Terrorism - Hot Topics 58 - Legal Information Access Centre

HOTTOPICS2007 > hot topics 58L e g a L i s s u e s i n p L a i n L a n g u a g eThis is the fifty-eighth in the series Hot Topics:legal issues in plain language, published by the LegalInformation Access Centre (LIAC). Hot Topics aimsto give an accessible introduction to an area of lawthat is the subject of change or public debate.AUTHOR: Ben SaulEDITOR: Cathy HammerDESIGN: Bodoni StudioPHOTOS: AAP - cover image, pp 8, 11, 16, 18& 24; Austral Images pp 2 & 22.Terrorism1 introductionDefining terrorism – freedom fighters – State terrorism –global threat of terrorism – terrorist threat to Australia.6 terrorism and international lawTerrorism as transnational crime – terrorism and theUN Security Council – use of force against terrorism – terrorismand humanitarian law – torture and ‘extraordinary rendition’– absolute prohibition on torture – terrorism and human rights– terrorism and refugee law17 australian anti-terrorism lawsNew terrorism offences – banning terrorist organisations –Australian Security Intelligence Organisation powers –Anti-Terrorism Act (No 2) 2005 – Preventive detention orders– control orders – crime of sedition – banning unlawful associations– other provisions of the Anti-Terrorism Act (No 2) 2005.28contacts and further readingstate Library of nsWcataloguing-in-publication datahot topics, issn 1322-4301, no. 581. Terrorism.2. Terrorism – Government policy – Australia.3. Terrorism – Australia – Prevention.I. Saul, Ben. II. Hammer, Cathy. III. Legal InformationAccess Centre. (Series: Hot topics (Sydney, N.S.W.); no. 58)345.9402© Library Council of New South Wales 2006. All rightsreserved. Copyright in Hot Topics is owned by the LibraryCouncil of New South Wales (the governing body of theState Library of New South Wales). Apart from any usepermitted by the Copyright Act (including fair dealing forresearch or study) this publication may not be reproducedwithout written permission from the Legal InformationAccess Centre.Hot Topics is intended as an introductory guideonly and should not be interpreted as legal advice.Whilst the Legal Information Access Centre attemptsto provide up-to-date and accurate information,it makes no warranty or representation about theaccuracy or currency of the information it providesand excludes, to the maximum extent permitted by law,any liability which may arise as a result of the use of thisinformation. If you are looking for more information onan area of the law, the Legal Information Access Centrecan help – see back cover for contact details. If youwant legal advice, you will need to consult a lawyer.

the crime being defined is not instead called a crime of‘intimidation’ or ‘compulsion’, since those concepts seemless serious than terrorising someone.Despite the lack of an international definition, Australianlaw defined terrorism in 2002, in response to the shockof 11 September 2001 terrorist attacks. In essence,Australia defines terrorism as certain types of seriousharm to people, property, public health or safety, oran electronic system, where it is intended to coercea government or an international organisation, or tointimidate the public, in order to advance a political,religious or ideological cause. There is an exception foradvocacy, protest, dissent or industrial action which isnot intended to cause serious physical harm to a person,endanger life, or seriously risk public health.While the Australian definition has been criticised, itis among the narrowest definitions of terrorism in allnational legal systems. The elements of the definition arecumulative, meaning that terrorism is only committed ifthere is serious harm, to intimidate the public or coercea government, for a political purpose. Almost all of thephysical acts covered by the definition are already crimesthemselves, and could, for instance, be prosecuted asmurder, assault, arson, malicious property damage,and so on. The Australian definition is also similar todefinitions used in Britain, Canada and New Zealand.Some elements of the definition are, however, rathervague, making the scope of the definition uncertain andunpredictable.freeDOm figHTersA major obstacle to international efforts to defineterrorism has been the problem of self-determination(or national liberation) movements. After the SecondWorld War, a new international political and legal orderwas created based on respect for the independence of‘peoples’ from colonial domination and oppression. Theaspirational idea of self-determination was enshrined inarticle 1(2) of the United Nations Charter 1945, and inthe first major post-war human rights instrument, theUniversal Declaration of Human Rights 1948 3 . Laterself-determination was transformed into a legally bindingcommitment by States in adopting the InternationalCovenant on Civil and Political Rights 1966 (ICCPR) 4and the International Covenant on Economic, Social andCultural Rights 1966 (ICESCR) 5 . Common article 1 ofthe ICCPR and ICESCR assert that self-determinationmeans that peoples have a right to ‘freely determine theirpolitical status and freely pursue their economic, socialand cultural development’, as well as to control their ownnatural resources.While none of these treaties define who constitutes a‘people’ entitled to claim self-determination, it sooncame to be understood and accepted by States that apeople comprises the population within the bordersof a territory controlled by a foreign colonial power.Indigenous peoples, and ethnic or other minority groupswithin an independent State, could not therefore claimself-determination in order to achieve independencefrom such States.Between the end of the Second World War and thelate 1970s, many peoples achieved independence fromcolonial control, emerging as new States. For someof these peoples, independence came as a result ofa peaceful decolonisation process, whether throughconsultation with the colonial authorities, through theUnited Nations trusteeship system, or after passiveresistance to colonial rule (as in India). For otherpeoples, resort to violence was seen as the only way toattain independence from colonial powers reluctant torelinquish foreign territories.These violent struggles for national liberation are thekey reason for the international community’s inability todefine terrorism. Many new States, who themselves usedviolence to achieve independence, insisted that the justcause of self-determination justifies using all necessarymeans, including violence and even terrorism. A numberof non-binding resolutions of the UN General Assemblyseemed to support this position, by exempting selfdeterminationstruggles from resolutions condemningterrorism and by emphasising the causes of terrorism(such as oppression, exploitation and foreign domination).The assumption underlying this position is that selfdeterminationis a higher objective than anything else– including the protection of innocent civilians fromarbitrary killings.In contrast, many western developed States – whowere more likely to be victims of terrorism – arguedthat even self-determination movements must complywith basic humanitarian rules, such as not deliberatelykilling civilians for political ends. These governmentsclaimed that just as governments must not violatehuman rights and must comply with the laws of war(see p 9), so too must national liberation fighters respectfundamental protections. These governments did notview self-determination as so important that it couldoverride all other principles, including the protection ofinnocent lives. The Australian definition of terrorismdoes not recognise any exception for self-determinationmovements.3. Text available at http://www.unhchr.ch/udhr/lang/eng.htm4. Text available at http://www.ohchr.org/english/law/ccpr.htm5. Text available at http://www.ohchr.org/english/law/cescr.htmintroduction 3

In 1977, many States adopted a new humanitarian lawtreaty, the Additional Protocol II 6 to the 1949 GenevaConventions (the key modern rules which apply in armedconflicts) 7 . Article 1(4) of Protocol II recognised for thefirst time in international law that self-determinationfighters should be recognised as participants in aninternational armed conflict – that is, a conflict betweenthe colonial power, and the liberation forces. ProtocolII recognised that self-determination movements areentitled to become States and are therefore States-inwaiting.Previously, self-determination fighters couldbe regarded by colonial powers as rebels in an internalarmed conflict.The distinction between international and noninternationalconflicts is vitally important becausedifferent rules apply to each. In particular, rebelsin a civil war can be prosecuted as criminals by thegovernment (including as terrorists). In contrast, ininternational conflicts, fighters may be recognised ascombatants entitled to immunity from prosecution foracts of violence which comply with humanitarian law.Protocol II meant, therefore, that self-determinationforces could lawfully kill soldiers of the colonial power,and if captured they would be treated as prisoners of warrather than as criminals.Protocol II was highly controversial, and some keycountries like the United States and Israel have still notsigned it (although Australia has), not least because formany years Israel did not want to recognise the rightof the Palestinian people to self-determination in theOccupied Territories. Countries which have not signedProtocol II remain legally free to treat self-determinationfighters as terrorists, meaning that different liberationfighters may be treated differently – some as terrorists,and some as lawful combatants – depending on whatcountry they are in. This division among States persists,with disagreement about the status and rights of freedomfighters in Palestine and Kashmir driving disagreementsince 2000 about defining terrorism in the Draft UNComprehensive Anti-Terrorism Convention.sTaTe TerrOrismThe other sticking point preventing agreement ondefining terrorism is whether States can commit terrorism,or whether terrorists are only non-State actors (such asindividuals or organised armed groups). Many westerndeveloped States have long insisted that it is unnecessaryto include government conduct in the definition ofterrorism, since existing areas of international law –such as human rights, humanitarian law, internationalcriminal law, the law on the use of force, the law ofState responsibility, and the law of the United NationsCharter – already govern what States can and cannot do.In their view, a legal definition of terrorism is necessaryprecisely because the violent activities of non-State actorsare not fully covered by these international laws, whichprincipally impose obligations on States.In contrast, some non-western and developing Stateshave argued that terror inflicted by States (particularlywestern ones) is far more dangerous and prevalent thannon-State terror, such as the bombing and killing ofcivilians by armed forces in war, large scale oppressionand intimidation of civilian populations by their owngovernments, or covert operations by States to assassinatetheir political enemies. Existing international law isnot considered sufficient to control and restrain suchviolence by States, which has continued unabated despitelegal controls. In addition, because the term ‘terrorism’ ismorally powerful in condemning and stigmatising thoseto whom it is applied, the term should be equally appliedto States and non-State actors if they commit equivalentconduct – terrifying civilians for political ends.Again, this disagreement between different States isparalysing progress on the Draft UN ComprehensiveAnti-Terrorism Convention, since there is no consensuson the extent to which (if at all) State armed forcesshould be excluded from the definition. The Australiandefinition of terrorism does not exempt individual Stateofficials from criminal liability if they are responsible forterrorism, although high-ranking government leadersand diplomats may enjoy immunity from prosecution.In addition, if terrorism is committed during wartime,foreign soldiers are more likely to be prosecuted for warcrimes rather than terrorism.THe glObal THreaT Of TerrOrismIt is difficult to objectively evaluate the threat posed byterrorism, whether globally or in Australia. The lack of aninternational definition of terrorism means that it is hardto measure the number of terrorist attacks worldwide.Different governments, organisations, and academicresearchers use different definitions, resulting in largedivergences in recorded numbers of terrorist attacks.The Federal Bureau of Investigation in the UnitedStates estimates that between 1968 and 1999, therewere 14 000 international terrorist attacks, resulting in10 000 deaths.Terrorist groups are secretive by nature, while some ofthem also rely on propaganda and fear to amplify, in thepublic mind, their actual capabilities. At the same time,governments are keen to protect their intelligence sourcesand information, so that terrorists are not alerted to themethods of government intelligence gathering. Thismeans that governments are often reluctant to discloseto the public the full nature of terrorist threats thatthey know about. In addition, some governments havefound it politically advantageous to exaggerate the threatof terrorism, or to label as terrorists people or groupswho are really political opponents rather than terrorists.6. Available at http://www.unhchr.ch/html/menu3/b/94.htm7. Available at http://www.unhchr.ch/html/menu3/b/91.htm4HOT TOPICS 58 > Terrorism

