Major implications for university staff in new Anti-Terror Bill
Comprehensive anti-terror legislation being drafted by the Federal Government, and already agreed to by Labor State and Territory Governments, will greatly increase the powers of police and security services at the expense of fundamental human rights and could have serious implications for staff working in our universities. Andrew Nette reports.
As of writing (Oct 2005), the Anti-Terror Bill 2005 is scheduled to be introduced into the House of Representatives at its next sitting in early November. The bill amends and updates a number of existing pieces of legislation, including the Crimes Act 1914 and the Criminal Code Act 1995. The Federal Government has signalled its intention to refer the Bill to a 24-hour inquiry by the Senate Legal and Constitutional Committee. The Prime Minister has signalled he wants th enew laws approved by the end of the year.
The Anti-Terror Bill 2005 amends, clarifies and, according to many observers, expands the anti-terrorism laws introduced in 2003 and 2004, under which it became an offence to provide or receive training connected with a terrorist act, possess items connected to a terrorist act, or make documents likely to facilitate a terrorist act. These changes have previously been highlighted by NTEU as having potential implications for university staff.
That we even know the contents of the draft bill is due to the decision by ACT Chief Minister, Jon Stanhope, who supports the legislation, to publish it on his website for comment. The Bill¡¯s provisions include:
- Empowering courts to issue orders restricting the movement of specified individuals, requiring them to wear a tracking device and preventing them from contacting specified individuals, on the grounds that the order would substantially assist in preventing a terrorist act.
- Allowing individuals to be detained for up to 14 days, with the consent of a federal magistrate or judge of the Federal Court or Family Court, on the grounds that the person will engage in a terrorist act and detention would substantially assist in prevention of such an act.
- Allowing Australian Federal Police Officers to use lethal force in taking a person into custody or detaining the person if this is necessary to protect the life of, or prevent serious injury to, the officer or someone else.
- Making it an offence for anyone to "recklessly" give money to someone, directly or indirectly, who might use the money to carry out a terrorist act.
The draft Bill repeals existing anti-sedition provisions in the Commonwealth Criminal Code 1995, replacing them with three new offences. The first two involve a person encouraging another to violently overthrow the Constitution or any Australian government or violently interferes with the conduct of federal elections. The third offence is when a person urges a racial, religious, national or political group to use violence against another group.
The new sedition provisions make it an offence if a person urges another person to engage in conduct that assists an organisation or country that is "at war with the Commonwealth, whether or not the existence of the state of war has been declared", or if that conduct assists an organisation or country engaged in armed hostilities against the Australian Defence Force. This could, for example, include vocal critics of the Government's war in Iraq.
The Bill empowers Australian Federal Police to obtain information and documents (including electronic documents) that will assist in the investigation of "serious terrorism offences" including financial matters and travel plans.
The general nature of many of the bill's provisions and the fact that we have yet to see a final version, make informed comment on the precise implications of the Bill for university staff difficult.
NTEU certainly does not accept on face value, however, the reassurances of the Federal Government and its key backers such as the Australian newspaper, which in a recent editorial stated that although the Bill will certainly erode civil liberties this will "only be for people being suspected of being terrorists on active service or their confederates".
In advice provided to the ACT Chief Minister, three prominent legal experts stated that the laws "seriously limit a number of fundamental human rights, and are not subject to an effective procedure of judicial review that provides adequate safeguards against violations of the human rights of the persons affected."
Of particular concern for the Union are the enlarged sedition provisions. According to Dr Ben Saul, Director of the Bill of Rights Project at the Gilbert and Tobin Centre for Public Law at the University of New South Wales, in a recent newspaper commentary: "Old fashioned security offences are little used because they are widely regarded as discredited in a modern democracy that values free speech. Paradoxically, the danger in modernising these offences is that prosecutors may seek to use them more frequently since they are considered more legitimate."
While the Bill includes a 'good faith' defence protecting free speech that points out mistakes of political leaders, government laws or courts, including lawful attempts to change the law or statements about industrial matters, it is unclear to what extent these reduce the danger of being able to criminalise political opponents.
The proposed new laws may lead to surveillance of university staff and student's teaching and research, including their use of library and internet materials and their attendance at seminars and conferences. Already, in late July, Australian Federal Police questioned a Monash University student researching Palestinian suicide bombings after he bought and borrowed books on the subject. Exactly how the authorities identified this student is unclear, although it appears he was detected after buying the books over the Internet.
Academic staff could face the possibility of being served control orders that prevent them from undertaking research and/or teaching as this could be deemed as facilitating, directly or indirectly, the training of a suspected person.
There is also the risk that as a result of this or other measures being considered by the Federal Government, university administrators may be required to monitor staff and students on behalf of police and security services.
In mid-July, the Times Higher Education Supplement reported that UK universities will be forced to hand over information on academic and enrolment applications to the security services and monitor academic debates on campus, under changes being made by the Blair Government in response to the London bombings.
Universities in the UK have already had to deal with a voluntary scheme under which they may opt to alert the Government to overseas research applicants suspected of being involved in the development of weapons of mass destruction.
Under the scheme, established in 1994 to prevent the proliferation of weapons of mass destruction, universities are requested to pass on the names of all applicants from a list of ten countries, including Egypt, Pakistan and Iran, who apply to study any subject on a list of 21 disciplines, including biotechnology and nuclear physics. Not all universities have been cooperating with the scheme and, of those that have been there have been wide variations on how they have applied it.
Nonetheless, data released under the Freedom of Information Act in late July, revealed that since 2001, universities had voluntarily handed over the names of 2,282 applicants, of which the UK Government subsequently recommended that 238 of these be refused admission to research programs.
The Blair Government is now recommending that this scheme be made compulsory, a move which is being resisted by many universities. Related to this, the UK Higher Education Minister recently told the media there should be limits on free speech for staff and students on campuses where debate has tipped over into incitement to violence, and that universities themselves should be responsible for the crackdown. There have also been media reports criticising academics in the sciences for being blase in the face of the threat posed by terrorists.
NTEU's National Council in Melbourne in late September unanimously passed a motion voicing alarm over the potential impact of the new laws and committing the organisation to lobby government and university Vice-Chancellors to ensure that the civil liberties of university staff and students are fully protected.
The Union will continue to monitor and keep members informed of developments in relation to the legislation. To help inform NTEU's position, we are organising a seminar (see details in boxed aside) featuring domestic and international speakers discussing the implications of the laws being proposed in Australia and the experience of similar measures overseas.