule of law
because they confer greater powers upon law enforcement authorities than
would normally be found in dealing with criminal activity and can deny
courts any role in reviewing decisions made under the Act. For example, the
New South Wales Act, in the event of an imminent terrorist attack or to
prevent such an attack, empowers the police to use extraordinary powers
that bypass existing warrant and other procedures in regard to, for example,
conducting searches and entering property. The Act states as to the author-
ization to use such powers (which may be granted by a senior police
officer):
13 Authorisation not open to challenge
(1) An authorisation (and any decision of the Police Minister under this
Part with respect to the authorisation) may not be challenged, reviewed,
quashed or called into question on any grounds whatsoever before any
court, tribunal, body or person in any legal proceedings, or restrained,
removed or otherwise affected by proceedings in the nature of prohibition
or mandamus.
An even more recent New South Wales Act, the Bail Amendment (Terrorism)
Act 2004 (NSW) was enacted within 48 hours of terrorism suspect Bilal
Khazal being granted bail. It amended the Bail Act 1978 (NSW) to provide
a presumption against bail in regard to terrorism offences listed in the federal
Criminal Code Act. The federal Parliament has also now changed federal law
in response to this granting of bail to provide that ‘despite any other law of
the Commonwealth, a bail authority must not grant bail to a person’ charged
with, or convicted of, offences including terrorism offences ‘unless the bail
authority is satisfied that exceptional circumstances exist to justify bail’.34



be derived from a mosaic of various direct and indirect sources’. These sources include,
among other things, the defence power, the external affairs power, the aliens power, the
corporations power, the banking power, and the power over interstate and overseas trade
and commerce.
33
‘Premier Announces New Laws to Target Terrorism, Sabotage’ (Ministerial Media
Statement, 18 April 2004), http://statements.cabinet.qld.gov.au/cgi-bin/display-
statement.pl?idÂĽ777&dbÂĽmedia.
34
Crimes Act 1914, s. 15AA as amended by the Anti-Terrorism Act 2004.
THE REGULATION OF TERRORISM 545

IV. The historical parallel in Australia
The most direct historical parallel with events in Australia since September 11
can be found in the late 1940s and early 1950s when Australia grappled with
the external and internal threats posed by communism. Community fear was
fed by political and media hysteria. The 1946 federal election policy statement
made by the Country Party asserted that it ‘regards the Australian communist
in the same category as a venomous snake – to be killed before it kills’.35
Similarly, the editorial in the Sydney Morning Herald on 7 November 1947
stated, in words resembling President George W. Bush’s rhetoric of ‘either
you are with us, or you are with the terrorists’:36
Communism is cold, harsh and ruthless, and it is building slowly and
inexorably to the day when our democratic Government will be superseded
by a Godless, tyrannical Communistic dictatorship in Australia . . . Any
Australian born in this country who embraces Communism is a traitor.
There is no half way. There has to be a choice between good and evil, and
people must be either loyal or disloyal.37
When Sir Robert Menzies became Prime Minister for the second time in
1949, one of his first actions was to introduce the Communist Party
Dissolution Bill 1950. In the second reading speech to the Bill on 27 April
1950, Menzies listed fifty-three leading Australians as ‘communists’.
Unfortunately, he later had to admit that five of those persons were not
actually communists. A similar mistake was made by the Sydney Morning
Herald the day after Menzies’ speech when it published as a ‘named’ com-
munist the photograph of J. W. R. Hughes, the Deputy Commissioner of
Taxation, instead of J. R. Hughes, an officer of the Federated Clerks’ Union
(the newspaper corrected its mistake the next day).
The Communist Party Dissolution Bill was introduced into Parliament on
the day the first Australian forces landed in Korea, and the Labor-controlled
Senate passed the Bill despite misgivings. It did so in part because the policy
of banning communism received overwhelming public support, with one poll
taken in May 1950 showing 80 per cent of electors in favour.38
The new law provided for a term of imprisonment of five years for any
person who knowingly carried or displayed anything indicating that he or she
was in any way associated with the Party, such as a badge with the words

35
B. McKinlay, A Documentary History of the Australian Labor Movement 1850–1975 (1979),
at 691.
36
‘Address to a Joint Session of Congress and the American People’ (20 September 2001),
http://www.whitehouse.gov/news/releases/2001/09/20010920–8.html.
37
P. Deery (ed.), Labour in Conflict: The 1949 Coal Strike (Sydney, Hale and Iremonger,
1978), at 21.
38
L. F. Crisp, Ben Chifley: A Political Biography (London, Angus & Robertson, 1977), at 390.
GEORGE WILLIAMS
546