Some political groups have been falsely linked to Al-Qaeda, in the hope of discrediting them and justifyingharsh and repressive anti-terrorism measures.counter-terrorism measuresSome government counter-terrorism actions havesucceeded only in increasing rather than reducing thethreat of terrorism. In particular, the invasion of Iraq inMarch 2003 by the United States, Britain and Australiawas partly justified on the pretext that Saddam Hussein’sIraq was linked to Al-Qaeda and the sponsorship ofinternational terrorism. Not only have numerous officialinvestigations in the United States and Britain sinceconfirmed that Iraq was not connected to Al-Qaeda,the same investigations also disproved the other keyjustification for war – that Iraq had not disarmedand still possessed weapons of mass destruction. Theoverthrown of Saddam Hussein resulted in the rapidemergence and escalation of terrorism in a country wherepreviously there was none. Despite official assertionsto the contrary, even in late 2006 – more than threeyears after the invasion – Iraq has become an extremelyviolent society, wracked by militant insurgency, ethnic,religious and tribal tensions, and the involvement offoreign terrorists.The US invasion and occupation of an Arab, Muslimcountry fuelled opposition to the US throughout theArab and Muslim world, radicalising those opposed toAmerican policy in the Middle East and encouragingnew recruits to join terrorist groups. In part thesedevelopments are driven by the widespread perceptionthat the US, British and Australian invasion of Iraqwas unlawful under international law, since it wasundertaken neither in self-defence nor authorised bythe UN Security Council (the only two grounds onwhich force may be lawfully used). In addition, reportsand images of US personnel torturing, humiliating,degrading or otherwise mistreating its prisoners at AbuGhraib prison in Iraq, and Guantanamo Bay in Cuba,have also stimulated resistance to American actionsperceived as unlawful or unjust.al-Qaeda attacksThere is no doubt that there is an unknown numberof Al-Qaeda members committed to mounting serious,violent terrorist attacks on the United States and itsallies, including Australia. Since 11 September 2001,there have been large-scale coordinated terrorist attackson civilians in Bali, Kenya, Russia, India, Colombia,Turkey, Morocco, Spain and Britain, along with variousplots thwarted elsewhere. These threats are in additionto those encountered in various anti-terrorist militaryconflicts, such as in Afghanistan since late 2001, Iraqsince early 2003, and in southern Lebanon in 2006.The possibility of terrorists obtaining ‘weapons of massdestruction’ (such as biological, chemical or nuclearweapons), though probably remote, could nonethelesshave very grave consequences.proportionate attentionThe threat of terrorism must, of course, be kept inperspective. Since the 1960s, global casualties ofinternational terrorism have numbered a few thousanddeaths per decade, in contrast to many tens of millionskilled in wars and internal conflicts, by oppressivegovernments, or by disease or famine. Millions of youngchildren die each year from malnutrition and basicdiseases like malaria and tuberculosis, yet their plightdoes not receive the same urgent attention that terrorismhas recently attracted. The fear which terrorism creates,and the fact that it affects western States, partly accountfor the disproportionate attention it receives relative tothe actual harm it causes worldwide.THe TerrOrisT THreaT TO ausTraliaFortunately, Australia has had little history of modernterrorism within its borders, enduring only a minorbombing of a Sydney hotel in 1978, for whichresponsibility has never been established (although anumber of innocent people were wrongly convicted ina serious miscarriage of justice). Neighbouring NewZealand suffered the bombing of the Greenpeace ship,Rainbow Warrior, in Auckland harbour in 1985, inwhich a photographer was killed. Greenpeace hadbeen protesting French nuclear testing in the PacificOcean, and French intelligence agents were found to beresponsible for the bombing and some were convicted ofcriminal offences.In Australia’s region, the extremist Islamic group JemaahIslamiyah has been linked to Al-Qaeda and to the Balibombings of October 2002, which killed 202 people,including 88 Australians. Jemaah Islamiyah is thoughtto be active in a number of countries in the region,including Australia’s neighbour, Indonesia. Nearby thereare also militant groups which use terrorist methods inthe Philippines, southern Thailand, Nepal, Sri Lanka,India, and Pakistan, while China claims that Uighur(Muslim) separatists in the remote province of Xinjiangare terrorists.The Australian government has an official terrorismAlert Level, which since 2001 has told Australians thatthere is a ‘medium’ risk of terrorist attack occurring,defined to mean that ‘a terrorist attack in Australiacould occur’. The Alert Level has never been set at a‘high’ risk of attack, nor at an ‘extreme’ risk. Becauseof its access to and expertise in intelligence gathering,the government clearly has primary competence inevaluating security threats. However, given its remotegeographic location and modest position in internationalaffairs, the threat facing the United States and Britain islikely to be far higher than that facing Australia. Evenso, Al-Qaeda has specifically identified Australia as apossible terrorist target, and Australia’s involvement inIraq and Afghanistan makes it a prominent target.introduction 5

Terrorism andInternational LawTerrOrism as TransnaTiOnal CrimeIn the absence of agreement on how to define terrorism,the international community has taken a pragmaticapproach to combating terrorism. More than a dozeninternational anti-terrorism treaties have been adoptedsince 1963, most in reaction to serious terrorist incidents,such as attacks on civilian aircraft, airports or ships, orassassinations of diplomats and government officials.Most of the treaties do not mention terrorism, butinstead require States to prohibit and punish in domesticlaw acts such as hijacking, hostage taking, endangeringaircraft or ships, or to regulate dangerous objects such asplastic explosives or nuclear material. The most recenttreaties (since 1997) require States to prohibit and punishterrorist bombings, terrorist financing, and nuclearterrorism (but only by non-State actors).In addition to creating the principal offences, most ofthe treaties also require States to punish preparatory actssuch as attempting or threatening to commit an offence,abetting, organising, directing or contributing to theoffence, or complicity in the commission of an offence.These additional offences are designed to allow lawenforcement officials to intervene early in the planningand preparation of terrorism, given the potentiallyserious consequences of a terrorist act occurring.extended criminal jurisdictionMost of the treaties require States to extradite (toa country where the offence occurred) or prosecutesuspected terrorist offenders regardless of where theoffence occurred, and even if the offenders are notnationals of the State which has custody of the suspect.Extended criminal jurisdiction of this kind aims toeliminate impunity for terrorist crimes, since suspectswho flee overseas cannot escape being brought to justice(criminal jurisdiction is normally limited to crimes whichoccurred in a State’s own territory). Some of the morerecent anti-terrorism treaties have even abolished thepolitical offence exception to extradition, meaning thatthose who commit terrorist acts overseas cannot escapeextradition by claiming that their offence was politicallymotivated (such as to overthrow a government).The anti-terrorism treaties criminalise most of the actscommonly regarded as terrorism, and many of thetreaties have been adopted by a large number of States,giving them a wide sphere of application. There are stilla few gaps in the regulation of terrorism. For example,the killing or assassination of civilians (such as businesspeople, engineers, journalists, doctors, teachers or oilworkers) by guns or knives is not covered by the treaties,where such acts are outside aerial or maritime contexts,do not involve diplomats or government officials, and arenot committed by bombings or nuclear devices. Similarly,terrorist attacks against such targets by sabotaging publictransport or public utilities (such as water or electricitysupplies), electronic systems, or by use of chemical orbiological devices, may not be covered.In some cases, terrorist acts could be alternativelypunished as war crimes or crimes against humanity,but these offences are not applicable outside armedconflicts (for war crimes) or where an act is not part of awidespread or systematic attack on a civilian population(for crimes against humanity). In general, it is arguablethat prosecuting an act as hijacking, hostage takingor as a crime against civil aviation does not carry thesame degree of moral condemnation and social stigmaas prosecuting an act as ‘terrorism’. The anti-terrorismtreaties do not require a political motive as an elementof the offences, so that hijacking or hostage taking forpersonal profit or other private motives (such as revenge,or in a family dispute) are covered in the same wayas political acts. It is arguable that even if all types ofterrorist violence were regulated by filling these gaps inthe anti-terrorism treaties, there is still a need to defineterrorism in a more general treaty, to distinguish privateviolence from political (and thus terrorist) violence.Regional treatiesSome treaties adopted by ‘regional’ organisations havegone further than the international anti-terrorismtreaties by establishing general definitions and crimes ofterrorism. Regional organisations may be comprised ofStates grouped together geographically or by commoncharacteristics, such as religion. Organisations whichhave adopted regional anti-terrorism treaties include theOrganisation of American States, the Council of Europe,the South Asian Association of Regional Countries,the League of Arab States, Organisation of the IslamicConference, the African Union, the Commonwealthof Independent States and the Shanghai CooperationOrganisation. The European Union also adopted a lawin 2002 which defines terrorism as criminal offenceswhich given their nature or context, may seriously6HOT TOPICS 58 > Terrorism

damage a country or an international organisation wherecommitted with the aim of:> seriously intimidating a population; or> unduly compelling a government or internationalorganisation to perform or abstain from performingany act; or> seriously destabilising or destroying the fundamentalpolitical, constitutional, economic or social structuresof a country or an international organisation.This definition is similar to those mentioned above inthe 1999 Terrorist Financing Convention, the Secretary-General and Security Council proposals, and the DraftUN Comprehensive Convention, although it adds thefurther possibility of terrorism being committed whereit destabilises or destroys vaguely defined ‘structures’ ofa country.Of all regional treaties, the widest definition is in theOrganisation of the Islamic Conference Convention onCombating International Terrorism 1999:any act of violence… notwithstanding its motives orintentions perpetrated to carry out an individual orcollective criminal plan with the aim of terrorisingpeople or threatening to harm them or imperillingtheir lives, honour, freedoms, security or rights orexposing the environment or any facility or publicor private property to hazards or occupying orseizing them, or endangering a national resource, orinternational facilities, or threatening the stability,territorial integrity, political unity or sovereignty ofindependent states.The definition contains many ambiguous and undefinedterms (such as ‘honour’, ‘stability’ or ‘unity’), whichmakes it difficult for individuals to know the scope oftheir legal liabilities with any certainty. More worryingly,the different elements of the definition are not cumulative,so that any threat to harm people or property amountsto terrorism – including ordinary crimes like mugging orburglary. There is a real danger that governments can usethis definition to prosecute their political opponents asterrorists, even where such opponents do not use violencebut simply threaten the ‘honour’ of a governmentleader or the ‘stability’ of a country. The treaty alsoexcludes self-determination struggles from the definitionof terrorism. The League of Arab States Conventioncontains a similar exemption, but self-determinationmovements against Arab States are an exception to theexception – that is, terrorists.TerrOrism anD THe un seCuriTyCOunCilUntil 11 September 2001, the transnational criminaltreaties above, and domestic law enforcement andpolicing, were the principal methods used by Statesto combat international terrorism. From the 1980sonwards, the UN Security Council identified particularterrorist acts or methods as threats to internationalpeace and security, such as hostage taking, hijackingand abduction; assassination; use of plastic explosives orweapons of mass destruction by non-State actors; andbombings of civilians, aircraft, embassies and UN offices.Until the 1990s and the end of the Cold War, however,the Security Council did not use its enforcement powersunder Chapter VII of the UN Charter (which allow theCouncil to require all States to take military or nonmilitaryaction against a threat to international peace orsecurity) to combat terrorism.After the 1991 Gulf War, the Council required Iraq notto commit or support terrorism, as a condition of theresolution establishing a ceasefire after that conflict. In aseries of resolutions from 1992, the Council demandedthat Libya cooperate with the UN in establishing whowas responsible for the Lockerbie aircraft bombing overScotland. When Libya refused to surrender Libyansuspects to Britain or the US, the Council imposedaircraft, military, economic and diplomatic sanctionson Libya. Ultimately, a settlement was reached in 1998where Libya agreed to hand over two suspects for trial ina Scottish court sitting in the Netherlands, resulting inconvictions. Sanctions were finally lifted in 2003 afterLibya paid compensation to the families of the victims.actions relating to al-QaedaAl-Qaeda first came to the attention of the Council in1996, when the Council imposed sanctions on Sudan forshielding those responsible for an attempted assassinationof the Egyptian President. Sudan eventually expelledOsama Bin Laden and sanctions were lifted in 2001.In 1998, the Council condemned Al-Qaeda attacks onAmerican embassies in Kenya and Tanzania, which killedmany people. Between 1998 and 2006, the Counciladopted numerous resolutions imposing sanctions onthe Taliban regime in Afghanistan, which was thoughtto be harbouring Al-Qaeda (including Osama BinLaden), and on Al-Qaeda and its associates. By 2005,the Council had listed more than 200 individuals and100 entities (such as banks or charities) associated withAl-Qaeda, including in Bosnia, Kosovo, Chechnya,Palestine, North Africa, Sudan, Kurdistan, and SouthEast Asia. There are, however, concerns that the Councilwrongly listed some people, based on a very low standardof proof and untested, incorrect evidence.after september 11After the 11 September 2001 attacks, the Councildid not authorise the use of military force to combatterrorism, but instead allowed the US to exercise its rightof self-defence under international law (see Resolution1368 (2001)). After the US attacked the Taliban andAl-Qaeda in Afghanistan, the Council later authoriseda multinational military force to help restore orderand security in Afghanistan (a similar force was laterdeployed in Iraq, after the initial US invasion in 2003which the UN had not authorised).terrorism and international Law 7

new anti-terrorism measuresIn Resolution 1373 (2001), the Council required all Statesto adopt new measures against terrorism, including to:> prevent, suppress, freeze and criminalise terroristfinancing;> refrain from supporting terrorists;> prevent terrorist acts and the use of national territoryfor terrorism;> deny safe haven to those who finance, plan, support, orcommit terrorist acts, or harbour them;> bring to justice those who finance, plan, prepare,perpetrate or support terrorist acts;> establish terrorist acts as serious criminal offences indomestic law;> assist other States in terrorist investigations orproceedings;> prevent the movement of terrorists by controls onborders, documentation and counterfeiting.The Resolution also established a Counter-TerrorismCommittee to supervise the implementation of thesemeasures by States, which must periodically report to theCommittee about the progress they have made. Whilethese measures may have helped to prevent and controlterrorism, the effectiveness of the global response hasbeen hindered by the Security Council’s failure to defineterrorism. While the Resolution requires all States tocriminalise terrorism and take the many other measuresagainst it, the Council left it to individual States todefine terrorism for themselves. This necessarily meansthat different States end up combating different things,since there is much variation in national definitionsof terrorism. It also means some States have takenadvantage of the discretion given to define terrorism, byenacting laws which punish their political enemies orminor criminal conduct.THe use Of fOrCe againsTTerrOrismIn addition to law enforcement responses to terrorism, afew States have historically claimed that they are entitledto use military force to combat terrorism. In particular,Israel and the US have asserted a right to use force toprotect their nationals overseas from terrorism, includingby attacking the States which harbour terrorists, andsometimes even attacking targets pre-emptively (that is,before terrorists have struck). Thus Israel attacked Beirutin 1968, Tunis in 1985, Lebanon in 2006, and freedhostages in Entebbe in 1976; while the US attacked Libyain 1986, Iraq in 1993 and Sudan and Afghanistan inimage u navailableUS Army soldiers from the 10th Mountain Division watch from a ridge as a Chinook helicopter lifts off after dropping offadditional troops into the rocky battle area, 14 March 2002. Hundreds of troops were lifted into the mountainous regionto search for Taliban and Al-Qaeda fighters.AFP.8HOT TOPICS 58 > Terrorism

