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Australia: New Proposals to Prevent Terrorist Attacks, Including Review of Police Detention Powers

(Dec. 31, 2008) On December 23, 2008, the Australian government, under new Prime Minister Kevin Rudd, put before the country's Parliament new proposals to counter terrorism. According to a press release issued the same day, the proposals are a comprehensive response to recommendations on and reviews of the national security legislation of the former government led by John Howard, made over the last three years, but “[t]he focus of the laws will remain on preventing a terrorist attack from occurring in the first place – not just waiting to punish those who would commit such heinous crimes until after they occur.” (Press Release, Attorney-General for Australia, Comprehensive Response to National Security Legislation Reviews (Dec. 23, 2008), available at

A discussion paper and draft version of the legislation are planned for release during the first half of 2009. The central government will also consult with State and Territory governments in developing the proposals, based on an intergovernmental agreement supporting the referral of legislative power from the States. (Id.; Jaclyn Belczyk, Australia to Reform Anti-Terrorism Laws After Haneef Report Recommendations, PAPER CHASE NEWSBURST, Dec. 23, 2008, available at

The press release outlines six major aspects of the proposals:

  • Improvement of counter-terrorism offenses. The Government seeks toensure that these “cover psychological as well as physical harm” and “apply clearly to threats of terrorist action.” There will also be recognition that international organizations can be the target of terrorist violence and the creation of a new offense for “terrorist-related hoaxes committed without the use of the post or a telecommunications network.” (Press Release, supra.)
  • Establishment of a National Security Legislation Monitor. This “independent statutory office within the Prime Minister's portfolio … will report to Parliament” to conduct an annual review of counter-terrorism legislation's operation in practice. (Id.) Two particular issues in the counter-terrorism legislation would be referred to the Monitor: the offense of associating with a terrorist organization and strict liability aspects of other terrorist offenses.
  • Implementation of Parliamentary Oversight of the Australian Federal Police. The oversight would be conductedby means of a newParliamentary Joint Committee on Law Enforcement. In addition, the Parliamentary Joint Committee on Intelligence and Security (PJCIS), which oversees security and intelligence agencies, would be enabled to extend its inquiries to include the Australian Federal Police, with the Attorney-General's consent, in situations “where a security or intelligence issue can only satisfactorily be examined by going beyond the Australian Intelligence Community.” (Id.)
  • Extension of the mandate of the Inspector-General of Intelligence and Security (IGIS). This is designed to enable the IGIS to extend inquiries to cover other agencies, in the same circumstances as set forth for the PJCIS described immediately above. (Id.)
  • Implementation of the Australian Law Reform Commission recommendations on sedition. The recommendationsinclude using the title “urging violence” for this offense instead of “sedition” modernizing the elements of the offense and repealing obsolete and never-used provisions proscribing “unlawful associations” and providing for an offense of “urging violence against a group or individual on the basis of race, religion, nationality, national origin or political opinion.” (Id.)
  • Implementation of all 10 recommendations of the Clarke Inquiry. By accepting and implementing the recommendations, the government seeks “toimprove the operation of relevant legislation and promote cooperation and information sharing among government departments and agencies in counterterrorism matters.” (Id.) The measures include a review of how police investigative detention powers for counter-terrorism offenses operate. The Government's proposals will be included in the above-mentioned discussion paper slated for 2009.

The inquiry and resulting report by retired judge John Clarke examined the case of Dr. Mohammed Haneef, who was arrested in July 2007; held for 25 days without charges, based on his cousin's alleged participation in a terrorist attack in Scotland; and eventually charged with providing support to a terrorist organization and then released, but whose visa was revoked. The report found “no evidence that [Haneef] was associated with or had foreknowledge of the terrorist events” and also indicated that the Howard government had made mistakes but not engaged in wrongdoing. (Belczyk, supra; HON. JOHN CLARKE QC, 1 REPORT OF THE INQUIRY INTO THE CASE OF DR MOHAMED HANEEF (Nov. 21, 2008), available at