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Panpa Bulletin : May 2006
54 | PaNPa bULLETIN May 2006 MEDIa LaW MattheW laMB In last month's column, I de- scribed the sedition offences introducedbyAustralia'sAnti- Terrorism Act 2005. This month I will take a look at other areas of concern to publishers and jour- nalists that result from the legisla- tion -- detention orders, disclosure offences and powers to obtain documents. Detention Orders The risk of journalist deten- tion is not a new development. Amendments to The Australian Security Intelligence Organisa- tion ("ASIO") Act in 2003 (Divi- sion 3 of Part III -- Special Powers relating to terrorism offences) include questioning and deten- tion powers that could extend to persons other than suspected terrorists. A warrant must first be issued by the Director-General of Secu- rity and Ministerial consent ob- tained. The Minister must be sat- isfied that there are reasonable grounds for believing the warrant will substantially assist collection of important terrorist-related in- telligence and reliance on other methods of collecting the intel- ligence would be ineffective. A detention warrant can be issued where a person is before a prescribed authority for ques- tioning under warrant and there are reasonable grounds that, for example, if the person is not detained, a person involved in a terrorist offence may be alerted to the fact the offence is being investigated. Importantly, a di- rection to detain or further de- tain a person must not result in a person being detained beyond the questioning period described in the questioning warrant and in any event no longer than 168 continuous hours. In contrast, preventative de- tention orders introduced by the Anti-Terror legislation do not re- quire a warrant and there is po- tential for indefinite detention. An order can be obtained where a terrorist act has occurred within 28 days and detention is required to "preserve evidence of, or relating to, the terrorist act". There is no requirement that there be involvement in terrorist activities and journalists could potentially be subjected to an order. Disclosure Offences Reporting restrictions under the Anti-Terror amendments are also of concern. The terror- ist amendments to the ASIO Act already made it an offence (with imprisonment for 5 years) to dis- close certain information relating to warrants or questioning that is not a "permitted disclosure". This information includes the fact a warrant has been issued, the warrant's content, the fact of detention and "operational in- formation". "Operational infor- mation" is broadly defined and includes operational capabilities, methods or plans of ASIO. It is also an offence to disclose, within 2 years of the date a war- rant is no longer in force, opera- tional information held by the discloser directly or indirectly as a result of the issuing of the war- rant, or acts authorised by the warrant, or a direction in con- nection with a warrant. Importantly though, the of- fence does not apply to the ex- tent it would infringe any con- stitutional doctrine of implied freedom to political communica- tion. Under the Anti-Terror amend- ments, it is an offence for a per- son to disclose information al- ready disclosed to that person in contravention of another section prohibiting disclosure. This infor- mation may include, for example, the existence of a preventative detention order, the fact of a per- son's detention under the order or the period for which a person is being detained. It may also in- clude information conveyed by a detained person. It is also an offence for a person to disclose that they have been issued with a notice to produce a document or information to the AFP and the notice contains a term to that effect. The political communication exception is ab- sent from the Anti-Terror disclo- sure offences. The disclosure offences have several disturbing consequences - most obviously the 'gagging' of effective reporting of terrorist ac- tivity and law enforcement. Less obvious is the impact the offenc- es may have on the media's abil- ity to comment on the activities of law enforcement agencies and any abuses that have occurred or are alleged. Powersto obtaindocuments Under the ASIO Act, the Direc- tor-General of Security may seek a warrant requiring a person to produce records or things which are or may be relevant to intel- ligence that is important in rela- tion to a terrorism offence. The Anti-Terror amendments have included powers for an of- ficer of the Australian Federal Police (AFP) to require a person to produce documents based on the suspicion they may assist in the investigation of a terrorist offence. The AFP may also apply for an order requiring a person to produce documents that may help the investigation of a seri- ous non-terrorist offence. Disturbingly for journalists and publishers, a person is not excused from producing a docu- ment in these circumstances where to do so would contra- vene any other law, incriminate the person or expose that per- son to penalty or liability or is privileged or confidential. This could have a major impact on the news-gathering process. The future? Few would argue with the need for tougher anti-terrorist legislation and, by and large, the media has supported anti-terror initiatives. However, the media's role as a key component in the war on terror has arguably been overlooked in the push to ex- pand government and law en- forcement powers. Neither the earlier ASIO Act amendments nor the recent Anti-Terror amendments are, on their face, permanent changes. The ASIO Act amendments have a sunset date of 23 July 2006 (being 3 years after their enact- ment). It is not clear at this stage whether the clauses will be re- tained. The Anti-Terror provi- sions in contrast have a sunset date of 10 years. While media lobbyists will continue to advocate changes in the interests of preserving a free press and democracy, journal- ists and publishers will need to tread carefully. Matthew lamb is the General Counsel, australian associated Press Sedition got all the attention, but other aspects of austrlia’s new anti-terrorism laws are just as concerning, Matthew Lamb writes. anti-terror laws More than just sedition