The Full Bench 2018 Edition 1

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The Full Bench Edition One 2018 Fear Itself EDITORS Tom Brennan, Publications Director Liam Fairgrieve Matt Robson Quyen Nguyen David Guo Tamim Rahimi DESIGNERS Issy Quigley Nick Leong © 2018 UTS Law Students’ Society This publication is copyright.

Except where permitted under the Copyright Act, no part of this publication may form or by any means (electronic or other wise) be reproduced, stored in a retrieval system or transmitted by any process without specific written consent of the UTS Law Students’ Society. Enquiries are to be addressed to the publishers.

Disclaimer All expressions of opinion published in The Full Bench are not the official opinion of the UTS Law Students’ Society unless expressly stated. The UTS Law Students’ Society accepts no responsibility for the accuracy of any opinions or information contained herein and readers should rely on their own enquiries to make decisions in their own interest.

WITH SPECIAL THANKS TO Katya Shliapnikoff, President of the UTS LSS, and Margaret Cai, Vice President (Education), for their help throughout the publication process.

Print Portal, Factory | Unit 4, 102-112 Edinburgh Rd, Marrickville, NSW 2204. www.printportal.com.au The Full Bench (TFB) is published in Sydney annually by the UTS Law Students’ Society PO Box 123, Broadway NSW, 2007 Room CB05A.01.08, UTS Haymarket Campus Cnr of Quay Street & Ultimo Road Ph (02) 9514 3448 Fax (02) 9514 3427 www.utslss.com

Acknowledgement of People and Country The Full Bench and UTS acknowledge the Gadigal and Guring-gai people of the Eora Nation upon whose ancestral lands our university now stands.

We would also like to pay respect to the Elders both past and present, acknowledging them as the traditional custodians of knowledge for these places.

Images and illustrations Unless provided by the designers or commissioned specifically for the purpose of this publication, uncredited photographs have been sourced from royalty-free distributors, licensed under Creative Commons Zero.

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Contents

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Culture of Fear Terrorism as Spectacle

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The Law on Terror: An Overview of Counter-Terrorism Legislation Since 9/11

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The law on terror Does the War on Terror Still Justify ASIO’s Powers?

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Who Watches the Watchmen? The Threats Faced by Journalists who Report on Terrorism

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Sentencing Law Reforms: The Impacts of Removing Alternative Sentencing Options

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It’s All Fun and Games Until Someone Gets Hurt: The Crackdown on Preparatory Terrorism

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Thomas v Mowbray – Guilty until Proven Innocent?

Control Orders and the Circumventing of Due Process

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terror Abroad Travel Ban 3.0 and a Permanent State of Emergency – A Look at Liberty, Freedom, Security, and Contemporary Counter-Terrorism Policies

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Germany 2018 – Bundestag Elections, the Resurrection of the Far Right, and Business without Government

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Two Birds, One Stone, and a PC: Cyberterrorism and the Trouble with our Response

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The usual 3

10 Words or Less

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Editorial Tom Brennan Editor In-Chief

Part 1 – Culture of Fear In our first section ‘Culture of Fear’, we take a look at the cultural and social traumas surrounding terrorism in Australia and scrutinise whether the government’s response to these traumas are reconciliatory or reactionary.

Liam Fairgrieve’s piece Terrorism as Spectacle investigates the regulations (or lack thereof) surrounding live and future media reportage on the 2014 Martin Place Lindt Café siege. In his piece, Fairgrieve asks us to consider whether questions of Islamophobia in terrorism law are further aggravated by the cynical commercial opportunism of media outlets seeking to report on terrorism.

Next, in Lily O’Keefe’s Counter Terrorism Law Since 9/11, an insightful overview of the immediate cultural reaction to the September 11 attacks in 2001 is given along with a summary of the increasing counter-terrorism laws passed to prevent such an attack in Australia. While such an aim may be understandable in protecting citizens, the increasing legislation in this area proves worrying when they dictate the lives of ordinary individuals.

On behalf of the UTS Law Students’ Society (LSS) and the Publications (Education) Editorial, we’d like to wish you a warm welcome to the inaugural 2018 edition of the LSS academic journal The Full Bench!

Why the title? ‘Fear itself’ is a partial excerpt of the quote “the only thing we have to fear is fear itself” as famously spoken by American President Franklin D Roosevelt in his first inaugural address upon being elected to office in 1933.

Since then, the quotation and words ‘fear itself’ have resounded throughout history, going on to inspire generations of leaders, writers and artists; and for good reason. With the Great Depression having decimated economies across the world and belligerent fascism and Nazism rising globally in response, there was much to be fearful of in Roosevelt’s time. Consequently, this also meant there was much to inspire in people so that they may rise above this fear and help work for a fairer, more just future.

For it’s through this abandoning of fear that we best work through times of national trauma without resorting to demagoguery or oppression. It is the intent of our first 2018 edition, Fear Itself, to further this idea by displaying how our legal rights are harmed when overbearing security laws and populism rise in response to the threat of terrorism by chasing phantoms of their own creation.

Part 2 – The Law on Terror In our second section, we closer investigate the acts implemented by the Australian Government and question whether they’re targeting terrorists or unjustly persecuting everyday Australian citizens.

Sheenae Le Cornu’s Does the War on Terror still justify ASIO’s Extraordinary Powers? examines briefly the history of Australia’s key governmental agent in counter-terrorist activities and meditates on whether their heightened powers in recent years are justified.

Meanwhile, Who Watches the Watchmen? Takes a page from Australian foreign journalist Peter

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Greste and argues how despotism may infect Australian politics if we fail to adequately protect journalists reporting on terrorism.

Next, Michael Tangonan’s Sentencing Law Reforms takes a look at the steps needed to acclimatise prisoners on bail through the pursuit of restorative justice. This is achieved through the author’s extensive interview with Luke Grant of Corrective Services NSW. Kimberley Ching’s It’s All Fun and Games Until Someone Gets Hurt questions the future rights of individuals suspected as terrorists in light of proposals to reform the Crimes Act 1914 (Cth) so that law enforcement agencies may charge and detain them without consequence.

And, finally, Basil Naimet’s Thomas v Mowbray – Guilty until Proven Innocent? Examines the debate surrounding one of Australia’s most infamous constitutional law cases and it’s continued echoing through the way modern courts and statutes treat suspected terrorists.

Finally, Margaret Cai’s Two Birds, One Stone, and a PC discusses the issue of cyberterrorism and its potential impact on individual safety and the rule of law if lawyers and policy makers in Australia and abroad are unable to keep up with its developments.

One Final Word A big ‘thank you’ to all of our contributors for your time and patience in helping contribute your fantastic writing skills to this publication! We hope that this opportunity has allowed you to learn more about the state of counter-terrorist laws in Australia and abroad as well as hone your writing and researching skills to help you along in your career.

We would also like to thank our designers, Nick Leong and Issy Quigley, for their amazing designs and peerless co-operation with our team! It would be hard to conceive of ‘Fear Itself’ being as special as it is without them.

Part 3 – Terror Abroad For our last section, we turn a lens to international law and responses to terrorism overseas to show Australia’s shared hysteria surrounding terrorism with other Western nations.

David Guo’s Travel Ban 3.0 thoroughly scrutinises the unfair persecution of individuals from Middle-Eastern or African backgrounds in America at the hands of the Kafka-esque travel bans implemented by Donald Trum and Emmanuel Macron.

Next, Michael Tangonan’s Germany 2018 presents how global democracies can come under threat by overbearing reactions to terrorism through the rise of far-right, anti-establishment bodies such as the ‘Alternative für Deutschland’ party’s recent success in Germany.

Lastly, if you’re interested in contributing to ‘The Full Bench’ but missed out; never fear!

We will be opening submissions for our freshly revamped website in mid-April. If you have an idea for a piece, please send a draft or expression of interest to Tom Brennan at publications@utslss.com

- The Full Bench Editorial Team

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Editors Liam Fairgrieve

Editor Alert but Not Alarmed

It’s been over 16 years now since a clear morning across North-Eastern America was split apart by attacks which changed the world forever.

Most of us grew up in that new world of evening bulletins peppered with graphic footage warnings and explosions in the desert, a world of community service announcements urging us to ‘be alert but not alarmed’, and a world in which the news cycle feverishly reported on the free world’s attempts to strike revenge (afternoon news bulletins, for example, were initially introduced to bring viewers the latest developments on our 2003 invasion of Iraq).

For all of that, however, 2018 has not seen any resolution to this ‘War On Terror’. If anything, we live in a world even more scared than in the days after September 11. Two explanations are immediately obvious: firstly, we are constantly warned of the potential for homegrown terrorists, self-radicalised via an Internet far more advanced and ubiquitous than in 2001; secondly, we are warned of a growing trend in ‘lone wolf’ attacks, wherein no greater organisation and planning than a single disaffected individual is required to wreak public havoc.

These concerns are valid, of course.

There have been confirmed instances of self-radicalisation in Australia, and the ‘lone wolf’ attack seems to me to be just the latest iteration of the ‘lone gunman’ trope which has recurred intermittently in this country for decades. What is less certain, however, is the extent to which we are prepared to sacrifice certain individual liberties to secure our society against threats which certainly exist but have risen only marginally since pre- ‘War On Terror’ times.

While this issue of The Full Bench deals with this tension at length, I can’t help but think that our generation will ultimately make the choice to sacrifice at least one such liberty: privacy.

We have grown up in an era where it is both possible and increasingly normal to broadcast personal aspects of our lives to wider social circles. Additionally, we remain suspicious of governments and corporations, yet trust them enough in their benevolence that they may use our information for no more malign a purpose than for personalised marketing and perhaps, ultimately, for the purpose of keeping our society secure.

We wait to see whether the guardians of our information will continue to hold up their end of the bargain. Until then, enjoy reading The Full Bench.

matt Robson

Editor Concerns over Iran ‘Iran is not a nation-state; it’s a revolutionary cause devoted to mayhem’ – James Mattis, Secretary of Defense under the Trump Administration.1

There have been several recent policies aimed at the ostracism and exclusion of Muslim-majority nations, namely Iran, who have the potential to be a vital ally in the war against terror going forward. In March 2017, Trump’s ratification of Executive Order 13769, barred citizens of seven Muslim majority nations, including Iran, from entering the United States2 (take a look at page 29 for more on this topic!). Such actions only reinforced the idea of an ‘us vs. them’ society, distracting from meaningful progress in eliminating extremism. Further evidence of this can be seen in recent developments of the Iran Nuclear Deal, with President Trump claiming that Iran has ‘not [been] living up to the spirit’3 of the 2015 Joint Comprehensive Plan of Action (JCPOA). Describing the internationally recognised agreement as ‘one of the worst and most one-sided transactions the United States has ever entered into’,4 Threatening to not recertify the deal, Trump set a dangerous precedent of an exclusionary approach in a time when the world should

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be coordinating a united response towards the elimination of terrorism.

Many people associate Iran with stereotypes, such as George Bush’s claim that Iran is a ‘dangerous threat to world peace.’5 It is not to say that the Islamic Republic does not have its issues, including a questionable track record on human rights. However, after exploring the country for a month earlier in the year, I noticed the inconsistencies between the rhetoric and the reality. The reality is that the nation has the ability - due to its resources, sophisticated intelligence operations and a strategic location - to play a meaningful role in curbing extremism.

Australia has made some meaningful progress in attempting to improve relations with Iran, such as removing the obligation for permits to undertake trade as per Money Laundering and Counter-Terrorism Financing (Iran Countermeasures) Regulations 2014 (Cth).6 Similarly, the suspension of certain sections in the Autonomous Sanctions Regulations 2011 (Cth) removed many existing restrictions on trade and investment between Australia and Iran. This progress in diplomacy and unbiased legislation is what Australia needs to make a strong contribution to the war on terror, rather than falling into the trap of Washington’s rhetoric.

In the meantime, we hope you enjoy reading about the complexities of terror and security in this edition of The Full Bench!

downplay the seriousness of that event. No-one should ever have to go through an experience like that. I actually visited the Notre-Dame de Paris on the same date earlier. I consider myself lucky that I was not a witness and was happily indulging in good bread and cheese.

But my question is, why #selfies? Why not just photos? Because when we decide to sensationalise terrorism, we accept that the moral panic is real. We risk becoming complacent, allowing anti-terrorism measures to sweep through and displace our already fragile civil liberties.

As Professor Rosenthal observed, the reality is, even ‘...if you’re just a random person living in the United States... in 9/11… your chance of being killed in a car accident were higher than if you were killed by terrorists.’

I hope this edition of The Full Bench helps you navigate through the noise, and become advocates against new draconian legislation and unnecessary law reforms.

David Guo

Editor Reaction on the Rise There have been a number of world changing events over the course of our history ranging from the invention of the wheel to the first use of the atomic bomb. But one event on one sunny, seemingly normal day had a bigger effect than most on our outlook to the world and on our day-to-day lives. I, for one will never forget the searing images of once proud symbols of industry and innovation crumble to the ground. The world changed forever with the attacks on the World Trade Centre and the Pentagon on September 11 2001 with the attacks claiming the lives of 2,996 people including 10 Australians. The War on Terror had begun.

