INTERVIEW - SKY NEWS AM AGENDA WITH ASHLEIGH GILLON

Thursday, 13 August 2009

Subject: Discussion Paper on National Security Legislation

GILLON: The Attorney-General joins me here in the studio. Good morning.

McCLELLAND: Good morning.

GILLON: Robert McClelland, yesterday you released a Discussion Paper proposing some key changes to Australia's anti-terror laws. I just want to go through some of those with you. Firstly, we might see police given new powers to search premises without a warrant, isn't that removing a crucial safeguard?

McCLELLAND: Not to search. In circumstances where they believe, on reasonable grounds, that there's a dangerous substance, a dangerous item, a bomb for instance, they have the power to enter to render safe that substance.

GILLON: So they can essentially break into someone's home though?

McCLELLAND: The precondition is they have to believe that there is an immediate threat to public safety. The safeguard is once they've sealed off the home, made safe the substance, they can't conduct any further criminal investigation. They need to go away and get a warrant.

This is simply a straight-out emergency situation where a police officer believes there is an immediate threat to public safety because they believe there is a dangerous substance, a bomb, a chemical on the premises, to make safe that premises before going away to get the warrant.

It's about protecting public safety, not the criminal law enforcement process.

GILLON: You're also considering expanding the definition of a terrorism act to include psychological harm. It seems like a real grey area, can you give us an example of what exactly that could cover?

McCLELLAND: This essentially arises from the recommendation of the Sheller Report and it basically took the dictionary definition of harm in the Criminal Code, which includes serious mental trauma.

We've said well look, if it applies to general criminal offences that, in causing injury to a person it could cause serious mental trauma, given that is the mode of operation of a terrorist, to cause that in the community, we thought this recommendation was sound.

Most certainly a threat itself could cause, in circumstances where there has been other bombs that have gone off for example, a rush, a stampede, trampling and so forth.

The fact that people witness these horrific acts of violence can itself cause mental trauma which is effectively psychological injury.

So if it applies in the general criminal law, according to Justice Shellar, it should apply in respect to counter-terrorism laws and that's what we're proposing.

GILLON: So just to be clear, it applies to an act or even a threat of an act?

McCLELLAND: Yes. A terrorist offence is a threat to commit a terrorist act. So, the definition of a terrorist act includes a threat to commit a terrorist act.

GILLON: How do you measure psychological harm though?

McCLELLAND: As a lawyer I frequently produced evidence from psychiatrists as to whether someone had a psychological injury or whether psychological injury was foreseeable by particular events. Expert evidence from psychiatrists is certainly admissible in courts and is admitted day in, day out in respect to a range of things.

GILLON: Just to put it in terms that we can all understand. If we can talk about an actual example. Say, the Bali bombing, someone who witnessed that, are you saying that they could then be a victim even if they just saw that, they could have suffered from psychological harm?

McCLELLAND: Quite clearly, post-traumatic shock is a medical phenomena. There is no question about that. In many instances that is unquestionably the case. But there could've been a couple of explosions, the threat could be made in a situation of panic or in respect to another area. It may be made, in fact, to induce people from one area to an area where a bomb is. So, I mean this manipulation, evoking fear and anxiety in the community is the ultimate intention of terrorists.

GILLON: So wouldn't the terrorist though, be convicted anyway for those sorts of measures? Why add on the psychological element?

McCLELLAND: Well, they may or may not but these are matters for the Court.

The definition currently specifies physical harm. By removing the physical harm we then revert to the general definition of harm as both physical and severe mental trauma and the court considers those matters.

It applies in the general criminal law and we think it should equally apply in respect to terrorist offences.

GILLON: You're also looking at making anyone responsible for a terrorism hoax to face a 10 year jail sentence. Why are the existing laws inadequate?

McCLELLAND: The laws in respect to hoaxes sent through the mail are probably adequate, but we're looking at a broader range of activity, including hoaxes communicated electronically, through the phone, internet, SMS and so forth.

GILLON: Has that been covered at the moment or what's the actual difference?

McCLELLAND: No. Save insofar as whether you have enough evidence to establish a threat to commit a terrorism offence. Now, the hoaxer may not have any intent to commit the acts, but the hoax itself, again, can evoke severe trauma in the community to an individual who receives the hoax or is notified. So we think that is an area where there is a need to tighten the laws.

GILLON: Some of the proposals were shaped, in part, by the inquiry into the case of the Indian doctor, Mohamed Haneef. I understand there are some Howard Government laws that you're looking at scaling back. What are the key changes that you're looking at there?

McCLELLAND: There are some safeguards we're imposing. For instance, Dr Haneef was held, I think, for 13 days before charge. We're putting a cap on that, so that the period of suspension of questioning to obtain information is capped at seven days, making a total of eight days that someone can be held without charge.

But even before that, we have pre-conditions that it has to go through a senior police officer, a Magistrate and we're introducing additional oversight of the actions of the Federal Police, including the establishment of a Joint Parliamentary Committee on law enforcement and the Inspector General of Intelligence and Security will also be given the expanded powers to look at the operations of the Federal Police.

There are a number of other areas where there's additional safeguards, additional review and accountability mechanisms. Essentially, our philosophy has been that these laws were introduced necessarily expeditiously in light of September 11, the Bali bombings, the London bombings – indeed, many of the provisions had time limits – we've said, the reality is, these threats are going to be with us for the long term. Let’s recalibrate them so that they are effective, but also acceptable to the general community.

GILLON: So overall, do you think these sorts of changes would make the Rudd Government tougher or softer on terrorism, compared, perhaps, with the former Government?

McCLELLAND: Well, we hope there are people arguing both ways, because our endeavour is to really strike a balance. That is simply what we're about: to balance the need to give effective tools to law enforcement agencies, but at the same time, in so doing, not undermining the fundamental freedoms that are part of our way of life that we cherish.

GILLON: Do you think that Australia's involvement in the war in Afghanistan makes us more of a target for terrorism here?

McCLELLAND: I think the motivators of people who would commit terrorist acts in Australia are numerous. They can be from feelings of persecution, feelings of alienation. They can range from concern about international matters. I mean, the reality is the ongoing conflict in the Middle East concerning the Israeli and Palestinian issues, this for time immemorial has been a motivator of extremism. There are a number of events that are motivators. You really need to look at the individual to see what the motivator is, and that varies.

GILLON: But following that logic, doesn't that mean that because Australia is involved in that war that that could be an extra motivator here in Australia?

McCLELLAND: The reality is, and you see those who promote extremism grab hold of a range of things. Quite clearly, those who promote extremism will refer to those events and they will refer to numerous events. But, quite clearly, on the material, those who would seek to evoke others to engage in acts of violence cling onto a range of things, and there have clearly been references to Australia's involvement in a range of areas around the world.

GILLON: Just finally, after the Melbourne terror raids, there was some discussion about listing the group, Al-Shabaab as a terror organisation. Is that likely to happen?

McCLELLAND: It is not usual to talk about giving consideration to these matters, but clearly we have had discussions with security agencies. Clearly, these have been matters we're looking at, but by tradition, appropriately, I don't go into details about the specifics of consideration or the status of that consideration.

GILLON: When do you expect that we'll know?

McCLELLAND: Well, again, that's part of things that aren't discussed for a variety of reasons.

GILLON: Okay. Attorney-General, Robert McClelland, thanks for your time this morning.

McCLELLAND: That's a pleasure. 

[Ends]