‘Communist Party Conference 1948’. It also empowered the Governor-
General, acting on the advice of the government to ban organizations and
to declare a person to be a ‘communist’, which the Act defined as ‘a person
who supports or advocates the objectives, policies, teachings, principles or
practices of communism, as expounded by Marx and Lenin’. Under the law, a
sanction could be applied not according to a person’s acts but according to
his or her beliefs. Once declared to be a communist, a person could not hold
office in the Commonwealth public service or in industries declared by the
Governor-General to be vital to the security and defence of Australia. Should
a person wish to contest a declaration by the Governor-General, he or she
could do so, but ‘the burden shall be upon him to prove that he is not a person
to whom this section applies’.
Fortunately, the law was struck down by the High Court,39 although due to
fundamental rule of law and separation of powers principles rather than on
the grounds of human rights. As Justice Dixon remarked, the Australian
Constitution:
is an instrument framed in accordance with many traditional conceptions,
to some of which it gives effect, as, for example, in separating the judicial
power from other functions of government, others of which are simply
assumed. Among these I think that it may fairly be said that the rule of law
forms an assumption.40
The real significance of the decision was that the Court, in striking down the
Communist Party Dissolution Act, entrenched its own position as the ulti-
mate arbiter of the Constitution, and thus as an independent check upon the
power of the legislature and the executive.
In the half-century since its enactment, the Communist Party Dissolution Act
has been regarded as one of the most draconian and unfortunate pieces of
legislation ever to be introduced into the federal Parliament. It threatened to
herald an era of McCarthyism in Australia and to undermine accepted and
revered Australian values such as the presumption of innocence, freedom of
belief and speech, and the rule of law. In the focus upon Australia’s present
security situation after September 11, the Bali attack and the Madrid train
bombing, it is easy to forget such history and its lessons. But, despite the many
fundamental differences between the threats, other parallels are too striking to be
denied. Today, the ideological enemy is not communism, but terrorism and
Australia is at war not in Korea and Vietnam but in Afghanistan and Iraq. If
Australia’s new anti-terrorism laws are challenged in the High Court, it is likely
that use of the decision in the Communist Party Case will form an important part
of the attack.


39 40
Australian Communist Party v. Commonwealth (1951) 83 CLR 1. Ibid. at 193.
THE REGULATION OF TERRORISM 547

V. The New Zealand response
Unlike Australia, New Zealand already had significant anti-terrorism laws41 in
place prior to September 11.42 These included the International Terrorism
(Emergency Powers) Act 1987 (enacted in part as a response to the 1985 bombing
of the Rainbow Warrior), which confers ‘emergency powers’ upon the police and
the armed forces after an ‘international terrorist emergency’ has been declared.
Section 2 provides that such an emergency can only arise in regard to terrorist
acts undertaken ‘for the purpose of furthering, outside New Zealand, any political
aim’. A controversial aspect of the Act is that, under s. 14, the Prime Minister may
prohibit publication or broadcasting of matters relating to the international
terrorist emergency. This power has never been used because a declaration of
an international terrorist emergency has not been made under the Act.
Prior to September 11, New Zealand had passed legislation implementing
eight of the dozen major international conventions on terrorism.43 A further
Bill that sought to implement two more of the conventions, the Terrorism
(Bombings and Financing) Bill 2001, was before the New Zealand Parliament
on September 11. After the attack, it became a ‘convenient vehicle’44 to
respond to the requirement imposed on nations to combat terrorism by
United Nations Security Council Resolution 1373. Indeed, a focal point of
the debate became how the Bill could be redrafted to comply with the
Resolution, and the Resolution was added as a Schedule to the Bill. The Bill
was renamed and was ultimately enacted in October 200245 with overwhelm-
ing cross-party support46 as the Terrorism Suppression Act 2002.47 Before its

41
Indeed, a recent study has found that ‘a comprehensive legislative and substantive
counter-terrorist framework had been established by the New Zealand state prior to
New Zealand having any ‘‘real’’ contact with terrorism’. This was attributed to factors
including ‘a degree of caution’ and ‘a desire to be part of a broader anti-terrorist effort to
strengthen ties with other ‘‘like-minded’’ states’: B. K. Greener-Barcham, ‘Before
September 11: A History of Counter-terrorism in New Zealand’ (2002) 37 Australian
Journal of Political Science 509 at 514.
42
See ibid., for accounts of the evolution of New Zealand’s anti-terrorism laws. For an
overview of New Zealand law on terrorism before and after September 11, see J. E. Smith,
New Zealand’s Anti-Terrorism Campaign: Balancing Civil Liberties, National Security, and
International Responsibilities (December 2003), http://www.fulbright.org.nz/voices/
axford/docs/smithj.pdf.
43
A. Conte, ‘A Clash of Wills: Counter-Terrorism and Human Rights’ (2003) 20 New
Zealand Universities Law Review 338 at 340 n. 7.
44
M. Palmer, ‘Counter-Terrorism Law’ [2002] New Zealand Law Journal 456 at 456.
45
Concerns raised prior to enactment included the definition of terrorism, the scope for
designating terrorist organizations and the effects of such a designation: T. Dunworth,
‘Public International Law’ [2002] New Zealand Law Review 255 at 270.
46
The Bill was passed with a margin of 106 to 9 votes, with only the Greens voting against it:
J. E. Smith, New Zealand’s Anti-Terrorism Campaign, note 42 above, at 30.
47
As amended by the Terrorism Suppression Amendment Act 2003 (NZ).
GEORGE WILLIAMS
548

