Before drawing his own conclusions, Peter
Andren spoke to two legal experts about the impact of the proposed changes to the
terrorist laws. Crikey reporter Jane Nethercote asked them to explain what the changes mean:

There’s a not insignificant difference between “the” and “a” according to
Nicholas McNally, Treasurer of the Australian section of the
International Commission of Jurists. And the change from “the” to “a” has been made in one of the key
definitions that determines the ambit of the Criminal Code. In other words, it’s a
“keystone of the legislation.”

He says the change will mean that when trying to activate the
powers, bodies like ASIO
will no longer need to be specific about the actual threat involved. And the change has been made despite the fact that “the”
is already quite generous – for example, authorities might only know that a
terrorist act is due to occur in the next seven days and it will still be specific
enough to be captured by “the.”

We needed more time to discuss the ramifications of the change, says
McNally, especially given that it was made to what were already
wide-ranging powers. Not to mention the fact that they can be applied to
people who have information without knowing it. For example, the
detention powers can be applied to the workmate of someone who’s planning
a terrorist act because they may have inadvertently overheard something in the
lunch room.

Brian Walters SC, President of Liberty Victoria has a different take, although he agrees with McNally
on the need for a more considered, less hasty response: “My view is that
this legislation can’t be justified as urgent.” Why not? Because it
doesn’t make a substantial change, says Walters. “The operative
provisions already use
the word ‘a’ not ‘the’ – only the qualifications use the word ‘the.'”
At most, he tells Crikey, it’s an “abundance of caution,” especially
given that the
security people seem to have been seeking the change for 18 months

If people agree to commit a crime, it’s already a conspiracy. If
take any step to carry it out, they’re guilty of an attempt. So the
authorities must be anticipating something pretty “remote from concrete
if the existing criminal provisions don’t already outlaw it.” Rushing
this legislation through is all part of the “politics of fear that
sparked the Tampa response,” says Walters.
Parliamentarians who haven’t been briefed privately shouldn’t take this
government on trust.