1998. Similarly, apartheid South Africa sometimes usedmilitary force against incursions by African NationalCongress (ANC) freedom fighters based in neighbouringcountries. In some of these cases, the States claiming touse force in self-defence attacked the States harbouringterrorists and not only the terrorists themselves. Theseclaims to use military force against terrorists have beencontroversial, and many States traditionally rejectedthem.international law requirementsSince the UN Charter in 1945 outlawed the aggressiveuse of military force by States (see article 2(4) of the UNCharter), there have only been two situations in which itis lawful to use force:> in individual or collective self-defence if an ‘armedattack’ occurs (article 51 of the UN Charter); or> where the Security Council has authorised States touse force (Chapter VII of the Charter).An ‘armed attack’ is not defined, but includes aggressiveinvasion and other military violence on a substantialscale (for instance, more serious than sporadic borderclashes). Collective self-defence simply means that a Statewhich has been aggressively attacked may request otherStates to assist it in defending its territory against theaggressor. The Security Council may authorise force ifit identifies a threat to international peace and securitywhich requires a military response.The use of force in self-defence against terrorism wasproblematic because in many cases, once a terroristattack has occurred, there is no continuing attack whichrequires a defensive response. International law requiresthat self-defence must be necessary to repel an attack. Incontrast, using force after a terrorist attack has concludedmay be an unlawful reprisal – that is, an attempt topunish the attackers or to deter future attacks, but whichis not necessary to repel an ongoing attack. In addition,using force in self-defence must be a proportionateresponse to the original attack, and some militaryresponses to terrorism were excessive or disproportionatecompared with the initial attack. Other uses of forcewere intended to prevent future attacks – in other words,they were pre-emptive or anticipatory uses of force.The problem is that the UN Charter requires that an‘armed attack’ must have occurred, or be imminentlythreatening, before force can be used in self-defence.The use of force in self-defence against terrorism wasalso problematic because it had always been thoughtthat an ‘armed attack’ can only be committed by Statearmed forces, or by private militant groups controlled byStates. In the General Assembly’s 1974 Declaration on theDefinition of Aggression, approved by the InternationalCourt of Justice in the Nicaragua case 8 (1986), it wasobserved that the use of force by private individuals orgroups only constitutes an armed attack where there wasthe ‘sending by or on behalf of a state of armed bands,groups, irregulars or mercenaries, which carry out actsof armed force against another State of such gravity asto amount to acts of aggression.’ Some States used forceagainst terrorist attacks where the terrorists involvedwere not sent or controlled by any State, suggestingthat their use of force was not defensive but intendedto punish other States for not controlling terroristsoperating within their territories.use of force by the usImmediately after 11 September 2001, most countries, aswell as the Organisation of American States, the NorthAtlantic Treaty Organisation (NATO), the EuropeanUnion and various UN bodies, recognised that the UShad a right to use military force in self-defence againstthose attacks. By October 2001, the US, assisted by itsallies, launched a defensive military campaign, OperationEnduring Freedom, to attack Al-Qaeda and its Talibansupporters in Afghanistan. The scale of the 9/11 attackswas clearly considered serious enough by most States toamount to an armed attack triggering the right to selfdefence.The difficulty was whether any State was responsible forsending or controlling the Al-Qaeda attacks. On oneview, the Taliban regime, which was the de facto (that is,the effective but not legally recognised) government inmost of Afghanistan, exercised sufficient control over Al-Qaeda to make the 9/11 attacks attributable to the Stateof Afghanistan. This view is, however, doubtful. It seemsmore likely, on the available evidence, that the Talibanallowed Al-Qaeda to be based in Afghan territory, but theTaliban did not control or direct Al-Qaeda’s operations,including its attack on the US. In these circumstances,the traditional law of self-defence would not permit theUnited States to attack Afghanistan.The fact that most countries appeared to accept thatthe US could use force in self-defence after 9/11 maysuggest that States have accepted a modification of thetraditional law of self-defence. After 9/11, US PresidentBush asserted that the US would no longer distinguishbetween terrorists and those who ‘harboured’ them, evenif harbouring States did not actually control or directthe terrorists in their territory. In other words, the USclaimed that self-defence could be used against Statesfor simply failing to control terrorist groups in theirterritory. This new view of the law on self-defence maysimply be an isolated, exceptional case, limited to thecircumstances of 9/11, and which may not otherwiseeffect or change the existing law.In addition, even if the law has changed, any use offorce in self-defence must still be both necessary andproportionate. It is questionable whether overthrowingthe whole government of Afghanistan was a proportionate8. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), 1984 ICJ REP. 392 June 27, 1986, available athttp://www.icj-cij.org/icjwww/icases/inus/inusframe.htmterrorism and international Law 9

esponse in order to prevent future Al-Qaeda attacks. Ifusing force against terrorism is not an effective way ofcontrolling it, then it is also questionable whether theuse of force was necessary. It is difficult to judge whetherinvading Afghanistan has reduced – or in fact increased– the global threat of terrorism, as it may have radicalisedresistance to the US.TerrOrism anD HumaniTarian lawRelated to the conflict in Afghanistan is whetherinternational humanitarian law (or the law of war) appliesto suspected terrorists. As the conflict in Afghanistangot underway, the US claimed that the protections ofthe 1949 Geneva Conventions (particularly prisoner ofwar status) did not apply to non-State fighters capturedduring the conflict, since those detained were ‘unlawfulcombatants’ who had no right to fight. The US initiallymade no distinction between Taliban and Al-Qaedafighters. The US also believed that conferring prisoner ofwar status on these captives would prevent their effectiveinterrogation for intelligence purposes. The GenevaConventions set out the rights and duties of States andindividuals in armed conflicts, central to which is howdifferent people are classified into different categories.The American view was highly controversial andopposed by many States, as well as by the InternationalCommittee of the Red Cross and the United Nations.Under humanitarian law, a person is a combatantentitled to fight in an armed conflict if the person is amember of regular States armed forces, irregular forcescontrolled by a State and who satisfy certain conditions(such as being under responsible command, and wearinga fixed emblem identifying them as combatants), or someguerilla forces where fighters carry their weapons openlyduring and prior to military operations. People whodo not satisfy any of these criteria but still fight duringhostilities are classified as civilians, entitled to manyof the protections enjoyed by non-combatants underhumanitarian law, except that they may be prosecutedfor any crimes they commit while fighting (for example,for murder).Since the Taliban were effectively the regular armedforces of Afghanistan, they were very likely lawfulcombatants who were, upon capture, entitled to prisonerof war status. That does not mean that they enjoyedimpunity, since any combatant who commits a war crimecan be prosecuted. Detainees can also be interrogated –but not tortured or inhumanely treated – for intelligencepurposes. It does mean, however, that any prosecutionmust be conducted in the same kind of tribunal andproceeding as that enjoyed by the armed forces of thedetaining country, the US. This means that Talibandetainees transferred to Guantanamo Bay and chargedwith war crimes should have been prosecuted in a courtmartial, which has greater procedural protections thanthe unfair military commissions proposed by the USPresident.Whether Al-Qaeda members were combatants depends onwhether they individually complied with the conditionsof combatancy outlined above. It is possible that somewere combatants and some were not. Humanitarianlaw provides that where the status of a detainee is indoubt, their status should be determined by a competenttribunal. The US courts eventually ordered that thisdetermination process be conducted, (see the Hamdicase 9 ) despite US government claims that judicial reviewwas not available to foreigners outside US territory underthe US Constitution.Even if Al-Qaeda members were unlawful combatants,they are still entitled to a fair trial for any crimes theycommitted: see Hamdan case study p 11.miliTary COmmissiOns anD THerigHT TO a fair TrialIn response to the Supreme Court’s decision in Hamdan,the US Congress amended the military commissions bypassing the Military Commissions Act 2006. While the Actmakes some improvements to the previous procedures,it arguably still does not comply with article 3 of theGeneva Conventions:> it may not be a ‘regularly constituted court’ as requiredby article 3 because it did not exist in 2001 whendetainees such as David Hicks were captured;> it does not apply to US citizens;> it is designed specifically to prosecute a handful ofdetainees at Guantanamo Bay;> it does not provide the procedures and protections of aregular criminal trial or military court martial (whichis how US military personnel are tried).The new military commission may not providefundamental judicial guarantees because:> it is not independent and impartial, since the USSecretary of Defense is responsible for detention,prosecution, procedures, the selection of judges andfinal decisions;> confessional evidence obtained through coercion (notamounting to torture) is not excluded;> hearsay evidence is not excluded (thus preventingthe accused from cross examining those who madestatements but who are not present in the proceedings);and> an accused may be precluded from seeing some of theevidence against him or her;> The ancient right to challenge unlawful detention inthe courts (habeas corpus) has also been removed.9. Hamdi v. Rumsfeld (2004) 542 US 507 available at www.law.cornell.edu/supct/html/03-6696.ZS.html10HOT TOPICS 58 > Terrorism

HOT TipHabeas corpus wasoriginally a writ to havea person producedbefore the court as away of reviewing unfairdetention by anothercourt. the words comefrom Latin meaning “youshould have the body”,from the first few wordsof the writ.Despite the US amending themilitary commissions after theSupreme Court’s decision in theHamdan case, it is likely thatthe new commission procedureswill also be challenged in thecourts – thus leading to evenfurther delays for those detainedat Guantanamo, some of whomhave been detained without trialfor five years.While the US government claimed there was a gapin humanitarian law with respect to terrorists, it isclear that the existing law is adequate to deal withterrorists. In fact, humanitarian law contains a numberof express prohibitions on terrorism, including spreadingterror among civilian populations. In the Galic case 10 ,the International Tribunal for the former Yugoslaviaconvicted a Serbian general of spreading terror amongstthe civilians of Sarajevo, by waging a campaign of snipingand shelling of civilians which was intended to put themin extreme fear. Humanitarian law also contains manyother provisions which prohibit terrorist activities, suchas deliberate attacks on civilians.image u navailableCase sTuDyHamDan Case – see Hamdan v Rumsfeld(June 2006) us supreme Courthamdan was a citizen of Yemen who was captured duringthe conflict in afghanistan in 2001 and later detained bythe united states at guantanamo Bay, cuba. us presidentBush decided that hamdan was eligible to be prosecuted inan irregular ‘military commission’ and hamdan was charged(after two years in detention) with unusual ‘conspiracy’offences. hamdan challenged his detention and trial inthe us courts. initially, the District court found that hisdetention was unlawful because the president’s authorityto establish military commissions only allowed theprosecution of ‘law of war’ offences, and because hamdanwas entitled to protection as a prisoner of war (poW)under the third geneva convention of 1949, at least untilit was determined by such law that he was not a poW. theDistrict court ordered his release from unlawful detentionand suspended his military commission trial. its decisionwas reversed by a us federal appeals court (the Dccircuit), which found that the geneva convention was notjudicially enforceable in us domestic courts. the highestus court, the supreme court, later reversed the appealscourt’s judgment. a majority of judges found that themilitary commission violated the us’s own Uniform Codeof Military Justice and the geneva conventions, and werenot expressly authorised by statute. the court found thatcommon article 3 of the geneva conventions applied to thearmed conflict in which hamdan was captured (which wascharacterised, at a minimum, as a non-international armedconflict at the time of his capture). article 3 lays downminimum requirements for criminal prosecutions whichwere not met by the us military commissions, including‘judicial guarantees which are recognised as indispensableby civilised peoples’. the military commission proceduresdid not meet these fair trial standards because it did notensure that an accused would be present for his or hertrial and have access to the evidence against him or her.(the court did not determine whether the procedures wereincompatible with other aspects of the right to a fair trialin article 3.) Four judges also found that the conspiracycharges laid against hamdan were unknown to the lawof war and could not be lawfully prosecuted by militarycommissions (as opposed to, for example, traditional courtmartial).Hamdan v Rumsfeld (2006) No 05-184 available at www.law.cornell.edu/supct/html/03-6696.ZS.htmlLt Col Steven Jordan, former head of the interrogationcentre at Abu Ghraib prison in Iraq, with his legalcounsel, arriving at military court, 20 October 2006,Fort George G Meade, Maryland.Steve Ruark.TOrTure anD ‘exTraOrDinaryrenDiTiOn’Even before 2001, Amnesty International estimated thattorture was used by 120 governments, despite tortureand cruel, inhuman or degrading treatment beingprohibited and criminalised under international law.The Convention Against Torture 1984 defines torture asany act by a public official which causes severe pain or10. The Prosecutor v Stanislav Galic – Case No. IT-98-29-T (2003), available at http://www.un.org/icty/Supplement/supp46-e/index.htmterrorism and international Law 11