enactment, the Bill was vetted by the government’s Crown Lawyer for com-
pliance with the New Zealand Bill of Rights Act. Under s. 70, the Act must also
be the subject of a parliamentary inquiry that must report by 1 December
2005 on whether the Act should be amended or repealed.
‘Terrorist act’ is defined by s. 5 of the Terrorism Suppression Act in three
alternative ways.48 First, under s. 5(1)(a) an act is a ‘terrorist act’ if it ‘falls
within subsection (2)’. S. 5(2) then provides:
An act falls within this subsection if it is intended to cause, in any 1 or more
countries, 1 or more of the outcomes specified in subsection (3), and is
carried out for the purpose of advancing an ideological, political, or
religious cause, and with the following intention:
(a) to induce terror in a civilian population; or
(b) to unduly compel or to force a government or an international orga-
nisation to do or abstain from doing any act.
Subsection (3) further states:
The outcomes referred to in subsection (2) are –
(a) the death of, or other serious bodily injury to, 1 or more persons (other
than a person carrying out the act):
(b) a serious risk to the health or safety of a population:
(c) destruction of, or serious damage to, property of great value or import-
ance, or major economic loss, or major environmental damage, if
likely to result in 1 or more outcomes specified in paragraphs (a), (b)
and (d):
(d) serious interference with, or serious disruption to, an infrastructure
facility, if likely to endanger human life:
(e) introduction or release of a disease-bearing organism, if likely to
devastate the national economy of a country.
Subs. (4) exempts acts of war made during situations of armed conflict and
made in accordance with applicable international law from subs. (2), while
subs. (5) states:
To avoid doubt, the fact that a person engages in any protest, advocacy, or
dissent, or engages in any strike, lockout, or other industrial action, is not,
by itself, a sufficient basis for inferring that the person –
(a) is carrying out an act for a purpose, or with an intention, specified in
subsection (2); or
(b) intends to cause an outcome specified in subsection (3).


48
Under s. 25(1), ‘planning or other preparations to carry out the act, whether it is actually
carried out or not’, a ‘credible threat to carry out the act’ or an ‘attempt to carry out the
act’ also constitute a terrorist act.
THE REGULATION OF TERRORISM 549

Second, under s. 5(1)(b) an act qualifies as a ‘terrorist act’ if it is an act
‘against a specified terrorism convention’ (the use of ‘against’ in this context
is certainly awkward).49 S. 4(1) defines a ‘specified terrorism convention’ as
any of the nine treaties listed in Schedule 3, such as the Convention for the
Suppression of Unlawful Seizure of Aircraft or the Convention for the
Suppression of Unlawful Acts against the Safety of Maritime Navigation.
Third, under s. 5(1)(c) an act is a ‘terrorist act’ if it is a ‘terrorist act in
armed conflict (as defined in section 4(1)’. S. 4(1) defines ‘terrorist act in
armed conflict’ to mean an act:
(a) that occurs in a situation of armed conflict; and
(b) the purpose of which, by its nature or context is to intimidate a
population, or to compel a government or an international organiza-
tion to do or abstain from doing any act; and
(c) that is intended to cause death or serious bodily injury to a civilian or
other person not taking an active part in the hostilities in that situation;
and
(d) that is not excluded from the application of the Financing Convention
by article 3 of that Convention.
Surprisingly, committing a ‘terrorist act’ is not itself made an offence
under statute. However, the concept is central to other offences, such as the
financing of terrorism (s. 8) or harbouring or concealing terrorists (s. 13A).
Other offences such as participating in terrorist groups (s. 13) relate to terrorist
organizations, which can be ‘designated’ under the Act.
Under s. 22, the Prime Minister ‘may designate an entity as a terrorist
entity under this section if the Prime Minister believes on reasonable grounds
that the entity has knowingly carried out, or has knowingly participated in the
carrying out of, 1 or more terrorist acts’. In making this decision, he or she
‘may take into account any relevant information, including classified security
information’ (s. 30) as well as information that suggests that the United
Nations Security Council considers that a body is a terrorist organization
(s. 31). In fact, ‘in the absence of evidence to the contrary’, the listing of a
body by the United Nations Security Council or one of its Committees is
deemed to be ‘sufficient evidence of the matters to which it relates’ (s. 31(1))
and hence no further evidence is required. A decision to designate is subject
to judicial review and expires after three years, but can be extended by the
High Court. Once designated, an organization is subject to a number of
consequences, such as having its property seized and being unable to gain
financial or related services.
A second major piece of terrorism legislation, the Counter-Terrorism Bill
2002, was introduced into the New Zealand Parliament two months after the

