Terrorism, the Law & amp; Civil Liberties

Criminal Law

With the recent shock of apparent terrorist attacks at home and abroad, it is time to review Government’s and Parliament’s response to ensure that legitimate national security objectives do not disproportionately override fundamental civil liberties.

On 2 October 2015, 15-year-old Farhad Jabar shot and killed 58-year-old civilian police employee Curtis Cheng out the Parramatta NSW Police complex. A confrontation shortly followed and Jabar was shot and killed in a firefight with an armed special constable.

On 31 October 2015, a Russian Metrojet aeroplane carrying 217 passengers and 7 crew crashed in Egypt, killing all on board. Investigators say the crash was caused by a bomb. The Islamic State’s Sinai branch claimed responsibility. Russia engaged on the Syrian civil war in September 2015.

On 12 November 2015, 37-43 civilians were killed by twin suicide blasts in Beirut, Lebanon. The Islamic State in Syria claimed responsibility for the attack in the Hezbollah-controlled region of Lebanon.

On 13 November 2015, 134 civilians were killed and 352 injured in a series of suicide bombing and shooting attacks in Paris. The Islamic State, planned in Syria and organised in Belgium, claimed responsibility in the attack, in response to France’s October 2015 engagement in the Syrian and Iraqi civil wars.

Following the Parramatta shooting, on 7 October 2015, four Parramatta men were arrested by 200 counterterrorism police in dramatic and well publicised morning raids. Three were released without charge. A fourth, 18-year-old Raban Alou, was detained and charged on 15 October 2015 with supplying the gun to Jabar. That is, he was detained for 8 days without charge. Police were forced to charge Alou with a terrorism offence on 15 October 2015, otherwise they would have had to release him. Police were required to apply for an extension of time to detain Alou for the 8-day period. One of those men, Talal Alameddine, aged 22, was re-arrested and charged with firearms and other State offences.

The Commonwealth Attorney-General, with the support of the NSW Premier, has announced planned changes to control orders, seeking to lower the minimum age of application from 16 to 14, and extending the maximum period of detention from 8 days to 28 days. This represents a startling intrusion on civil liberties, and the principle underlying Ch III Australian Constitution that any detention by the executive cannot be punitive. This is because punitive detention is the task of the judiciary, as delineated in the separation of powers underlying the Constitution. The police, an arm of Government and as such the executive, cannot usurp the courts’ authority in this domain.

Meanwhile, the Government is pushing through with its amendments to its proposed ‘foreign fighters’ legislation. Under the proposed laws, Australian citizens with dual nationality who engage in terrorist conduct automatically renounce their Australian citizenship. This is an extension of the current laws, whereby a citizen who fights for an enemy state automatically renounces their citizenship. The laws are controversial because, for those convicted of a terrorism offence, the laws have 10-year retrospective effect, and they do not require a conviction for Australians who commit terrorism overseas. The amendments restore some level of civil liberty, as minor offences such as destroying Commonwealth property are no longer grounds for revoking citizenship, and a person who has not been convicted of a terrorism offence has had to have had ‘intent’ when carrying out a terrorist act.

Sensational world and local events which are supercharged by loud voices in the media tend to detract interest in maintaining civil liberties. Often the argument is, the Government will only use these laws to target bad people. Such thinking is contrary to the principle of legality: the law applies to all equally, and the rule of law and preservation of civil liberties ensure that laws are drafted fairly and applied fairly to voiceless minorities that are targeted by pernicious governments.

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Terrorism, the Law & amp; Civil Liberties