Law Society Wants Changes to Australia’s Terrorism Laws

Lawyers want to see greater clarity around definitions of crimes, and possibly the dropping of the category of preparatory offences.

A statue of Themis, the Greek God of Justice stands outside the Supreme Court in Brisbane, Australia. Dave Hunt/AAP Image

The Australian Law Society has recommended wide-ranging changes to the National Security Legislation Amendment (Espionage and Foreign Interference) (EFI Act), including potentially removing the category of preparatory offences. The suggestion is part of its submission to the National Security Legislation Monitor (INSLM).

While acknowledging the need to ensure that Australia’s laws are sufficiently robust to guard against the undermining of the country’s sovereignty and system of government by foreign adversaries, it says it continues to have concerns that “offence provisions should not be so broadly drafted that they inadvertently capture a wide range of benign conduct.”

That’s particularly the case with “preparatory offences,” which have been justified on the basis that they allow law enforcement to intervene before a more serious offence is committed.

But this has the potential to capture a wide range of benign—or at least, not otherwise illegal—activities, the Commission says.

It compares the EFI Act with the Commonwealth Criminal Code, which says that “for the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence.”

There are already provisions in the Code covering incitement, conspiracy and attempting to commit a crime, and the Law Council believes these are sufficient to deal with “preparatory conduct which has indicated a real intention to carry out the act.”

Preparation and planning offences introduced by the EFI Act carry significant maximum penalties, ranging from seven to 15 years imprisonment, placing people at risk of having “otherwise innocent behaviour” criminalised, and significant jail terms. The Council says these offences introduce “an element of arbitrariness and unpredictability into the criminal law that is undesirable.”

Either the nature of the offences needs to be more tightly defined, or the provisions need to be repealed, the Society says. For instance, limiting or preventing access to public infrastructure, currently considered sabotage, should exclude industrial disputes and legitimate protest action.

It also raised concerns that the legislation was not developed through “a careful public policy process involving ... draft bills and the involvement of civil society actors” but instead, invest agencies with the power to “impose significant criminal penalties and with serious implications for the Australian public.”

It also notes that “some of the most serious offences in the criminal law were substantially revised on the basis of classified reports into espionage and foreign interference,” limiting the ability to provide relevant comment.

‘National Security’ Should be Redefined

It’s not just the definition of preparatory offending that concerns the Council. The broad definition of what constitutes national security is also a risk to the innocent.

Espionage offences should not rely merely on information being classified, but instead should have a legislated test that information, if leaked, would be reasonably likely to cause serious harm to, or prejudice, Australia’s national security, the Society recommends.

At a minimum, consideration should be given to amending the definition of “national security” to refer to diplomatic rather than political relations, and the inclusion of economic relations in the definition “should be reconsidered entirely,” the Society argues.

And the inclusion of “public international organisations” in the definition of “foreign principal” should require a degree of direction or control by a foreign government or governments, so as to avoid capturing work for benign non-government organisations such as aid charities or lobby groups.