49
M. Palmer, ‘Counter-Terrorism Law’, note 44 above, at 457.
GEORGE WILLIAMS
550

enactment of the Terrorism Suppression Act. The Bill covered a wide range of
matters in seeking to close gaps in the legislative framework. It sought to
amend a range of New Zealand statutes and contained important changes
relating to, for example, search warrants and tracking devices.50 It also sought
to implement the requirements of the last two international treaties on
terrorism that had yet to be legislated for in New Zealand. After nearly a
year of debate and committee inquiry, the Bill was split into six separate
Bills51 and then passed in October 2003 with the overwhelming support of
Parliament.
Since the enactment of the Terrorism Suppression Act, the New Zealand
Government has designated a number of organizations. However, it has only
designated organizations that have also been listed by the United Nations. This
illustrates a key difference from Australia. A primary aim of the New Zealand
legislative response has been to bring its law into compliance with United
Nations Conventions and determinations about terrorism. By contrast, this
has only been of secondary importance in Australia, which has tended to look
to the United States for leadership and was willing to take part in pre-emptive
military action in Iraq that arguably breached international law.52
This difference explains in part why New Zealand has not sought to
replicate some of the more draconian proposals put forward in Australia,
such as the indefinite detention of non-suspects by a secret intelligence
service. Indeed, amendments to the New Zealand Security Intelligence
Service Act 2003 have been relatively minor53 and the focus has instead
been on designation of United Nations listed organizations combined with
more traditional law enforcement processes. However, like Australia, law
reform and debate about terrorism has not had a significant focus on immi-
gration law. The one major exception in New Zealand relates to Algerian
asylum seeker Ahmed Zaoui who, despite being granted refugee status by the
independent Refugee Status Appeals Authority, has been held in detention
since December 2002 on the basis of a ‘security risk certificate’ issued by the
New Zealand Director of Security under the Immigration Act 1987.54

50
See A. Conte, ‘Tracking Devices, Search Warrants and Self-Incrimination’ (July 2003)
New Zealand Law Journal 235.
51
Namely, the Crimes Amendment Act 2003 (NZ), Misuse of Drugs Amendment Act (No 2)
2003 (NZ), New Zealand Security Intelligence Service Amendment Act 2003 (NZ),
Sentencing Amendment Act 2003 (NZ), Summary Proceedings Amendment Act 2003
(NZ) and Terrorism Suppression Amendment Act 2003 (NZ).
52
See D. Hovell and G. Williams, ‘Advice on the Use of Force Against Iraq’ (2003) 4
Melbourne Journal of International Law 183.
53
See New Zealand Security Intelligence Service Amendment Act 2003 (NZ).
54
The issues are set out in J. E. Smith, New Zealand’s Anti-Terrorism Campaign,
note42 above, at 62–7. See also, for example, http://www.freezaoui.org.nz/, and
http://www.amnesty.org.nz/zaoui for a civil libertarian perspective.
THE REGULATION OF TERRORISM 551

Although New Zealand has enacted laws that impact less severely upon basic
rights, their response has had other problems. The notion of being a ‘good
international citizen’ has had a pervasive influence in New Zealand. Indeed, this
has been of such importance that its response can be seen as too deferential to
United Nations’ determinations and too passive in not being more critical in
adapting these to its own situation. For example, an act qualifies as a ‘terrorist
act’ in New Zealand whenever it is an act ‘against a specified terrorism con-
vention’. A body can also be designated as a terrorist organization if the United
Nations Security Council considers the body to be so, without any requirement
for a further determination or assessment in New Zealand. While the Australian
proscription regime lacks a sufficient judicial check, it does at least require the
Attorney-General to satisfy him or her self that a body is a terrorist organization
and also provides for scrutiny of this decision by Parliament.


VI. Conclusion
Australia and New Zealand have passed important new laws in response to
September 11. However, while New Zealand Minister of Justice and Minister
of Foreign Affairs and Trade Phil Goff has suggested that ‘At this point,
legislatively, I think we’ve pretty much got it covered’,55 Australia continues
to see a succession of new proposals. The reasons for this lie as much in the
political importance of national security and terrorism to the forthcoming
federal election in Australia as in the fact that prior to September 11 Australia
had no national legislation on the topic.
It is not surprising that political leaders in both nations, as members
of parliament and law-makers, have turned to new laws after September 11
and the Bali attack. New legislation is at least within their control and
is a symbolic and potentially practical response. However, it is important
to acknowledge that new laws will not provide long-term solutions.
Legislation is unlikely to tackle the causes of terrorism and will not deter a
terrorist from a premeditated course of action. Further, law-making may also
redirect attention away from debate over other responses to terrorism. Worse
still, enacting draconian laws may lead to a sense of complacency on the part
of the public and may also compromise the same democratic freedoms that
are meant to be the subject of protection. This is of particular concern in
Australia which, without a statement of rights that has political acceptance
and legal force, lacks the tools needed to navigate through the current war on
terror whilst still maintaining basic freedoms.
I do not mean to suggest that a nation’s response to terrorism should be
timid. Indeed, all nations have an obligation to protect their people from

55
J. E. Smith, New Zealand’s Anti-Terrorism Campaign, note 42 above, at 35.
GEORGE WILLIAMS
552

terrorism. However, when the law is used as a primary tool in the war on
terror, it can also pose a threat to the rule of law. In succession, such laws can
undermine the basic values and assumptions that have been developed over
the course of centuries. Unfortunately, this can occur without any real
appreciation of the extent to which such laws are actually effective in com-
bating terrorism.
PART SIX

Anti-Terrorism Measures in Africa, the Middle
East and Argentina
25

Terrorism and governance in South Africa
and Eastern Africa
C. H. POWELL


Introduction
It has become axiomatic that terrorists, who have no respect for international
borders, can be countered only through an internationally coordinated
programme. For this reason, the Security Council of the United Nations has
invoked its powers under Chapter VII of the UN Charter to insist that states
cooperate in regional and international anti-terrorism efforts in addition to
setting up domestic anti-terrorism regimes. This chapter examines the main
features of the anti-terrorism regimes of four African states, namely, South
Africa, Uganda, Tanzania and Kenya, all of which have had some experience of
terrorism. It sets their anti-terrorism legislation in the international and regional
context to establish how each state has integrated itself into the wider anti-
terrorist framework. What emerges from this study is that the anti-terrorism
regime in the four states has come to be dominated not only by the executive
branches of government, but also by the powerful executive branches of other
governments and the executive-like powers of the UN Security Council.