17 years later, what has changed? In the time since, the threats have changed and evolved with governments from all over the world including our own continuing to maintain strong responses ranging from expanded control order regimes to highly expansive immigration orders/ bans. Some people are of the view that these responses are sometimes influenced by discrimination and raise concerns about the effects on civil liberties and personal freedoms while others hold the view that we must do what is necessary in order to maintain

quyen Nguyen

Editor Sensationalising Terrorism

As the media drones on about the latest terrorist attack, we’ve become accustomed to this idea that the next incident will occur in our backyard. We’ve accepted this idea so much that we become key players in curating this narrative.

Remember that incident at the Notre-Dame de Paris, where approximately 900 people were locked inside for two hours? The one where a few thought it would be a good idea to take #selfies, even though they were possibly nearing death or serious injury?

Yes, that one. Now I’m not attempting to

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safety and security against a wide-ranging and borderless threat.

This issue of The Full Bench deals with various counter-terrorism responses and legislative regimes at home and abroad while also analysing how fear influences the development of these policies. It raises the question, as the War on Terror enters its second decade expanding into new fronts in Africa and Asia, are we willing to sacrifice our personal freedoms and liberties in exchange for security and safety? This question does not have any easy answer.

out compromising our personal liberties, or the powers of Courts. To do otherwise will result in inevitable injustices in the system.

It is a difficult balance to strike, but no issue as complex as terrorism, security and human rights is going to be easy to decipher.

We dive into just some of these issues in this edition of The Full Bench - Fear Itself.

Tamim Rahimi

Editor A Little Liberty for a Little Security Terrorism and security is an acutely topical subject. These issues are blared repeatedly on our screens, discussed at length in our radios and newspapers, and seed themselves in the corners of our minds. As future legal practitioners, (or, at the very least, informed citizens) we must be part of the conversation as it takes place.

It is, of course, the most important role of our government to maintain the safety of its people. But at what cost? In recent years we have seen bills pass through parliament and amendments made to legislation in response to terrorist attacks and security risks globally and at home. These changes take the form of extremely restrictive control orders, extended periods of preventative detention without evidence and broader, stronger police powers.

It is these times in public discourse, where we must ask ourselves whether these measures are exactly that; measured.

Or do they simply represent hysteria taking effect? We’ve seen in the past with ‘One Punch Laws’ the implications of hysteria driven legislation to the court system. In that case, Mandatory Minimum Detention removed one of the foundational elements of our judiciary; the discretion to align the punishment with the crime.

We must learn from these lessons and strike a balance between addressing these very real, very pressing issues, with-

[1] Mark Perry, ‘James Mattis’ 33-Year Grudge Against Iran’, Politico (online), 4 December 2016 <https://www.politico. com/magazine/story/2016/12/james-mattis-iran-secretaryof-defense-214500>.

[2] Glenn Thrush, ‘Trump’s New Travel Ban Blocks Migrants From Six Nations, Sparing Iraq’, The New York Times (online), 6 March 2017 <https://www.nytimes.com/2017/03/06/ us/politics/travel-ban-muslim-trump.html>.

[3] Sarah Westwood and Daniel Chaitin, ‘Trump: Iran ‘not living up to the spirit’ of nuclear deal’,Washington Examiner (online). 20 April 2017 <https://www.washingtonexaminer. com/trump-iran-not-living-up-to-the-spirit-of-nuclear-deal/ article/2620823>.

[4] The White House, Remarks by President Trump on Iran Strategy (17 October 2017) <https://www.whitehouse.gov/ briefings-statements/remarks-president-trump-iran-strategy/>.

[5] Matt Spetalnick, ‘Bush says Iran threat to world peace’, Reuters (online), 13 January 2008 <https://www.reuters. com/article/us-mideast-bush/bush-says-iran-threat-toworld-security-idUSL0828300120080113>.

[6] Anti-Money Laundering and Counter-Terrorism Financing (Iran Countermeasures) Regulation 2014 (Cth) s 7 item 1.

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President’s Welcome Katya Shliapnikoff

I extend a warm welcome to all our readers to our first edition of The Full Bench for 2018. This is the law school academic journal brought to you by the University of Technology Sydney Law Students’ Society (UTS LSS).

In this editon, our writers will be debating and exploring the realities around laws that police terror across the world and consider the way in which these laws impact upon society. These pages will take you from the controversial mechanisms in place in Australian law to combat terror, such as detention orders, to the impact of terror on individuals globally, such as the implementation of travel bans issued by nations (such as America) and invasive counter terrorism powers afforded to government organisations. There are many insightful articles written by your peers in this journal and I encourage you to peruse through the publication and have a read of them all.

The impact of terror and the means through which we police it brings to the forefront of all our minds the question regarding how far as a society we are will-

ing to go to protect the majority. To what extent are we able to impede on an individual’s basic legal rights in an attempt to ‘protect’ the wider society? It asks the government to engage in a balancing act that is often biased with significant public fear and outrage, and therefore often not conducted with a fair and objective mindset. How can our legal system respond to terror whilst ensuring an individuals rights are adequately protected?

This publication would be impossible without the incredible hard work of our UTS LSS Publications Director Tom Brennan and The Full Bench Subcommittee. Many thanks go to them as this edition would not have come together without their tireless work and dedication.

Many thanks also go to all the contributors and sponsors involved in the publication of our first edition for The Full Bench for 2018.

I encourage you to have a flick through these pages and enjoy what your peers have put together! I hope you enjoy this edition of The Full Bench!

Vice-President’s Welcome Margaret Cai

I would like to extend a warm welcome to all the readers of our new edition of The Full Bench. At its core, this issue reconciles notions of security and liberty within our contemporary legal landscape. As you work your way through, you’ll find engaging discussions of rights and laws set against a complex backdrop of current and prospective threats and responses.

The themes examined in this edition are not only topical, they are forward thinking. Navigating terror in the law will unlikely ever be a stagnant exercise; the parameters of power continue to be renegotiated as new threats emerge.

But how ready are we to respond to this new era of terrorism? It’s a question that has no doubt been asked before. This time however, the dichotomy of security and liberty is very much entrenched in the way we seek to answer it. This time, such a ‘balancing paradigm has been a touchstone even for critics…’.

So, is proactivity in our governance and legis

lature in fighting terrorism justified if it results in severe restrictions on individual freedoms? And if not, how can we afford reactionary policies when we’re already three, four steps behind?

These questions may challenge your preconceptions on terrorism and security throughout your reading of this publication, and indeed too, as laws and circumstances in our real world evolve. But as law students, we’re taught to be critically discerning. The narratives of terrorism available to us are multiple and, beyond the debate of individual interests versus community protections. I therefore encourage you to give this publication a read. It showcases the collective talent and commitment of Tom Brennan, the UTS LSS Publications Director, and the Publications Subcommittee in which he leads. On behalf of the UTS Law Students’ Society, I would further like to thank the contributors and sponsors involved.

We hope you enjoy this edition of The Full Bench!

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Liam fairgrieve

Like most Sydneysiders, I remember exactly where I was when the Lindt café siege began in December 2014. In fact, I remember most of the next 15 hours. It was one of the most surreal days in Sydney’s history. The siege became a live television event, with every news outlet hurriedly trying to be the first to break a new development.

Some bolted prematurely, leading to panicked reports of a second gunman1, a bomb at the Opera House2, and the one-off return of the afternoon edition of The Daily Telegraph to loudly trumpet the siege as an attack on Sydney by Islamic State.3 What’s more, cameras were fixed on the entrances to the café, allowing the viewing audience to watch the siege unfold in real time. We watched as a succession of hostages burst through the entrances without warning in desperate bids for freedom. We provided a running commentary on the siege as if it were sport, yelling at the police to go in before it got dark, calling for the floodlights to be switched off around Martin Place, discussing whether the Prime Minister should meet the gunman’s demands to speak with him.4 Then, we all went off to bed and waited for the result in the morning.

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That seems to be the reality of terrorism in today’s times. It is terrorism as spectacle, as an “event” to be watched in real time, analysed and debated before its resolution.

In a piece published two days after the end of the siege, academic Dr Adam Henschke said, in conducting the siege as a spectacle, the perpetrator would have likely sought a violent response (either from the state or from our society) which would justify his actions and inspire future perpetrators.5 Ultimately, the perpetrator got his violent state response. However, a societal counter-response of tolerance and acceptance, exemplified by the #illridewithyou hashtag,6 was in full swing long before the siege itself had ended. Yet the spectacle of terrorism is not only about how it facilitates the goals of the perpetrators; the influence of the spectacle is also apparent in the responses of ‘our side’.

In the world of terrorism as spectacle, counter-terrorism measures increasinly boil down to visuals. These visuals, like the anti-truck bollards in Martin Place or the new security fence around Federal Parliament,7 are as much philosophical statements as they are effective preventers of terrorism (I consider it to be exceedingly likely that the bulk of that work continues to be done through the traditional avenues of intelligence-gathering, surveillance, and police raids). Further, it is arguable that measures which approach terrorism as spectacle appeal mainly to our senses and instincts. They focus equally on making us safe as they focus on making us feel safe. We see suspects hauled to police vans in front of a media throng so that justice is not only done, but seen to be done.

None of which is necessarily bad, of course. If something helps to keep us safe, then surely there is no harm in feeling safe either. Yet this is predicated on one vital and, in this author’s view, eminently contestable assumption: that these visible security measures have the effect of making the populace feel safer, rather than the perverse opposite of exaggerating the fear we feel towards a threat which rarely manifests in the daily life of the Australian city-goer. It is an inherent danger whenever policy becomes concerned principally with perception: that the response distorts those perceptions.

In the world of terrorism as spectacle, visuals are powerful symbols not only of the strength of “our side”, but of how we perceive the threat of the adversary.

And this, ultimately, is the tension which underlies many of the discussions in this edition: how to effectively balance the need for security from terrorism while remaining rational in our assessment of the scope of the threat. Let us assume that governments, in implementing all of their highly visual security measures, are engaged in genuine attempts to resolve this tension: that they are as much concerned with keeping Australians safe and doing justice as they are about making Australians feel safe and seeing justice be done. Let us then examine the role of the principal mediator of government-citizen relations, the body tasked with processing and reporting delicate information to a nervous public on the day of the Lindt café siege: the media.

In his book positing terrorism as a communications process, American academic Jonathan Matusitz was decidedly cynical about the role of the media in terrorist incidents, describing their coverage as being on a ‘diet of entertainment, with a large quality of fear’ which uses visually stimulating media and evocative control to act as an agent of social control.8 Even disregarding the hypothesis of terrorism coverage as a social conspiracy, it seems intuitive that entertainment is a vital goal of news media; with greater competition from a wide variety of new media, and journalism increasingly privileging immediacy and currency, providing compelling content to consumers is the key imperative.

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Here, it becomes clear that terrorism works best Here, for media as a spectacle.

It can captureworks it becomes clear that terrorism an audience for hours on end, waiting eagerbest for media as a spectacle. It can capture ly forana audience resolution.

It can produce powerful for hours on end, waiting eagerand ly resonant images that endure long past for a resolution.

It can produce powerful the event itself.

But what happens when an past and resonant images that endure long outlet’s competitors are all producing equally the event itself. But what happens when an around-the-clock coverage?

Lindt café outlet’s competitors areAs all the producing equally siegearound-the-clock attest, it becomes a contest to augment coverage? As the Lindt café the visuals with contextual information. siege attest, it becomes a contest to augment Yet here, the craving for immediacy and curthe visuals with contextual information. rencyYet again claimed precedence over accurahere, the craving for immediacy and curcy, with the spread of misinformation like rency again claimed precedence overthe accurasecond bomb threat rumours, like as the cy, gunman with the and spread of misinformation well second as a succession of ‘talking heads’ giving gunman and bomb threat rumours, as their well takesasona events.

These not only succession of included ‘talking heads’ giving terrorism experts, but also ‘social commentheir takes on events. These included not only tators’; those without expertise who terrorism experts, special but also ‘social commennevertheless were entrusted with mid-siege tators’; those without special expertise who commentary. nevertheless were entrusted with mid-siege commentary.

At the risk of stating the obvious, inaccurate reporting inflammatory commenAt theand risk other of stating the obvious, inaccurate tary reporting during anand ongoing terrorist incident, other inflammatory commenparticularly a delicate hostageterrorist situation,incident, is tary during an ongoing dangerous.

It risks unintentionally leading the particularly a delicate hostage situation, is public into positions ofunintentionally danger or even pro- the dangerous.