suffering (physical or mental) to another person, for anyof the following purposes:> to obtain information or a confession from theperson;> to punish an act the person has committed or issuspected of committing;> to intimidate or coerce the person or a third person;or> to discriminate against the person.After 11 September 2001, the use of torture appears tohave accelerated in the fight against terrorism. Reliablereports of the abuse and torture or detainees in UScustody in Afghanistan and Iraq have emerged, includingdeaths in custody. An internal US Army report in 2003found there were numerous cases of ‘sadistic, blatant,and wanton criminal abuses’ at Abu Ghraib prison inIraq, revealed in shocking photographs in the media,while British personnel have also been disciplined formistreating prisoners in Iraq. The US has also sought toexcept its Central Intelligence Agency (CIA) from thelegal controls applying to other US personnel. A UnitedNations report has documented the serious mentalhealth effects of prolonged detention, with 350 acts ofself-harm at Guantanamo Bay in 2003 alone. While theUS has brought to justice some of the military personnelresponsible for mistreating prisoners, many sentenceshave been too light given the serious crimes committed.A British court even allowed evidence obtained bytorture to be used in court, until the House of Lords(Britain’s highest court) overturned the decision (see A vSecretary of State for the Home Department 11 ).The torture and abuse raises a number of legal issues.First, the US and its lawyers argued that some aggressiveinterrogation techniques do not amount to tortureand are therefore permissible. These techniques areknown by a range of euphemisms: ‘counter-resistancestrategies’; ‘stress and duress’; ‘professional interrogationtechniques’; ‘highly coercive interrogation’; ‘cruel,inhuman and degrading’; and ‘torture lite’. They includesleep or light deprivation, continuous light or noiseexposure, withholding food and water or medicaltreatment, prolonged solitary confinement, exposureto temperatures, forced standing in painful positions,hooding or blindfolding, shackling, and forced nudity.The US Attorney-General, Alberto Gonzales, even arguedthat pain only amounts to torture if it is ‘equivalent inintensity to the pain accompanying serious physicalinjury, such as organ failure, impairment of bodilyfunction, or even death.’ This is despite such techniqueshaving been condemned as torture or ill-treatment by theUN Human Rights Committee, the European Courtof Human Rights, and the Israeli Supreme Court. TheUS has taken advantage of the fact that the ConventionAgainst Torture does not list specific prohibited actsof torture, leaving room for governments to argue thatcertain uses of force or interrogation do not constitute‘severe’ pain or suffering.Secondly, the US has ‘contracted out’ the torture andinterrogation of terrorist suspects to less scrupulouscountries (such as Syria, Morocco, Jordan, SaudiArabia, Egypt and even the new Iraqi authorities), orirregular armed forces (such as the Northern Alliancein Afghanistan before the fall of the Taliban). Suspectsare typically sent to countries where the risk of tortureis well-known, in the hope that useful intelligenceinformation can be extracted from them in foreigncustody and passed on to the rendering country. By usingillegal ‘irregular renditions’ to transfer suspects to othercountries, the US avoids the procedural protections inimmigration and extradition laws. Diplomatic assurancessupposed to guarantee the treatment of returnees havefrequently been found to be ineffective.Irregular renditions violate international law, sincethe Convention against Torture prohibits returning aperson to torture, and customary international law alsoprohibits sending someone back to cruel, inhuman ordegrading treatment or punishment. One Australiancitizen, Mamhdouh Habib, alleges that he was informallyrendered from Pakistan to Egypt by the US, and torturedwhile in Egyptian custody. Even Sweden was criticisedby the UN Human Rights Committee for returning anEgyptian asylum seeker to probable torture in Egypt,based on secret evidence that he was a terrorist suspect.A Council of Europe investigation discovered that manyEuropean countries allowed secret US aircraft to illegallytransfer detainees.Case sTuDymamdouh Habibhabib was born in egypt, but moved to australia in 1980.he taught islamic scripture at a local high school. in July2001, he travelled to pakistan. according to his wife, thefamily was considering relocating there and habib went toassess schools for his four children. after the 9/11 attacks,habib was arrested in pakistan. he was flown to egyptthrough an ‘irregular rendition’ and allegedly torturedthere. he says he was beaten, given electric shocks,deprived of sleep, and injected with substances. he wassubsequently taken to afghanistan, and then sent on toguantanamo Bay in May 2002. although never formallycharged with any crime, the us alleged that he had trainedal-Qaeda militants and had advance warning of the 11september attacks. since the us declined to charge him,the australian government requested his repatriation toaustralia. he was released in January 2005. there werequestions about whether the australian government knewabout his maltreatment in egypt at the time.11. [2005] UKHL 71, available at http://www.bailii.org/uk/cases/UKHL/2005/71.html12HOT TOPICS 58 > Terrorism

THe absOluTe prOHibiTiOn OnTOrTureA different problem in the war on terror is that somepeople (including US government lawyers, someAustralian academics and even a Harvard law professor)have attempted to justify the torture of suspectedterrorists for information in ‘ticking bomb’ situations, inorder to save lives. The problem is that the prohibitionon torture is absolute, and cannot be overridden even ina public emergency. There are serious legal, moral andpractical problems with arguments in favour of torture.interrogators can’t be certain that a suspectpossesses informationThere are numerous unknown variables, such as theexistence of the threat, its extent, location and duration,whether it can be averted, and the identity and knowledgeof the suspect. This means that a person may be torturedbased on speculation and untested pre-trial evidence,and it is inevitable that innocent people will often betortured. Even after exhausting all levels of criminalappeal in one of the world’s most advanced legal systems,many innocent people in the US have been wronglyexecuted. The risk of error is multiplied by the climateof crisis and urgency surrounding terrorist incidents, andthe public pressure on interrogators to produce speedyresults.The torture of an innocent person might only stopwhen the person is dead. If interrogators are wronglyconvinced that a person has information, they willapply increasingly savage torture methods in the hopeof extracting the information. Interrogators may believethat the person is simply holding out, rather thaninnocent. The problem of torturing the innocent is veryreal considering that, according to US investigations,two-thirds of detainees at Abu Ghraib in Iraq and 40%of those at Guantanamo were found innocent of anyterrorist links.Licensing torture would encourage its abuseBy licensing torture, the legal and moral stigma isremoved. Even if torture saves lives in rare cases, theescalation and abuse of torture in the majority of othercases would undoubtedly cause greater suffering thanit prevents. Some academics counter the slippery slopeargument by asserting that torture already happensand it is better to regulate it than prohibit it. Thatis perversely like arguing that because murder andterrorism happen, they too should be decriminalised.Torture cannot be trivially treated like alcohol ormarijuana, where regulation may reduce harm. Tortureis not a social problem; it is a different kind of violentharm. In medieval Europe, torture was regulated bydetailed rules, yet codification failed to control thereckless and expanding use of torture.Further, if torture currently happens despite prohibition,then why would interrogators obey the limits imposedby any regulatory scheme? Interrogators would stilltorture if they think it is in the interests of public safety.It is preferable to hold the line at prohibition, but betterimplement it through training police and military forces,and closer judicial supervision of interrogations.Wide range of people who could be exposed totortureTorturing anyone who may have information, and notjust wrongdoers, casts collective suspicion on wholegroups of people, such as the family, friends andcolleagues of a suspect, who may happen to knowsomething about the threat.potential for torture to be used for other crimesIf torturing terrorists aims to protect public safety, it ishard to see why other threats should not be combatedby torture. Why not torture those planning genocide,war crimes, crimes against humanity, murder or rape, aswell as those who might know of others planning suchcrimes? Again, there is no obvious limit to torture oncethe door to it is opened.torture doesn’t often workExperienced interrogators know that torture producesmisinformation rather than information, since victimsof torture will confess to anything to make it stop. Thiscould jeopardise rather than protect public safety, asinvestigators waste precious time chasing up false leads.Torture fell into disuse historically because it did notoften work.Interrogators have sophisticated techniques forgathering reliable information: the shock of captureand disorientation of detention; offering rewards, orwithholding privileges; surveillance; psychologicalpressure; deception (including informants); and gainingthe detainee’s trust. Most detainees are soon worn downby the sheer exhaustion of resisting interrogators. Thestruggle against terrorism will be won by meticulous andtime-honoured police work, not cutting corners throughtorture.torture corrupts public institutions andprofessionsRequiring interrogators to torture degrades and brutalisesthem as human beings, and society cannot demand thisof them. Since torture would likely be supervised bydoctors, it would also implicate medical professionalsin serious breaches of medical ethics. Nazi medicalexperiments on concentration camp inmates, and forcedsterilisation programs, illustrate the willing complicityof some doctors in implementing and legitimising Statesanctioned violence.terrorism and international Law 13

Terrorism does not demand that society torture todefend itself. To the contrary, the threat of terrorism is areminder of the importance of protecting human dignity,even of terrorists. Law necessarily draws moral lines inthe sand which cannot be crossed; the inevitability oftorturing the innocent is a price too high to pay to savethe lives of others. The consequences of forcibly violatingthe body and the mind are profound and signal anunnecessary return to the blunt techniques of medievaljustice. Torture irreparably damages human dignity,devalues human life, and corrupts the institutions of ourdemocracy. As Chief Justice Barak wrote in 1999 in theIsraeli Supreme Court:Although a democracy must fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of they day, they strengthen its spirit and its strength and allow it to overcome its difficulties. 12TerrOrism anD Human rigHTsThe balance between security and liberty alluded to byChief Justice Barak is central to international humanrights law. On one hand, terrorism is a serious humanrights violation, since it attacks the right to life as wellas other civil, political, economic, social and culturalrights. At the same time, if counter-terrorism measuresare excessive, then they too can seriously underminehuman rights, such as freedom from arbitrary detention,the freedoms of movement, expression and association,the right to privacy and the right to a fair trial.While some people argued after 9/11 that human rights law is an obstacle to ensuring the security of society from terrorism, that view misunderstands how human rights law works. Human rights law already allows for rights and freedoms to be limited and balanced against other public interests in a democratic society, including security (see articles 4, 12, 17, 18 and 22 of the ICCPR). Human rights law also demands that no human rightCase sTuDyDavid HicksDavid hicks is an australian citizen who was captured while fighting for the taliban government in afghanistan inDecember 2001. since 2002, he has been detained by the united states at guantanamo Bay, cuba as a suspectedterrorist, but he has not yet been tried for any crime. he is described by the us as an ‘unlawful combatant’ – someonenot entitled to fight under the laws of war – which, the us argues, means he is not entitled to the normal protectionsaccorded to prisoners of war under international humanitarian law (that is, the law of the 1949 geneva conventions).David hicks grew up in australia, and worked in a variety of jobs before heading overseas. in 1998, he told his parentsthat he had joined the Kosovo Liberation army to fight against the serbians in the Balkans. after his return to australia,he converted to islam and went to pakistan to study islam and learn classical arabic. it is thought that he joined theLashka-e-toiba, a Kashmiri islamist group.shortly after 9/11, hicks phoned his father from afghanistan to say that he was going to fight with the taliban againstthe northern alliance. the us alleges that hicks attended an al-Qaeda training camp in afghanistan in 2001, and tookpart in advanced information-gathering (such as surveillance of terrorist targets in Kabul, including the us and uKembassies). on 9 December 2001, hicks was captured by the northern alliance, and was allegedly ill-treated beforebeing handed on to the us authorities. after interrogation by us and australian officials, he was taken to guantanamoBay in January 2002. he is currently the only australian citizen detained there. the us sought to try hicks beforea military commission in 2005, but this was abandoned after the us supreme court declared the process to beunconstitutional and illegal (see Hamdan v Rumsfeld p 11).hicks alleges that he has been subjected him to various forms of abuse and humiliation by us officials during hisdetention at guantanamo Bay. such ill-treatment includes frequent beatings (once for eight hours), sometimes whilerestrained and blindfolded; being forced him to take unknown medication; being deprived of sleep; and being confinedto his cell for 23 hours a day (and once for a full eight month period). he says that similar acts of ill-treatment havebeen carried out on other detainees. these acts could constitute torture, or cruel, inhuman or degrading treatment orpunishment under international human rights law.Whereas the governments of other foreign nationals held at guantanamo Bay have successfully argued for theirrelease, australia has not sought the return of David hicks. one of australia’s arguments is that hicks could not beprosecuted under australian law, because there is no crime in australia against fighting for a foreign government.however, this is currently being challenged in the Federal court of australia on the grounds that it is an ‘irrelevantconsideration’ which should not be taken into account in any lawful decision about hicks’ return to australia. it has alsobeen argued that australia should not be complicit in supporting military commissions since they violate the right to afair trial under the laws of war and human rights law.in 2005, hicks applied for British citizenship, as the British government had negotiated the release of all Britishcitizens detained at guantanamo Bay. there were a number of court cases about his eligibility for British citizenshiphowever, just a few hours after his citizenship was formally registered, the uK home secretary personally revoked it oncharacter grounds.12. Public Committee Against Torture v. State of Israel, Supreme Court of Israel, sitting as the High Court of Justice (September 6, 1999),available at http://elyon1.court.gov.il/files_eng/94/000/051/a09/94051000.a09.htm14HOT TOPICS 58 > Terrorism

