Submission

Administrative Law & Human Rights Section

Security Legislation Review

To: The Hon. Simon Scheller AO QC, Chair, Security Legislation Review Committee

A submission from the Administrative Law & Human Rights Section of the Law Institute of Victoria

Date 18 January 2006

Queries regarding this submission should be directed to:

Contact person: Jo Kummrow
Ph (03) 9607 (03) 9607 9385
Email jkummrow@liv.asn.au

© Law Institute of Victoria (LIV).

No part of this submission may be reproduced for any purpose without the prior permission of the LIV.

The LIV makes most of its submissions available on its website at www.liv.asn.au

Contents

1 Introduction

Section 4 of the Security Legislation Amendment (Terrorism) Act 2002 requires the Federal Attorney-General to establish a public and independent review of the operation of certain Commonwealth security legislation. The Attorney-General established the Security Legislation Review Committee (SRLC) on 12 October 2005 to review the operation, effectiveness and implications of amendments made by the following security legislation:

The Law Institute of Victoria (LIV) has been invited to make a written submission to the SRLC as part of its public review.

The LIV has previously made a number of submissions on security and counter terrorism legislation, copies of which are available at https://www.liv.asn.au/ members/sections/ submissions/.

The LIV has reviewed the Security Legislation Review Issues Paper, the Security Legislation and consulted with its members on issues arising in relation to the operation, effectiveness and implications of the Security Legislation and alternative approaches or mechanisms to the legislation. The LIV has also reviewed submissions made in 2002 by the Law Council of Australia to the Senate Legal and Constitutional Committee in relation to its inquiries into the Border Security Legislation Amendment Act 20021 and Security Legislation Amendment (Terrorism) Bill [No. 2] 20022. The LIV endorses the comments made in those submissions and refers them to the Committee for its consideration as part of its current review.

The LIV notes that no date has been set for a public hearing for the Security Legislation Review. The LIV would appreciate the opportunity to make a further written or oral submission to the Security Legislation Review Committee, if required.

2 Executive summary

The LIV’s position on security and counter terrorism legislation is consistent with that of the Law Council of Australia (LCA). However, the LIV emphasises the effectiveness of the criminal law to deal with security and terrorism offences, as it stood prior to the significant expansion of powers under counter terrorism, security and telecommunications interception laws since 20013. Indeed, the amendments introduced by the Security Legislation have in most cases been expanded by later Acts such as the Criminal Code Amendment (Terrorism) Act 2003, Anti-Terrorism Act (No 2) 2004, Telecommunications (Interception) Amendment (Stored Communications) Act 2004 and Anti-Terrorism Act 2005.

While recognising the possibility of a terrorist attack in Australia or against Australian citizens, the LIV does not support the further extension of executive power under security and counter terrorism laws without adequate public consultation and independent and ongoing review. The LIV submits that incremental expansion of powers under security and counter terrorism laws have granted powers to the Executive that go beyond what is required to prevent or protect the community from a terrorist attack. The LIV has concerns about the derogation of individual civil rights and liberties and strongly urges the SRLC to ensure that the rule of law and human rights are preserved under the Security Legislation and other similar legislation. This includes achieving an appropriate balance between the protection of privacy on one hand, and the investigation of serious criminal activity and threats to national security on the other.

The issue of counter terrorism and security is an issue that invokes strong concern and public awareness in the community. With the Commonwealth Government now holding the majority of seats in the Senate, previous mechanisms for legislative review are now unlikely to be retained. Accordingly, the LIV recommends that the Committee consider:

  1. the inclusion of measures to protect the individual rights of citizens under the Security Legislation, such as ensuring that all decisions made under thelegislation are judicially reviewable and that a person who suffers a wrong under the legislation can seek a remedy;
  2. that a further review of the legislation take place in three years; and
  3. that there be a requirement for greater accountability and disclosure in relation to the Security Legislation, including annual reports tabled in the Parliament containing details of the use, necessity and effectiveness of all security and counter terrorism legislation.

The LIV also suggests that if the Security Legislation is the subject of future review, that all other related legislation, such as the Australian Security Intelligence Organisation Act 1979 and Anti-Terrorism Act 2005, be taken into consideration in the context of the extensive powers provided under Australia’s broad package of security and counter terrorism legislation, which have been progressively expanded since 2001. The LIV submits that all such legislation does not operate in isolation and is interconnected with other security and counter terrorism legislation.