It risks leading voking a rash response from the perpetrator public into positions of danger or even pro(whovoking may have access to thefrom media). cona rash response the By perpetrator trast,(who look may at the media’s coverage of events have access to the media). By consincetrast, the siege, particularly thecoverage inquest. With look at the media’s of events somesince sensationalist exceptions, theinquest. cover-With the siege, particularly the age some of the sensationalist inquest was everything exceptions,that thethe coversiegeage coverage itself was not: measured, of the inquest was everything that the 9 accurate, insightful. a world siege and coverage itselfInwas not: where measured, 9 coverage acts terrorism is spectacle, media accurate, and insightful. In a world where as sporting commentary; andmedia the loudest and acts terrorism is spectacle, coverage quickest voices usually win out. as sporting commentary; and the loudest and quickest voices usually win out.

The morning after the Lindt café siege, Sydney The wokemorning to hearafter thatthetwo hostages had SydLindt café siege, 10 beenney killed in the siege’s violent resolution. woke to hear that two hostages had It was a jarkilled ring end to asiege’s spectacle which had 10 been in the violent resolution. already proceeded through all of the stages of had It was a jarring end to a spectacle which spectating.

The frantic reporting of facts and already proceeded through all of the stages of fictions, the tactical discussions, theofedgespectating.

The frantic reporting facts and of-your-seat thrills of watching live escapes, fictions, the tactical discussions, the edgethe grand philosophical declarations that escapes, the of-your-seat thrills of watching live terrorists will not succeed in dividing our the grand philosophical declarations that the society; all of these had taken place the our terrorists will not succeed in while dividing siegesociety; was ongoing, while lives were still on the all of these had taken place while the line.

In a world where terrorist attacks are siege was ongoing, while lives were still on increasingly sides would the line.becoming In a worldevents, where all terrorist attacks are do well to remember something that as would a increasingly becoming events, all we sides society arguably forgot as we watched the do well to remember something that we as a Lindtsociety café siege unfold: there as arewe always real the arguably forgot watched people with real lives existing outside of the real Lindt café siege unfold: there are always spectacle. people with real lives existing outside of the spectacle.

[1] Ben Doherty et al., ‘Sydney Siege: How a Day and Night of Terror Unfolded at the Lindt Café’, The Guardian Austra[1] Ben Doherty et al., ‘Sydney Siege: How a Day and Night lia (online), 20 December 2014 <https://www.theguardian. of Terror Unfolded at the Lindt Café’, The Guardian Austracom/australia-news/2014/dec/20/sydney-siege-timelinelia (online), 20 December 2014 <https://www.theguardian. how-a-day-and-night-of-terror-unfolded-at-the-lindt-cafe>. com/australia-news/2014/dec/20/sydney-siege-timeline[2] Ibid. how-a-day-and-night-of-terror-unfolded-at-the-lindt-cafe>.

[3] Amanda Meade, ‘How the Australian Media Reported [2] Ibid. the Sydney Siege- and Spared Us the Worst’, The Guard[3] Amanda Meade, ‘How the Australian Media Reported ian Australia (online), 16 December 2014 <https://www. the Sydney Siege- and Spared Us the Worst’, The Guardtheguardian.com/australia-news/2014/dec/16/how-the-ausian Australia (online), 16 December 2014 <https://www. tralian-media-reported-the-sydney-siege-and-spared-ustheguardian.com/australia-news/2014/dec/16/how-the-austhe-worst>. tralian-media-reported-the-sydney-siege-and-spared-us[4] James Massola and David Wroe, ‘Tony Abbott: Austrathe-worst>. lians Right to Ask How Sydney Siege Gunman Man Haron [4] James Massola and David Wroe, ‘Tony Abbott: AustraMonis was “at Large in the Community”’, The Sydney Mornlians Right to Ask How Sydney Siege Gunman Man Haron ing Herald (online), 17 December 2014, <https://www.smh.

Monis was “at Large in the Community”’, The Sydney Morncom.au/politics/federal/tony-abbott-australians-right-toing Herald (online), 17 December 2014, <https://www.smh. ask-how-sydney-siege-gunman-man-haron-monis-was-atcom.au/politics/federal/tony-abbott-australians-right-tolarge-in-the-community-20141216-128fcc.html>. ask-how-sydney-siege-gunman-man-haron-monis-was-at[5] Dr Adam Henschke, ‘Responding to the Spectacle of Terlarge-in-the-community-20141216-128fcc.html>. rorism’, The Sydney Morning Herald (online), 18 December [5] Dr Adam Henschke, ‘Responding to the Spectacle of Ter2014 <https://www.smh.com.au/opinion/responding-to-therorism’, The Sydney Morning Herald (online), 18 December spectacle-of-terrorism-20141216-128b6l.html>.

2014 <https://www.smh.com.au/opinion/responding-to-the[6] ABC News, ‘#illridewithyou: Support for Muslim Ausspectacle-of-terrorism-20141216-128b6l.html>. tralians Takes Off Following Sydney Siege’, ABC News [6] ABC News, ‘#illridewithyou: Support for Muslim Aus(online), 16 December 2014 <http://www.abc.net.au/ tralians Takes Off Following Sydney Siege’, ABC News news/2014-12-15/illridewithyou-hashtag-takes-off-follow(online), 16 December 2014 <http://www.abc.net.au/ ing-siege/5969102>. news/2014-12-15/illridewithyou-hashtag-takes-off-follow[7] Ian Paterson, ‘Anti-Terrorism Bollards Installed in Martin ing-siege/5969102>.

Place’, The Daily Telegraph (online), 23 June 2017 <https:// [7] Ian Paterson, ‘Anti-Terrorism Bollards Installed in Martin www.dailytelegraph.com.au/news/nsw/antiterrorism-bolPlace’, The Daily Telegraph (online), 23 June 2017 <https:// lards-installed-in-martin-place/news-story/d79b04be4983dwww.dailytelegraph.com.au/news/nsw/antiterrorism-bolabd389c97e3a5e260f1>; Tom McIlroy, ‘Massive Security lards-installed-in-martin-place/news-story/d79b04be4983dFence Erected at Federal Parliament House’, The Sydney abd389c97e3a5e260f1>; Tom McIlroy, ‘Massive Security Morning Herald (online), 12 September 2017 <https://www.

Fence Erected at Federal Parliament House’, The Sydney smh.com.au/politics/federal/massive-security-fence-erectMorning Herald (online), 12 September 2017 <https://www. ed-at-parliament-house-20170912-gyfns2.html>. smh.com.au/politics/federal/massive-security-fence-erect[8] Jonathan Matusitz, Terrorism and Communication: A ed-at-parliament-house-20170912-gyfns2.html>.

Critical Introduction (SAGE Publications, 2013) 91.

[8] Jonathan Matusitz, Terrorism and Communication: A [9] See, as an example of both types of coverage: Deborah Critical Introduction (SAGE Publications, 2013) 91.

Snow, ‘Live Media Coverage Risked “Serious Consequences” [9] See, as an example of both types of coverage: Deborah for Lindt Siege Hostages: UK Expert’, The Sydney Morning Snow, ‘Live Media Coverage Risked “Serious Consequences” Herald (online), 31 July 2016 <https://www.smh.com.au/nafor Lindt Siege Hostages: UK Expert’, The Sydney Morning tional/nsw/live-media-coverage-risked-serious-consequencHerald (online), 31 July 2016 <https://www.smh.com.au/naes-for-lindt-siege-hostages-uk-expert-20160731-gqhmc6. tional/nsw/live-media-coverage-risked-serious-consequenchtml>. es-for-lindt-siege-hostages-uk-expert-20160731-gqhmc6.

[10] ABC News, ‘Sydney Siege: Two Hostages and Gunman html>.

Dead After Heavily Armed Police Storm Lindt Café in Mar[10] ABC News, ‘Sydney Siege: Two Hostages and Gunman tin Place’, ABC News (online), 16 December 2014 <http:// Dead After Heavily Armed Police Storm Lindt Café in Marwww.abc.net.au/news/2014-12-16/sydney-siege-gunmantin Place’, ABC News (online), 16 December 2014 <http:// two-hostages-dead/5969162>. www.abc.net.au/news/2014-12-16/sydney-siege-gunmantwo-hostages-dead/5969162>.

13

Many UTS students may be too young to remember a time whenboarding a plane didn’t involve multiple security checks. However, this ended when the September 11 attacks in 2001 irrevocably altered attitudes to counter-terrorism and, by extension, air travel security worldwide. Since then, the Australian government has enacted over 50 pieces of national security legislation1 to combat the persistent threat of terrorism at home and abroad. This response has been labeled ‘hyper-legislation,’2 and criticised by civil liberties commentator Kent Roach as the most draconian legislation in the Western liberal democracy landscape.3

While the laws are designed to equip law enforcement and intelligence agencies to respond effectively to threats of terrorism in a constantly evolving security environment,4 several prominent civil liberties groups and political commentators believe the imposition of counter-terrorism legislation burdens the rights and freedoms of citizens unreasonably.5

This article will pinpoint several significant changes in counter-terrorism legislation since 2001, and then present the dominant arguments for and against the laws.

Significant Pieces of CounterTerrorism Legislation March 2002: The Security Legislation Amendment (Terrorism) Bill 2002 introduced “terrorism offences” to the Criminal Code. Previously they were

[1] Burton et al, ‘The Extraordinary Questioning and Detention Powers of the Australian Security Intelligence Organisation’ (2012) 36 Melbourne University Law Review, 427.

[2] Professor George Williams, ‘Does Australia Need New Anti-Terror Laws?’ (Speech delivered at the Lionel Murphy Memorial Lecture, The Australian National University Canberra, 6 November 2014).

[3] Ibid.

[4] Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Scrutinising ASIO’s questioning and detention powers (2017) 1.

[5] George Williams,‘Law letting ASIO detain in secret belongs in a police state’, Sydney Morn-

dealt with under the normal criminal law in every state and territory excluding Northern Territory.6 September 2003: Australian S ecurity Intelligence Organisation Act 1979 was amended with new provisions allowing a non-suspect citizen to be detained for questioning in relation to a terrorism offence for seven days.7 December 2005: Anti-Terrorism Act 2005 sanctions 14 days of preventative detention for suspects of terrorism offences.8 November 2010: National Security Legislation Amendment Bill 2010 permits police to search and seize items from premises related to terrorism without a warrant.9 Pro-Legislation Response When former Attorney-General Daryl Williams introduced the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth) (‘ASIO Bill (No 1)’) in 2002, the primary justification for extending intelligence powers was the failure to identify and prevent terrorist threats. It has since remained the dominant paradigm in which counter-terrorism laws have been developed and applied since September 11. Furthermore, prominent anti-terror advocates saw the extensive powers as necessary in order to accommodate for emergency situations, emphasising

ing Herald (online), 23 October 2012 https:// www.smh.com.au/politics/federal/law-lettingasio-detain-in-secret-belongs-in-a-police-state20121022-281h9.html.

[6] Criminal Code Act 1995 (Cth), as amended

by Security Legislation Amendment (Terrorism) Bill 2002 [No. 2] ch 5.

[7] Australian Security Intelligence Organisation Act 1979 (Cth), as amended by Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 s 34D. [8] Anti-Terrorism Act (No. 2) 2005 (Cth) sch 4 s 105.15 and 105.16.

[9] National Security Legislation Amendment Act 2010 (Cth) sch 4.

[10] Sally Neighbour, ‘Hidden Agendas: Our

14

that they were only to be utilised as a last resort.10 Anti-Legislation Response Australia’s counter-terrorism regime remains controversial among groups such as Civil Liberties Australia, the Law Council of Australia and the United Nations Special Rapporteur; all of whom express concerns surrounding the undeniable infringements on civil liberties. In addition, Brett Walker SC and Roger Gyles QC in their capacities as members of the Independent National Security Legislation Monitor (INSLM), have recommended significant amendments, and in some cases for the repeal of legislation.11 Similarly, key commentators like Professor George Williams view the regime as failing to balance between law enforcement’s coercive powers and civil liberties proportionately.

Conclusion As President of the Israeli Supreme Court Aharon Barak observed that ‘the recognition of individual liberties constitutes an important component of understanding security.’12 While current laws surrounding counter-terrorism may struggle to strike an appropriate balance, it will be interesting to see how the far Parliament will infringe on individual liberties in pursuit of counter-terrorism.

Lily O’Keefe

intelligence services’, The Monthly (online), November 2010 <https://www.themonthly. com.au/issue/2010/november/1289174420/sally-neighbour/hidden-agendas>.

[11] Inspector General of Intelligence and Security, Further Submission to the Parliamentary Joint Committee on Intelligence and Security, Review of Certain questioning and detention powers in relation to terrorism, October 2017.

[12] Evans, ‘Balancing religious freedom rights and other human rights’ in Paula Gerber and Melissa Castan (eds), Contemporary Perspectives on Human Rights law in Australia (Thomson Reuters, 2013).

15

Does the War on Terror still justify ASIO’s Extraordinary Power?