can be invoked for the purpose of destroying otherpeople’s rights. A terrorist cannot, therefore, insist thattheir right to freedom of religion allows them to take thelives of non-believers.Importantly, some human rights can be suspended (or‘derogated’ from) in a ‘public emergency threatening thelife of the nation’ (article 4 of the ICCPR). An emergencymust be actual or imminent, not merely anticipated,and threaten the whole population, the physical orterritorial existence of the state, or the functioning ofstate institutions (see the Lawless case 13 and the Greekcase in the European Court of Human Rights 14 ). Inthe Belmarsh case 15 in the British House of Lords,Lord Bingham accepted the British government’s viewthat Al-Qaeda’s threat to Britain constituted a publicemergency:An emergency could properly be regarded asimminent if an atrocity was credibly threatened by abody such as Al-Qaeda which had demonstrated itscapacity and will to carry out such a threat, where theatrocity might be committed without warning at anytime. The government, responsible as it was and is forthe British people, need not wait for disaster to strikebefore taking necessary steps to prevent it striking.One dissenting judge, Lord Hoffmann, expressed theopposite point of view:This is a nation which has been tested in adversity,which has survived physical destruction andcatastrophic loss of life. I do not underestimatethe ability of fanatical groups of terrorists to killand destroy, but they do not threaten the life ofthe nation. Whether we would survive Hitler hungin the balance, but there is no doubt that we shallsurvive Al-Qaeda. The Spanish people have not saidthat what happened in Madrid, hideous crime as itwas, threatened the life of their nation…. Terroristviolence, serious as it is, does not threaten ourinstitutions of government or our existence as a civilcommunity.Lord Hoffmann was reluctant to suspend human rightstoo easily – unless it was absolutely necessary to do so– fearing that society would lose sight of the value ofprotecting human rights.What is certain is that the courts accord governments awide discretion in evaluating the need for restricting orsuspending rights, though governments must preciselyspecify the nature of the threat and the reasons forrestrictions. Derogation from rights must also betemporary and terminate once the emergency ends. Anyrestriction must also be proportionate to the threat. Theprinciple of proportionality means that:(a) the legislative objective must be sufficientlyimportant to justify limiting fundamental rights;(b) the measures adopted must be rationally connectedto that objective; and(c) the means used must be no more than that which isnecessary (meaning that less invasive or restrictivemeasures have failed, and the measures must lastonly as long as the emergency) 16 .The British courts, for example, have accepted the viewof the British government that terrorism is a seriousthreat to that country which may justify temporarilysuspending some rights 17 . At the same time, humanrights law ensures that governments are accountablefor restrictions placed on rights, thus enhancing publicconfidence in security measures. It provides a principledframework for evaluating terrorism laws, ensuring theyare strictly necessary and proportionate to the threat, andpreventing unjustifiable interference in liberty.While Australia is bound by international humanrights law treaties, their provisions have not beendirectly enacted into Australian law. Unlike most otherdemocratic western countries, Australia lacks a bill ofrights (see Hot Topics 54) (although some States andTerritories have begun to adopt their own bills of rights).This means Australian anti-terrorism legislation is notrequired, under domestic law, to balance rights andsecurity in accordance with international human rightslaw. The absence of a bill of rights makes it more difficultto evaluate anti-terrorism laws, which are subject onlyto political judgment (which may be impaired by aclimate of crisis) and limited constitutional protections.These are insufficient to provide a proper assessment ofsuch laws, or to ensure that rights and security do not tipdangerously out of balance.TerrOrism anD refugee lawRefugee law is closely related to human rights law, sinceboth aim to protect basic rights and freedoms. Under the1951 Refugee Convention 18 , a refugee is someone who isoutside their own country and, owing to a well-foundedfear of persecution for reasons of race, nationality,religion, political opinion or membership of a particularsocial group, is unable or unwilling to return to thatcountry. The drafters of the 1951 Refugee Conventionwere well aware of the security concerns of States, inlight of the very grave threats to personal and nationalsecurity during the recently concluded Second WorldWar. The Convention has always ensured that those whocommit very serious political violence against civiliansare excluded, thus sharing the concern of human rightslaw to balance rights and security.13. Lawless v Ireland (No. 3) – 332/57 [1961] ECHR 2, available at www.worldlii.org/eu/cases/ECHR/1961/2.html14. (1969) 12 Yearbook of the European Convention on Human Rights15. A v Home Secretary [2004] UKHL 56, available at www.bailii.org/uk/cases/UKHL/2004/56.html16. De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands & Housing [1999] 1 AC 6917. A v Home Secretary [2004] UKHL 56, available at www.bailii.org/uk/cases/UKHL/2004/56.html18. Available at http://www.ohchr.org/english/law/refugees.htmterrorism and international Law 15

In particular, Article 1F of the 1951 Convention excludesfrom refugee status anyone thought to have committed:(a) a war crime, crime against humanity or a crimeagainst peace;(b) a serious non-political crime; or(c) acts contrary to the principles and purposes of theUnited Nations.The drafters of the Convention felt that such peoplewere unworthy of protection as refugees, even if theyfear persecution if returned home. The Convention alsoallows States to return a person to persecution if theperson is a danger to the country of asylum.Since the late 1990s, there has been growing internationalpressure to automatically exclude suspected terroristsfrom refugee status. The UN General Assembly andthe Security Council have urged States to refrain fromgranting asylum to terrorists and to prevent refugeestatus being abused by those involved in terrorism.image u navailableAfghan former asylum-seekers arriving at Kabul airportprotest their treatment by the Australian Government,15 December 2002. Hundreds of asylum seekers wereplaced in detention on the tiny Pacific island of Nauru aspart of a controversial policy of discouraging refugees.Shah MaraiFor example, in Resolution 1373 19 , the Security Councilcalled on States not to grant refugee status to those whoplan, facilitate or participate in terrorism, and to ensurethat refugee status ‘is not abused by the perpetrators,organisers or facilitators of terrorist acts’. It also urgedthat terrorism should not be regarded as a politicaloffence exempt from extradition.The difficulty with automatically excluding suspectedterrorists from refugee status is that terrorism is not listedas a separate ground of exclusion under Article 1F. Underrefugee law, exclusion must be based on an assessmentof whether a person falls within any of the threecategories in Article 1F – not by automatic exclusionof all suspected terrorists. Those who commit terroristacts may be excluded where those acts amount to a warcrime, crime against humanity, or a serious non-politicalcrime; or where the acts are contrary to UN purposesand principles.As noted earlier, there is no international definition ofterrorism that could serve as a principled basis of exclusion,and national definitions are widely divergent, potentiallyleading to inconsistent exclusion decisions. Article 1F isan international standard which cannot be determinedby reference to national definitions, some of whichcriminalise a wide range of activities, including trivialoffences or even legitimate political resistance. Relianceon such definitions in exclusion decisions endangersrefugees who need protection. Until the internationalcommunity agrees on a definition, reference to terrorismis of little legal or practical use in excluding undeservingpeople from protection as refugees.There is very little evidence that refugee law has beenmisused by terrorists to gain entry to other States. Noneof the 11 September 2001 hijackers was a refugee orasylum seeker, despite the best efforts of some politicians– including in Australia after the Tampa incident in late2001 – to link refugees with terrorism. Terrorists arefar more likely to pursue legal migration channels toinfiltrate a State than to use asylum procedures. Asylumseekers are subject to rigorous identity and securitychecks, document verification, administrative scrutinyand suspicion of credibility, and, in some States likeAustralia, mandatory administrative detention.It is important to reject unwarranted attempts to linkterrorists and refugees. Refugee law does not provide safehaven for terrorists and does not prevent the prosecutionof suspects. As the UN High Commission for Refugeesnotes, ‘any discussion on security safeguards shouldstart from the assumption that refugees are themselvesescaping persecution and violence – including terroristacts’. Attention should focus on the security of refugeesthemselves, not the security threat they pose.19. Threats to international peace and security caused by terrorist acts (2001), available at http://www.un.org/docs/scres/2001/sc2001.htm16HOT TOPICS 58 > Terrorism

Australiananti-terrorism lawsafter 11 september 2001, the australiangovernment has adopted more anti-terrorismlaws than almost any other country, includingthe united states and Britain. By october 2006,the australian parliament had passed 40 antiterrorismstatutes, some of them introducingradical changes to australian law.new TerrOrism OffenCesBefore 2002, terrorist acts in Australia would have been prosecuted as ordinary crimes (such as murder, assault, or arson), or as offences against aircraft or ships and so on (which implement Australia’s obligations under antiterrorismtreaties: see p 6). This position was transformed by the Security Legislation Amendment (Terrorism) Act 2002, which introduced a definition of terrorism into Australian law (see p 2) and created numerous terrorism offences based on that definition (Divisions 101 and 103 of the Commonwealth Criminal Code), including:> engaging in a terrorist act;> providing or receiving training connected with terrorist acts;> possessing things connected with terrorist acts;> collecting or making documents likely to facilitateterrorist acts;> other acts done in preparation for, or planning,terrorist acts;> financing terrorism.banning TerrOrisT OrganisaTiOnsNew laws after 9/11 allow for the listing of organisationsas terrorist, and for the prosecution of those involvedwith such organisations (Division 102 of the CriminalCode). An organisation can be identified as a terroristorganisation in two ways. First, since 2004, an organisationcan be listed in Regulations if the CommonwealthAttorney-General is satisfied on reasonable grounds thatthe organisation is directly or indirectly engaged in,preparing, planning, assisting in or fostering the doingof a terrorist act.The listing of an organisation ceases after two years(though it can be re-listed), or if the Minister no longerbelieves that the organisation is involved in terrorism.Prior to 2004, the only organisations listed as terroristwere those banned by the UN Security Council, whereasnow the Attorney-General has power to do it.In late 2005, the Anti-Terrorism Act (No 2) 2005 (Cth)added another ground on which the Attorney-Generalmay list and ban an organisation – where an organisation‘advocates’ the doing of a terrorist act (whether or nota terrorist act has occurred or will occur). The term‘advocates’ is defined to mean counselling, urging,providing instruction on, or praising the doing of aterrorist act (where there is a risk that the praise may havethe effect of leading a person to engage in terrorism).Listing an organisation for praising terrorism wherethere is a mere ‘risk’ that it might encourage terrorismcan then lead to the prosecution of the members orassociates of the organisation – even if the organisationhas no other involvement in terrorism; even if thepraise did not or will not result in a terrorist act; aneven if the person praising terrorism did not intend tocause terrorism. Critics argued that this is anextraordinary extension of the power to ban groups, andof criminal liability, since it collectively punishes membersof groups for actions of others beyond their control.australian anti-terrorism laws 17