3 Background to Security Legislation

On 12-13 March 2002, the Suppression of the Financing of Terrorism Bill 2002, Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002, Border Security Legislation Amendment Bill 2002, Telecommunications Interception Legislation Amendment Bill 2002 and Security Legislation Amendment (Terrorism) Bill 2002 [No.2] were introduced into the House of Representatives. The five Bills were later referred by the Selection of Bills Committee to the Senate Legal and Constitutional Legislation Committee (Committee) for inquiry:

To allow all non-government stakeholders to undertake a comprehensive scrutiny of the numerous and detailed matters in this 120 page package. Significant issues include creation of new offences, imposition of life sentence penalties, capacity to proscribe organisations, expansion of executive power, increase in policing powers for customs service and telecommunications powers.4

The inquiry invoked a significant response from the public. The Committee received 431 submissions, including a submission from the Young Lawyers’ Section of the LIV. 5

In its report handed down on 14 May 2002, the Committee stated that

The Committee has examined five inter-related Bills that mustrank as some of the most important to come before the Parliament in the last twenty years. The Bills raised significant and sometimes complex and technical issues.

The Committee made a total of seven recommendations in its report in relation to three of the five Bills. These are discussed below in more detail under the relevant legislation.

Significant debate in relation to the Bills took place in the Senate on 26 and 27 June 2002.6 The Bills were passed by the House of Representatives with amendments made by the Senate on 27 June 2002. The amendments included the requirement that the Attorney-General must cause a review of the operation, effectiveness and implications of amendments made by the Security Legislation as soon as practicable after the third anniversary of the commencement of the amendments.

The Criminal Code Amendment (Terrorism) Act 2003 was enacted on 27 May 2005. The Act provides for the referral of powers in relation to terrorism offences to the Commonwealth.

The LIV supports the ongoing review of security and counter terrorism legislation, such as currently being undertaken, given the significant powers it provides to the Executive with limited parliamentary scrutiny once legislation is passed. In circumstances where the need for such legislation has passed or lapsed, the LIV submits that the legislation should be reviewed and possibly repealed. The LIV strongly supports the argument that there must be a clear and realistic need for such legislation.

3.1 Security Legislation Amendment (Terrorism) Act 2002

The Security Legislation Amendment (Terrorism) Act 2002 amended the Criminal Code Act 1995 to create new terrorism offences with a maximum penalty of life imprisonment. The Act also introduced a regime to proscribe terrorist organisations, updated provisions relating to the offence of treason and expanded the powers of the Australian Protective Service.

In its report following a review of the legislation, the Senate Legal and Constitutional Legislation Committee made four recommendations in relation to the then Bill:

Recommendation 1

The Committee recommends that proposed section 80.1 in the Bill be amended so that the terms ‘conduct that assists by any means whatever’ and ‘engaged in armed hostilities’ are defined, in order to ensure that the humanitarian activities of aid agencies are not caught within the ambit of the offence of treason.

Recommendation 2

The Committee recommends that the definition of ‘terrorist act’ in proposed section 100.1 in the Bill be amended to include a third element, namely that the action or threat of action is designed to influence government by undue intimidation or undue coercion, or to unduly intimidate the public or a section of the public.

Recommendation 3

The Committee recommends that:

  1. the Bill be amended to remove proposed sections 101.2(2), 101.4(2) and 101.5(2), which impose absolute liability in respect of certain elements of those offences; and
  2. the offences in proposed sections 101.2(1), 101.4(1) and 101.5(1) be amended to provide that they are committed if the person knew or was reckless as to the required element in 101.2(1)(b), 101.4(1)(b) and 101.5(1)(b).

Recommendation 4

The Committee recommends:

  1. that proposed Division 102 in the Bill in relation to the proscription of organisations with a terrorist connection not be agreed to; and
  2. that the Attorney-General review the proscription provisions with a view to developing a statutory procedure which:

In March 2002, the Senate Standing Committee for the Scrutiny of Bills also raised concerns about:

  1. The imposition of strict liability in relation to actions undertaken ‘recklessly’. For example, recruiting a person to join or participate in the activities of an organisation and being reckless as to whether the organisation is a terrorist organisation7. The Committee commented that “[t]hese amendments would seem to widen the scope for criminal liability alarmingly”.8
  2. The ability of the Attorney-General to declare an organisation to be a proscribed terrorist organisation. The Committee suggested that this “effectively creates criminal liability by the making of a declaration” and that “it is arguable that the exercise of the Attorney’s discretion is more of a legislative function than an administrative one, and that it should be subject to Parliamentary scrutiny”.9