I. The international and regional anti-terrorism regime
UN Security Council Resolution 1373 of 2001, issued under Chapter VII of the
UN Charter, requires all states to refrain from providing support of any kind to
terrorist groups and to prevent terrorist acts through early warning systems and
mutual assistance in investigation and prosecution.1 States must establish and


Thank you to a wonderful team of students, colleagues and friends who helped with this
chapter: to Jeremy Wilkin, Simon van Dugteren, Grant Tungay and Janse Rabie for their
research support; to Jean Redpath, Adele Erasmus and P. J. Schwikkard for lessons on South
African criminal procedure; to Ken Nyaundi, Alexandra Nkonge and Judge Anthony Bahati
for information on the legal systems of Kenya, Uganda and Tanzania respectively; and
to Tom Bennett, Christina Murray, Ken Nyaundi, Isabel Goodman, Michael Osborne,
¨
P. J. Schwikkard, Adele Erasmus, Francois Du Bois, Victor V. Ramraj, Jorg Monar and
Lynn Welchman for comments on earlier drafts. The errors are my own.
1
Articles 1(a), 2(a), and 2(b) of Security Council Resolution 1373 of 2001 (hereafter SCR
1373).

555
C. H. POWELL
556

prosecute a range of terrorist offences within their domestic criminal justice
system and must suppress recruitment to terrorist groups.2 These measures must
combat both terrorism stricto sensu and organized crime, which is seen to have an
intimate connection to terrorism.3
SCR 1373 was followed and confirmed by a range of later resolutions4
directed specifically at groups of individuals and organizations identified as
terrorist by the Security Council.5 They require that states freeze the financial
assets of these entities, deny them entry into and transit through their
territories and prevent them from selling and supplying military equipment,
whether such sales and supplies are carried out from their territories or even
by their nationals outside their territories.6
SCR 1373 calls on states to sign all international conventions and protocols
which relate to terrorism,7 including, specifically, the International
Convention for the Suppression of the Financing of Terrorism of 1999.8 All
four states have ratified this Convention9 as well as the International
Convention for the Suppression of Terrorist Bombings of 1998.10 Kenya,
South Africa and Tanzania have also ratified the Organization of African
Unity’s Convention for the Prevention and Combating of Terrorism of
1999,11 and Kenya and South Africa are parties to the Convention against
Transnational Organized Crime of 2000.12 Together, these treaties reflect the
Security Council requirements, setting out a fairly detailed system arranged
around two main phases of a counter-terrorism programme.
In the first phase, a wide range of measures attempt to prevent terrorism.13
These measures include the surveillance of suspects and the monitoring, and
occasionally freezing, of their assets. In addition, assets connected to terror-
ism may be permanently seized. Asset seizure often follows on conviction for
one of the treaty crimes, but criminal conviction does not appear to be a


2 3
Article 2. Article 4.
4
See Security Council Resolutions 1390 of 2002, 1455 and 1456 of 2003 and 1526 of 2004.
5
See note 162 below.
6
Paragraphs 2(a) to (c) of Security Council Resolution 1390 of 2002 (hereafter SCR 1390),
reaffirmed by Security Council Resolutions 1455 and 1456 of 2003 (hereafter SCR 1455
and SCR 1456 respectively) and Security Council Resolution 1526 of 2004.
7
Article 3(d). See also article 2(a) of SCR 1456.
8
Hereafter the Financing Convention. See http://untreaty.un.org/English/Terrorism.asp.
9
See http://untreaty.un.org/ENGLISH/Status/Chapter_xviii/treaty11.asp.
10
Hereafter the Bombing Convention. See http://untreaty.un.org/English/Terrorism.asp.
11
Hereafter the Algiers Convention. Uganda has signed but not ratified this Convention.
Information supplied by the African Union.
12
Hereafter the Organized Crime Convention. Tanzania and Uganda have signed but not
ratified this Convention.
13
See articles 8, 12, and 18, Financing Convention; articles 12 and 20–1, Organized Crime
Convention; article 4(2) Algiers Convention; and article 15 Bombing Convention.
TERRORISM AND GOVERNANCE 557