Sheenae LeCornu

ASIO and its Powers

On 22 February 2017, the Parliamentary Joint Committee on Intelligence and Security (‘PJCIS’) commenced a review of the operation, effectiveness and implications of Australian Security Intelligence Organisation’s (‘ASIO’) questioning and detention powers relating to terrorism offences under Pt III Div 3 of the ASIO Act 1979 (Cth).1 The sunset date was set to September 2018.2 The PJCIS expects to finalise their report shortly.3 In light of this, it appears time to re-consider whether the war on terror justifies the extension of ASIO’s extraordinary powers at the cost of our civil liberties. We must also consider whether there are adequate safeguards in place to prevent ASIO’s abuse of power and ensure its

ASIO was established in 1949 by the Chifley Labor government. They were granted special powers to undertake intelligence functions to protect the Commonwealth from acts of espionage, sabotage, and subversion.4 These special powers included the interception of telecommunications, the examination of postal and delivery articles, the use of clandestine surveillance and tracking devices, the remote access to computers, and covert entry to, and search of, premises with a warrant signed by the Attorney-General.5

In 1974, the Hope Royal Commission highlighted that the nature of security intelligence would inevitably encroach upon civil rights. In addition to these concerns, they outlined three fundamental principles which should govern the operation of ASIO: • ASIO must operate within the terms of its statute, and be concerned only with matters that are relevant to security; • ASIO must comply generally with the law; and • ASIO should not intrude upon the rights and freedoms or upon the privacy of persons except to the extent that the requirements of the nation’s security.6

Honourable Justice Hope emphasised that ASIO’s special powers may only be used in proportion to the immediacy and gravity of the threat or harm and where other less intrusive methods were inadequate or inoperable under the circumstances.7 However, after the September 11, 2001 attacks and the Bali Bombings in 2002, ASIO’s powers were expanded to include questioning warrants (the compulsory questioning of persons in order to collect intelligence in relation to a terrorism offence) and detention warrants (the detention by the police of a person to be questioned in relation to terrorism).8 These warrants could be issued from an independent judicial authority.9

16

ASIO’s extraordinary powers were a reaction to the anger, fear, and grief caused by September 11 and the Bali Bombings.

Unfortunately, they came at the expense of our civil liberties.

Encroachment upon Civil Rights The ASIO Legislation Amendment (Terrorism) Act 2003 (Cth) was controversial as ASIO’s extraordinary powers to protect national security against terrorist threats undermined our liberal-democratic nation, specifically:

Given ASIO was granted extraordinary powers that were coercive, it should be subject to the same level of politicaland public scrutiny when applying these powers.17

• Permitting ASIO to detain in secret and coercively question Australian citizens not suspected of any crime. There was no need for ASIO to demonstrate a detainee’s culpability or involvement in terrorism.10 The Attorney-General simply had to be satisfied on ‘reasonable grounds’ that interrogation would ‘substantially assist the collection of intelligence in relation to a terrorism offence.’11 • Limiting an Australian citizen’s right to independent legal advice during detention to breaks in questioning and/or clarification of ambiguous questions;12 • Charging any Australian citizen with up to five years’ imprisonment if he/she refused to answer their questions and no defence of the privilege against self-incrimination;13 • Charging any Australian citizen with up to five years’ imprisonment for disclosing information in relation to an ASIO warrant and/or ASIO officer;14 and • Permitting ASIO to detain an Australian Citizen over a seven-day period.15

ASIO’s Standpoint ASIO remains adamant that their extraordinary powers are necessary to carry out its investigate functions, in order to combat the increase in terrorism over the past couple of years.18 ASIO alleges their capacity to compulsory question and detain prevents other targets being informed and destroying valuable and relevant documents. But since ASIO’s submission to the PJCIS remains classified, it is difficult to ascertain whether this is the case.19 Despite no terrorist attack in Australia comparable to September 11, the Bali Bombings or even the recent attacks in London and Paris, ASIO emphasises that planned terrorist acts in Australia were prevented by ASIO and its law enforcement partners.20

The secrecy of ASIO’s operations has always been imperative. Although the normal processes of checks and balances to other governmental organisations are not applicable, ASIO remains accountable to the executive government as:

ASIO’s extraordinary powers were a reaction to the anger, fear, and grief caused by September 11 and the Bali Bombings. Unfortunately, they came at the expense of our civil liberties. Namely, freedom of speech, freedom of political association, freedom from arbitrary detention and the rule of law. As George Williams argued, ASIO’s extraordinary powers were not necessary given they could already sufficiently combat terrorism under their current scope.16

• ASIO’s special powers to protect the Commonwealth from acts of espionage, sabotage, and subversion can only be exercised under a warrant issued by the Attorney-General such the interception of telecommunications and the use of surveillance and track-

17

ing devices.21 ASIO’s extraordinary powers to detain and question non-suspects in order to protect national security against terrorist threats can be exercised under a warrant issued by a federal magistrate or judge.22 • The Inspector-General of Intelligence and Security (IGIS), an independent statutory official, has access to ASIO’s operational and administrative activities, including all files and decisions.23 The IGIS conducts inspections of agency activities and can also investigate complaints.24 • The PJCIS has the responsibility to review ASIO’s budgetary and administrative affairs.25 • Independent National Security Legislation Monitor (INSLM) reviews anti-terrorism legislation and its operation.26

that ASIO breached its guidelines by accepting ‘the foreign service’s version of events without corroboration or serious question.’30

It is concerning that ASIO seeks to increase its extraordinary powers to any reasonable grounds that will substantially assist the collection of intelligence in a matter that is important to security and remove the ‘last resort threshold’ for questioning and detention orders.31 In addition, ASIO wishes to remove judicial review of extraordinary powers by having a Minister of Parliament as the Issuing Authority.32 ASIO believes these measures are ‘suitably tailored to a fast-paced, high-threat environment to support time-critical opportunities to collect vital intelligence’.33

Concerns with ASIO’s Power

Recommendations Dr Nicola McGarrity and Professor George Williams AO’s recommendations to the PJCIS as outlined below arguably balance effectively the demands of national security and civil liberties:34 • The repeal of detention warrants.35 Detention warrants continue to infringe a fundamental national right despite no questioning and detention warrant being issued by ASIO since the enactment of the ASIO Legislation Amendment (Terrorism) Act 2003 (Cth).36 • Coercive questioning should only be permitted if there is a reasonable belief that issuing the warrant will substantially assist the prosecution or prevention of a terrorism offence.37 However, a non-suspect that informs a person involved in a terrorist offence and/or destroys information requested in questioning should be charged with an offence under the ASIO Act 1979 (Cth).38

Given a non-suspect of a terrorist offence under a questioning and/or detention warrant could face up to five years imprisonment for disclosing any information, the public is unlikely to be made aware of any concerns with ASIO’s power.27 However the case where a Kuwaiti refugee in 2004 was falsely classified as a security risk and detained without trial for two years highlighted the significant roadblocks to appeal ASIO’s assessment as well as the general lack of transparency and accountability regarding ASIO’s processes.28 The applicant and the AAT were not entitled to obtain any information regarding the assessment of the security risk as ASIO and IGIS are exempt from Freedom of Information Act 1982 (Cth).29 ASIO paid $200,000 in compensation to this refugee following IGIS’s investigation, which concluded

18

Conclusion

• ASIO is unable to question a non-suspect without a lawyer being present and legal advice being received.39 The lawyer should not be inhibited from representing their client such as asking questions and undertaking cross examination.40 • Reduction in the time limit on detention from seven days to forty eight hours.41 The maximum detention period for a non-suspect is seven times longer than the time the Australian Federal Police can detain a person suspected of committing a crime.42 • Greater judicial review over the extraordinary powers regime, particularly the Attorney General’s decisions.43 The Attorney General has oversight over the activities and reports of ASIO, IGIS and INSLM.44

It is crucial that we ensure that counter terrorism legislation continues to balance the demands of both national security and civil rights. In order to realise this, the appropriate frameworks and safeguards must be put in place to ensure ASIO’s accountability and effectively mitigate against the risk of any abuse of its extraordinary powers.

[1] Parliamentary Joint Committee on Intelligence and Security, ‘ASIO questioning and detention powers to be reviewed’ (Media Release, 22 February 2017) 1 <https://www.aph.gov. au/Parliamentary_Business/Committees/Joint/Intelligence_ and_Security/ASIO/Media_Releases>.

[2] Ibid.

[3] Parliamentary Joint Committee on Intelligence and Security, ‘Statutory Review of Counter-Terrorism Laws’ (Media Release, 01 March 2018) 2 <https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/ ASIO/Media_Releases>.

[4] David Irvine AO, ‘Freedom and Security: Maintaining the Balance’ (2012) 33 Adelaide Law Review 1, 295,296.

[5] Ibid 297; Australian Security Intelligence Organisation Act 1979 (Cth) pt III div 2.

[6] Ibid 302.

[7] Ibid.

[8] Australian Security Intelligence Organisation Act (Cth) ss 34D— 34H. [9] Ibid ss 34AB, 34B. [10] Greg Carne, ‘Detaining Questions or Compromising Constitutionality? The ASIO Legislation Amendment (Terrorism) Act 2003’ (2004) 27 UNSW Law Journal 2, 524, 525.

[11] Australian Security Intelligence Organisation Act 1979 (Cth) s 34G(1)(b).

[12] Ibid ss 34D(5), 34ZO, 34ZQ, 34ZP, 34ZT. [13] Ibid s 34L. [14] Ibid s 34ZS. [15] Ibid s 34S. [16] George Williams, ‘ASIO’s extraordinary powers’ (2013) 8 Journal of Policing, Intelligence and Counter Terrorism 1, 66, 66.

[17] Ibid 69.

[18] Australian Security and Intelligence Organisation (Submission No. 8 to Parliamentary Joint Committee on Intelligence and Security), Review of ASIO’s Questioning and Detention Powers, 09 May 2017, 4, < https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/ASIO/Submissions> [19] Ibid. (Note: The contents of Supplementary Submission 8.1, 8.3, 8.5, 8.7 and 8.8 are confidential to the Parliamentary Joint Committee on Intelligence and Security) [20] Above n 3, 299.

19

[21] Australian Security and Intelligence Act 1979 (Cth) pt 1Il div 2.

[22] Ibid ss 34AB, 34C, 34D, 34F. [23] Above n3, 304.

[24] Ibid.

[25] Ibid 303.

[26] Ibid\ 302.

[27] Ibid s 34ZS. [28] Michael Head, ‘Refugee detained for two years on false ASIO intelligence’ (2005) 30 Alternative Law Journal 34, 34.

[29] Australian Security Intelligence Organisation Act 1979 (Cth), ss 7(2A)(a)(i), 7(2A)(a)(iii).

[30] Michael Head, ‘Refugee detained for two years on false ASIO intelligence’ (2005) 30 Alternative Law Journal 34, 35.

[31] Australian Security and Intelligence Organisation (Submission No. 8.6 to Parliamentary Joint Committee on Intelligence and Security), Review of ASIO’s Questioning and Detention Powers, 04 September 2017, 7-8 < https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/ASIO/Submission [32] Ibid 9.

[33] Ibid 9.

[34] Dr Nicola McGarrity and Professor George Williams AO, (Submission No. 5 to Parliamentary Joint Committee on Intelligence and Security), Review of ASIO’s Questioning and Detention Powers, 04 September 2017, (21 April 2017) < https:// www.aph.gov.au/Parliamentary_Business/Committees/Joint/ Intelligence_and_Security/ASIO/Submissions>.

[35] Ibid 2.

[36] Ibid 4.

[37] Above n 30, 8.

[38] Dr Nicola McGarrity and Professor George Williams AO, (Submission No. 5.1 to Parliamentary Joint Committee on Intelligence and Security), Review of ASIO’s Questioning and Detention Powers, 04 October 2017, 10 <https://www. aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/ASIO/Submissions>.

[39] Above n 30, 13.

[40] Ibid 13.

[41] Ibid 17.

[42] Ibid 17.

[43] Ibid 18.

[44] Ibid 18.

Who Watches the Watchmen?

Thomas Brennan In a report published last year titled ‘The Chilling Effect’, the Media Entertainment & Arts Alliance (MEAA) scrutinised the protections offered to Australian journalists, both generally and in the event that they seek to report on counter-terrorist operations.1 What the MEAA ultimately discovered were outdated legal frameworks in which journalists were liable to be monitored or even imprisoned for activities ranging from reporting on controversial operations conducted by the Australian Security Intelligence Organisation (ASIO) to refusing to disclose confidential sources.2 The latter applied even if the confidential source were a Commonwealth agent, such as (impliedly) Tony Abbott or Kevin Rudd.3 So what are these frameworks? And what reforms are desired by legislators, journalists, and whistle-blowers? In a liberal democratic society, where a free press is considered a vital ‘fourth estate’ for keeping political and corporate powers in check, these questions prove especially crucial.

The National Security Amendment (No. 1) Act 2014

The chief controversy for journalists and proponents of free speech are the provisions of the National Security Amendment (No. 1) Act 2014; the latest in a series of increasingly extreme legislative reactions to terrorism.