The LIV suggests that the issues raised by the Senate Standing Committee and Senate Legal and Constitutional Legislation Committee continue to be of serious concern to those in the legal profession. The imposition of strict liability offences, which carry heavy penalties (ie 15 years imprisonment) for offences committed without intent or recklessly and the reversal of the onus of proof contained in the terrorism offences, do not accord fairness and justice to those accused of such offences. We also note that strict liability offences have recently been extended under the Anti-Terrorism Act 2005 to impose life imprisonment in circumstances where a person has recklessly funded an individual terrorist or organisation.10

3.2 Suppression of the Financing of Terrorism Act 2002

The International Convention for the Suppression of the Financing of Terrorism (Convention) seeks to prevent terrorist attacks by depriving individuals and organisations of the financial means to commit such acts.

The Convention was implemented in Australia by the Suppression of the Financing of Terrorism Act 2002 (Act). The Act inserted the offence of ‘financing terrorism’ offence into the Criminal Code Act 1995 and is directed at persons who provide or collect funds to be used to facilitate a terrorist act and prescribes penalties for using, dealing with or making available the assets of persons and organisations involved in terrorist activities. It also amends the Financial Transaction Reports Act 1988 to require financial institutions, securities dealers, trustees and other cash dealers to report suspected terrorist related activities and streamlines the procedures for the disclosure financial transaction reports by Australian security agencies to their foreign counterparts.

In its report following a review of the legislation, the Senate Legal and Constitutional Legislation Committee made two recommendations in relation to the then Bill:

Recommendation 6

The Committee recommends that proposed section 103.1 in the Suppression of the Financing of Terrorism Bill 2002 be amended so that the financing of terrorism offence includes an element of intent.

Recommendation 7

The Committee recommends that:

  1. provision be made, either by way of an amendment to the Suppression of the Financing of Terrorism Bill 2002 or under regulations, that before any decision is taken to freeze assets in respect of a proscribed person or entity, the Australian Federal Police set an appropriate course of action in consultation with the relevant financial institution or institutions before any asset is frozen; and
  2. once action has been taken to freeze an asset, the owner of assets must be advised in writing as soon as possible and their rights and obligations explained.

The Act was passed with amendments on 27 June 2002 and received assent on 5 July 2002. The main amendments proposed by the Senate and accepted by the House amended the definition of terrorism and provide for regulations to be made setting out procedures to be followed in relation to the freezing of assets and notification of the freezing of assets.

We note that offences relating to the financing of terrorism were amended and extended under the Anti-Terrorism Act 2005 to impose life imprisonment in circumstances where a person has recklessly funded an individual terrorist or organisation.11

3.3 Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002

The Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 amended the Criminal Code Act 1995 to implement the 1997 International Convention on the Suppression of Terrorist Bombings (Convention) and make it an offence to place bombs or other lethal devices in prescribed places with the intention of causing death or serious harm or causing extensive destruction which would cause major economic loss. The Convention is one of the 12 major multilateral conventions and protocols dealing with terrorism.12

The LIV has no specific comments to make in relation to this egislation.

3.4 Border Security Legislation Amendment Act 2002

The Border Security Legislation Amendment Act 2002 deals with border surveillance, the movement of passengers and crew including access to passenger information, information about people working in restricted areas or issued with security identification cards, goods in transit in Australia including reporting of mail and Customs powers.

As a general proposition, the LIV observes that the Act mainly creates provisions whose effect would not be obvious to persons other than those directly affected by the new provisions or those on whom new powers had been conferred. There is little public notice that provisions created by the Act have been used in any particular way.

By way of example, only senior officers of the Australian Customs Service (Customs) would be able to comment on any of the following provisions:

  1. any use of the ‘seizure warrants’ pursuant to section 203DA of the Customs Act 1901 (Customs Act);
  2. the benefits or results of reporting of in-transit goods pursuant to Section 64AB of the Customs Act;
  3. the benefits or results of reporting of passengers and crew pursuant to sections 64ACA and 64ACB of the Customs Act or the provision of personal information regarding passengers pursuant to section 64AF of the Customs Act; and
  4. the extent to which Customs officers have been armed (whether personally or by way of installation or firearms on vessels operated by Customs).