prerequisite to seizure in all cases. In the monitoring of assets, neither states
nor individuals may refuse to provide information on the basis of bank
secrecy.14
The second phase concerns the prosecution and extradition of terrorists.15
Both terrorism and transnational organized crime are considered to be
particularly grave offences, for which punishment must be correspondingly
harsh. Each Convention requires signatories to create a range of specific
crimes and provide expressly for wide accomplice and attempt liability.
Over and above the wide accomplice liability, two Conventions suggest that
states proceed against criminal or terrorist groups. States must either prose-
cute or extradite persons accused of terrorism or organized crime. They may
not grant reprieve from criminal proceedings on the basis that the offence is
politically motivated or fiscal in nature.16
Close cooperation between states underpins the anti-terrorism programme as
a whole: the conventions require an early warning system against terrorist
threats17 and oblige states to guard against the abuse of refugee status and asylum
seeking.18 States are expected to cooperate with one another to facilitate inves-
tigation, prosecution and extradition of offenders19 and the confiscation and
disposal of assets connected to the treaty crimes.20
Together, the treaties and the Security Council Resolutions attempt to
create a worldwide, uniform system in which terrorist threats can be recog-
nized and prevented, information shared among states and terrorists extra-
dited and prosecuted. The entire regime rests, of course, on an internationally
recognized, determinate definition of terrorism. The lack of one is a serious
obstacle. The Security Council Resolutions do not attempt a definition, and
almost all of the treaties prohibit a range of activities rather than defining the
crime of terrorism itself.21 The most recent attempt, which was made in the

14
Article 12(2) Financing Convention; article 12(6) Organized Crime Convention.
15
The key provisions referred to in this paragraph are found in articles 2, 4(b), 6, 10, 11, 13,
14 of the Financing Convention; articles 5, 6, 8, 11, 18, and 23 of the Organized Crime
Convention; articles 2(a), 3(2), and 8 of the Algiers Convention; and articles 2, 4, 5, 8, 11
and 15(a) of the Bombing Convention.
16
Note, however, the ‘persecution’ exemption, note 156 below.
17
See generally: article 18 Financing Convention; article 2(b), (c), (f) and (i) Algiers Convention.
18
Article 4(2)(g) Algiers Convention.
19
Article 12 Financing Convention; articles 17–19, 21 and 27 Organized Crime Convention;
and article 10 of the Bombing Convention. The OAU Convention on the Prevention and
Combating of Terrorism even provides for a semi-judicial organ, a commission rogatoire,
which is meant to have jurisdiction over states in its investigation of suspected terrorism.
It is not clear who is expected to staff these commissions. See articles 14, 16 and 17 of the
Algiers Convention.
20
Article 8(3) Financing Convention; and articles 13 and 14 Organized Crime Convention.
21
Only two international instruments attempt a normative definition. The 1937 attempt by
the League of Nations, in its Geneva Convention for the Prevention and Punishment of
C. H. POWELL
558

International Convention on the Suppression of the Financing of Terrorism,
does provide a normative definition of terrorism, but only in the context of
armed conflict. The armed conflict section of the Convention refers to acts
‘intended to cause death or serious bodily injury to a civilian, or to any other
person not taking part in the hostilities . . . when the purpose of such act . . .
is to intimidate a population, or to compel a government or an international
organisation to do or to abstain from doing any act’. However, the Convention
describes ‘peacetime’ terrorism only by reference to the specific acts outlawed
in the earlier Conventions.22
The main obstacle to formulating a definition, particularly relevant to Africa, is
the right to self-determination.23 Whether terrorism is seen as a list of proscribed
activities or more generally as violence aimed at influencing the government, it
renders methods typically used in armed liberation struggles unlawful. The fear
that acknowledgement of the crime of terrorism will negate the right of self-
determination finds expression in the definition of the offence by the OAU, which
expressly excludes the struggle of a people for self-determination.24
Because the lack of a common definition of a crime hinders extradition,
the UN Office on Drugs and Crime has provided a selection of the major
models of definition in use in domestic jurisdictions. The most detailed
model requires three elements before a criminal act becomes a terrorist act:
that the act is of a particular level of violence, that there is an intention to
intimidate, and that there is an underlying motivation of a particular sort –
usually political, ideological or religious.25


Terrorism, defined ‘acts of terrorism’ as: ‘criminal acts directed against a State and
intended or calculated to create a state of terror in the minds of particular persons, or a
group of persons or the general public’ (LN Doc C.546(1) M 383(1) 1937 V, Art. 1 (2)). In
1994, the General Assembly Declaration on Measures to Eliminate International
Terrorism defined terrorist acts as ‘criminal acts intended or calculated to provoke a
state of terror in the general public, a group of persons or particular persons for political
purposes’ (UN GA Res. 49/60, Annex, 9 December 1994, para. 3). Regional instruments
which provide normative definitions include the Convention of the Organization of
the Islamic Conference on Combating International Terrorism, adopted on 1 July 1999,
the Algiers Convention and the Treaty on Cooperation among States Members of the
Commonwealth of Independent States in Combating Terrorism of 4 June 1999.
22
See generally C. L. Lim, Chapter 3, in this volume.
23
The right to self-determination was accepted as an obligation ergo omnes by the East Timor
Case (1995) ICJ Reports 90.
24
Article 3(1) Algiers Convention. The Convention does not make clear how this article is to
be reconciled with article 3(2), which states that ‘political, philosophical, racial, ethnic,
religious or other motives shall not be a justifiable defence against a terrorist act’.
25
UN Office on Drugs and Crime Legislative Guide to the Universal Anti-Terrorism Conventions
and Protocols (2003) at http://www.unodc.org/odccp/terrorism.html?idÂĽ11702 para 20. It
suggests omitting the element of motivation for two main reasons: its inclusion could frustrate
extradition requests and it would be impossible to prove without a confession from the
accused.
TERRORISM AND GOVERNANCE 559

