Foreign Fighters Bill: expanded counter-terrorism laws encroach on human rights

By Rhys Ryan

The Federal Government recently made the most significant changes to Australia’s counter-terrorism laws in over a decade. The changes were introduced by the Coalition under the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth), which, with the support of Labor, was passed into law on 30 October 2014.

The new laws extend the operation of Australia’s existing counter-terrorism regimes, create new criminal offences relating to terrorism, and introduce other restrictive measures and executive powers to strengthen national security. The stated purpose of the changes is to address the security threat posed by so-called “foreign fighters” – people who return to Australia after participating in foreign conflicts or training with extremist groups. But many of the changes are not tailored to address this particular threat and, in practice, are likely to have a much broader application than the stated purpose.

Given the extent of the changes and the inherent impact of counter-terrorism laws on individuals’ rights, it is concerning that the Foreign Fighters Bill was pushed through Parliament in an expedited timeframe. The Parliamentary Joint Committee on Intelligence and Security only allowed seven business days for public submissions to its inquiry into the Bill, prompting 43 academics and NGOs to release a joint statement expressing concern at the limited public consultation. Their concern was not unfounded, especially given the Bill’s serious encroachment on fundamental human rights.

Extension of counter-terrorism regimes

Australia’s current counter-terrorism laws comprise four legislative regimes introduced under the Howard administration:

  • control orders which are designed to control the behaviour of a person where it is considered necessary to prevent a terrorist act;
  • preventative detention orders which allow police to detain a person for up to 14 days if there are reasonable grounds to suspect he or she is planning or will engage in a terrorist act;
  • stop, search and seizure powers which allow police to stop and search persons, vehicles and premises and seize items that could be used in a terrorist offence; and
  • questioning and detention warrants which allow ASIO to immediately detain a person for questioning in connection with a possible terrorist offence.

“The four counter-terrorism regimes seriously encroach on

rights to freedom of movement and freedom from arbitrary detention,

as well as rights to family, employment and education.”

Before the introduction of the Bill, these four regimes were each subject to a ten-year “sunset clause”, meaning that the regimes were due to expire in 2015 or 2016 unless extended by a legislative amendment. The sunset clause on each regime has now been extended, such that they will continue to operate until September 2018. Before this date, the Parliamentary Joint Committee on Intelligence and Security must review the regimes to assess their operation, effectiveness and implications.

The four counter-terrorism regimes seriously encroach on rights to freedom of movement and freedom from arbitrary detention, as well as rights to family, employment and education.

The Independent National Security Legislation Monitor has previously recommended that three of the regimes be repealed on the grounds that other legislation adequately equips law enforcement agencies to combat terrorism and that the existing regimes have been underused since their introduction. In fact, only two control orders have ever been issued, preventative detention orders have only been made with respect to three people – all during the Brisbane and Sydney terror raids in September this year – and public records indicate that no questioning and detention warrants have ever been sought by ASIO.

Ironically, the Bill obliges the new Monitor to conduct a further review of the four regimes by 2017.

New offence for travelling to a “declared area”

The Bill introduced a crime, punishable by up to ten years’ imprisonment, for a person to travel to an area in a foreign country that has been declared by the Australian Government to be one where a listed terrorist organisation is engaging in hostile activity. Already the Government has exercised this power, with the Foreign Minister declaring Syria’s al-Raqqa province – Islamic State’s de facto capital – to be a “declared area”.

A person suspected of travelling to a declared area may rely on a defence if their travel was for a prescribed “legitimate purpose” – defined to include delivering humanitarian aid, reporting as a journalist, visiting a family member and performing official duties. The list of legitimate purposes is very narrow and does not, for example, cover business trips or visiting friends.

Of greater concern, however, is that this new offence effectively reverses the onus of proof by requiring an accused person to prove their legitimate purpose of travel. This places an unreasonable burden on a defendant and undermines the right to a fair trial.

New offence for advocating terrorism

The second offence introduced by the Bill makes it a crime for a person to intentionally advocate the doing of a terrorist act or the commission of a terrorism offence where he or she is reckless as to whether another person will actually do the act or commit the offence.

This new offence will capture a wide – and possibly unintended – range of conduct, and risks criminalising legitimate expressions of free speech. This is because the new concept of “advocate” and existing concepts of “terrorist act” and “terrorism offence” are very widely defined. For example, under the new laws, a person who recklessly promotes or encourages the threat of a terrorist act by posting a comment or video on social media in support of anti-government rebels in a foreign country, but does not actually advocate for the doing of a terrorist act, will be guilty of a crime punishable by up to five years’ imprisonment.

Other restrictive measures and executive powers

The Bill has also introduced a range of restrictive measures and executive powers designed to strengthen Australia’s national security:

  • The Foreign Affairs Minister can now suspend a person’s passport for a period of 14 days if ASIO suspects on reasonable grounds that the person may leave Australia to engage in conduct that might prejudice the security of Australia or a foreign country.
  • The Immigration Minister must now cancel a person’s temporary or permanent visa if ASIO forms a reasonable suspicion that the visa holder might be, directly or indirectly, a risk to security. If the risk is confirmed, the visa holder’s family members may, at the Minister’s discretion, also have their visas cancelled.
  • Customs officers now have the power to detain persons suspected of committing any federal offence that is punishable by imprisonment of 12 months or more – greatly extending officers’ previous power to only detain for offences relating to specified subject matters and punishable by imprisonment of three years or more.

These new executive powers raise a number of human rights concerns. The power to suspend passports and cancel visas places a disproportionate restriction on the right to freedom of movement in circumstances where the threshold for ASIO invoking the power is very low. Giving Customs officers greater power to detain persons without charge risks infringing the right to freedom from arbitrary detention.

Protection from threats to national security is an important responsibility of the Australian Government, and human rights can be limited for this purpose. But these limitations must be absolutely necessary, proportionate and rationally connected to the threat posed.

There is a real concern that the new laws introduced by the Foreign Fighters Bill do not comply with these principles.

Rhys Ryan is a practising solicitor at a commercial law firm in Melbourne. He is a file lawyer with Justice Connect’s Homeless Law clinic and recently completed a secondment to the Human Rights Law Centre.