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Last Updated: 14 October 2011
State Referrals and Terrorism Law Reform Paralysis: Cause and Effect?
Andrew Lynch, University of New South
Wales[*]
I Introduction
The purpose of this comment is to challenge the
claim made by the Commonwealth Attorney-General, Robert McClelland, that a range
of
amendments to the anti-terrorism laws in Part 5.3 of the Criminal Code
(‘the Code’) cannot be enacted without prior amendment by State
legislatures of their earlier referrals on this subject
to the Commonwealth
under section 51(xxxvii) of the Constitution. That assertion is surprising in
light of the relevant underlying intergovernmental agreement, the provisions of
the State referrals
themselves and past experience of quite radical amendment of
this Part of the Code unaccompanied by any need for State legislative
attention.
If correct, the Attorney-General’s view threatens to substantially inhibit
the flexibility of the reference power
which underpins other laws of national
significance.[1] Lastly, the comment
asks why the Attorney-General’s Department appears reluctant to
acknowledge and act upon the High Court’s
confirmation, since Part 5.3 was
first enacted, that the Commonwealth’s legislative power with respect to
defence is sufficiently broad to support laws
responding to domestic threats of
political violence.[2]
II State Referrals and the Enactment of Part 5.3
The Commonwealth’s scheme of terrorism
offences in Part 5.3 of the Code was initially enacted in June 2002 using a
‘patchwork’ of legislative power, which notably did not specifically
include that with respect to defence in s 51(vi) of the Commonwealth
Constitution (‘the
Constitution’).[3] However, at a
Council of Australian Governments meeting in April it had been agreed that given
‘the importance of comprehensive,
national coverage of terrorism
offences...the states would remove any lingering constitutional uncertainty by
means of constitutional
‘references’ to the Commonwealth Parliament
in accordance with s 51(xxxvii) of the Commonwealth
Constitution’.[4] The recent
experience of shoring up the Commonwealth’s national corporations law
through use of the constitutional device of
State referral served both as an
affirmation of the benefits of this approach and a model of how to proceed.
Clause 3 of the Commonwealth and States and Territories Agreement on
Terrorism and Multi-Jurisdictional Crime of 5 April 2002 provides that the
Prime Minister and State and Territory leaders agreed:
To take whatever action is necessary to ensure that terrorists can be prosecuted under the criminal law, including a reference of power of specific, jointly agreed legislation... The Commonwealth will have power to amend the new Commonwealth legislation in accordance with provisions similar to those which apply under Corporations arrangements. Any amendment based on the referred power will require consultation with and agreement of States and Territories, and this requirement to be contained in the legislation.
The States
duly enacted referring legislation[5]
in substantially the same terms as the existing Part 5.3 of the Code
which the Commonwealth then re-enacted in reliance of those
referrals.[6] In accordance with the
intergovernmental agreement, and as is standard in modern referrals, the States
also referred to the Commonwealth
a power to amend the textual provisions in
question. The scope of this second aspect of the reference and the rules
governing its
use are central to an appreciation of the validity of the
constraints recently claimed by the Commonwealth upon its capacity to reform
Australia’s anti-terrorism laws in the Code. It is to those claims that I
now turn before an examination of the referring legislation.
III The National Security Law Amendment Bill and the Referrals Power
In July 2009, the Attorney-General’s
Department invited responses to a major Discussion Paper on National Security
Legislation.[7] The Discussion Paper
purported to make a comprehensive response to a number of major reviews and
inquiries into various aspects of
the anti-terrorism
regime.[8] In addition to indicating
how the many recommendations made in those reports would be implemented, the
government proposed further
changes at its own
initiative.[9] Many required
amendment of legislation other than Part 5.3 of the Code – for
example, both a new power of warrantless searches and a 7 day cap on extended
pre-charge detention of terrorism suspects
would be inserted into the Crimes
Act 1914, while alterations to the conduct of trials involving
evidence prejudicial to national security necessitated amendment of the
National Security Information (Criminal and Civil Proceedings) Act
2004.