The new obligations to report the passage of cargo in transit through Australia are imposed on customs brokers and freight forwarders employed by owners of ships or aircraft. The LIV suggests that their views on the new reporting obligations and the way in which the reporting obligations are being managed through the new Customs Integrated Cargo System should be secured by the Committee.

Consistent with the views expressed above, only operators of aircraft or ships can really comment on the affect of new obligations imposed on them to report details of the arriving crew and passengers or the obligation to provide access to personal information for passengers.

For the reasons set out above, the LIV suggests that the SLRC should secure the views of the following parties affected by the Act.

  1. Customs;
  2. operators of aircraft and sea vessels;
  3. customs brokers and freight forwarders employed by owners of ships and aircraft;
  4. those employing persons in “restricted areas” who much provide ‘identity information” in relation to their employees; and
  5. whether the Federal Privacy Commissioner is satisfied that Customs has observed privacy legislation in relation to access and use of personal information.

It is the view of the LIV that any review of the Act would be incomplete without the views of these parties being secured and then tested. The LIV trusts that these interested parties are involved with this review.

3.4.1 Observations on the operation and implications of the Act

Without limiting the effect of the comments in the preceding paragraphs, the LIV also wishes to offer the following observations regarding the operation and implications of certain provisions of the Act.

  1. The LIV is concerned with the increased use of firearms and personal defence equipment by officers of Customs. This has been the subject of extensive recent media coverage but raises the following issues:
    1. In previous practice, if there appeared to be any need for firearms or other defensive equipment in an area to be dealt with by Customs, that protective equipment was provided by the Australian Federal Policy, State Police, Protective Services or other agencies who had been specifically authorised to use firearms and other defensive equipment on a more general basis. The LIV is unaware of any situations in which it has been found that the exercise of powers by Customs was hampered by the absence of firearms or other defensive equipment.
    2. It is the view of the LIV that the carriage of firearms and other defensive equipment by a larger category of officers of Customs creates significant additional concerns for employees of Customs on an occupational health and safety basis. It also creates additional safety concerns for persons other than officers of Customs who are working in areas where firearms are being carried by officers of Customs (ie passengers and other employees) for injury and/or death occasioned by the improper use of those firearms or other defensive equipment.
    3. Even if the broader issue of firearms is to be permitted, the Act does not afford significant comfort as to the manner in which firearms may be issued. Concerns are addressed below.
      1. There is no obvious guidance in the relevant provisions of the Act that the issue of firearms and other defensive equipment to officers of Customs may only be made of officers who have undergone appropriate training in handling firearms and other defensive equipment.
      2. The Act does not provide any indication as to the ‘terms of engagement’ of officers of Customs carrying such firearms or other defensive equipment. Are they entitled to use deadly force to aid in their operations or only for personal defensive purposes?
      3. There is no indication given as to the type of firearms to be carried by Customs. Will Customs officers only be entitled to carry pistols or heavier types of firearms? What is “personal defence equipment”?
      4. No direction is given as to the qualifications required of a person to become an “authorised arms issuing officer”. Again, the LIV is of the view that the criteria to be satisfied for a person to become an “authorised arms issuing officer” should be properly specified to ensure that industry has some assurance as to the qualification of the person authorising the issue of firearms.

    In relation to all these issues, section 189A(1) of the Customs Act merely provides that the authorisation by the relevant officer is subject to any directions of the CEO.

    These matters should be clarified by the development of proper guidelines in conjunction with industry consultation which Guidelines become a Disallowable Instrument.

  2. The LIV has some concerns regarding new Customs powers of search and seizure.
    1. The SLRC would be aware that additional powers of search and seizure were incorporated by the Act. The attention of the SLRC is drawn to Subdivision DA of Division 1 of Part XII of the Customs Act. This authorises the issue of “seizure warrants” pursuant to section 203DA. The powers associated with such warrants pursuant to section 203DB includes the entitlement to enter premises the subject of the warrant. It is the view of the LIV that in exercising these powers, the relevant officer of Customs should be obliged to comply with the type of obligations set out in section 214ACA of the Customs Act, which was introduced through TML for the exercise of “Monitoring Powers”. This includes the need to deal with a “responsible officer” at the premises the subject of the search and to provide the subject of a search with a statement of their rights and obligations. This would also be consistent with the recommendation contained in paragraph 4.76 of the Fourth Report of 2000: Entry and Search Provisions in Commonwealth Legislation.13
    2. In relation to an application for return of seized goods pursuant to section 209F, the LIV is concerned that an owner of goods must effectively prove that those seized goods are not of the kind contemplated by section 203DA(1). Given the breadth of the terms used in section 203DA(1) (as defined in section 183UA) and the apparent intention to place onus of proof upon the applicant, it will be exceedingly difficult for an application to satisfy the requirements set out in section 209F(3) for the goods to be returned. These difficulties will be even greater after goods are destroyed. The onus should be on Customs to prove that the basis under which it originally seized the goods had been established.

