Government Considering Reversing The Onus Of Proof For New Anti Terrorism Laws

Monday 4 August 2014 @ 12.21 p.m. | Crime

The Federal Government is reportedly considering reversing the onus of proof on Australians returning from Iraq or Syria, who would have to prove they were not involved in terrorism, as part of the Government’s second suite of reforms to national security legislation.

Attorney-General Brandis and Prime Minister Tony Abbott have both expressed their concerns about reports of Australians taking part in fighting in the Middle East.  According to the Government, about 160 Australians are thought to have travelled overseas to fight with, or assist, terrorist groups.  Mr Abbott told ABC News that:

“Anyone who has gone overseas to engage in jihadist activity, I think, is a potential danger to the Australian community… So, we are determined to do everything we reasonably can, consistent with our traditional principles of justice and freedom, to keep our community safe and the Government will have more to say on this in the next few days”.

The proposals follow on from the earlier reforms introduced in the National Security Legislation Amendment Bill (No. 1) 2014, which was introduced into the Senate in July, and makes a number of changes to the Australian Security Intelligence Organisation Act 1979 (Cth) and the Intelligence Services Act 2001 (Cth).

The Daily Telegraph has reported that the second swathe suite of reforms will involve “more than 30 changes” to the Criminal Code, the Crimes Act 1914 (Cth) and the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), and that the changes will be taken to Cabinet this week.  Senator Brandis would also like to remove the 10 year sunset provisions on the counterterrorism laws.

Attorney-General Brandis hinted at the dramatic changes earlier in July, saying he wanted legislation that would:

“certify that a particular region or a particular conflict within a region is a region for the purposes of the foreign incursions legislation, so that if it is demonstrated that an Australian has returned from that region, there can be a presumption that they were there for no good purpose.”

According to a report from Radio Australia, Attorney-General Brandis also wants national security laws to be broadened, as currently legislation requires a particular terrorist act to be identified.  He would like that to be broadened to make promotion or incitement of terrorism more general.

The Guardian reported that the outgoing independent national security legislation monitor, Bret Walker SC, warned the Government that “there were deficiencies in the current legal framework regarding terrorist activity by Australian in overseas conflicts”, particularly in “the capacity for prosecutors to actually use evidence gathered from surveillance in a foreign country without the permission from officials of that country”.

However, Labor Party leader Bill Shorten warned that a “balanced approach” should be taken, saying last week that:

“Not everyone who goes to the Middle East is a bad person. I think we have to be very careful in this complex situation about demonising Australians of Middle-Eastern backgrounds.”

The Greens also expressed concern that the proposals may go too far.  Greens Senator Penny Wright said:

“There's no question that Australia needs to be vigilant against terrorism but we must insist on ways to protect Australians from terrorism without overturning the fundamentals of our justice system… Clearly we would need to see the detail of any legislation but as its been described so far, it seems that this legislation could see Red Cross and other humanitarian workers in declared zones having to face court to prove they're not terrorists.”

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

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