The Discussion Paper did propose several significant
changes in respect of Divisions 100-102 of Part 5.3 of the Code – though
these were still far from ‘comprehensive’ in responding to the
reviews.[10] This comment is not
directly concerned with the substance of these mooted amendments, but it should
be noted that they included a
number to the definition of ‘terrorism
act’ itself,[11] the creation
of a new hoax offence,[12]
tightening the offence of providing support to a terrorist organisation in s
102.7,[13] and an ability for the
Attorney-General to formally recognise humanitarian aid organisations and thus
exclude individuals dealing
with them from possible liability under the training
offence in s 102.5.[14] This
mixed bag of reforms attracted both support and criticism in the public
submissions made to the Department. But it was a surprise
when the government
introduced the National Security Legislation Amendment Bill (‘the
Bill’) to the Parliament in March
of this year that, barring amendments to
insert the word ‘substantial’ before ‘risk’ in section
102.1(1A)(c)
(one part of the definition of ‘advocates the doing of a
terrorist act’ by which an organisation may be proscribed) and
to extend
the duration of regulations proscribing terrorist organisations by a
year,[15] it made no other
substantive alterations to Part 5.3
whatsoever.[16]
In his
Second Reading speech to the Bill this March, the Attorney-General explained the
omissions as follows:
I should take this opportunity also to point out that some of the measures that were included in the discussion paper that was circulated are not in this bill. These include proposed amendments to the definition of terrorist act and the proposed new terrorism-based hoax offence. These amendments will require the states to amend their legislation which referred power to the Commonwealth. The government will continue to work closely with the states to progress these measures. [17]
In
the Departmental submission to the Senate Committee Inquiry on the Bill, Geoff
McDonald, head of the National Security Law and
Policy Division, was more
forthcoming about the need to rethink some of the proposals (notably that
empowering the Attorney-General
to declare those aid organisations with which
individuals could safely deal), and also said that some States required more
time to
consider amendments such as those to s 102.7 (this seems extraordinary
given the proposals were first raised nine months
earlier).[18] Mr McDonald went on to
echo the view that ‘some of the proposed amendments will require the
States and Territories to amend
their reference legislation for the measures to
be constitutionally
supported’.[19]
While
the failure of the Bill to make substantial amendments to Part 5.3 of the
Code may rest on a number of factors, this comment disputes the specific
claim that this is because legislative co-operation of the States
is a necessary
precondition.
IV The Amendment Reference and Part 5.3
Section 100.2(1) of the Code provides that:
(1) A State is a referring State if the Parliament of the State has referred the matters covered by subsections (2) and (3) to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution:
Sub-section 2 of that provision is the ‘initial reference’ of the text contained in the Schedules of the States’ respective referring Acts (essentially, Part 5.3 as passed and amended by the Commonwealth up to that time) so as to facilitate the re-enactment by the Commonwealth of those provisions as described in Part II above.
Sub-section 3 is the ‘amendment reference’ by which the States refer such power to the Commonwealth as is necessary to make ‘express amendments’ to the text originally referred:
(3) This subsection covers the matter of terrorist acts, and of actions relating to terrorist acts, to the extent of making laws with respect to that matter by making express amendment of this Part or Chapter 2.[20]
Under s 100.1, ‘express amendment’ is defined to
mean ‘the direct amendment of the provisions (whether by the insertion,
omission, repeal, substitution or relocation of words or matter).’
These Code provisions substantially replicate those in the State
referrals themselves, but the latter are more explicit. For example,
s 4 of the
Terrorism (Commonwealth Powers) Act 2003 (Vic) (‘the Referring
Act’) provides for both the initial and amendment references:
(1) The following matters are referred to the Parliament of the Commonwealth –
(a) the matters to which the referred provisions relate, but only to the extent of the making of laws with respect to those matters by including the referred provisions in the Commonwealth Criminal Code in the terms, or substantially in the terms, of the text set out in Schedule 1; and
(b) the matter of terrorist acts, and actions relating to terrorist acts, but only to the extent of the making of laws with respect to that matter by making express amendments of the terrorism legislation or the criminal responsibility legislation.
