Shouts from the desert

This is the second part in my review of controversial aspects of the Anti-Terrorism Bill (No. 2) 2005. As with part 1, this review does not look at whether the proposed changes are warranted - nor could it since the government still has not given us the information we would need to rationally determine whether these steps are necessary - a situation that is grossly unsatisfactory to say the least.

Preventative Detention Orders

The proposed system of preventative detention is in Schedule 4 of the Bill, and is proposed to form Division 105 of the Criminal Code. Section numbers below refer to section numbers that would be inserted into the Criminal Code by this Bill, or that are already in the Criminal Code.

The purpose of preventative detention orders is explicitly stated as being for the prevention of an imminent terrorist attack, and for the preservation of evidence relating to a recent terrorist attack (s105.1). Explicitly stating the purpose in this way tends to limit abuse, because if the Government attempted to use the powers for any other purpose, courts would construe that as not being an exercise of the powers at all - in other words the a Government using these powers for some unauthorised purpose would be acting just as illegally as the would if they were to engage in detention of this kind right now, without these laws being present. Proving an unauthorised purpose may be difficult though, so this does not entirely rule out the possibility of abuse.

The current Bill allows for the Minister to appoint people as issuing authorities for preventative detention orders who are: judges of a supreme court (s105.2(1)(a)); Judges of a federal court (s105.2(1)(b)); federal magistrates (s105.2(1)(c)); retired judges who served 5 years or more (s105.2(d)); legal practitioners with at least 5 years standing who are a president or deputy president of the Administrative Appeals Tribunal (s105.2(e)).

The first three categories of appointment raise the constitutional question as they involve appointing a person who is a judge to a role that may be incompatible with the exercise of judicial power. The latter two do not raise the same issues. Nevertheless, the Government may decide to appoint judges, which makes the constitutional issue worth considering. The rule has been stated as (Grollo v Palmer (1994) 184 CLR 348 at 365):

the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished

In the past, the High Court has found that the issuing of telephone interception warrants was not incompatible (Grollo), but that the preparation of advice for a Minister was incompatible (Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1). Now issuing preventative detention orders might seem more like the case of issuing telephone interception warrants than the case of giving advice to a Minister, but there is one case dealing with the issuing of preventative detention orders to prevent a person from committing a serious act of violence: Kable v DPP (NSW) (1996) 189 CLR 1. In that case the High Court found that participation in the making of a preventative detention order where no breach of the criminal law has been alleged and there has been no determination of guilt is incompatible with the exercise of judicial power (at 98 per Toohey J; at 106-107 per Gaudron J; and at 121 per McHugh J). In Kable the legislation was directed at one individual by name, and it was speculated that the situation might be different if the legislation was instead directed at a class of people, but the question remains an open one and there is a significant chance that the High Court would treat the issuing of preventative detention orders as incompatible with the exercise of judicial power.

It should be noted that even without the constitutional issues, all of the people listed in s105.2 are lawyers of one type or another, and given the near unanimity with which all branches of the legal profession have condemned the system of preventative detention orders, a person accepting an appointment to issue such orders would suffer such a radical loss of status among their colleagues that it is difficult to imagine what kind of person would accept such an appointment.

Detention orders can only be made:

• where there are reasonable grounds to suspect that: the person will engage in a terrorist act (s105.4(4)(a)(i)); possesses something connected with the preparation for or commission of a terrorist act (s105.4(4)(a)(ii)); or has undertaken preparation for or planning of a terrorist act (s105.4(4)(a)(iii)). The detention must be necessary to substantially assist in preventing the act from occurring (s105.4(4)(b), s105.4(4)(c)), and the terrorist act must be expected to occur within 14 days (s105.4(5)); or
• a terrorist act has occurred in the past 28 days, and the detention is necessary to preserve evidence relating to that attack (s105.4(6)).

Unlike the control orders system, the preventative detention orders system only involves a member of the AFP making an application directly to an issuing authority - there is no direct oversight by the Attorney-General (s105.8). The AFP officer must state some things in the application, but they are not as detailed as the application for control orders, and do not require the AFP member to attest that they believe the order is necessary for the authorised purpose (s105.7). The order may be issued for an initial 24 hour period of detention (s105.8-105.10), which may be extended to 48 hours (s105.11-105.14).

When a person is detained under a preventative detention order, a prohibited contact order may also be issued preventing that person from contacting a specified person while in detention (s105.15-105.16).

This is a fairly limited detention regime given that it is limited to 48 hours, and it is limited to people closely connected with a terrorist attack - people actually involved in its planning or execution, or who have something in their possession that is intimately connected with the attack, or who are likely to destroy evidence relating to an attack that has taken place. It is not susceptible to being used to haul people off to gulags (or Guantanamo Bay) for years at a time, nor is it susceptible to being used against people who merely disagree with the Government.

The basics of the regime are therefore not so severe as to justify suggestions that the Bill proposes police state powers.