Anti-Terrorism Bill 2005 (Cth) and the Human Rights Act (2004) ACT

Article excerpt

1. We are briefed by the ACT Government Solicitor who acts for the Acting Chief Executive of the Department of Justice and Community Safety. We are asked to advise on the following question:

   If the Anti-Terrorism Bill 2005 (Cth) was ACT legislation,
   please advise whether the Attorney-General may present a
   statement under section 37(3) of the ACT Human Rights
   Act stating that the bill is consistent with human rights. If
   not, please advise how the bill is not consistent with human
   rights.

2. Our advice addresses the draft Anti-Terrorism Bill 2005 (Cth) identified as B05PG201.v.34.doc 14/10/2005 3.06pm. We note that this version of the Bill refers to 'control orders' in the title to Schedule 4 but the provisions dealing with control orders have been removed from an earlier version of the Bill, which was available on the website of the Chief Minister of the ACT. With respect to the control orders provisions, our advice is based on the draft Anti-Terrorism Bill 2005 (Cth) identified as B05PG201.v.28.doc 20/10/2005 10.31am.

3. We note that the Anti-Terrorism Bill 2005 amends various Commonwealth enactments including the Criminal Code Act 1995, Crimes (Foreign Incursions and Recruitment) Act 1978, Customs Act 1901, Customs Administration Act 1985, Financial Transaction Reports Act 1988, Australian Security Intelligence Organisation Act 1979, Administrative Decisions (Judicial Review) Act 1977, Migration Act 1958, Surveillance Devices Act 2004, Aviation Transport Security Act 2004 and Proceeds of Crime Act 2002 but we are asked to treat the various provisions of the Bill as if they were enacted as ACT Legislation.

4. A proposed amendment to section 100.1(1) of the Criminal Code will include a reference to a 'corresponding State preventative detention law' which means 'a law of a State or Territory that is, or particular provisions of a law of State or Territory that are, declared by the regulations to correspond to Division 105 of this Act'. We have assumed that this provision together with regulations (which we have not been provided with) will be the means by which the ACT will enact laws concerned with preventative detention.

5. For the reasons outlined in this opinion, there are many aspects of the Anti-Terrorism Bill 2005 (Cth), which if enacted as ACT legislation would be inconsistent with the Human Rights Act 2004 (ACT) ('the HR Act'). Accordingly, the Attorney-General could not present a statement under section 37(3) of the Act.

Anti-Terrorism Bill 2005

6. The Anti-Terrorism Bill will complement existing Commonwealth laws which address national security and terrorism. These Commonwealth laws (1) include:

* the Anti-Terrorism Act 2004

* the Anti-Terrorism Act (No. 2) 2004

* the Anti-Terrorism Act (No. 3) 2004

* the Australian Security Intelligence Organisation Act 1979

* the Australian Security Intelligence Organisation Amendment Act 2004

* the Australian Security Intelligence Organisation Legislation Amendment Act 2003 the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003

* the Australian Federal Police and Other Legislation Amendment Act 2004

* the Australian Protective Service Amendment Act 2003

* the Aviation Transport Security Act 2004

* the Aviation Transport Security (Consequential Amendments and Transitional Provisions) Act 2004

* the Border Security Legislation Amendment Act 2002

* the Crimes Act 1914

* the Crimes Amendment Act 2002

* the Crimes (Overseas) Act 1964

* the Criminal Code Amendment (Anti-Hoax and Other Measures) Act 2002

* the Criminal Code Amendment (Espionage and Related Matters) Act 2002

* the Criminal Code Amendment (Offences Against Australians) Act 2002

* the Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002

* the Criminal Code Amendment (Terrorism) Act 2003 (Constitutional Reference of Power)

* the International Transfer of Prisoners Amendment Act 2004

* the Maritime Transport and Offshore Facilities Security Act 2003

* the National Security Information (Criminal and Civil Proceedings) Act 2004

* the Security Legislation Amendment (Terrorism) Act 2002

* the Suppression of the Financing of Terrorism Act 2002

* the Telecommunications Interception Legislation Amendment Act 2002

* the Telecommunications (Interception) Amendment Act 2004

* the Telecommunications (Interception) Amendment (Stored Communications) Act 2004

* the Surveillance Devices Act 2004

* the Crimes Amendment Act 2005

* the National Security Information Legislation Amendment Act 2005

These laws have been the subject of review and concern raised about the impact on human rights. …