In sub-s (3) it is stated that the
‘operation of each paragraph of subsection (1) is not affected by the
other paragraph’
– in other words that the ‘initial’ and
‘amendment’ references are to be understood independently of
each
other. Section 3 of the Referring Act defines ‘express amendment’ as
follows:
express amendment of the terrorism legislation or the criminal responsibility legislation means the direct amendment of the text of the legislation (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by Commonwealth Acts, but does not include the enactment by a Commonwealth Act of a provision that has or will have substantive effect otherwise than as part of the text of the legislation.
In Thomas v Mowbray Hayne J accepted the
Commonwealth’s argument that this same amendment reference would allow the
insertion of new matter falling
within the description of a law with respect to
‘terrorist acts, and actions relating to terrorist acts’ so long as
‘that
is done by express amendment to the law that was enacted in the form
of the scheduled text’.[21]
Consequently, the only expressed restriction on the Commonwealth’s very
broad powers of amendment is against use of the referral
to support legislative
initiatives on the subject otherwise than as ‘part of the text of the
legislation’. Despite the
fact that Division 104 under scrutiny in that
case was distinctly novel (providing for a scheme of control orders ‘for
the
purpose of protecting the public from a terrorist
act’)[22] in comparison to
those Divisions contained in the initial referral, Hayne J found the addition of
Division 104 was valid as an ‘express
amendment’ since it was an
insertion to that text rather than located in a separate enactment.
The
only other judge to address this issue in Thomas was Kirby J who reached
a contrary conclusion and insisted that the amendment reference could not be
used by the Commonwealth to depart
from ‘the referred provisions... in the
terms, or substantially in the terms, of the text’ of the initial
referral. He
viewed the insertion of Div 104 as a radical addition that could
not be said simply to amend the initial text but required a fresh
referral.[23] Even if this view of
the scope of the amendment reference is accepted, a distinction between the
addition of an entirely new Division
creating civil orders potentially
applicable to non-suspects[24] and
amendments to the text of existing Divisions, such as those proposed by the
Commonwealth’s 2009 Discussion Paper, is not
hard to draw.
The
legislative purpose behind recognizing a restriction as to only the location,
rather than content, of the ‘express amendment’
appears to be to
ensure adherence to the requirement of s 100.8(2) of the Code that an
‘express amendment...is not to be made
unless the amendment is approved by
(a) a majority of the group consisting of the States, the Australian
Capital Territory and the
Northern Territory; and (b) at least 4
States’. For a variety of reasons, section 100.8(2) was declared to be
invalid by three
Justices in Thomas (with the rest not
deciding).[25] That view is very
probably correct, but either way, it should be noted that, contrary to the
Attorney-General’s statement in
the Second Reading speech, the provision
does not require any legislative attention by the States to their
referring Acts but merely executive assent (and even then, not of all States).
A
requirement of legislative action prior to enactment of fairly limited
amendments to the provisions supported by the initial reference
threatens to
substantially defeat the utility of State referrals.
In
conclusion:
V Beyond the referral
The States already recognise that the
Commonwealth may make amendments to the initial text using those legislative
powers it holds
aside from the State
references.[26] The impact of the
result in Thomas upon this should be recognised by the
Commonwealth.[27] The apparent
breadth of the Commonwealth’s defence power under s 5(vi) of the
Constitution seriously undermines the continued relevance of s 51(xxxvii) and
the associated State referrals as the substantial basis for Part 5.3 of the
Code. With a 6:1 majority finding that s 51(vi) supports the creation of a
scheme of control orders as a preventative tool against internal threats of
terrorism, a strong argument
can be made that this power also sustains those
earlier Divisions which criminalise terrorist acts and any later amendments that
might be made to them. Consequently the need for any State involvement in making
such amendments appears much reduced, if not altogether
extinguished.
