CASE - R v Skaf -- by Michael Atteya

CASE - R v Skaf

FACTS -

1)    Accused – Bilal Skaf

2)    Victim/s – Four young females

3)    Details of Offence/s – 3 in total occurring on different dates:-

(a)  Offences at Northcote Park Greenacre on 10 August 2000.

Two females aged 17 and 18 accepted a lift from Chatswood, lured by the offer of marijuana. They were taken to Northcote Park, Greenacre, where they were forced to perform oral sex on eight males.

(b)  Offences at Gosling Park Greenacre on 12 August 2000.

Another victim was raped at gunpoint by two males at Gosling Park, Greenacre, having been lured there by one of the rapists, who was an acquaintance. She escaped before she could be raped by another twelve males waiting their turn.

(c)  Offences at Bankstown and Chullora on 30 August 2000.

A woman, named C at the trial (she later revealed her identity on the 60 Minutes television program) was lured from a train at Bankstown by the promise of marijuana. She was then raped at three separate locations by 14 males over a period of six hours. As a final humiliation they hosed her down with water. Racist comments were also made to her.

JUDGMENT OF: Studdert J Bell J Latham J

JURISDICTION (APPELLANT): New South Wales Court of Criminal Appeal

LOWER COURT JURISDICTION (ORIGINAL): District Court

LOWER COURT FILE NUMBER(S): 01/11/0750, 01/11/1188

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

COUNSEL:

R. Cogswell SC/D. Arnott (Crown)

J. Stratton SC (Applicant)

SOLICITORS:

S. Kavanagh (Crown)

S.E. O'Connor (Applicant)

grounds of appeal that were established: from the judgement date on the 16/09/2005

1. His Honour erred in imposing the maximum available statutory sentence in circumstances that did not constitute the worst class of case.

3. The disparity between the sentences imposed on the applicant and those imposed on his alleged co-offenders is such as to leave the applicant with a legitimate sense of grievance.

5. His Honour erred in not taking into account the fact that the applicant pleaded guilty to the two counts of attempt pervert the course of justice.

6. His Honour erred in not correctly applying the principles in Veen v The Queen (No. 2) (1987).

8. His Honour erred in finding the applicant had attempted to anally penetrate the complainant Miss C as the jury could not agree whether or not he was guilty of anally sexually assaulting Miss C and the applicant was not charged with or convicted of attempted sexual assault.

10. The sentences were individually and collectively manifestly excessive.”

“Grounds 1, 3, 5, 6, 8 and 10 have been established and the intervention of this Court is warranted. The sentences must be quashed and the applicant must be re-sentenced.”

Timeline of Court Cases and Appeals:

Between 19 November 2001 and 20 December 2001 the applicant stood trial before his Honour Judge Finnane QC and a jury, charged with two counts of detain for advantage, nine counts of aggravated sexual intercourse without consent (in company), and two counts of assault. On 20 December 2001 the applicant was found guilty on all counts.

Between 29 April 2002 and 7 June 2002 there was a second trial, again by judge and jury, in which the applicant stood trial charged with offences of detain for advantage, aggravated indecent assault in company, aggravated act of indecency in company, three counts of aggravated sexual intercourse without consent (in company) and two counts of perverting the course of justice. The jury disagreed in relation to one of the aggravated sexual intercourse counts, but the applicant was found guilty on all the remaining counts.

On 15 August 2002 and 10 October 2002, the judge sentenced the applicant in relation to all offences for which he had been found guilty. He was also sentenced in relation to two counts on an indictment from an unrelated trial. However, the convictions and sentences for these two counts were subsequently quashed by the Court of Criminal Appeal. The Court of Criminal Appeal adjusted the commencement dates of the sentences for the offences that were the subject of the second trial.

OUTCOME:

Sentence/s – Was sentenced to 55 years in gaol with 40 years non-parole in 2002. Sentence was then reduced in 2004 Court of Criminal Appeal to 46 years and then again in 2006 to 28 years and a parole period of 22 years.

COMMENTS:

"People talk about rape as a sexual crime, but in reality it's a crime of domination and contempt," "No human being should be treated in this terrible fashion, no-one."

Judge Michael Finnane

"Without minimising the gravity of the offences committed on 10 August, 2000, they cannot individually or collectively be regarded as in the worst case category of aggravated sexual assault ... ," Justices Timothy Studdert, Virginia Bell and Megan Latham said in their judgment.

LEGAL ISSUES RAISED:

1.    Jury Misconduct - Two jurors who disobeyed the judge’s directions caused the gang rape convictions of Bilal Skaf and his brother Mohammed Skaf to be overturned, and a retrial was ordered. The jurors in question miscarried the trial by conducting their own experiment at the crime scene while deliberations were taking place.

As identity was an issue in the trial, the judges found the experiment was a miscarriage of justice, saying that "in our view there must, regrettably, be a new trial because of this ground”. Because the judges decided that a retrial was appropriate in this situation, it showed not only that the judgement was fair, but was also free from bias to any side. This demonstrated the effective operation of the justice system.