    To this effect, the LIV still awaits the pending report of the Senate Scrutiny of Bills Committee Inquiry into Entry, Search and Seizure Provisions in Commonwealth Legislation which also addressed the topic.14

  3. The LIV is concerned that the effect of the amendments to the definition of “Officers of Customs” in section 4(1) of the Customs Act may enable the CEO of Customs to effectively authorise the appointment of persons as prescribed by officers to authorise actions undertaken in the past when those persons did not hold the relevant office. This is of a concern given that persons need to be sure that the people with whom they are dealing at the particular time are authorised Customs Officers holding a particular office in a particular category. The creation of that category at some later stage offers little protection for the general public. Further, the LIV is also concerned that the nature of the definition is as broad as to entitle persons other than employees of Customs to be deemed to be Customs officers to exercise powers. For example, an officer of the Australian Taxation Office could be appointed as an officer of Customs to exercise powers held by Customs which could have an unintended “cross vesting” effect.
  4. Additional work needs to be undertaken in relation to the protection of privacy for individuals in view of increased access to personal information for Customs. This would include the following:
    1. Additional information to passengers as to the fact of Customs access to personal information. This information should be made available to all passengers and employees in restricted areas whose personal information is being made available to Customs pursuant to various provisions of the Act. This information should include details of other bodies receiving personal information from Customs.
    2. Additional disclosure should be made to all passengers and employees in restricted areas that they have rights in relation to their personal information held by Customs to as set out in the Commonwealth Privacy Legislation (such as the right to access the information and a right to correct any information).
    3. A statement that the personal information secured by Customs arising from the Act can only be used for purposes associated with the Act.

    These matters may be best addressed by the provision of a “Charter of Rights to Privacy” or an “Industry Code” to be provided to all passengers at the time of making their bookings or any inquiries as to travel and to employees in restricted areas at the time the information is provided. This should be developed by Customs together with industry prior to the commencement of the Legislation.

  5. Paragraph 213A(7)(c) of the Customs Act should be amended so that future categories of “Required Identity Information” which the Government requires in respect of employees in “restricted areas” should be subject to review by Parliament rather than created by way of Subordinate Legislation.
  6. The Customs Act should be amended to provide that access to personal information regarding passengers and crew should only be available on a “read only” basis.

3.5 Telecommunications Interception Legislation Amendment Act 2002

The stated purpose of the Telecommunications (Interception) Act 1979 (Interception Act) is to protect the privacy of individuals who use the Australian telecommunications system. It is an offence to intercept communications passing over the telecommunications system unless authorised under the Act. The Act specifies circumstances in which it is lawful for interception to take place. The Act provides that a telecommunications service may be intercepted under the authority of a warrant by law enforcement agencies for the investigation of serious offences, or by the Australian Security and Intelligence Organisation for national security purposes.

In its report following a review of the legislation, the Senate Legal and Constitutional Legislation Committee made one recommendation in relation to the then Bill:

Recommendation 5

The Committee recommends that the Attorney-General review the current law on access to stored communications of delayed messages services with a view to amending the Telecommunications Interception Legislation Amendment Bill 2002 so that the accessing of such data requires a telecommunication interception warrant.

The LIV notes that a number of pieces of legislation have amended the Interception Act since the Telecommunications Interception Legislation Amendment Act 2002 was passed.15 Most recently, the Telecommunications (Interception) Amendm ent (Stored Communications) Act 2004 (Stored Communications Amendment Act) was assented to on 14 December 2004. This Act excludes ‘stored communications’ (such as electronic messages located on a computer, internet server or other equipment) from controls on interception of communications in the Interception Act for a period of 12 months while a review of the Act is conducted. The Stored Communications Amendment Act removes stored communications from the protection of the Interception Act for a 12 month period.