Since the September 11 attacks, governments have generally sought to confer more powers on intelligence and military agencies. These include the power to punish not only prospective terrorists and terrorist networks,4 but also whistle-blowers and those who might obstruct national security.5 There has nevertheless been a general expectation in these governments that an independent judiciary and set of elected representatives would act as buffers against the exercise of authoritarian power.6

20

This will be no doubt familiar to students who have studied the case Thomas v Mowbray, in which governmental control orders which regimented the domestic lives of individuals who were deemed as national threats were only permitted after close scrutiny of the constitutional ‘defence power’ and its permitting of such legislation.7

Concerns were raised among free speech proponents and journalists in 2014, when the National Security Legislation Amendment Act (No. 1) (‘the Act’) contained two provisions allowing for five and ten years of arbitrary detainment respectively.8 The former applied where a journalist of any kind reported confidential information relating to ASIO counter-terrorism operations.9 The latter applied where this information could be said to significantly impact national security.10 Because of the implications that s 35P of the Act potentially criminalised the disclosure of confidential information, even where it had possible uses in the public interest, Australian journalists lambasted it as a strengthening of existing authoritarian powers. It wasalso seen as a way to prevent journalists from reporting on Australia’s treatment of asylum seekers.11 In response to these concerns, George Brandis recommended amendments to the legislation to raise the threshold of the threat to national security by which a journalist’s actions were to be assessed.12 Without a clause preventing the prosecution of journalists acting in the ‘public interest’, however, s 35P could still technically permit government agencies to imprison journalists and whistle-blowers who seek to report on issues of public concern,13 including counter-terrorist drills or asylum seeker laws. As they stand, Brandis’s recommendations serve to make the penalties more appealing to policy-makers, without actually changing their substance.14

Another law which has raised concerns is the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth),15 which allows intelligence agencies to access and hold a journalist’s metadata without warrant if they are deemed to pose a threat to national security.16 For the MEAA, such a law would mean less protection for journalists facing investigation under s 35P, as well as less protection for whistle-blowers seeking to aid their cause.17

The future?

Although Australia ranked among the top 30 countries in the world for freedom of the press in 2014,18 it is generally agreed among journalists and academics that recent laws threaten the function of journalism as a ‘fourth estate’ to keep governmental powers in check.19 The provisions proposed by Brandis, as well as the Finkelstein and Convergence Inquiries of 2012, demonstrate that governments are still receptive to the concerns of journalists on political and corporate hegemony within the press.20 However, more needs to be done if the freedom of the press is to be protected from subversion.21

According to academic Dr Nicola McGarrity, such laws must be accompanied by an external openness on the part of governments and intelligence agencies on what information was being leaked and why it is prejudicial to national security.22 It is thus, moreover, important to implement provisions now which seek to protect journalists if they are found to have sufficiently acted in the interests of the public (or maybe even their profession) by leaking information which holds the government to account. Additionally, a journalist’s metadata should only be monitored in the event that they are definitively found to be a threat to national security. To do otherwise would be to obstruct the duty of a free press to report in the public interest.23

21

Already, however, the Coalition Government is attempting to reinterpret the meaning of ‘public interest’ in a way that could oust journalists as hostile agents. The proposed ‘National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017’ would serve to impose penalties of up to 20 years imprisonment24 if a journalist deals in classified information that is ‘inherently harmful’ to Australian Security.25 Although proposed to avoid situations where classified information is used to benefit a foreign power, it has been roundly condemned by policy experts and free media advocates as disproportionately targeting journalists as possible foreign agents for simply possessing classified information on activities that the public may consider unjust.26

[1] Media Entertainment & Arts Alliance, ‘The Chilling Effect – The Report into the State of Press Freedom in Australia in 2017’ (Press Report, 03 May 2017), 2.

[2] Ibid, 13, 16.

[3] Ibid, 51.

[4] Andrew Lynch, Inside Australia’s Anti-Terrorism Laws and Trials (New South Publishing, 2015), 199.

[5] George Williams, ‘A Decade of Australian Anti-Terror Laws’ (2011) 35(3) Melbourne University Law Review 1136, 1142.

[6] Ibid.

[7] Thomas v Mowbray [2007] HCA 33.

[8] National Security Legislation Amendment Act (No. 1) 2014 (Cth), s35P. [9] Ibid, s 35P (1).

[10] Ibid, s 35P (2).

[11] Mark Pearson and Joseph M. Fernandez ‘Censorship in Australia: Intrusions into media freedom flying beneath the international free expression radar’ (2015) 21(1) Pacific Journalism Review 40, 52.

[12] The Hon. George Brandis QC, ‘Government Response to INSLM Report on the Impact of Journalists of Section 35P of the ASIO Act 1979’ (Government Media Release, 02 February 2016) <http://www.abc.net.au/mediawatch/transcripts/1602_brandis.pdf>.

[13] Keiran Hardy, ‘Despite Changes, Terror Law will Still Curb Press Freedom’, The Conversation (online), 04 February 2016, <https://theconversation.com/despite-changesterror-law-will-still-curb-press-freedom-54122>.

[14] Australian Broadcasting Corporation, ‘ASIO Act Updated’, Media Watch, 08 February 2016.

[15] Mark Pearson and Joseph M. Fernandez ‘Censorship in Australia: Intrusions into media freedom flying beneath the international free expression radar’ (2015) 21 (1) Pacific Journalism Review 40, 44.

[16] Graham Greenleaf, ‘Going Against the Flow’ (2015) 134 Privacy Laws and Business International Report 26, 27.

[17] Media Entertainment & Arts Alliance, ‘The Chilling Effect – The Report into the State of Press Freedom in Australia in 2017’ (Press Report, 03 May 2017), 16.

[18] Mark Pearson and Joseph M. Fernandez ‘Censorship in Australia: Intrusions into media freedom flying beneath the international free expression radar’ (2015) 21(1) Pacific Journalism Review, 40, 40.

[19] Media Entertainment And Arts Alliance, ‘The Chilling Effect – The Report into the State of Press Freedom in Australia in 2017’ (Press Report, 03 May 2017), 27.

[20] Terry Flew, ‘Convergent Media Policy: Reflections Based Upon the Australian Case’ in Seamus Simpson, Manuel Puppis and Hilde Van den Buck (eds), European Media Policy for the Twenty-First Century: Assessing the Past, Setting Agendas for the Future (Routledge, 2016) 219, 220.

[21] Australian Broadcasting Corporation, ‘ASIO Act Updated’, Media Watch, 08 February 2016.

[22] Nicola McGarrity, ‘Law on Terror’ (Q&A Session at the UTS LSS Speaker Series III), UTS Building 5B, Sydney, 19 October 2017.

[23] Media Entertainment & Arts Alliance, ‘The Chilling Effect – The Report into the State of Press Freedom in Australia in 2017’ (Press Report, 03 May 2017), 49.

[24] National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 (Cth), sch 1 pt 1 item 8 para 289.

[25] Ibid, sch 2 pt 1 item 6 para 1329.

[26] Media Entertainment & Arts Alliance, Submission No.1 to the Parliamentary Joint Committee on Intelligence and Security, National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018, 7.

In this debate, especially the ongoing arguments surrounding such a Bill, one principle is clear: a liberal democratic society cannot function without a free, fearless press to report in the public interest. Whilst it is true that some information has to be protected in the national interest, it is another thing alltogether for law-makers (especially on humanitarian issues such as asylum seekers) to act against the public interest by lessening transparency and arbitrarily detaining journalists.

is thus, moreover, “ Itimportant to implement provisions now which seek to protect journalists if they are found to have sufficiently acted in the interests of the public (or maybe even their profession) by leaking information which holds the government to account.

“

22

Sentencing Law Reforms:

The Impacts of Removing Alternative Sentencing Options

As part of its so-called ‘tough and smart’ justice reforms,1 the NSW Parliament passed the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) (‘the Act’). The Act is not yet in force, as it still requires proclamation – though there is anticipation that a proclamation will be announced before the end of 2018.2 The Act essentially removes four popular sentencing options: home detention, community service orders, good behaviour bonds, and suspended sentences.3 It also alters the law regarding dismissal of charges.4

This author was fortunate to attend a meeting where Corrective Services NSW Assistant Commissioner Luke Grant spoke regarding discretion in corrective services, and explained the impacts that these reforms will have on the state’s rising remand population.5 With recent reforms which removed presumptions in favour of bail, and an increase in non-parole periods, he noted that our remand population was in crisis. With a larger police force in the field, and fewer alleged offenders being granted bail, it is the gaol and the corrective services sector which have been placed under the most pressure.

According to the last quarterly report from the NSW Bureau of Crime Statistics and Research (BOCSAR), the remand population has significantly increased since the introduction of the unacceptable risk test and show-cause bail. In the first quarter of 2014, prior to the introduction of the new bail system, there were 3,275 persons on remand. This amounted to 29.4% of total persons in custody (the remainder being sentenced persons). By the second quarter of 2017, there were 4,470 persons on remand, amounting to 33.4% of total persons in custody; an increase of nearly 5%.6

An additional factor which Mr Grant considered relevant to the increase of the remand population is the political and public drive to increase police efficiency.7 He noted that there is currently significant discourse in the field of corrective services, and that the system has moved away from the Auburn System of punishment.8 This system involved the singular-holding of prisoners in silence, thought to teach prisoners personal discipline and respect by withdrawing them from social settings. Instead, we are moving towards the penology promoted by scholars such as Feely and Simon. This system focuses not only on retribution, but also on rehabilitation and community protection through considering criminal behaviour as an aggregate. It thus aims to reduce recidivism through the lens of utilitarian risk.9The new sentencing regime, which Mr Grant defended, returns community concerns into sentencing by enabling the community to have its say.10

By the provision of intensive correction orders, community correction orders, and conditional release orders, offenders may be supervised by community organisations, the police, the courts, and their Community Correction Officers.

Through cognitive and behavioural interventions, the risks of recidivism are decreased. In funnelling judicial discretion from the current eight options to only three options, with each option reflecting direct pressure to grant a community order, it was proposed by Mr Grant that this would reduce recidivism.

Mr Grant’s biggest concern with the current system is that low-risk offenders are often being exposed to high-risk offenders while on remand, and that this sometimes increases the risks of recidivism. Mr Grant says that the current rate of re-offending in NSW is

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19%.11 By keeping people out of gaol, and instead diverting them through community programmes, this percentage could fall significantly. This reflects a seemingly strict dichotomy between long-term change and short-term change; both in the attitudes of the convicted persons, and in those of the broader community.

Mr Grant mentions that it was once considered that maintaining high levels of self-esteem would reduce recidivism.12 In reality, this had the opposite effect of making convicted persons feel rewarded for their criminal efforts, motivating them to become better criminals.13 Instead, the focus is now on changing long-term attitudes, so as to ensure that convicted persons are not only punished and made aware that particular conduct is criminal (as they would otherwise be more likely to just explore other forms of crime), but that patterns of behaviour which lead to criminality are reduced.

This leads back to the need to work with society. Mr Grant acknowledged that there are links between socioeconomic status and a propensity towards criminal behaviour, as well as that the impact of parental neglect on children and that this might encourage criminality later in life.14 However, Mr Grant emphasised that these sentencing reforms aim to reduce socioeconomic factors which can lead to recidivism, such as a lack of skills, low employability, and poor social acumen.15 This also benefits society financially; Mr Grant calculated that a person in custody costs the state $172.80 per day, while a person under a community correction order costs the state only $21.40 a day.16

Though this author was initially sceptical regarding whether these changes constituted merely yet another law and order campaign to front a tough stance on crime, the focus on community participation and ensuring that convicted persons are able to re-integrate into the community effectively represent changes for the better.

[1] Department of Justice, Government of New South Wales, Justice Reforms <http://www.justice.nsw.gov.au/reform>.

[2] Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW), s 2.

[3] Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 2 Div 2-3.

[4] Ibid.

[5] Luke Grant, ‘Discretion in Corrective Services’ (Delivered at the Law Society of New South Wales, 27 September 2017).

[6] Bureau of Crime Statistics and Research – Department of Justice, Government of New South Wales, Custody Statistics (12 September 2017) <http://www.bocsar.nsw.gov.au/Pages/bocsar_custody_stats/ bocsar_custody_stats.aspx>.

[7] Above n 5.

[8] Harry Barnes, ‘Historical Origin of the Prison System in America’ (1921) 12(1) Journal of Criminal Law and Criminology 35.

[9] Malcolm Feely and Jonathan Simon, ‘The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications’ (1992) 30 Criminology 449. Mr Grant had referred to the New Penology proposed by Feely and Simon at length but alas did not provide a footnote.

[10] Above n 5.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid.

Michael Tangonan

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It’s All Fun and Games Until Someone Gets Hurt:

With the burgeoning frequency at which terrorism attacks feature on our late-night news broadcasts, it seems appropriate that Prime Minister Malcolm Turnbull introduce new offences to consolidate Australia’s stance against the war on terror. It has been nearly 17 years since the September 11 attacks, four years since the Sydney Lindt Café Siege, three years since the Bataclan theatre massacre and one year since the London Bridge attack.