It could allow the government to ban a mosque orsynagogue because of the statements of a wayward leader,resulting in disproportionate restrictions on freedom ofexpression, association, and religion. An independentreview of the anti-terrorism laws by the SecurityLegislation Review Committee in June 2006recommended abolishing ‘praising’ terrorism as a groundfor a terrorist organisation listing.The Security Legislation Review Committee alsocriticised the process for listing terrorist organisationsas unfair and not transparent. It noted that if a personis prosecuted for being involved with a listed terroristorganisation, the person cannot challenge the executivedecision that the organisation is terrorist, or evenan ‘organisation’. The Committee recommended thatorganisations and affected individuals should be notifiedin advance when the Attorney-General is proposing tolist an organisation. Some members of the Committeealso recommended that the power to list organisationsbe taken away from the Attorney-General (who is part ofthe executive government) and given instead to judiciaryfor determination, on the basis of an application fromthe Attorney-General and after a fair hearing. OtherCommittee members preferred the power to remain withthe Attorney-General, but that he or she be advised byan advisory committee and that affected organisations orindividuals be given notice of the proposed listing a rightto a fair hearing.image u navailableIndonesian Muslim cleric Abu Bakar Bashir, the alleged leader of Al-Qaeda linked group Jemaah Islamiyah, was freed on14 June after serving nearly 26 months in prison over the 2002 Bali bombings. His release provoked immediate criticalreaction from Australia, which lost 88 of its nationals in the attacks.AFP photo.18HOT TOPICS 58 > Terrorism

lisTeD OrganisaTiOnsThere are now 19 terrorist organisations listed bythe government:> Abu Sayyaf Group> Al Qa’ida> Al-Zarqawi> Ansar Al-Islam> Armed Islamic Group> Asbat al-Ansar> Egyptian Islamic Jihad> Hamas’s Izz al-Din al-Qassam Brigades> Hizballah External Security Organisation> Islamic Army of Aden> Islamic Movement of Uzbekistan> Jaish-i-Mohammed> Jamiat ul-Ansar> Jemaah Islamiyah> Kurdistan Workers Party (PKK)> Lashkar I Jhangvi> Lashkar-e-Tayyiba> Palestinian Islamic Jihad> Salafist Group for Call and CombatThe second way of identifying a terrorist organisation is by a court during the prosecution of a terrorist offence, where an organisation is found to be engaging in, preparing, planning, assisting in or fostering the doing of a terrorist act. Where a court or the government has determined that an organisation is a terrorist organisation, it is then an offence for individuals to intentionally:> direct the activities of a terrorist organisation;> be a member of a terrorist organisation;> recruit for a terrorist organisation;> train a terrorist organisation or receive training from a terrorist organisation;> get funds to, from or for a terrorist organisation;> provide support or resources to a terrorist organisationthat would help it to engage in terrorism;> associate with a terrorist organisation, where theassociation provides support that would help theterrorist organisation.The Security Legislation Review Committee in 2006recommended that the offence of training for or witha terrorist organisation be urgently redrafted to requirethat the training is connected with a terrorist act, orcould assist the organisation or person to engage in orassist with a terrorist act. It also recommended:> repealing the offence of association with a terroristorganisation;> ensuring that the financing of terrorism must beintentional;> clarifying that ‘support’ for an organisation doesnot criminalise free speech amending various otheroffences to make them clearer and fairer.prOseCuTiOns unDer THenew legislaTiOnBetween mid-2002 (when the new offences came intoforce) and late 2006, 28 people were charged withterrorism offences, but most were still awaiting trial orproceedings were underway.The trials were also significant because they testednew legislation allowing the government to prevent thepublic disclosure at trial of material that might endangerAustralia’s ‘defence, security, international relations or lawenforcement interests’. The basic tension is whether theNational Security Information Act 2004 (Cth) establishesa reasonable balance between protecting vital intelligenceinformation and ensuring that defendants can receive afair trial by seeing the evidence against them.Zaky MallahMallah was the first person charged under thenew 2002 anti-terrorism laws. In April 2005 hewas acquitted of two charges of preparing for aterrorist act, after a jury found that he had notplanned to kill ASIO and foreign affairs officialsin a suicide attack. He did, however, plead guiltyto threatening to kill a Commonwealth officer andwas imprisoned for two and half years. Mallah was ayoung Australian who applied for a passport, whichwas refused after he was interviewed by ASIO onthe ground that he might prejudice the security ofAustralia or another country. When the decision wasreviewed in the Administrative Appeals Tribunal, heand his lawyer were excluded from access to someevidence presented. His case attracted negative mediaattention, some public hostility, and even break-ins athis home. Mallah became angry and depressed andhe prepared a suicide message on video and boughta gun. Because his telephone was tapped, the policefound out and Mallah was convicted of firearmsoffences. Later Mallah told an undercover policeofficer, posing as a journalist, that he planned tokill an ASIO or foreign affairs official, and sold himthe video tape. Mallah was then arrested and spent16 months on remand in isolation in a very highsecurity prison. The trial judge was not impressed bythe way the police officer had obtained the evidenceagainst Mallah, although it was ultimately admitted.It appears that Mallah was overcharged, since whilehis conduct was threatening, the jury sensibly did notview it as terrorism. Mallah’s own explanation forhis conduct was that his gun was for self-protection(after the break-ins) and that he was simply seekingpublicity and money, but did not really plan to harmanyone.R v Mallah [2005] NSWSC 317, available at www.austlii.edu.au/au/cases/nsw/supreme_ct/2005/317.htmlaustralian anti-terrorism laws 19

Faheem LodhiFaheem Lodhi was acquitted of making a documentconnected with preparing for a terrorist act, butconvicted of a range of other offences (possessinga thing connected with preparing for terrorism;collecting documents connected with preparingfor terrorism; doing an act in preparation forterrorism; and giving false or misleading answersunder an ASIO warrant). Lodhi was the first personconvicted of preparing for a terrorist act under the2002 terrorism laws. He was sentenced to 20 years’imprisonment (15 years without parole). The offencesrelated to his alleged involvement with Lakshar-e-Toiba in Sydney and Pakistan. Lodhi, who workedfor an architectural firm in Sydney, was seen buyingmaps of the Sydney electricity grid, large amountsof toilet paper (which can be used in making nitrocellulosefor explosives), asking about the availabilityof chemicals, and downloading aerial photos ofSydney defence sites. During Lodhi’s committalhearing, the court had to determine whether certainevidence should be admissible, made public, or besubject to cross-examination by the defence. Atone point, the judge allowed legal argument to bepresented in the absence of Lodhi, whom he hadordered be removed to a cell, on the basis of theCommonwealth’s submission that his presence incourt constituted a security threat. Lodhi was thefirst NSW prisoner classified ‘AA’, which entails veryharsh detention conditions, such as virtual solitaryconfinement, restricted visiting rights and tightsecurity at court appearances (see Lodhi v R [2006]NSWCCA 101 and [2006] NSWCAA 121).Regina v Lodhi [2006] NSWSC 691, available at www.austlii.edu.au/au/cases/nsw/supreme_ct/2006/691.htmlJack RocheIn 2004 Roche pleaded guilty to and was convictedand imprisoned for nine years for conspiring toexplode a bomb at the Israeli Embassy in Canberra.His conviction arose under pre-existing criminaloffences concerning crimes against internationallyprotected persons (that is, diplomats) rather thanunder the post-9/11 terrorism laws. An appeal toincrease his sentence failed. Roche had receivedfunds from a co-conspirator in Pakistan, travelledto Malaysia where he met the organiser of the Balibombing, Hambali, travelled to Indonesia wherehe bought a camera and changed his appearance,travelled again to Malaysia to receive more fundsand then went to Perth, where he bought a carand borrowed a video camera. After driving toeastern Australia, he filmed the Israeli Embassy inCanberra and Israel’s Consulate in Sydney. He latertravelled back to Indonesia and met Abu BakarBashir, inquired in Australia about locating minesand obtaining explosives, and purchased ignitionmaterials before deciding not to continue.R v Roche [2005] WASCA 4 available at www.austlii.edu.au/au/cases/wa/WASCA/2005/4.htmlBilal KhazalKhazal was a Qantas baggage handler chargedwith collecting and creating documents likely tofacilitate a terrorist act, and will stand trial in theSupreme Court of NSW. It is alleged that he usedhis personal computer to gather online informationabout ‘jihad’, which the Commonwealth says ishighly sensitive, then republished it on the internet.The evidence must be locked in a safe in thelawyers’ offices, and his lawyers are not permittedto talk about its contents. A military tribunal inLebanon convicted Khazal (in his absence) of acharge relating to financing a Lebanese terroristorganisation, and he was also charged in Lebanonwith involvement in bombing McDonald’s. Mostof the evidence relating to these charges wasdiscredited as unreliable hearsay, but the Australiangovernment has nonetheless indicated that it willextradite him to Lebanon at the conclusion of theAustralian proceedings.izhar ul-haqueUl-Haque was a 21 year old student arrested in2004 and charged with training with a terroristorganisation in Kashmir (Pakistan), Lashkar-e-Toiba. The organisation was not listed as a terroristgroup at the time Ul-Haque allegedly receivedtraining. The manner in which the evidence wasobtained in interviews by the Australian FederalPolice will be challenged at his trial. While Ul-Haque awaits trial, there is an ongoing proceedingabout whether the Commonwealth has theconstitutional power to criminalise terrorist trainingoverseas which was not directed against Australia,and whether there is any evidence that Lakshar-e-Toiba is even a terrorist organisation.Note: See also the Jack Thomas case, p 24.other cases awaiting trialAround 20 terrorist suspects were arrested in Sydneyand Melbourne in November 2005 and await trial.The Sydney suspects are charged with conspiracy todo an act to prepare for a terrorist act, although noparticular terrorist act has been identified – nor needit be, following a retrospective amendment to antiterrorismlaws in 2005 to allow easier prosecutions.The Melbourne suspects are charged with beinga member of a terrorist group (led by AbdulNacer Benbrika). In a separate case, John HowardAmundsen is charged with using false documentsto obtain explosives, preparing to commit an actof terrorism, using telecommunications to make athreat and hoax threat, possessing a foreign passportwithout reasonable excuse, and counterfeiting moneyor securities.20HOT TOPICS 58 > Terrorism

ausTralian seCuriTy inTelligenCeOrganisaTiOn pOwersAmendments to the Australian Security Intelligence Act1979 (Cth) in 2003 gave ASIO (Australia’s domesticintelligence agency) new powers to question and detainpeople over 16 years in terrorism investigations. ASIOobtain the Attorney-General’s consent to apply toan ‘issuing authority’ (a federal magistrate or judgeappointed by the Attorney-General) for a warrant toquestion a person before a ‘prescribed authority’ (suchas an experienced retired judge). The warrant can beissued if there are reasonable grounds for believing thatit will ‘substantially assist the collection of intelligencethat is important in relation to a terrorism offence’.Other methods of collecting the intelligence must also beineffective. If a person is aged between 16 and 18 years, itmust also be likely that the person has, is or will commita terrorist act.A person need not be suspected of any crime orinvolvement of terrorism. It is enough that the personmay have information relevant to investigating terrorismby others. A warrant may last for 28 days, within whicha person can be questioned for up to 24 hours in total(in periods of no more than eight hours at a time). Thetotal questioning period is extended to 48 hours if aninterpreter is used. There are criminal penalties of fiveyears’ imprisonment if a person refuses to answer aquestion (even if it incriminates the person), or gives falseor misleading answers.ASIO may also apply for a warrant to detain a personfor up to seven days, based on grounds similar to thosefor questioning warrants (the duration of questioningpermitted is also the same). An additional requirementis that the Attorney-General must be satisfied that if theperson is not detained, he or she‘(i) may alert a person involved in a terrorism offencethat the offence is being investigated; or(ii) may not appear before the prescribed authority; or(iii) may destroy, damage or alter a record or thing theperson may be requested … to produce’.After a person is released, a new warrant may be issued ifnew evidence arises.Following extensive community and parliamentarydebate, amendments to the original ASIO Bill proposed in2002 made substantial improvements. These included:> raising the minimum age of detainees to 16 years andgiving special protections to minors;> allowing detainees access to a lawyer (except where thelawyer poses a security threat);> reducing the maximum questioning period to 24hours over seven days;> a three-year sunset (or expiry) clause.In addition, the process of issuing warrants and supervisingquestioning now provides essential protections. Judicialauthorisation of questioning and detention is required, asis supervision of questioning by a retired Federal or Statejudge or Administrative Appeals Tribunal member.People under warrant must be treated with humanityand with respect for their dignity, and cruel, inhumanor degrading treatment is forbidden. A Protocoldetails standards on questioning and detention andthe independent Inspector-General supervises mostquestioning sessions. The Inspector General observedthat questioning has been conducted professionally andappropriately; that subjects have been accorded dignity,respect, physical comfort and religious needs; andfacilities have been appropriate.Important concerns remain about the ASIO laws. First,the duration of detention (up to seven days) is arguablyexcessive, since non-suspects may be detained for aperiod seven times longer than the already prolongedinvestigative period for terrorist suspects (24 hours).Secondly, the availability of legal advice and representationis limited, since lawyers cannot intervene in questioningor be present when people are in detention, and maybe removed for ‘unduly disrupting’ proceedings. Whilelegal professional privilege is protected, lawyer-clientconfidentiality is not. These restrictions may prevent alawyer from adequately representing and protecting hisor her client’s interests.Thirdly, there are harsh criminal penalties of up tofive years imprisonment for disclosing ‘operationalinformation’ about ASIO interrogations within twoyears after the expiry of a warrant. This offence wouldmake it a crime to tell a police officer or a journalistabout abuses of a person in detention. It prevents publicscrutiny of the propriety of the investigative process andreduces the accountability of ASIO, particularly sincejudicial review under existing laws may be limited.Detention is the most invasive restriction on personalliberty and is usually only used as part of the criminalprocess, and not solely to gather intelligence. In ademocracy, detention should be a means of last resort, to beused after all feasible alternatives have been exhausted. IfASIO detention aims to prevent absconding, destructionof evidence, or a person alerting others that terrorismis being investigated, then those purposes can probablybe achieved by less invasive means – such as electronicmonitoring, home detention or surveillance, telephonereporting, or restrictions on visitors, computers andtelephones (consider control orders on p 23).australian anti-terrorism laws 21