It
seems unlikely that the failure of the Commonwealth to take advantage of the
judicial endorsement of s 51(vi) as a major source of its power to enact
anti-terrorism laws stems from respect for the co-operative federalism which
initially secured
Part 5.3. Equally, it is extraordinary to see the Commonwealth
erect even higher obstacles to its command of the legislative framework than
State involvement was previously thought to require.
[*] Director, Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales.
[1] Aside from the anti-terrorism laws, the referrals power offers significant support to the Corporations Act 2001 (Cth) and the Fair Work Act 2009 (Cth).
[2] Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307.
[3] The then Attorney-General, Daryl Williams, listed several other powers which might, depedning on the circumstances, support the new terrorism offences: Daryl Williams and James Renwick, ‘The War Against Terrorism: National Security and the Constitution’ (Summer 2002/2003) Bar News: Journal of the NSW Bar Association 42, 43. Although the legislation itself does not specify the relevant sources of power to the same degree, the concerns of s 100.4(5) of the Code essentially correspond with that list.
[4] Ibid. See Criminal Code ss100.3(1)(b).
[5] As an example, see Terrorism (Commonwealth Powers) Act 2003 (Vic).
[6] Criminal Code Amendment (Terrorism) Act 2002 (Cth).
[7] Commonwealth, National Security Legislation - Discussion Paper on Proposed Amendments, July 2009.
[9] For general analysis of the Discussion Paper see Andrew Lynch, ‘The devil in the detail’ Inside Story, 19 August 2009 <http://inside.org.au/the-devil-in-the-detail/> .
[10] Several offence provisions were left untouched despite recommendations for their improvement: see Gilbert + Tobin Centre of Public Law, Submission on National Security Legislation Discussion Paper, 24 September 2009, 9, available <http://www.gtcentre.unsw.edu.au/publications/docs/pubs/National_Security_Legislation_Submission.pdf> .
[11] Discussion Paper, above n 7, 44-49 (clarifying that the United Nations may be a terrorist target; delimiting the requisite harm from ‘physical harm’; and addressing the inclusion of threat to commit a terrorist act in the definition of same).
[12] Discussion Paper, above n 7, 50-51.
[13] Discussion Paper, above n 7, 62-65.
[14] Discussion Paper, above n 7, 66-73.
[15] National Security Legislation Amendment Bill 2010, Sch 2, items 2-3 respectively. See also Discussion Paper, above n 7, 56-59.
[16] A number of minor alterations were made, the bulk of which involved recognition of same-sex relationships: National Security Legislation Amendment Bill 2010, Sch 2, Pt 2.
[18] Geoff McDonald, Submission to Senate Legal and Constitutional Affairs Committee on National Security Legislation Amendment Bill 2010 and the Parliamentary Joint Committee on Law Enforcement Bill 2010, 28 April 2010, 2, available <http://www.aph.gov.au/Senate/committee/legcon_ctte/National_Security_Legislation/submissions.htm> .
[19] Ibid, 3. The reference toTerritories in this context is clearly erroroneous – they do not enjoy any legislative power distinct from that held by the Commonwealth in respect of their jurisdiction (Constitution, s 122) and unsurprisingly are not mentioned in s 51(xxxvii).
[20] Chapter 2 of the Code addresses general principles of criminal responsibility.
[21] Thomas [2007] HCA 33; (2007) 233 CLR 307, [454].
[22] Code, s 104.1.
[23] Thomas [2007] HCA 33; (2007) 233 CLR 307, [204]-[205].
[24] Thomas [2007] HCA 33; (2007) 233 CLR 307 [97] (Gummow and Crennan JJ).
[25] Thomas [2007] HCA 33; (2007) 233 CLR 307, [210] and [213] (Kirby J); [456] (Hayne J); and [605] (Callinan J).
[26] Eg Terrorism (Commonwealth Powers) Act 2003 (Vic) s 4(4). The insertion of s 102.1(1A) by Anti-Terrorism Act [No 2] 2005 (Cth) Sch 1 is apparently an example of this.
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