However, as a consequence, civil unrest and advocacy for stronger anti-terror protections has increased, empowering our legislators to crack down on our domestic counter-terrorism and security laws. Late last year, Turnbull announced a series of new security measures, including the criminalisation for making hoax threats of a terrorist attack and being in possession of instructional, terrorist material. In an effort to ‘beef up’ our current national security framework, he requested the States and Territories to follow suit in implementing these changes on a national scale.1

While the new offences seem justified given the recent history of terror, they also arguably arm law enforcement agencies with greater power than before. They remove the need to distinguish premeditated harm from juvenile horseplay.

In so doing, the new offences risk convicting individuals who may not possess the requisite mens rea for the offence. This begs the question about the extent to which we must go to guarantee the protection of the masses over the rights of the 25 individual.

The Crackdown on Preparatory Terrorism Offences Kimberley Ching A Modest Proposal?

The new proposed Commonwealth offences under the Crimes Act 1914 (Cth) will equip law enforcement agencies with the right to intervene during the early, preparatory stages of a terrorist act. It can be enforced against individuals who are in possession of instructional terrorist material and/or those who are behind the digital veils of terrorism hoaxes.2

The criminalisation of both offences arguably creates greater scope for law enforcement to govern our national security while managing resources appropriately, diverting emphasis away from hoaxes that only seek to disrupt the efficiency of our emergency services.3

The Criticism

It seems plausible to enact these offences against preparatory acts, but they must refrain from becoming a ‘catch-all’ for individuals law enforcement deem suspect. Significant consideration should also be given to the individual, and proportionality between their conduct and intention.

Further, it risks punishing an individual pre-emptively for an action that may not have attracted a criminal quality in the first place.4 Some academics have further argued that these offences unjustly criminalise the formative stages of an act, rendering individuals liable for uncommitted crimes before any criminal intent has materialised.5 While these offences are necessary as a precautionary and preventative measure, there must be a better standard in place to judge the exact point where the act crosses the boundary between preparation and reality.

However historically speaking, the Australian Courts have not developed a consistent approach to sentencing similar preparatory offences. Without clear guidance to determine the proportionality of sentences to the preparatory offence, varying weight has been given to subjective factors such as the perceived fanaticism of the offender, the general stigma surrounding terrorism and the need to emphasise a strong anti-terror rhetoric. In addition, there have been no developments in public policy to deal with these offences more effectively.

Instead, a new danger has been created. Cases are becoming increasingly susceptible to excessive sentences to offenders that may or may not have the requisite intent to harm.6

Conclusion

There is no dispute as to whether preparatory terrorist acts should be criminalised or not. In light of the age we live in, and the gradual rise of terror attacks globally, Turnbull’s choice to reinforce our national security is admirable and required. However, the new legislation must be clarified to avoid the premature punishment of individuals. Only then will our national security be an accurate reflection of what is reasonable, necessary and just.

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[1] Laura Tingle, Malcolm Turnbull Seeks COAG help to unify and strengthen anti-terror laws (4 October 2017) Australian Financial Review (Online) < http://www.afr.com/news/ turnbull-seeks-coag-help-to-unify-and-strengthen-antiterrorlaws-20171003-gytkv8>.

[2] Council of Australian Governments, Special Meeting of the Council of Australian Governments on Counter Terrorism Communiqué (October 2017) <https://www.coag. gov.au/meeting-outcomes/special-meeting-council-australian-governments-counter-terrorism-communique>.

[3] Council of Australian Governments, Special Meeting of the Council of Australian Governments on Counter-Terrorism Communiqué (5 October 2017) COAG < https://www. coag.gov.au/meeting-outcomes/special-meeting-council-australian-governments-counter-terrorism-communique>.

[4] Victor Ramraj et al, Global Anti-Terrorism Law and Policy (Cambridge University Press, 2nd ed, 2012).

[5] Edwina McDonald and George Williams, ‘Combating Terrorism: Australia’s Criminal Code since September 11, 2001’ (2014) 16 Griffith Law Review 1, 27.

[6] Zoe Scanlon, ‘Punishing Proximity: Sentencing Preparatory Terrorism in Australia and the United Kingdom’ (2014) 25 Current Issues in Criminal Justice 3, 763.

“Without clear guidance to determine the proportionality of sentences to the preparatory offence, varying weight has been given to subjective factors.”

Thomas v Mowbray Guilty Until Proven Innocent?

Control Orders and the Circumventing of Due Process

Basil Naimet

Laws in relation to terrorism are becoming increasingly pervasive in the lives of the Australian people and increasingly infringe on our civil liberties. This is exemplified in the 2006 case of Thomas v Mowbray and the subsequent High Court challenge in 2007 as an example of the extreme measures placed on an individual through â&#x20AC;&#x2DC;control ordersâ&#x20AC;&#x2122;. These controls, in effect mean the person charged with terrorist offences will have their freedom restricted considerably.

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In his article ‘Alarmed, but not alert in the ‘War on Terror’? The High Court, Thomas v Mowbray and the Defence power’,1 academic Oscar Roos observes that Division 104 part 5.3 was inserted into the Criminal Code 1995 (Cth).2 Entitled ‘Control Orders,’ ss 104.2 to 104.5 relate to interim orders to be made by a federal court.3 Roos argues the ‘critical provision’ in Thomas v Mowbray was s 104.4 which provides, amongst other things, that an interim control order can be made pursuant to: (c) the court is satisfied on the balance of probabilities: (i) that making the order would substantially assist in preventing a terrorist act; or (ii) that the person has provided training to, or received training from, a listed terrorist organisation.4 The magistrate in Thomas v Mowbray, Graham Mowbray granted the control orders be placed on Thomas as he believed, on the balance of probabilities, that both grounds of subsections (i) and (ii) of s104.4(1) (c) were fulfilled.5 But is the balance of probabilities a sufficient standard for a country that prides itself on sustaining an offenders’ freedom until proven guilty beyond reasonable doubt?

Professor Andrew Lynch from the University of New South Wales, who authored ‘Thomas v Mowbray: Australia’s War on Terror Reaches the High Court’,6 states there was no evidence implicating Thomas in any terrorism related activities or having any associations with terrorist organisations when he returned to Australia which may have indicated to the Australian Federal Police (AFP) that any future terrorist activity could occur.7 Professor Lynch argues the AFP arraigned Thomas on terrorism charges, claiming he may have been a ‘sleeper’ for Al-Qaeda and could have contributed to carrying out a domestic terrorist attack in the future.8

Thomas had a raft of restrictions placed upon him as a result of the control order, even after a jury acquitted him of the charge of ‘supporting’ a terrorist organisation and agreeing to act as a ‘resource’, covered under s 102.7 of the Criminal Code.9 The restrictions included a curfew forbidding him from leaving his house between midnight and 5am and reporting to police three days a week.10 There was also a restriction on his use of phone services (including not being able to use a payphone), having to seek written approval to make telephone calls, and a prohibition on contacting up to 50 people whom the Department of Foreign Affairs and Trade (DFAT) identified as terrorists, including Osama bin Laden.11

So, what about the future of terrorism offences in Australia, and what about the liberty of those subjected to these control orders? Does the standard of balance of probabilities not pose a threat to individuals who may be innocent of terrorism charges?

Following a Melbourne man’s arrest in November 2017 on terrorism charges, these control orders raise the question of whether we are using excessive power to simply achieve a conviction at the risk of imposing on someone’s rights?

Does the standard of balance of probabilities not pose a threat to individuals who may be innocent of terrorism charges?

Control Orders for Terrorist Activity

Following the London bombings in July 2005, control orders were implemented into the Criminal Code 1995 (Cth) via the Anti-Terrorism Act [No. 2] 2005 in Australia.12 Division 101 of the Criminal Code makes reference to terrorism activity and the penalty associated with it.13 Section 101.6 states: Other acts done in preparation for, or planning, terrorist acts: (1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

Penalty: Imprisonment for life.

(2) A person commits an offence under subsection (1) even if: (a) a terrorist act does not occur; or (b) the person’s act is not done in preparation for, or planning, a specific terrorist act;14 That’s all well and good. If a person is found guilty of a terrorist activity in any form, then the law should apply with the appropriate punishment handed out. The standard for terrorist acts and other criminal behaviors should be viewed as equal and stand side-byside, even when making control orders. In the absence of incontrovertible evidence, as was the case in the Thomas v Mowbray decision, the failure to do so means we are no less than a dictatorial state.

[1] Oscar I Roos, ‘Alarmed But Not Alert in the War on Terror – The High Court, Thomas v Mowbray and the Defence Power (2008) 15 James Cook University Law Review 169.

[2] Ibid 170.

[3] Ibid.

[4] Ibid 170-171.

[5] Ibid 170-171, 174.

[6] Andrew Lynch, ‘Thomas v Mowbray – Australia’s War on Terror Reaches the High Court’, (2008) 32 (3) Melbourne University Law Review 1182.

[7] Ibid 1187.

[8] Ibid.

[9] Ibid 1188.

[10] Ibid.

[11] Ibid.

[12] Ibid 1183.

[13] Criminal Code Act 1995 (Cth) div 101.

[14] Ibid s 101.6.

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Travel Ban 3.0 and a Permanent State of Emergency A Look at Liberty, Freedom, Security, and Contemporary Counter-Terrorism Policies Si Hao Guo (David)

Twitter is an interesting place for all sorts of things. Memes, marshmallows, and real-time access to the 45th President of the United States’ mind.

In the wake of a terrorist attack on the London Underground in September, we were given the latest insight into President Trump’s mindset towards counter-terrorism policy.

President Trump used Twitter to reiterate the merits of his travel ban, stating attackers ‘were in the sights of Scotland Yard’, even though facts and circumstances of the attack were STILL in flux.1 These habits were once again on display in the recent New York truck attack as President Trump wasted no time to lambast Democratic Party politicians for their support of past immigration policies and called for the stepping up of his extreme vetting programs.2

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President Trump has never made any secret of his penchant for conducting and promoting counter-terrorism policy by tweet. As Europe and the world struggle with terrorism, support for policies like Trump’s travel ban has grown.3 While these policies enjoy some level of public support, one question must be asked: are these policies actually worth it? This discussion will examine all three iterations of the Trump Administration’s so-called ‘travel ban’, and other international examples of restricting freedom and liberty in the name of counter-terrorism and security. First, we must go back to December 2015. In the aftermath of the San Bernardino attacks which saw 14 people killed, Republican Presidential candidate Trump responded by calling for a total shutdown of all Muslims entering into the United States.4 President Trump’s speech prompted unprecedented bipartisan criticism from figures rangingfrom Dick Cheney and Bernie Sanders5 to Indiana Governor Mike Pence6 and retired General James Mattis.7 This half-baked policy seemed to be yet another brain fart from a novelty candidate who was quick becoming a joke.

On 27 January 2017, the newly sworn in President Trump was joined by Vice-President Mike Pence and Secretary of Defense James Mattis in signing Executive Order 13769; the ‘not a-ban’ travel ban. The order suspended entry for individuals from seven Muslim-majority countries, namely: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.8 These were countries that had been previously identified by the Obama Administration as countries of concern regarding terrorism.9 It also included a provision which suspended the US refugee admission program and prioritised the admission of refugees from certai religions.10

The roll-out of the executive order can only be described as farcical. It was accused of alienating key. Muslim allies in the war against ISIS, while key departments such as the State Department and the Departments of Defense and Homeland Security were said to have been kept out of the loop in the order’s development.11 People with valid visas or green cards were turned back or detained while others were stranded in transit. Major American airports were soon choked by protests that were supported by prominent Democratic Party politicians and advocacy groups.12 As a man who has been involved in hundreds of litigation cases, Donald Trump should be familiar with the inside of a courtroom. This time, however, he was being sued in his capacity as President.