The LIV has reviewed submissions made by the Office of the Privacy Commissioner on amendments proposed to the Interception Act in 2002 and Stored Communications Amendment Act, and refers them to the Committee for its consideration as part of its current review. 16 In particular, the LIV notes concerns raised in the Privacy Commissioner’s most recent submission on the interception of telecommunications and the need to balance relevant interests:

Allowing the interception of communications clearly has adetrimental impact on privacy. Such a detrimental impact may be balanced, to some extent, against important law enforcement and national security interests.17

Strong justification is needed for the interception of private conversations. The Interception Act recognises that there are circumstances where it is appropriate to allow law enforcement or security organisations to intercept telecommunications.18

…, the short-term changes brought about by the Stored Communications Amendment Act have the effect of increasing an adverse privacy impact while lessening transparency, oversight and accountability protections from the interception of stored communications. In this case, there is a question whether the balance has tipped too far away from privacy.19

Accordingly, the LIV suggests that the SLRC should secure the views of the Office of the Privacy Commissioner, which is in the best position to respond on the operation, effectiveness and implications of the Interception Act.

3.5.1 Annual report on the use of Interception Act

Division 2 of Part IX of the Interception Act requires the Attorney-General to collect certain information and prepare an annual report for Parliament containing details of telecommunications interception for law enforcement purposes. The type of information that must be contained in the annual report includes, the number of applications for warrants made (including by telephone), the number of warrants issued, the number of arrests, prosecutions and convictions during the reporting year based on intercepted information and the number of times an agency intercepted a communication without a warrant in an emergency situation such as a siege, kidnapping or extortion. The latest annual report to be published relates to the year ending 30 June 2004.20 The LIV suggests that the Committee review this report in detail, however, we make certain observations in relation to the information it contains.

During the relevant period, 3028 warrants were issued to law enforcement agencies representing a decrease of approximately one percent compared to the previous reporting year. Of this total, 31 applications were either refused or withdrawn compared to 9 in the previous year. The highest number of warrants was issued to the NSW Crime Commission (824), Australian Federal Police (660), NSW Police (463) and Australian Crime Commission (390). The majority of warrants related to narcotics (604) and drug trafficking (1163) offences with only 9 warrants related to terrorism offences.

There is a requirement that the annual report contain information about the effectiveness of warrants issued under the Interception Act. Specifically, the report must state how many arrests were made on the basis of information obtained by intercepting a communication under a warrant and include information about prosecutions for ‘prescribed offences’ in which lawfully obtained information was given in evidence, and the number of those in respect of which convictions were recorded.21

The annual report states that the number of arrests made during the 2003-2004 reporting year represents an increase of 32 percent compared to the previous year22. On a per warrant basis, there were 67 arrests for every 100 warrants issued, which represents an increase from the previous year, in which there were 50 arrests for every 100 warrants issued.23 The highest number of arrests was made by the NSW Crime Commission (643), NSW Police (474) and Victoria Police (157). In circumstances where convictions in which lawfully obtained information were given in evidence, none related to terrorism offences.

In relation to prosecutions in which lawfully obtained information was given in evidence, the annual report shows a 27 percent increase in the number. On a per warrant basis, there were 87 prosecutions and 60 convictions on the basis of intercepted information for every 100 warrants issued compared to 68 prosecutions and 40 convictions for every 100 warrants issued in the previous year.24

In relation to the 2658 prosecutions in which lawfully obtained information was given in evidence, the majority related to trafficking in drugs (1506) while five prosecutions related to terrorism offences. Of 1824 convictions in which lawfully obtained information was given in evidence, the majority related to trafficking in drugs (957) while no convictions related to terrorism offences.25 However, the annual report notes that these statistics should be interpreted with ‘some caution’ as an arrest and prosecution may not lead to a conviction until the following reporting period and that the number of arrests may not equate to the number of charges laid.

The LIV suggests that the above figures arguably confirm that the Act is seldom used in connection with terrorism offences. While the LIV cannot say that this supports a conclusion that the legislation is unnecessary, we suggest that it indicates that these measures should be subject to ongoing review and reporting requirements to ensure that the powers available under the legislation relate to an actual threat and are justified in light of the need to balance privacy and security interests.

