The former watchdog of Australia’s national security laws says he is seriously concerned about plans to make it illegal to travel to certain areas without a valid reason.
The Federal Government unveiled the proposal on Tuesday as part of a range of new counter-terrorism measures, which also include compelling telephone and internet companies to keep metadata – information on customers’ calls and internet use – for security agencies to access.
The laws to crack down on home-grown terrorism will come before Parliament when it resumes later this month.
The Terrorism Foreign Fighter Bill will make it an offence to travel to certain locations the Government deems to be of “terrorist activity” unless the person can prove it was for humanitarian or family reasons.
The Government will also seek to broaden the laws to cover the prohibition of ‘terrorism’, rather than an individual act of terrorism, and make it an offence to promote or encourage terrorism.
The criteria for authorities to be granted control orders and search warrants will also be loosened.
Bret Walker SC – prominent barrister, past president of the NSW Bar Association and of the Law Council of Australia, and until April this year Australia’s first independent National Security Legislation Monitor – says a person could be convicted for simply going to a place without having committed a crime.
“I’m concerned on the basis of these early announcements, without any detail, that’s not a criticism but it means that we don’t know what the laws will be,” he told Lateline.
“I’m very concerned that we will end up or could end up with something being an offence constituted by simply having gone to a place where terrorism is in train.
“Somewhere as large as Syria or Iraq, both big territories, with many innocent people doing many innocent things, and many innocent people doing many wonderful things – humanitarian assistance.
“An offence of going to such a place because you have failed to satisfy someone, presumably a judge, on presumably the balance of probabilities, that you were there for what I will call a good purpose, or at least not a bad purpose.
“If that’s an offence it has to be made quite clear it won’t mean that they’ve shown that you’ve done anything wrong at all except go to that place.
“How much imprisonment, if any, should a person suffer for going to a place of that kind?
“So I think there are some big questions about how you frame such a law and there are certainly some large questions as to whether they really would be very useful at all.”
Data retention laws also in the spotlight
But Mr Walker has backed the Government’s contentious proposal to force telecommunications companies to hold onto customers’ phone and internet records, or metadata, for a set period of time.
Prime Minister Tony Abbott has sought to allay concerns about the impact of new security laws on privacy after initially saying authorities would be able to see what internet sites people were viewing.
The Prime Minister’s office later clarified that web-browsing history is considered content, not metadata, and authorities need a warrant to access it.
“All we want is for the telecommunications companies to continue to keep the person sending the information, the person to whom the information is being sent, the time it was sent and the place it was sent from,” he said.
Mr Walker says “surveillance is by far the most useful preventative means we have in dealing with advance with terrorist plots”.
But he warns that public suspicion and distrust of authorities may increase unless the Government requires warrants to access stored metadata.
“It seems to me a warrant is a traditional way by which we say drastic powers ought to be exercised so as to breach what would otherwise be ordinary personal privacy only when somebody outside the agency, usually a judge or a magistrate, is satisfied that sufficient cause is shown to justify that reversal of what we expect,” he told Lateline.
“And if we don’t have a warrant system, we don’t have that independent umpire to check in the usual way of warrants, making a very formal record, which can be produced later in a court if there’s litigation about it.
“If we don’t have that, I fear that there will be an understandable suspicion, hostility, about the operation of agencies which I stress, we need to be doing a good job.”
Metadata would include the basic information about a phone call, such as the caller’s location and the number they call. It does not include the content of the telephone conversation.
Federal Cabinet has given “in-principle” approval for new laws to require companies to keep the information for a certain amount of time, but the detail is unlikely to be known until the legislation is finalised later this year.
Many companies currently keep metadata, but it is understood the federal laws will mandate the information be retained longer.
Telcos have resisted the proposed security law changes, with Australia’s second-biggest broadband provider, iiNet, saying a data retention system would cost it alone around $100 million.