Aziz v Trump 231 F.Supp.3d 23 (2017) was filed in the United States District Court for the Eastern District of Virginia against President Trump, Secretary of Homeland Security John F. Kelly, and other Customs and Border Protection (CBP) officials. The applicants sought a writ of habeas corpus on behalf of petitioners who had been detained at Washington Dulles International Airport.13 It was alleged that CBP officers had pressured the plaintiffs into sign-

ing away their US immigration status through false representations about being barred from re-entering the US.14 Judge Leonie Brinkema issued a temporary restraining order to prevent enforcement of the executive order and stated that no evidence had been provided to justify the order’s national security concerns.15

The most high-profile challenge against this order was Washington v Trump, launched by Washington State Attorney-General Bob Ferguson.16 This case was also supported by officials from Washington universities and colleges, along with prominent Washington-based companies such as Amazon and Expedia.17 The case argued that the order violated several clauses of the US Constitution, including the First, Fifth and Fourteenth Amendments. Other breaches of the Immigration and Nationality Act, the Religious Freedom Restoration Act, and the United Nations Convention against Torture were also argued.18

On 3 February 2017, Judge James Robart, a Republican appointee, granted a temporary restraining order against enforcement of the executive order.19 An appeal was subsequently brought by the Federal Government before the Ninth Circuit Court of Appeals. The restraining order was upheld by a three-judge panel, which stated that the Federal Government had failed to prove likelihood of the success of the executive orders on their merits at trial. President Trump’s Twitter habits and public statements were considered by the court in establishing discriminatory intent behind the policy, but the court did not make an overall judgement on the effect of these factors.20

However, on 16 March 2017, President Trump’s new Executive Order 13780, another ‘not-a-ban’ travel ban, was enacted. Iraq was removed from the list of banned countries while clearer, more concrete exceptions for lawful legal residents of the United States were included.21 Further appeals against ‘Travel Ban 2.0’ were brought by the State of Hawaii and the International Refugee Assistance Project, with the US Supreme Court eventually deciding to allow for enforcement of the order against those without bona fide connections to the United States in a per curiam decision.22 This created a separate debate over what exactly constituted a ‘bona fide relationship’, with grandparents initially not considered as bona fide relationships by Trump administration officials.23 However, a finding later overturned this ruling to the certain delight of grandchildren everywhere.24

On 25 September 2017, as the executive orders were due to expire, the Trump Administration issued yet another ‘not-a-ban’ travel ban: a new set of targeted travel restrictions on the citizens of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. The US Department of Homeland Security stated that these nations were included because they had been unwilling or unable to provide relevant security informa-

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tion.25 Chad’s inclusion was met with surprise by national security and Africa policy experts, considering their country’s recent role as a counter-terrorism ally with the US against Boko Haram.26 Chadian forces had worked closely alongside US forces in Africa and had participated in security operations in Mali and Niger with Chadian officials describing the new restrictions potentially hampering future cooperation in the developing African front against terrorism.27

However, on 17 October 2017, US District Judge Derrick K. Watson granted a request from Hawaii for a temporary restraining order against the new order.28 Needless to say, it prompted a White House outcry with the Supreme Court later allowing for the ban to come into effect on 4 December 2017 setting the scene for further legal drama.29 Yet, in considering this new ‘Travel Ban 3.0’, we must bear in mind that it is not only the United States which is currently strengthening its counter-terrorism policies.

On 7 May 2017, Emmanuel Macron, a man whose only previous political experience had been a two-year stint in President Hollande’s office and ministry, won 66% of the vote in the decisive second round of the French Presidential Election.30 Macron inherited a country devastated by numerous graphic terrorist attacks ranging from stabbings and shootings to the horrific November 2015 Paris attacks and the Bastille Day truck attack in Nice with 239 people losing their lives over the past two year period.31 Subsequently, the country has been in an almost permanent state of emergency with heavily armed soldiers now a common feature at tourist attractions and other public areas.32 Marine Le Pen, Macron’s ultra-nationalist opponent in the final round, had tried to take advantage of the after-effects of these attacks through a campaign where she pledged a hard line against terrorism, Islam, and immigration.33

By contrast, Macron had pledged a more open and tolerant France without compromising France’s tough approach to counter-terrorism policy.

Macron pledged to make several policies arising from the state of emergency permanent.34 Recently, the lower house of the French Parliament voted to implement measures to bolster police search, surveillance and detention powers. Despite the extreme nature of these provisions, the anti-terror bill received widespread public support with 57% of surveyed French citizens expressing support for the policies.35 On the 30 October 2017, President Macron signed the anti-terror bill into law which ended the long running state of emergency.36

However, various human rights bodies and the United Nations have raised grave concerns about these measures’ dramatic encroachment into civil liberties and the right of due process.37 UN Special Rapporteur on the Protection of Human Rights in the context of countering terrorism Fionnula Ni Aolain stated that ‘the normalisation of emergency powers has grave consequences for the integrity of human rights protection’.38 This raises the question: is sécurité more important than liberté, égalité, and fraternité in our day and age? What will be the next steps?

The simplicity and crudeness of recent attacks, carried out largely by lone wolf attackers without a concrete terrorist network, would lead some to argue that these policies are a necessary evil in order to maintain security. But as the world continues to deal with these threats, we must remember that our freedoms and liberties are what distinguish us from terrorist offenders. A firm commitment by all governments to freedom and liberty must always continue to ensure the integrity of the societies which they aim to protect.

32 32

[1] ‘Parsons Green: Trump terror tweets ‘not helpful’, says May’, BBC News (online), 15 September 2017 <http://www.bbc.com/ news/world-us-canada-41283984>.

[2] Peter Baker, ‘Trump Declares Suspect ‘Should Get Death Penalty’, New York Times (online), 1 November 2017 <https://www. nytimes.com/2017/11/01/us/politics/trump-new-york-attackschumer-visa.html>.

[3] Steven Shepard, ‘Poll: Majority of voters back Trump travel ban’, Politico, 7 May 2017 <https://www.politico.com/story/2017/07/05/trump-travel-ban-poll-voters-240215>.

[4] Jenna Johnson, ‘Trump calls for ‘total and complete shutdown of Muslims entering the United States’, Washington Post (online), 7 December 2015 <https://www.washingtonpost.com/news/post-politics/ wp/2015/12/07/donald-trump-calls-for-total-and-completeshutdown-of-muslims-entering-the-united-states/?utm_term=.868108cd0b7d>.

[5] Justin WM Moyer, ‘Dick Cheney slams Trump’s Muslim entry ban’, Washington Post (online), 8 December 2015 <https://www.washingtonpost.com/news/morning-mix/ wp/2015/12/08/dick-cheney-slams-trumps-muslim-entry-ban-and-suggests-u-s-re-invade-middle-east/?utm_term=.1b3f1f919e39>.

[6] David Emery, ‘Ban Slam’, Snopes, 28 January 2017 <https://www.snopes.com/mike-pence-muslim-ban-offensive/>.

[7] Steve Bennen, ‘Secretary Mattis finds himself in unenviable position’, MSNBC, 30 January 2017 http://www.msnbc.com/rachel-maddow-show/secretary-mattis-finds-himself-unenviable-position.

[8] Alan Yuhas and Mazin Sidahmed, ‘Is this a Muslim ban? Trump’s executive order explained’, The Guardian, 1 February 2017 <https://www.theguardian.com/us-news/2017/jan/28/trump-immigration-ban-syria-muslims-reaction-lawsuits>.

[9] Kyle Blaine and Julia Horowitz, ‘How the Trump administration chose the 7 countries in the immigration executive order’, CNN, 30 January 2017 https://edition.cnn.com/2017/01/29/politics/how-the-trump-administration-chose-the-7-countries/.

[10] Yuhas and Sidahmed, above n 8.

[11] Evan Perez and Pamela Brown and Kevin Liptak, ‘Inside the confusion of the Trump executive order and travel ban’, CNN (online), 30 January 2017 <https://edition.cnn.com/2017/01/28/politics/donald-trump-travel-ban/index.html>.

[12] Joanna Walters and Edward Helmore and Saeed Kamali Dehghan, ‘US airports on frontline as Donald Trump’s travel ban causes chaos and protests’, The Guardian (online), 29 January 2017 <https://www.theguardian.com/us-news/2017/jan/28/airports-us-immigration-ban-muslim-countries-trump>.

[13] Justice4all, ‘Aziz v Trump’, 30 January 2017 <https://www.justice4all.org/wp-content/uploads/2017/01/ Aziz-v.-Trump-Amended-Complaint-Booker-Affidavit.pdf>.

[14] Ibid.

[15] Dahlia Lithwick, ‘Another Injunction Against Trump’s Immigration Ban, This one in Virginia,’ Slate.com, 13 February 2017 <http://www.slate.com/blogs/the_slatest/2017/02/13/another_ injunction_against_trump_s_immigration_ban_this_one_in_virginia.html>..

[16] Austin Jenkins, ‘The Attorney General Behind the Resistance to Trump’s Travel Ban,’ National Public Radio, 7 February 2017 <https://www.npr.org/2017/02/07/513957921/the-attorney-general-behind-the-resistance-to-trumps-travel-ban>.

[17] Washington State Office of the Attorney General, ‘Executive Order Lawsuit’ <http://www.atg.wa.gov/executive-order-lawsuit>.

[18] Washington State Office of the Attorney General, ‘AG Ferguson seeks immediate halt to Trump’s Immigration Executive Order, 30 January 2017 <http://www.atg.wa.gov/news/news-releases/ag-ferguson-seeks-halt-trump-s-immigration-executive-order>.

[19] Jenkins, above n 16.

[20] Emma Kohse, ‘Washington v Trump: Summary of Ninth Circuit Decision Upholding TRO in Trump Travel Ban Case’, Lawfare, 9 February 2017 <https://www.lawfareblog.com/washington-v-trump-summaryninth-circuit-decision-upholding-tro-trump-travel-ban-case>.

[21] ‘Trump signs new travel ban directive’, BBC News, 6 March 2017 <http://www.bbc.com/news/world-us-canada-39183153>.

[22] Matthew Tang, ‘State of Hawaii v Trump, as of 9/7/17’, Medium.com, 9 September 2017 <https://medium.com/@mattytang/state-of-hawaii-v-trump-asof-9-7-17-9ba2f0deccc8>.

[23] Tang, Ibid.

[24] Ryan W. Miller, ‘Grandparents not part of Trump’s travel ban, appeals court rules’, USA Today (online), 7 September 2017 <https://www.usatoday.com/story/news/nation/2017/09/07/ trump-travel-ban-appeals-court-grandparents-not-partban/644226001/>.

[25] Oliver Laughland, ‘Trump’s latest travel ban: what’s new, who’s covered, and why now?’, The Guardian (online), 26 September 2017 <https://www.theguardian.com/us-news/2017/sep/25/trump-administration-travel-ban-president>.

[26] Tricia Bacon, ’Why would the Trump administration ban travel from Chad’, The Conversation, 9 October 2017 <http://theconversation.com/why-would-the-trump-administration-ban-travel-from-chad-85235>.

[27] Alexander Thurston, ‘America Should Beware a Chadian Military Scorned’, Foreign Policy, 18 October 2017 <http://foreignpolicy.com/2017/10/18/america-should-beware-achadian-military-scorned-trump-travel-ban/>.

[28] Matt Zapotsky, ‘Federal Judge blocks Trump’s third travel ban’, Washington Post (online), 17 October 2017 <https://www.washingtonpost.com/world/national-security/federal-judge-blocks-trumps-third-travel-ban/2017/10/17/ e73293fc-ae90-11e7-9e58-e6288544af98_story.html?utm_term=.9c586765590f>.

[29] Richard Wolf, ‘Supreme Court allows Trump travel ban to take full effect’, USA Today (online), 4 December 2017 <https://www.usatoday.com/story/news/politics/2017/12/04/ s u p re m e - c o u r t - a l l ow s - t r u m p - t r ave l - b a n - t a ke - f u l l - e ffect/909797001/>.

[30] Angelique Chrisfaris, ‘Emmanuel Macron vows unity after winning French presidential election’, The Guardian (online), 8 May 2017 <https://www.theguardian.com/world/2017/may/07/ emmanuel-macron-wins-french-presidency-marine-le-pen>.

[31] Anne-Sylvaine Chassany, ‘France: the permanent state of emergency’, The Financial Times (online), 3 October 2017 <https://www.ft.com/content/f5309ff8-a521-11e7-9e4f-7f5e6a7c98a2>.

[32] James McAuley, ‘In France, are soldiers outside the Eiffel Tower and the Louvre really worth it?’ ,Washington Post (online), 4 June 2016 <https://www.washingtonpost.com/world/europe/ in-france-are-soldiers-outside-the-eiffel-tower-and-the-louvereally-worth-it/2016/06/04/e542f600-2524-11e6-b94452f7b1793dae_story.html?utm_term=.2cadc0bc5458>.

[33] Chloe Farand, ‘Marine Le Pen launches presidential campaign with hardline speech, ‘ The Independent (online), 5 February 2017 <http://www.independent.co.uk/news/world/europe/marine-le-pen-front-national-speech-campaign-launch-islamic-fundamentalism-french-elections-a7564051.html>.

[34] Chassany, above n 28.

[35] ‘Terror-weary French accept permanent state of emergency powers as parliament backs new security law,’ Japan Times (online), 4 October 2017 <https://www.japantimes.co.jp/news/2017/10/04/world/terror-weary-french-accept-permanent-state-emergency-powers-parliament-backs-new-security-law/#.WqNoh7RG3mI>.

[36] ‘French President Emmanuel Macron signs controversial anti-terror law’, DW.com, 30 October 2017 <http://www.dw.com/ en/french-president-emmanuel-macron-signs-controversial-anti-terror-law/a-41178081>.