The above model could cover acts of violence in both peace and war. In
this discussion, however, terrorism will be viewed as a ‘peacetime’ pheno-
menon, ideologically motivated, aimed primarily at civilians and intended
to cause terror in the targeted community. It is not immediately evident
that this narrower view of terrorism is supported in the developed world,
as anti-terrorist rhetoric creates contradictions within state practice. States
frequently adopt a military discourse in responding to terrorism and claim
that its threat confers on them the right to use force. In any discussion of
the legal regime which should govern terrorism, however, states vigorously
reject the framework of armed conflict. They insist that a terrorist attack is
not military activity – even if such activity would also be prohibited by the
laws of war. Under this view, terrorists are seen as serious but ordinary
criminals. They are not considered war criminals, and states are not
subject to international humanitarian law when they deal with them.26
The ideological motivation behind terrorism therefore does not elevate
terrorist attacks to the status of (possibly legitimate) acts of armed
conflict.

II. Domestic politics
Despite Africa’s long and painful history of violence and civil war, the
continent as a whole has experienced relatively little terrorism in the nar-
rower, ‘peacetime’ sense outlined above. Instead, terrorist attacks are
encountered in two main forms – as a tactic of organized groups engaged
in criminal activities such as the drug trade or trafficking of persons, and as a
breach of humanitarian law when rebel groups terrorize, rob and coerce
civilians to assist their military campaigns.27 By contrast, South and Eastern
Africa have had experiences of terror attacks carried out on civilian targets in
a peacetime setting. The worst of these were possibly the bombing of the
American embassies in Nairobi and Dar-es-Salaam in 1998, but there have


26
This rejection of any connection between terrorism and war for definitional purposes is
perhaps seen most clearly in the vehement response to a proposal by an ILA Committee to
define terrorism with reference to International Humanitarian Law in 1982. The minority
report insisted that terrorism ‘is committed during a time of peace’ by non-state groups
which are not recognised as belligerents. See the Fourth Interim Report of the ILA
Committee on Terrorism, 1982 in (1984) 7 Terrorism: An International Journal 131;
Y. Dinstein, ‘Comments on the Fourth Interim Report of the ILA Committee on
International Terrorism (1982)’ 7 Terrorism 163–5; and R. A. Friedlander, ‘Comment:
Unmuzzling the Dogs of War’ 7 Terrorism 169.
27
See generally J.-F. Bayart, S. Ellis and B. Hibou, The Criminalization of the State in Africa
(Bloomingdale, Indiana University Press, 1999), 49–68 and C. Powell and I. Goodman,
‘Reconciling the Fight against Terrorism and Organised Crime with Banjul’ (2002) in
Africa and Terrorism Monograph no. 74, Institute for Security Studies, Pretoria, 35–49.
C. H. POWELL
560

also been other incidents. Examples include bombings and attempted bomb-
ings in Kampala, Uganda in 1997 and an attack on an Israeli hotel in
Kikambala Beach, Mombasa, Kenya in 2002. South Africa experienced a
series of bombings between 1994 and 2000,28 although many of these may
have had criminal,29 rather than ideological, motivations.
Uganda is a special case in this study, as it also has extensive experience of
armed conflict.Two rebel forces, the Lord’s Resistance Army (LRA) and the
Allied Democratic Forces (ADF), run military campaigns in the country and
have been declared ‘terrorist organizations’ by the government.30
The presence of a terrorist threat within these four states might suggest
that there would be a strong internal need and support for their anti-terrorism
legislation. However, in all four states, there has been opposition to the new
regime. In East Africa, commentators on the anti-terrorism regime accuse the
government of introducing the measures in response to foreign pressure,
particularly that of the United States. The perception that the anti-terrorism
regime is externally driven is strengthened by the fact that the targets of the
attacks in these countries have been foreign embassies and businesses, not local
interests. In Kenya, the Bill is perceived to have been promulgated after
the United States and Britain put pressure on the Kenyan government.31 The
Kenyan Daily Nation reports that Kenyans believe that the US authored the
legislation, due to similarities to the US Patriot Act.32 The Ugandan legislation
had US support and the Ugandan rebel group, the LRA, was put onto the US list
of terrorist organizations once the Ugandan Act had been passed into law.33