3.6 Criminal Code Amendment (Terrorism) Act 2003

As referred to above, in April 2002, a Summit of Commonwealth and State and Territory Leaders resulted in state governments referring their powers over terrorism offences to the Commonwealth Government. The Criminal Code Amendment (Terrorism) Act 2003 was enacted on 29 May 2003 and refers power to the Commonwealth under the Constitution. The Act provides for the Commonwealth to legislate in this area, with agreement from the states and territories for any future amendments.

The LIV has no specific comments to make in relation to this legislation.

1 Law Council of Australia submission No 1577 (16 April 2002) to the Senate Legal and Constitutional Legislation Committee Inquiry into the Border Security Legislation Amendment Act 2002 <http://www.lawcouncil.asn.au/submissions.html> (accessed 16 January 2006).

2 Law Council of Australia submission No 1576 (16 April 2002) to the Senate Legal and Constitutional Legislation Committee Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 [No. 2] and Related Bills <http://www.lawcouncil.asn.au/submissions.html> (accessed 16 January 2006). See also submission No 1578 to the Senate Legal and Constitutional Legislation Committee Inquiry titled, ‘Inquiry into Terrorism Bills (16 April 2002).

3 See Annual Reports prepared by the Attorney-General’ Department for the years 2001-2002, 2003-2004 and 2004-2005 for new security, counter terrorism and telecommunications interception legislation and legislative amendments introduced since 2001 <http://www.ag.gov.au/agd/www/Agdhome.nsf/Page/RWP63A965098EA78C27CA256B72007C6C26?OpenDocument> (accessed 16 January 2006).

4 Senate Legal and Constitutional Legislation Committee, Consideration of Legislation Referred to the Committee (May 2002), p 1 <http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/2002-04/terrorism/report/report.pdf> (accessed 16 January 2006).

5 Ibid, Appendix 1, p 95 (Law Institute of Victoria — Young Lawyers Section, Submission 168).

6 Refer Hansard reports of 26 June 2002 at <http://www.aph.gov.au/hansard/senate/dailys/ds260602.pdf> and 27 June 2005 at <http://www.aph.gov.au/hansard/senate/dailys/ds270602.pdf> (accessed 16 January 2006).

7 Section 102.4(2), Security Legislation Amendment (Terrorism) Act 2002.

8 Senate Scrutiny of Bills Committee,Alert Digest, 20 March 2002, p 51 <http://www.aph.gov.au/senate/committee/scrutiny/alerts/2002/d03.pdf> (accessed 16 January 2006).

9 Ibid.

10 Section 103.2(1), Criminal Code Act 1995.

11 Section 103.2(1), Criminal Code Act 1995.

12 Bills Digest No. 120 2001-02, Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002 <http://www.aph.gov.au/library/pubs/bd/2001-02/02bd120.htm#Passage> (accessed 16 January 2005).

13 Fourth Report of 2000: Entry and Search Provisions in Commonwealth Legislation (6 April 2000) <http://www.aph.gov.au/senate/committee/scrutiny/bills/2000/b04.pdf> (accessed 16 January 2006).

14 Refer <http://wopared.parl.net/senate/committee/scrutiny/inquiries/entry_search.htm> (accessed 16 January 2006)

15 Legislation includes the Telecommunications Interception and Other Legislation Amendment Act 2003 (12 November 2003), Telecommunications (Interception) Amendment Act 2004 (27 April 2004) and the Telecommunications (Interception) Amendment (Stored Communications) Act 2004 (15 December 2004).

16 Refer, Office of the Privacy Commissioner, <http://www.privacy.gov.au/publications/senTIAsub.doc> and <http://www.privacy.gov.au/publications/tiasub.doc> (accessed 16 January 2006).

17 Office of the Privacy Commissioner <http://www.privacy.gov.au/publications/tiasub.doc> (accessed 16 January 2006), para 19, p 4.

18 Ibid, para 20, p 5.

19 Ibid, para 22, p 5.

20 Telecommunications (Interception) Act 1979, Report for the year ending 30 June 2004 <http://www.ag.gov.au/agd/WWW/rwpattach.nsf/
VAP/(03995EABC73F94816C2AF4AA2645824B)~CleanedTelecommunications+Act.DOC
/$file/CleanedTelecommunications+Act.DOC> (accessed 16 January 2006).

21 Ibid, 31.

22 Ibid, 33.

23 Ibid, 33.

24 Ibid, 34.

25 Ibid, 35-36.