As at November 2005, no-one had been detainedunder the new powers, but 14 questioning warrantshad been issued against 13 people. In June 2006,the Parliamentary Joint Committee on ASIO, with amajority of government members, found that the powershad been useful in monitoring potential participants interrorist acts, and that the powers had also been usedlawfully and professionally. It is difficult for the publicto judge for itself, since little information is releasedby ASIO on the effectiveness of usefulness of the newpowers.Despite this, in June 2006, the powers were extendedfor a further ten years, rather than the 5.5 yearsrecommended by the Parliamentary Joint Committee.It appears that exceptional, emergency powers, initiallyadopted in response to the specific threat of terrorismafter 9/11, have become normalised as a semi-permanentfeature of Australian law. In addition to its new powers,ASIO’s budget increased exponentially from $63 millionin 2000-01 to $153 million in 2004-05, with staffincreasing from 584 to 1000 between mid-2001 andmid-2006.image u navailableUnderground platform, London.Michael Duerinck.anTi-TerrOrism aCT (no. 2) 2005On 7 July 2005, a series of suicide bombings in Londontriggered a new debate in Australia about whethermore anti-terrorism laws were needed. While the PrimeMinister released a short summary of proposed newlaws in September 2005, the details of the law were keptsecret, making it difficult for the public to evaluate ifthey were necessary or appropriate. The governmentplanned to release the Bill on 31 October 2005, andrequire a Senate committee to report on it by 8 November– allowing only one week to consider 100 pages of laws,300 public submissions and countless amendments, at atime when the Senate and public were also consideringmajor changes to workplace relations laws and studentunionism in universities. Even the leaking of the Bill tothe public by the ACT Chief Minister allowed only threeweeks for debate on complex changes, in contrast to thethree inquiries over 15 months which preceded the newASIO laws after September 2001.When the Bill reached Parliament, the governmentallowed only 2 hours and 19 minutes of debate in theSenate (which it gained control of in July 2005) beforeforcing a vote on the Bill. In Opposition, the Labor Partymade little criticism of the Bill and ultimately voted for itin the Senate. Although Labor moved a censure motionin the Senate to protest the hurried manner of lawmaking,the government blocked the censure motion forthe first time since Federation a century ago.There was some scepticism in the community and thelegal profession that new laws were needed, althoughopinion polls suggested many Australians felt the need formore security from terrorism. Some critics believed thatexisting anti-terrorism laws were adequate, particularlygiven the wide scope of the ASIO powers and terrorismoffences (which have been little used). Others arguedthat the terrorist threat facing Australia is less thanin Britain or the US, and that there was no publicemergency threatening Australia which could justifysuspending basic human rights. Still others thought thatfocusing on new law making deflected attention frompractical measures against terrorism, including enforcingexisting laws, gathering intelligence, or even addressingthe causes of some terrorism – such as Australia’s supportfor the internationally illegal invasion of Iraq.Since Australia has suffered little from terrorism, therewas also concern that Australia might overreact to itdue to a lack of experience in combating terrorism – justas Britain and France overreacted to Irish RepublicArmy and Algerian violence in the 1960s and 1970s. Inaddition, unlike those countries, Australia has no billof rights which could allow the courts to independentlysupervise the impact of terrorism laws on the rightsof people in Australia. This raises the possibility thatexcessive anti-terrorism measures could not be properlychecked by the independent courts.22HOT TOPICS 58 > Terrorism

prevenTive DeTenTiOn OrDersThe law now allows for the issue of preventive detentionorders enabling detention of ‘future’ suspects for up to48 hours at the Commonwealth level (section 105 of theCriminal Code) and up to 14 days at the State/Territorylevel (the more restrictive Commonwealth time limitsare for federal constitutional reasons). A preventivedetention order may be made if an ‘issuing authority’is satisfied that there are reasonable grounds to suspectthat a person:(i) will engage in a terrorist act; or(ii) possesses a thing that is connected with thepreparation for, or the engagement of a person in, aterrorist act; or(iii) has done, or will do, an act in preparation for, orplanning, a terrorist act …and making the order would ‘substantially assist inpreventing a terrorist attack occurring’. The period ofdetention must also be reasonably necessary for thispurpose. In addition, the anticipated terrorist act mustbe imminent and expected to occur in the next 14 days.A preventive detention order is also available where it isnecessary to preserve evidence of a terrorist act whichoccurred in the previous 28 days (and even if the persondetained is not involved in the terrorist act).The procedure for preventive detention orders involves amember of the Australian Federal Police (AFP) applyingto an ‘issuing authority’ – a senior member of the AFP– to grant an ‘initial’ order allowing detention for up to24 hours. A ‘continuing’ order to extend the detentionperiod up to a maximum of 48 hours must be issuedby a separate issuing authority – such as a federal judge,senior State or Territory judge, or senior retired judge,who agrees to perform this function in their personalcapacity (and not as a judge in a court).While in detention, a person must be treated humanelyand cannot be interrogated. The person may have onlylimited contact with other people, such as a familymember, a housemate, an employer or employee, inorder to tell them that the detainee is ‘safe but is notable to be contacted for the time being’. Complaintsabout treatment in detention may be made to theCommonwealth Ombudsman, while detainees mayalso contact a lawyer (although communications maybe monitored). Detainees may also be prohibited fromcontacting a particular person – including a familymember or lawyer – if the police believe it is necessary toprevent serious harm to a person; to avoid risking effortsto prevent a terrorist act or to arrest, detain or serve acontrol order on a person; to preserve evidence relatingto terrorism; or to prevent interference in intelligencegathering.how the orders operateIn many cases, if the grounds for issuing an order can besatisfied, the person could already be charged for one ormore of the many existing preparatory terrorist offencesin Australian law, which would avoid the terrorist acttaking place. In addition, ASIO’s power to question anddetain non-suspects would also be available to preventthe commission of terrorism in these circumstances.The orders are, however, intended to operate morewidely than the criminal law. First, they can be issuedwhere the authorities lack sufficient evidence to secure aconviction, since the standard of proof for obtaining anorder (reasonable grounds to suspect) is lower than thecriminal standard of proof (beyond reasonable doubt)– though little different to the standard for makingan arrest (which might prevent a terrorist act even if aconviction later is unlikely).Secondly, the power may also be intended to protectagainst the disclosure of security sensitive evidenceduring a criminal trial. Yet, the National SecurityInformation (Criminal and Civil Proceedings) Act 2004(Cth) was enacted precisely to protect such evidence,whilst attempting to balance the rights of suspects. Theorders may, therefore, operate in circumstances wherethe government does not want to disclose evidencebecause even these protections are considered insufficient.The orders allow the government to deal with terrorismby avoiding the regular judicial procedures for testingevidence in criminal trials.As with the ASIO powers after September 11, it isarguable that the purpose of preventive detention orderscould be fulfilled by less invasive means. In the UK,control orders were introduced as an alternative todetention for precisely this reason, whereas Australia hasembraced both preventive detention and control orders.The government also argued that surveillance is soresource intensive that preventive detention is preferable.Yet, the expense of surveillance should not be acceptedas a basis for depriving even non-suspects of their libertywithout charge. To do so would reduce the right toliberty to an economic formula, rather than protecting itas a basic element of human dignity.human rights concernsA number of human rights concerns have also beenraised about preventive detention. The law allowsdetention without a judicial hearing, based on a lowstandard of proof. Judicial review may be difficultdue to the lack of access to full reasons for decisions,and review under the Administrative Decisions (JudicialReview) Act 1977 (Cth) is not available. Merits reviewby the Administrative Appeals Tribunal may onlyoccur after detention is finished. Detainees are heldvirtually incommunicado, with severe restrictions onfree communication with family members and others;australian anti-terrorism laws 23

penalties of five years imprisonment for disclosing thedetention (except where one parent tells another); andlawyer-client communication may be monitored.Last minute amendments did, however, make significantimprovements. Detainees were given a right to presentinformation concerning applications for a continuedpreventive detention order, while detainees also gained aright to receive a summary of the grounds on which anorder is made. The law elaborates the grounds on which aprohibited contact order can be made, and the AFP mustnotify the Ombudsman of the order and provide a copyof it and the grounds for it. The Attorney-General’s mustalso report details of overturned orders to Parliament.The AFP must assist detainees to choose and contact alawyer, and to access an interpreter. Detainees must beadvised of their right to contact a family member, andin emergencies the police have a limited discretion toallow additional contact with lawyers. Children 16-18years old must not be detained with adults except inexceptional circumstances, although there is still norequirement that children only be detained as a lastresort. Questioning must be video or audio taped, andguidelines developed on the treatment of detainees. Theoffence of disclosing an order does not apply where oneparent tells another.COnTrOl OrDersControl orders are available on grounds similar to thosefor preventive detention orders and are based on newlaws in Britain. They enable numerous restrictions to beimposed on a person, including on their residence, travel,communication and association with others, access totechnology, or possession of articles or substances. Anorder may also require a person to be fingerprinted orphotographed, wear a tracking device, to periodicallyto police, or be asked to be re-educated or counselled.Orders may last for up to 12 months, but are renewableas long as the law is in force. An order could, forinstance, include house arrest for rolling 12 monthperiods, along with prohibitions on contacting anyone,possessing a telephone or accessing the internet. Thepossibility of renewing orders for multiple one yearperiods suggests they may have a punitive character, yetthe protections of criminal court proceedings are absent.Breaching the terms of the order may result in five yearsimprisonment.Procedurally, a senior AFP member, with the Attorney­General’s consent, may seek an interim order from afederal court, which must be satisfied on the ‘balance ofprobabilities’ (the lower standard of proof in civil cases)that (i) making the order would substantially assist inimage u navailableJoseph Terrence Thomas (also referred to as ‘Jack Thomas’ or ‘Jihad Jack’), leaves a Melbourne Magistrates Court, afterbeing granted bail, 14 February 2005.Julian Smith.24HOT TOPICS 58 > Terrorism

preventing a terrorist act; or (ii) the person has providedtraining to, or received training from, a listed terroristorganisation (Criminal Code, s 104.4). It is questionablewhether merely training with a terrorist organisationshould be a basis for an order, where there is no ongoingrisk of future involvement in terrorism, and particularlyif training was not unlawful when it occurred (given therecent criminalisation of training for terrorism).Serious human rights concerns were raised about controlorders. Initial criticisms included that the proposedprocedures for issuing the orders were inconsistent withnatural justice and procedural fairness. An affectedperson was denied an opportunity to be heard, sinceproceedings were ex parte (in the absence of the personsubject to the order), and there was inadequate notice,reasons, access to evidence and witnesses, and hearsayevidence was admissible.The original Bill was significantly improved at theeleventh hour, with interim orders made ex parte only onan temporary based and having to be later confirmed inan inter partes hearing (that is, with the affected personpresent). The subsequent hearing to confirm, vary orrevoke order must be as soon as reasonably practicableafter issue, although there is no absolute time limit. Evenso, it may still be disproportionate to require the initialhearing to be ex parte, and the court could instead, forexample, be given a discretion in the circumstances ofindividual cases, to avoid the risk of arbitrary detentionand an unfair trial.Other improvements included the exclusion of hearsayevidence in confirmation proceedings, although it isstill allowed at the interim stage. At the confirmationstage the person must be given notice of the decision,a statement of facts, an explanation of why restrictionsshould be imposed and any details to help the personunderstand the order, but there is no requirement todisclose information likely to prejudice national security.The limited notice of grounds for the order before theconfirmation hearing may prejudice the fairness of theproceeding.Whether an order unjustifiably infringes human rightsto freedom of movement, communication, association,privacy and family life will depend on who the orderis imposed on, for what reasons, involving what kindof restrictions, and for how long. In issuing an order,the court must be satisfied that each of the obligations,prohibitions and restrictions to be imposed by the orderis reasonably necessary, and reasonably appropriateand adapted, for the purpose of protecting the publicfrom a terrorist act. This requirement incorporates the‘proportionality’ requirement in human rights law, andis an important protection. However, in the absenceof an Australian bill of rights, the courts may beunfamiliar with human rights analysis and the means ofappropriately balancing competing rights and interests.There have also been concerns that control orders, alongwith preventive detention orders and the ASIO detentionpowers, may be invalid under the Australian Constitution1901. The central issue is whether there is a breach ofthe separation of executive and judicial power underthe Constitution, which requires that federal judicialpower (which includes punishment through detention)can only be exercised by the judiciary, and converselythe judiciary cannot exercise executive power (whichincludes administrative detention). In addition, judgescannot engage in activities which would undermine theintegrity and independence of the judiciary as a whole, orpublic confidence in the justice system. There is a dangerthat judges who participate in secret anti-terrorismmeasures are becoming too close to the government.Joseph thomas (‘Jihad Jack’)Joseph Thomas (‘Jihad Jack’) was acquitted ofproviding support to a terrorist organisation, butconvicted of receiving terrorist funds from Al-Qaedaand possessing a false passport, receiving five yearsin prison and becoming the first person convictedof terrorist funding. Thomas was arrested by thePakistani authorities in 2002 and interrogated bythe CIA, FBI, Pakistani security services, ASIO andthe Australian Federal Police during his detentionwithout trial in Pakistan for five months. Hewas sentenced to five years imprisonment but hisconviction was overturned on appeal because hisconfession in Pakistan was not freely or voluntarilygiven. During his interrogation, he and his wifewere threatened, and he was prevented fromcommunicating with a lawyer of his choice. Whilehis convictions were quashed on appeal because hisconfessions were involuntary, the government almostimmediately imposed a control order on Thomasunder the 2005 terrorism laws. The control orderwas challenged on constitutional grounds in theHigh Court in December 2006, on the basis thatit involved the judiciary impermissibly exercisingnon-judicial power, and because the Victoriangovernment’s referral of constitutional power tothe Commonwealth in 2002 only covered criminaloffences, it was not intended to also permit controlorders.See R v Thomas [2006] VSCA 165 available at http://www.austlii.edu.au/au/cases/vic/VSCA/2006/165.html and Jabbour v Thomas[2006] FMCA 1286, 27 August 2006 (control order) available atwww.austlii.edu.au/au/cases/cth/FMCA/2006/1286.htmlaustralian anti-terrorism laws 25