28
¨
H. Boshoff and M. Schonteich, ‘South Africa’s Operational and Legislative Responses to
Terrorism’ in (2002) Africa and Terrorism Monograph no. 74, Institute for Security
Studies, Pretoria, 63; and Powell and Goodman, ‘Reconciling the Fight’, at 43–5. The
South African Law Commission Report no. 92 of 2000 lists 338 bombings between 1994
and 1998.
29
Chiefly the drug trade, the smuggling of weapons, gold, ivory and other valuable sub-
stances and the theft and export of cars and other valuables. See generally S. Ellis ‘The New
Frontiers of Crime in South Africa’ in Bayart, Ellis, and Hibou, Criminalization of the
State, at 49–68.
30
The LRA receive support from Sudan, while the Ugandan government supports the
Sudanese People’s Liberation Army (SPLA), the principal Sudanese rebel group. Uganda
was also a major player in the DRC conflict. It withdrew its forces in September 2003.
31
See ‘Anti-terror steps irk Kenyans’ http://www.news24.com/News24/Africa/News/
0,,2–11–1447_1393459,00.html.
32
Kagari ‘Anti-terror Bill an affront to human rights’ Daily Nation on the Web,
18 November 2003 at http://www.nationaudio.com/News/DailyNation/18112003/
Coment/Comment18112003.html.
33
See Human Rights Watch World Report 2003 at http://www.hrw.org/wr2k3/
africa13.html. See also H. Strydom, ‘South Africa’s Response to International
Terrorism’ (2002) 27 South African Yearbook of International Law 82, at 95–6.
TERRORISM AND GOVERNANCE 561

To the extent that the anti-terrorism measures relate to the internal political
landscape, commentators fear that anti-terrorism laws will be used not to protect
the citizens of the country, but to suppress particular groups. In Uganda, Kenya
and Tanzania, Muslim residents feel targeted by the legislation.34 The Tanzanian
government has been accused of torturing members of opposition groups, and
critics believe the new legislation will allow the government to suppress and
repress opposition with impunity.35 In Uganda, civil organizations also assert
that the legislation was not motivated by the war on terrorism but rather by
Uganda’s internal politics. The government in Uganda is accused of intolerance
to opposition and large-scale mistreatment of opponents, including arbitrary
arrests, detentions and assaults.36

III. Background to the anti-terrorism legislation of South
and Eastern Africa
As indicated above, both Uganda and Tanzania already have legislation in
force against terrorism, while the Kenyan executive produced a draft
Suppression of Terrorism Act in 2003.37
South Africa’s draft anti-terrorism legislation has had a difficult gestation
period of over eight years. The term ‘terrorism’ has a particularly unfortunate
history in South Africa, having been misused by the apartheid government in
its suppression of political opposition. Ironically, South Africa’s anti-terrorism
Bill38 can therefore be traced back to a project to repeal one of apartheid South
Africa’s most notorious pieces of security legislation, which included the
infamous provision for indefinite detention.39 Over time, the perceived need
to reformulate rather than remove security legislation led to a draft of anti-
terrorism legislation first by the South African Police in 1999, and then by the
South African Law Reform Commission (SALRC) and two parliamentary
portfolio committees. This draft, although accepted by the National
Assembly, was further amended by the second house of Parliament, the


34
Above note 31. Hitherto, persons arrested under the Ugandan Act have come largely from
the Tabliq sect of Islam.
35
See Amnesty International report at http://web.amnesty.org/library/Index/ENGAFR
560042001?open&ofÂĽENG-TZA.
36
Above note 33.
37
Uganda’s Anti-Terrorism Act (‘Ugandan Act’) came into force on 7 June 2002. Tanzania’s
Prevention of Terrorism Act (‘Tanzanian Act’) came into force on 15 June 2003. Kenya’s
legislation is still in draft form: the Suppression of Terrorism Bill 2003 (‘Kenyan Bill’).
38
In its final version, the anti-terrorism Bill is called the ‘Protection of Constitutional
Democracy against Terrorist and Related Activities Bill’. It is referred to as ‘the South
African Bill’ in this chapter.
39
See SALRC Report Project 105 Review of Security Legislation, Terrorism: Section 54 of the
Internal Security Act 1982 (Act no. 74 of 1982) August 2002 at 1.
C. H. POWELL
562

National Council of Provinces (the NCOP). It was then referred back to the
portfolio committees for discussion and reintroduced to Parliament after the
elections of April 2004. It was finally passed on 12 November 2004.40
There seem to be two main themes running through the criticism of the South
African Bill. The first, recalling South Africa’s apartheid history, objects to the
legislation on the basis of liberal principles of constitutionalism, the doctrine of
separation of powers and human rights. The second theme is grounded more
concretely in socio-political considerations: certain groups fear victimization
under the legislation. Thus the various drafts have been heavily criticised by
the Muslim community41 and the trade union movement.42
In Eastern Africa, there was little consultation about the anti-terrorism
legislation. The draft bills were not referred to the Law Reform Commissions
in any of the three states. Despite criticism, the legislation was passed extre-
mely quickly in both Uganda and Tanzania. Uganda’s Human Rights
Commission suggested extensive amendments to its draft Bill,43 most of
which were not adopted.44 Kenya, which has not yet passed its Bill, may
still adapt the Bill in response to some of the objections against it.

IV. The anti-terrorism regimes of South and Eastern Africa
The following description of the legislation in South and Eastern Africa is
arranged around two main phases of the internal anti-terrorism regime of
each state: the pre-trial phase, which revolves mainly around the prevention

40
This Bill will become an Act of Parliament when it is signed by the President (see s. 74 (1)
(d) of the Constitution).
41
South African Law Reform Commission Compendium of Recent Publications 31 March
2004 at 22 and the submissions to the SALRC, available at http://www.law.wits.ac.za/salc/

<<

ńňđ. 19
(âńĺăî 23)

ŃÎÄĹĐĆŔÍČĹ

>>