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LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE - 16/04/2010 - Anti-People Smuggling and Other Measures Bill 2010

Estimates & Committees
Sarah Hanson-Young 16 Apr 2010

Senator Hanson-Young -Thank you to both of you for your opening remarks. I wanted to pick up on one thing Senator Parry said, which may have been a throwaway comment but I actually think it goes to the heart of your concern about this legislation, that you need a broad net in order to catch the tricky fish. With your legal hats on, could you give us some examples of other pieces of federal legislation that are so broad they capture everybody simply to catch the tricky fish?

Prof. Saul -I would certainly say there has been a problem we have raised with this committee in the past about the antiterrorism legislation, for example, the definition of which captures conduct which may be entirely lawful under the law of armed conflict. It is a similar problem. Australian forces fighting in armed conflict in Afghanistan or Iraq falls within the definition of terrorism; it is the use of violence in order to compel a foreign government to do something. That is the definition of terrorism. We have insisted time after time do what other countries have done, which is to create a carve-out for armed conflict so that you are not criminalising anything which is entirely lawful for Australian forces to do in armed conflict. Although you can say, look, the prosecutor will exercise good judgment, sometimes they do not. We know circumstances where prosecutors have gone after people with very old security offences which nobody thought would or should be used anymore and they throw the book at people. I think it makes it very difficult.

This is ultimately a rule of law question. It makes it very difficult for any citizen or person in Australia to prospectively know the scope of their legal liabilities if they do not know what the good grace of a prosecutor will do to them down the line, because they are captured by incredibly wide laws and you just rely on the fact that a prosecutor in Canberra will make good judgment, and they do not always do that. I have great confidence in our prosecutors most of the time, but from a rule of law point of view international human rights law requires in article 15 of the ICCPR that any criminal offence be sufficiently specific and non-vague so as to enable people to know what their criminal liabilities are, and I do not think that these offences satisfy that obligation.

Senator Hanson-Young -Would there then also be a risk that those that are perhaps guilty of committing some type of criminal activity, which is meant to be caught under this legislation, could perhaps challenge the decision based on the fact that the legislation is so broad that it is not specific enough, it breaches various parts of other conventions and so forth so that it is going to be laughed at anyway?

Prof. Saul -Unfortunately, not in Australia because unlike Great Britain and the whole of Europe we do not allow challenges on human rights grounds in Australian courts and so whereas Britain is streets ahead of us in a lot of these areas we do not provide that if people get caught. There may be a policy choice by parliament that it is appropriate to cast the net widely and so on-that is a political judgment-but we say it does raise legal problems.

I have one final point which is related to this over broad criminalisation. I would simply say the problem there is that even if prosecutors do not use the law, there is still ultimately a chilling effect in the community. We have seen this in relation to the sedition laws where artists, members of the Muslim community and so on have been running scared for the last few years over whether these laws will be used against them and are they targeted against them. Federal prosecutors may never want to use them but the fact is that they are hanging over their heads. The sense that the community gets is that they are targeted at members of the community in expressing their religious beliefs, their political beliefs and so on and that tends to alienate communities from the law. That is not good for the justice system. It just means that people do not regard the legal system as legitimate, it makes people in those communities far less likely to want to cooperate with law enforcement officials and it makes law enforcement much harder in policing those communities.

Prof. Crock -There are precedents for courts. The present Chief Justice of the High Court, for example, when he was on the full Federal Court, struck down the legislation that was passed for World Youth Day you may recall in 2008 in a case called Evans v New South Wales where they tried to make regulations to criminalise the annoyance of pilgrims. The chief justice in that case was prepared to say that that breached certainty laws and basic human rights as well. I think that if an attempt were made to convict or charge somebody in the community with supporting people-smuggling who had innocently sent money abroad, the legislation could possibly be susceptible to that. Having said that, I agree with Associate Professor Saul that the record of primary legislation in Australia being supported on the basis that if it deals with any form of non-citizen, you can do anything you like is pretty strong.

Senator Hanson-Young -Could you expand your comments in relation to the expanded responsibilities and powers that would be given to ASIO under this legislation in terms of accessing information, surveillance and those types of things beyond Australia's borders which of course is quite a shift from the usual activities of that organisation? We have defence intelligence which often looks at the more foreign intelligence issues as opposed to domestically.

Prof. Crock -I think this legislation does broaden in an unjustifiable way the powers of ASIO. I am very conscious, however, that ASIO has been very active in this area anyway over many years. I remember intercepts were placed on Captain Arne Rinnan when he was in a stand-off with Australia. There is not a lot that has not been done before in this area. As I mentioned I know that intercepts have been placed on the phones of community members over time. Sometimes they put active tails on people as well to intimidate individuals in the community. For me it is a huge disappointment that this government is continuing down the same road and all the time trying to take it further and further but Associate Professor Saul is better qualified to speak about this.

Prof. Saul -I would say simply that I think it is appropriate actually that ASIO gets powers in relation to people and organisations and not only in circumstances limited to foreign governments. I think it is clear from recent cases, including in the High Court in the Thomas and Mowbray control order decision, that the use of the defence power and so on in relation to security threats must encompass not just state based threats. I think the situation of contemporary terrorism is an example of that.

On people-smuggling, I am a bit more circumspect, because I think people-smuggling primarily is a law enforcement problem; it is not primarily a security problem. If a person is coming into Australia through a people-smuggling operation, they are pretty unlikely to be a terrorist about to mount an attack on Australia. It would be the worst possible way you could imagine of trying to get into Australia, because you always get picked up by the Navy, you get taken to Christmas Island and you get stuck there in detention and processed under enormous security. It is very hard for you to be a security threat to Australia in those circumstances.

For that reason, I would be reluctant for ASIO to be given powers in relation to people-smuggling specifically, because it is a crime problem. It is a serious organised crime problem but it is not a national security problem in the way of the things that I think ASIO should be focusing its resources on. ASIO should be dealing with foreign espionage, terrorism, nuclear proliferation and so on, not this kind of relatively low-level stuff which is now being seen as an ASIO problem. I do not think it is.

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Senator Hanson-Young -Or if you are sending money to them because you think they need money to pay their bills that week and in fact that gets put into a piggy bank that then pays a people-smuggler, how is that not retrospective?

Prof. Saul -There was no law at the time-

Senator Hanson-Young -No, but if the law-this is the point; it is about the action that is retrospective.

Senator TROOD -It is a long time since I studied criminal law but my understanding is that you cannot be charged with offences which may become offences subsequently but were not at the time you committed an offence, or what became an offence.

Prof. Saul -That is correct-a high distinction. But I think that the finer point is simply that-let us say a new law is passed and you do not know what that law means because it is cast so vaguely. You may innocently give money or resources to somebody abroad not knowing that they will use it for people-smuggling. So, at the point at which you did it, you did not think it was criminal but in fact it was, but that is because the offence is cast too vaguely to give people a sense of-

Senator TROOD -That is your earlier point. Thank you.

CHAIR -Senator Hanson-Young, has your question been answered?

Senator Hanson-Young -My question was about the US litigation and you have answered that.

CHAIR -We do not have any other questions. I am sorry to have kept you over time. We certainly appreciate your knowledge and your contribution to our inquiry. Thank you, Professor Saul and Professor Crock.

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