[37] Angelique Chrisfaris, ‘Macron’s counter terror bill risks France’s human rights record, say UN Experts’, The Guardian (online), 29 September 2017 <https://www.theguardian.com/world/2017/sep/28/macronscounter-terror-bill-risks-frances-human-rights-record-says-un>.

[38] ’France must bring counter-terrorism law in line with international rights obligations – UN Experts’, UN News, 27 September 2017 <https://news.un.org/en/story/2017/09/567292-france-must-bri ng-counter-terrorism-law-line-international-rights-obligations>.

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Bundestag Elections, the Resurrection of the Far Right, and Business without Government Michael Tangonan 34

Germany constituents went to polls on 24 September 2017 in the 19th Bundestag elections. The results shocked the world as the far-right Alternative für Deutschland (‘AFD’), which runs on a platform of Euroscepticism, a return to ‘traditional family values’, and climate change denial, rose to prominence.1 In other words, the reversal of der Vergangenheitsbewaltigung, where the community comes to terms with the past with remorse and embarrassment for what happened during WWII, may be looming in German politics.

How do elections in Germany work?

The German Bundestag operates on a mixed member proportional system. This means each citizen votes for two things on their ballot: (1) a candidate; and (2) a party.

Similar to New Zealand’s system, a party gains five seats under the party vote but only has three candidates who are directly elected. If successful, the party receives an extra three list seats. But where the same party gets seven candidates elected instead, they receive extra two seats as overhanging seats.

In the Bundestag, where a party receives overhanging seats, the other parties also receive the same amount required to maintain the full proportionality for all parties, also known as balance seats.

However, in order to receive any seats, a party must have gained at least 5% of the national vote. This means that the numbers in the Bundestag are contingent upon how constituents vote.2 Hence there was an increase of 78 extra seats in the current Bundestag, which is now at 709 seats (up from 631 in 2013).

Results

The AFD gained 94 seats as the third largest vote overall behind the parties led by currentGerman Chancellor Angela Merkel; the Christlich Demokratische Union Deutschlands (CDU) on 200, the Christlich-Soziale Union in Bayern (CSU) on 46 seats, and the Sozialdemokratische Partei Deutschlands (SPD) on 153. Most of the losses from the 2013 election were from the major parties, namely the CDU down 55 seats from 255 in 2013, the SPD down 40 seats from 193, and the CSU down 10 seats from 56. The main winners were AFD, which was up from being not represented at all in 2013, the Freie Demokratische Partei (FDP) on 80 seats from not-contested, and the Greens and the Left which gained 4 and 5 seats respectively.3

The return of the not-so-Grand Coalition

The previous government held power through the Grand Coalition between the CDU, CSU ,and SPD. This was previously declared to be impossible by Martin Schultz, leader of the SPD, who is now only limited to constituencies in cities and Bavaria. Both the Left and the AFD have ruled out any coalitions with Merkel, with all other parties stating they will not work with the AFD in turn. This led to Merkel announcing negotiations with the FDP and the Greens in a new ‘Jamaica Coalition’ in September 2017.4

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However sixth months later, there have been no successful negotiations between the FDP, Greens, CDU, or CSU. The FDP withdrew from negotiations after what leader Christian Lindner referred to as ‘no basis of trust.’ The Greens on the other hand, were willing to work with CDU or CSU over climate change and agriculture, but considered the FDP as dubious and calculating.5 And so with no prospect of a deal with either the FDP or the Greens, Merkel returned with fresh negotiations with the SPD. This deal is now in favour of considering the poor results it received in the September election. It was approved by the members of the SPD in early March after much uncertainty, leading to Merkel returning with the former ‘Grand Coalition’. But perhaps not so grand, as Merkel no longer commands the majority.6 And yet she seems to be the only candidate to be the leader of the Free World. She is the most experienced, having been the Chancellor of Germany since 2005. Her current tenure is concurrent with the terms of three US Presidents, four British Prime Ministers, six Australian Prime Ministers (including Kevin’s two-time run), and four French Presidents.

This author can only hope that Angela Merkel can navigate Europe through this tumultuous time. With Trump emphatically relinquishing the mantle of the Obama administration, the growing resentment at home, dropping ratings for Macron, and the insular attitude of the British Isles from Brexit; her long experience may just be the light at the end of our tunnel.

[1] If you sprechst die Deutsch, you may find more information at: Alternative für Deutschland, Home – Alternative für Deutschland (2017) <https://www.afd.de/>; Alternatively, they have made their Manifesto available in English: Alternative für Deutschland, Manifesto for Germany (2017) <https://www.afd.de/grundsatzprogramm-englisch/>.

[2] Deutscher Bundestag, German Bundestag – Elections, <https:// www.bundestag.de/en/parliament/elections/elections>.

[3] Ibid.

[4] Andreas Rinke, Reuters, ‘Merkel pushes for three-way ‘Jamaica’ coalition in Germany’, Reuters (online), 07 October 2017 < https:// www.reuters.com/article/us-germany-politics-merkel/merkel-pushes-for-three-way-jamaica-coalition-in-germany-idUSKBN1CC0BZ>.

[5] ‘Germany’s Merkel suffers blow as FDP pulls out of coalition talks’ BBC News (online), (20 November 2017) < http://www.bbc. com/news/world-europe-42047532>.

[6] Melissa Eddy and Katrin Bennhold, ‘Angela Merkel Averts Crisis, Forming Government With S.P.D. Again’, The New York Times (online), (04 March 2018) <https://www.nytimes.com/2018/03/04/world/ europe/germany-spd-merkel.html>

Cyberterrorism and the trouble with our response Margaret cai Itâ&#x20AC;&#x2122;s June in 2015 and the United States of America is pre-occupied.

Caitlyn Jenner is trending, Chinaâ&#x20AC;&#x2122;s stock market is crashing, Donald Trump has just announced his intention to seek the Republican nomination in the US Presidential Race.

Some 15,000 kilometres away in Kuala Lumpur, a 20-year old student hacks into the database of an unnamed American retailer and Filters through tens of thousands of customer details. He settles on the locations, phone numbers and emails of 1351 US military and government personnel. 1 At an instant, this information is sent to ISIL. 36

Grabosky and Stohl declare that ‘few terms in contemporary conventional discourse are used as loosely as cyber and terrorism’.2 Naturally then, a definition is even more difficult to arrest when they are compounded. At its crux cyberterrorism and information warfare immobilises computer systems with the purpose of debilitating existing infrastructures.3 Its effect is both unpredictable and profound, causing governments to negotiate the delicate balance between maintaining security mechanisms against personal liberties.

terrorism in Australia as championed by the s 100.1(3) of the Criminal Code Act.12 The broad nature of this earlier outlined definition means that incidences such as digital protesting are at risk of being categorised as cyberterrorism.

While Malcolm Turnbull aptly observed that ‘the cyber sphere demands reactions as rapid as the kinetic battlefield’,13 Australia’s commitments to cybersecurity appear rhetorical. In 2016, American policy afforded $19billion of ‘emergency spend’ into enhancing cybersecurity in the civil sector, equating to 400 times the annualised, Australian spend.14 It is thus unsurprising that internationally, and in light of discourse surrounding terrorism, the notion of ‘liberty’ is situated in a pejorative dialogue where its forfeiture is justified and absolute. This again, occurs as a compelling juxtaposition from earlier Australian readings of terror threats, best epitomised by the conception of the Commonwealth’s Cybercrime Bill.15 In his second reading speech, the Attorney-General notably tied cybercrime in with its economic costs to companies worldwide – positioning it as a corporate and financial imperative rather than an issue of national security.16 An examination of the current Australian approach towards cyberterrorism will suggest that the legal position is both stagnant and imperfect, despite its wider-global, political context.

In Australia, cyberterrorism can be captured by the Criminal Code Act 1995 insofar as it assumes an action or threat of action underpinned by an objective of advancing a political, religious or ideological cause.4 This must further be accompanied by the intention to intimidate the government or public.5 The Criminal Code Amendment (Terrorism) Act 2003 then reified the legislature’s position in the digital landscape by expressly providing that terrorist activities encompass that which seriously interferes with, disrupts or destroys an electronic system.6 On a broader level, the legal responses to deal with terror threats largely subscribe to one of two categories - regulation and amelioration.7 While regulation refers to the prevention, enquiry and punitive reactions to terrorist activities, the latter plays a moderating role in relieving the social burdens of implemented counter-measures. This position is coloured by perspectives of human rights and the rule of law, as well as ideas concerning public resourcing.8 The result is the subversion of a utilitarian approach to terrorism; it deviates from a calculus where the rights and interests of individuals are compromised to suit the preservation of social institutions and comforts.9 An example of the difficulty in negotiating the two is ‘Operation Titstorm’, a cyberattack perpetuated by online hacktivist group Anonymous on the Parliament House website.10 This involved the distribution of pornographic material to parliamentary email addresses in response to government proposals to ban select pornographic content from being accessed.11 Here, Hardy exposes the low threshold for prosecuting electronic

[1] US Attorney’s Office Eastern District of Virginia, Ferizi Sentencing Memo (16 September 2016) United States Department of Justice <https://www.justice.gov/opa/file/896326/ download>.

[2] Peter Grabosky and Michael Stohl, ‘Cyberterrorism’ (2003) 8 (82) Australian Law Reform Commission Reform Journal 8.

[3] Cheri Ganeles, ‘Technological Advancements and the Evolution of Terrorism’ (2002) 8 ILSA Journal of International and Comparative Law 617, 632.

[4] Criminal Code Act 1995 (Cth) s 100.1(3).

[5] Criminal Code Act 1995 (Cth) s 100.1(3).

[6] Criminal Code Amendment (Terrorism) Act 2003 (Cth).

[7] Andrew Byrnes, Fresh Perspectives on the

In many ways cyberterrorism assumes the character of a recontextualised, reimagined form of guerrilla warfare. In August 2015, ISIL disseminated the details of 1351 individuals onto Twitter. It contained the following warning: 17 ‘…we have your names and addresses…we are extracting confidential data and passing on your personal information to the soldiers of the khilafah, who soon with the permission of Allah will strike at your necks in your own lands!’

What is clear is that the encroachment of terror activity onto cyberspace presents new challenges for both international and national governments. If Australia continues to take a reactionary back-seat against cyberterrorism through statute and funding, we’ll risk sinking in a kinetic battlefield.

‘War on Territory’ (ANU Press, 1st ed, 2008) 128.

[8] Ibid.

[9] Simon Bronitt, ‘Balancing Security and Liberty: Critical Perspectives on Terrorism Law Reform’ (2008) ANU Press 65, 67.

[10] Keiran Hardey, ‘Operation Titstorm: Hactivism or Cyberterrorism’ (2010) 33(2) UNSW Law Journal 474.

[11] Ibid.

[12] Ibid, 489.

[13] Lenore Taylor, ‘Iraq needs to mock Isis propaganda more effectively, says MalcolmTurnbull’, The Guardian (online), 19 January 2016 <https:// www.theguardian.com/australia-news/2016/ jan/19/iraq-needs-to-mock-isis-propagandamore-effectively-says-malcolm-turnbull>.

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[14] Greg Austin and Jill Slay, ‘Australia’s Response to Advanced Technology Threats: An Agenda for the Next Government’ (ACCS Discussion Paper No. 3, Australian Centre for Cyber Security, May 2016) 4.

[15] Peter Tsipas, A Legal Response to Cyber Terrorism (November 2005) <http://petertsipas.com/blog/wp-content/uploads/2013/08 CyberTerrorismESSAY.pdf>.

[16] Commonwealth, Parliamentary Debates, Senate, 27 June 2011 (Darryl Robert Williams).

[17] US Attorney’s Office Eastern District of Virginia, ISIL-Linked Hacker Sentenced to 20 Years in Prison (23 September 2016) United States Department of Justice <https://www. justice.gov/usao-edva/pr/isil-linked-hacker-sentenced-20-years-prison>.

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10 Words or Less Increasing Counter-Terrorist Laws implemented by the Australian Government are widely considered to inadvertently undermine their mission in making us feel safer by threatening us with greater persecution. With this in mind, we asked our fellow law students this question:

‘How can the Australian Government best protect their people whilst guaranteeing their rights?’

Michael Tangonan – ‘Resign (and/or put more competent people for pre-selection).’

Cat Kim – ‘Stop criminalising people who wear hijabs and protect ALL Australians.’

Wai Soon – 1. Uphold the law 2. Protect the innocent 3. Serve the Public Trust.

Liam McCloskey – ‘Punish stupidity instead of bubble wrapping everything for stupid people.’

Patrick Semaan – ‘Liberty, equality, fraternity, or adieu.’

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The Full Bench 2018

Edition One - Fear Itself

The Full Bench

Like ‘The Full Bench’ on Facebook for all things TFB related . For those interested in contributing, triannual callouts are made to members via social media, email, and our weekly newspaper, ‘The Buzz’”. For more information on how to contribute , or for any other queries, please contact the 2018 Publications Director, Tom Brennan at publications@utslss.com.

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