THe Crime Of seDiTiOnAnother major part of the Anti-Terrorism Act (No 2) 2005(Cth) was new crimes of sedition, now found in section80.2 of the Criminal Code. While sedition had been acrime in Australian law for many decades, it had notbeen prosecuted in Australia for over fifty years, since thelaw was used in a highly political way against Australiancommunists in the late 1940s and early 1950s. By 2005,there was a widespread public perception that seditionwas an old-fashioned and inappropriate law in a moderndemocracy which values free speech. The law of seditionwas originally designed to protect the monarchy frompolitical criticism, and had often been used in the pastagainst democratic political opponents who posed nogenuine danger to the nation or its political institutions.The new law created four sedition offences, with a penaltyof seven years imprisonment. Four of the offences involveintentionally ‘urging’ (that is, encouraging, by spoken orwritten words or other gestures) another person to:> overthrow by force or violence: (a) the Constitution;(b) the Government of the Commonwealth, a Stateor a Territory; or (c) the lawful authority of theGovernment of the Commonwealth;> interfere by force or violence with lawful processes foran election of a member or members of a House of theParliament;> engage in conduct intended to assist an organisation orcountry at war with the Commonwealth;> engage in conduct intended to assist an organisationor country engaged in armed hostilities against theAustralian Defence Force.There was also a fifth sedition offence of urging a group(whether distinguished by race, religion, nationalityor political opinion) to use force or violence againstanother group or other groups (as so distinguished),where the force or violence would threaten the peace,order and good government of the Commonwealth.This offence is welcome in that it may help to protectminority groups from violent attacks by other groups.The protection is not, however, as wide as that Australiais required to implement under human rights treaties,which prohibit hate speech against minority groups evenwhere it does not involve violence or threaten the orderof the country.The key concern about the new offences was the impactthey might have on criminalising and chilling legitimatefree speech, particularly speech critical of the governmentand its policies (such as opposition to the war in Iraq),and especially in the absence of an Australian billof rights protecting freedom of expression. Ordinarycitizens, journalists, politicians, academics, artists,actors, comedians, members of religious communitiesand others were all worried about what they could orcould not say under the new laws. Many people believedthat it is better to confront inflammatory or violentideas in public debate, rather than to criminalise themand possibly to force them underground and to furtherradicalise some people.The way the new offences were drafted made it unclearwhether the person urging another to commit thespecified conduct had to intend that the other personactually act on the urging and use violence. While itis sometimes necessary to limit free speech to preventgreater harm to life or property, it is hard to justifyrestricting speech which is not intended to encourageviolence, or is not likely to result in violence occurring.It is already a crime in Australia to ‘incite’ someone tocommit a crime, but the sedition offences potentiallywent much further than this. In addition, people whoencourage certain types of serious political violence canalready be prosecuted under the law of treason and otherpolitical crimes.The new sedition offences contain a special ‘good faith’defence where a person tries to show mistakes by politicalleaders, or errors in laws or policies; urges lawful changesto laws, policies or practices of government; points outmatters creating hostility between different groups; doesanything in connection with an industrial dispute; orpublishes reports or commentary about matters of publicinterest. While the defences protect some free speech,they are arguably too narrow and fail to protect a rangeof non-political speech which is still important in ademocracy. The defences are also narrower than thosein anti-vilification law, which exempt speech made foran artistic, scientific, academic, research or journalisticpurpose. There is only limited constitutional protectionof some political and religious speech.As soon as the sedition laws were passed, the governmentimmediately referred them for inquiry by the AustralianLaw Reform Commission (ALRC) – indicating thelack of public confidence in new laws. The ALRCreport in mid-2006 called for extensive changes (seeContacts and further reading p 28). It recommendedrelabelling sedition crimes with the more modern term of‘offences against political liberty’; making the intentionrequirement much clearer; strengthening the defences orexceptions to the offences; and limiting the applicationof some of the offences to Australian citizens. The ALRCalso recommended against adopting even wider offencesof ‘glorifying’ (or justifying or condoning terrorism),such as where a person praises a particular terrorist actin the past but does not intend that further terrorist actsbe committed.banning unlawful assOCiaTiOnsPart of the controversy and confusion about seditionarose because the government preserved the old legaldefinition of sedition for the different purpose of banning‘unlawful associations’ (section 30A of the Crimes Act26HOT TOPICS 58 > Terrorism

1914 (Cth)). An organisation can be banned if it has a seditious intention to, by force or violence:> bring the Sovereign into hatred or contempt;> urge disaffection against the Constitution, federal Government or Parliament;> urge another person to unlawfully change any matterestablished by law; or> promote feelings of ill-will or hostility betweendifferent groups so as to threaten the peace, order andgood government of the Commonwealth.This power additional to the new power to list terroristorganisations, but has similar effects, with criminalpenalties for being a member, leader, representative orteacher in the association, for giving money or goodsto it, allowing it to meet in a person’s premises, or forpublishing or selling publications of the association. Inaddition, all of the assets of the organisation are forfeitedto the government.The problem is that this old definition of sedition is evenwider and more ambiguous than the definition usedfor the new sedition offences. It is hard to know whatit means to bring the Queen into contempt or to urge‘disaffection’ against the government. As mentionedearlier, the purpose of the old law of sedition was toprotect the monarchy from criticism at a time whendemocratic institutions and freedom of speech were notfully protected. The powers to ban terrorist organisationsare drafted in a more precise and modern way whichavoids these problems, and they are arguably sufficientto combat political violence by groups, without the needfor the additional power to ban unlawful associations.Historically, banning unlawful associations has beenalmost as controversial as sedition itself, since the powerwas used against trade unionists during industrial unrestin the past.OTHer prOvisiOns Of THe anTi-TerrOrism aCT (no. 2) 2005Other parts of the new anti-terrorism laws have alsoraised concerns. A new offence of recklessly financingterrorism – even in the absence of an intention tofinance – extends criminal liability too far and makes itimpossible for any person to know the scope of their legalliabilities with any certainty, such as whether it is lawfulto donate to a charity or religious group. The Act triplesthe length of some ASIO search warrants, inviting theauthorities to conduct fishing expeditions over extendedperiods where there is insufficient evidence of terroristactivity. Finally, the Act allows certain AFP officers toissue a written notice on a person to produce certaininformation related to terrorism investigations – butwithout the approval of a magistrate (which is normallyrequired before a search warrant can be issued to collectevidence). It thus lessens the protections and supervisionusually available in criminal investigation.anTi-TerrOrism laws in nswIn April 2002, state governments referred theirconstitutional powers over terrorism offences to theCommonwealth, following a Summit of Commonwealthand state and territory leaders (see, for example, theTerrorism (Commonwealth Powers) Act 2002 (NSW)and the Criminal Code Amendment (Terrorism) Act 2003(Cth)). This was necessary to ensure that the federalgovernment had sufficient constitutional powers toenact uniform federal criminal laws against terrorism,since most criminal laws are usually a matter for thestates. Some states have, however, enacted their ownadditional anti-terrorism laws in various areas. In NSW,for example, new laws give police new anti-terrorismpowers, create a presumption against bail for terrorismoffences, and allow for the issue of preventive detentionorders as part of a complementary Commonwealth-statescheme.Below is a list of the major anti-terrorism laws adoptedin NSW, which complement the many Commonwealthlaws that apply in NSW.> Terrorism (Police Powers) Amendment (Preventative Detention) Act 2005> Crimes Act 1900 – Part 6B (membership of a terrorist organisation)> Listening Devices Act 1984 – section 16> Terrorism (Commonwealth Powers) Act 2002> Terrorism (Police Powers) Act 2002 and Regulation 2005> Bail Act 1978 – section 8A> Freedom of Information Act 1989 (documents affecting counter-terrorism measures)> Workers Compensation Act 1987 (Terrorism Re-Insurance Fund)australian anti-terrorism laws 27

Contacts and further readingThe Legal information access centre (Liac)can help if you need more information about the law,including cases, legislation and commentary. Theservice is free and confidential. Contact details are onthe back cover.websiTesunited nationsUN actions to counter terrorismhttp://www.un.org/terrorismaustralian government national securitywebsitehttp://www.nationalsecurity.gov.auProvides a single access point for counter-terrorisminformation from the Australian government. Includeslinks to many documents, including the latest policystatement from the Attorney General, ‘ProtectingAustralia Against Terrorism’ (2006).gilbert + tobin centre of public LawTerrorism and War archive – links to many goodarticles.http://www.gtcentre.unsw.edu.au/Publications/terrorism.aspaustralian policy onlinehttp://www.apo.org.auType ‘terrorism’ into the search box for links to manyarticles.parliament of australia - parliamentary LibraryLaw Internet Resources on Terrorismwww.aph.gov.au/library/intguide/law/terrorism.htmIncludes a chronology of legal changes relating toterrorism since 11 September 2001.bOOks anD arTiClesWhat price security? australian anti-terrorLaws, Andrew Lynch and George Williams, UNSWPress, Sydney, 2006.‘Defining terrorism to protect human Rights’,Ben Saul (2005) Human Rights Defender, http://www.ahrcentre.org/documents/Saul_Article.pdfaustralian human Rights centre, special onlineedition of the human Rights Defender on theanti-terrorism act (no 2) 2005 (cth)http://www.ahrcentre.org/content/research_hrd_pastissues.htmDefining terrorism in international Law,Ben Saul, Oxford University Press, Oxford, 2006.*Brown, Farrier, neal and Weisbrot’s criminallaws: materials and commentary on criminallaw and process in new south Wales, D Brown,Federation Press, 2006. See section 11.5.1 Antiterrorismand the revival of sedition.*Retreat from injustice: human rights law inaustralia, N O’Neill, S Rice & R Douglas, 2nded., Federation Press, 2004. See Chapter 11 Counterterrorismlaws.* These books are Lawbooks for Libraries titles, available in all LIAClibraries – check the website for details, www.liac.sl.nsw.gov.auanti-terrorism legislation and the protection ofhuman rights, S Zifcak, Legaldate 18 (1) March 2006.in good faith: sedition law in australia, E-Brief,issued 20 April 2006, updated 13 September 2006,available from www.aph.gov.au/library/intguide/hotissues.htmDetention without trial: what are the limits?M Head (ed), University of Western Sydney LawReview, v 9, 2005. Some content also available at www.whitlam.org/its_time/24/sedition incitement and vilification: issues inthe current debate, G Griffith, NSW ParliamentaryLibrary Research Service Briefing paper no. 1/06,available from www.parliament.nsw.gov.au/prod/parlment/publications.nsf/V3ListRPSubjectrepOrTsattorney generals Department – reviewspage www.ag.gov.au/www/agd/agd.nsf/page/national_securityReviewsThree important reports can be linked to from this webpage, as well as other information on national securityand counter-terrorism.The key reports are:Fighting words: a review of sedition laws in Australia,Australian Law Reform Commission Report No. 104,also available at www.alrc.gov.au/inquiries/title/alrc104/index.htmlSecurity Legislation Review Committee’s report inthe House of Representatives on 15 June 2006 (ShellerReport) – an independent expert report on pre-2005anti-terror lawsSenate Committee inquiry report on Anti-Terrorism Bill (No 2) 2005 (Cth) available at http://www.aph.gov.au/Senate/committee/legcon_ctte/terrorism/report/report.pdfReview of security and counter terrorism legislation, Parliamentary Joint Committee on Intelligence and Security, December 2006, available athttp://wopared.parl.net/house/committee/pjcis/securityleg/report/report.pdf28HOT TOPICS 58 > Terrorism