How much of your personal freedom are you prepared to give up to feel safer from a terrorist attack? If our government becomes more authoritarian, is that a victory for the terrorists? These are not theoretical questions. Queenslanders are confronted by them right now as new laws are debated in our Parliament.[1] “Give me liberty, or give me death!” is a famous line from American history[2]. The spirit of the people in Queensland today may be rather less sure.

In any discussion of new laws, the rhetoric usually conceals the detail. This time, let us look behind the claims and slogans of the politicians. Let’s take a look under the bonnet, to see what these new “counter-terror” laws actually do.

A couple of days ago on the other side of the world a jury returned a verdict of not guilty. The man who walked free from court was a police officer. He shot and killed a black man during a routine traffic stop. Video of the aftermath of the killing was broadcast live on Facebook, and later shown on televisions around the world. Feelings ran high after the verdict. Protestors took to the streets, venting their frustrations at a justice system which seemed, to them at least, to allow police officers to kill black people with impunity.[3] The protests blocked the streets.

Now you wouldn’t call these protestors terrorists, or would you? The law in Queensland might.

An “emergency situation” includes “any other accident or incident; that… may cause a danger of… injury or distress to any person.”[4] When the traffic is blocked by protestors the ambulances cannot get through, so there may be a danger of injury. Parents may not be able to collect their children from school and that would be distressing, so there is a danger of distress.

So a protest might be an “emergency situation”, but why would it be terrorism? Well, a “terrorist act” is defined[5] in the law to include actions which:

a)      create a serious risk to the health or safety of the public (like, say, blocking the ambulances);

b)     are done with the intention of advancing a political cause (like, say, the “Black Lives Matter” movement); and,

c)      are done with the intention of intimidating a section of the public (like, say, motorists on a major arterial road).

It might surprise you that this protest might legally be a terrorist act.[6] That’s the point. The devil of new laws is always in the definitions. When you hear that the law is about “terrorists”, remember that although you have a clear idea in your own mind of who you think a terrorist is, your ideas are beside the point. What you think it means is completely irrelevant when you or your family are arrested. What matters is how the law defines the word. The definition decides who will be affected by the new law.

What could happen? Well, if police officers are satisfied that an “emergency situation” is likely to arise and may lead to a “terrorist act”[7] and that emergency powers are “necessary” then they can declare that a “terrorist emergency” exists.[8] That triggers some extraordinary powers including:

  1. compulsory evacuation of everyone in the area to a particular place;[9]
  2. to stop, detain and search anyone or everyone in the area without a warrant or suspicion;[10]
  3. to make no records of the search;[11]
  4. to demand the name, address, date of birth and identification documents of anyone in the area;[12] and,
  5. to stop, detain and search any vehicle in the area without a warrant or suspicion.[13]

Those laws are already in place. The proposed new laws would:

  1. allow the police to demand the passwords to access on-line accounts, computers and phones from everyone in the area, without a warrant or even a suspicion;[14]
  2. take fingerprints from anyone in the area,[15] and,
  3. allow lower ranked officers (Senior Sergeants) to declare emergency situations.[16]

The law would also allow the police to obtain an order to arrest the organisers of the protest before it happened, and to lock them up for 14 days without charge.[17] The detention can be secret. That is, the person locked up may be prevented from contacting their family or friends to let them know that they are detained.[18]

Under the present rules, this power to lock up someone before they have done anything can only be used if a terrorist act is “imminent and, in any event,… expected to occur at some time in the next 14 days.”[19] The proposed new law will do away with the need for an imminent threat. It will be enough if the threat “could occur” within the next 14 days.[20]

One interesting feature of the government’s argument for some of the new laws is this complaint: there is “significant inconsistency” between the powers of police in an ordinary emergency and a terrorist emergency.[21] The argument is an example of a common and slippery slope. Police are given extraordinary powers to deal with “terrorists”, and then people get used to the idea of the police having those powers, so the pressure builds for those powers to be used routinely against ordinary criminals and law abiding citizens.

At some point will we decide, to use the words of Mrs Theresa May, that “enough is enough”; that there are some rights and liberties we will not give up in the face of fear and intimidation?

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Ken Mackenzie is an accredited specialist in criminal law

 

[1] Counter Terrorism and Other Legislation Amendment Bill 2017

[2] https://en.wikipedia.org/wiki/Give_me_liberty,_or_give_me_death!

[3] http://blog.simplejustice.us/2017/06/19/yanez-acquitted-and-nothing-is-learned/

[4] Section 4, Schedule definition “emergency situation” in Public Safety Preservation Act 1986

[5] Section 4, Schedule definition “terrorist act” in Public Safety Preservation Act 1986 adopts the definition in section 211 of the Police Powers and Responsibilities Act 2000.

[6] There is an exemption in the definition for protests, but it depends on the absence of an intention to “endanger the life of a person, other than a person taking the action”. A police officer only need believe the absence of the intention to exercise the emergency powers.

[7] Section 8A Public Safety Preservation Act 1986

[8] Section 8G Public Safety Preservation Act 1986

[9] Section 8GA Public Safety Preservation Act 1986

[10] Section 8N Public Safety Preservation Act 1986

[11] Section 8N(4) Public Safety Preservation Act 1986

[12] Section 8O Public Safety Preservation Act 1986

[13] Section 8P Public Safety Preservation Act 1986

[14] Clause 35 ( proposed s.8AZE) Counter Terrorism and Other Legislation Amendment Bill 2017. The Explanatory Notes suggest that this power would include passwords and access to on-line accounts, and that may well be right although the wording of the Bill is less clear. “Stored” on a storage device will mean including “accessible through the device” but the power is limited in proposed s.8AZE to when “information stored on the storage device is accessible, or can be read, only by using access information”. This is different to s.154 of the PPRA which is in part limited to information “accessible only by using the storage device”. That is, the words limiting access to the device itself are not included in the PSPA. It may be that this power allows the police to demand passwords and access by internet to any on-line account.

[15] Clause 35 ( proposed s.8AZD(4)) Counter Terrorism and Other Legislation Amendment Bill 2017

[16] Clause 42 definition “senior officer” Counter Terrorism and Other Legislation Amendment Bill 2017

[17] Section 8 Terrorism (Preventive Detention) Act 2005

[18] Section 55 Terrorism (Preventive Detention) Act 2005

[19] Section 8(4) Terrorism (Preventive Detention) Act 2005

[20] Clause 45 Counter Terrorism and Other Legislation Amendment Bill 2017

[21] Page 3, paragraph 3 Explanatory Memoranda

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