·         Glanville Williams once commented on the significance of “reforms” that flow from sex cases, which have attracted the prurient interest of the press and general public. “These are notoriously the occasions on which the law tends to be bent to give expression to feelings of moral outrage” (Glanville Williams Criminal Law 3rd Edition p.182). When Bilal Skaf’s conviction was set aside by the Court of Criminal Appeal (R v Skaf [2004] NSWCCA) the court called for change to penalise recalcitrant jurors, which was approved. However, no real consideration was given to how effective the penalty provisions might be. The legal system has no idea whether the deterrent effect of penalties will prevent independent research, or merely make it harder to discover when it has occurred.
During the course of this trial, the question was raised: “Do we really need to punish members of the public who take their role as jurors too seriously?” There is a need to discourage independent research outside the evidence at trial. However, was the fact that one high profile trial had to be re-heard, sufficient justification for new criminal sanctions against jurors?

2.    Led to the passing of the Crimes Sexual Assault in Company Act - the public uproar caused by the gang rapes led to the passage of new legislation through the Parliament of New South Wales, dramatically increasing the sentences for gang rapists by creating a new category of crime known as Aggravated Sexual Assault In Company.

3.    Cross-examination of Witnesses By the Accused - During the course of one of the trials, the defendants refused counsel, claiming that all lawyers were against Muslims. Bilal and his brother insisted on a Muslim representative from Legal Aid, failing which, could have led to the contentious prospect of the defendants being able to cross examine the witnesses themselves. The situation was averted by further legislation being put through the New South Wales parliament.

·         Section 294 A Criminal Procedure Act 1986 -commenced 3.9.2003 (was not passed for R v Skaf case directly but was another case with similar issues at the time, therefore enhancing the need for the legislation)
The statutory limitation on the cross-examination of complainants by an unrepresented accused in sexual assault trials was confirmed by the Court of Criminal Appeal in R v MSK & MAK [2004] NSWCCA 308. Special Leave to appeal to the High Court was refused on 4 February 2005.

4.    Original sentence (55 years) was greater than some murder sentences – sentence was reduced as it was not the ‘worst category’. Public members asked why the legal system did not increase the murder sentencing rather than decreasing the rape sentencing.

5.    Victim impact statements – As the first trial was classified as a mistrial due to jury misconduct, a new trial was needed. However, the second trial would be traumatic for the victims, as they would have to face their attacker again. For that reason, the use of a victim impact statement was necessary, but questions were raised as to whether a court transcript would be as effective in trying to create emotions that were felt during the original trial.

·         Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2004 No 3- commenced 31.7.2004
The amendment to the Crimes (Sentencing Procedure) Act 1999 expands the category of offences in respect of which a Local Court may receive and consider victim impact statements to include some Table 1 offences (Table 1 of Schedule 1 to the Criminal Procedure Act 1986). Table 1 offences are indictable offences, which are dealt with summarily unless prosecutor or accused elects otherwise and which result in actual physical bodily harm to any person, or involve an act of actual or threatened violence or an act of sexual assault.

6.      Sperm Freezing for Serious Offenders - Another member of the gang rape had his sperm frozen at no expense so he could have a family after being released from goal (he was diagnosed with cancer and the treatment would leave him sterile). Mr Iemma was quoted as saying "I find the notion of serious criminal offenders being afforded this type of privilege totally repugnant and it will be stopped immediately." The commercial rate is about $250 a year and would now be set and the rapist be told to pay up.  NSW Premier Morris Iemma also said the Government would ban the collection and storage of the sperm of serious criminals.

7.     Cost Effective – the case was lengthy and the use of legal aid is costly to tax payers. By ordering a retrial more time and money where used, community members saw it as a waste of government funds

 Reasons for Punishing:

1.     When the case arose it was during the 2000 Olympic Games, some members of society felt that the government and legal system enforced a large sentence in order to show that Australia was a safe place to visit.

2.     The original sentence reflected the thoughts and ideas of the community towards gang rapists at the time of the court hearing. Community standards were upheld by Justice Finnane DCJ. At the time of the sentencing, society was strongly against gang rapes as there was considerably more media coverage of gang rapes than in previous times. When Justice Finnane sentenced Bilal Skaf to 55 years imprisonment he was upholding not only the facts of the case but the thoughts and feelings of the community towards the case. Community members see gang rape as a malicious and violent crime which affects the victim for the remainder of their life. As such, sentences should affect the criminal for the remainder of their life.

3.     The law system may have originally wanted to make an example out of the case to deter future criminals by imposing an excessive sentence. Therefore the question of whether the sentence was only excessive because the government wanted an example was raised?

4.     The excessive sentence heighteed tensions between Muslim and non-Muslim Australians and was seen by the Muslim community in Australia as racist. This may have been one of the reasons the sentence was reduced.

Justice Achieved:

1.    It was reported in the media that in July 2003 pictures were obtained from Skaf’s cell depicting pictures of women being sexually assaulted (including his ex-fiance) and that he also had not been showing any remorse for his actions. This raises issue of whether Bilal Skaf’s sentence should have been reduced, how can a man who shows no remorse and obviously has no respect for women be allowed back into the community in less than 25 years? In this aspect justice has not been achieved for women.

2.    Many believe that by reducing the sentence of Bilal Skaf shows that the legal system is weak and feel that although some murder sentences were less, why did the law not increase the murder penalty rather than decrease the gang rape penalty? In reducing the sentence it shows the law is inconsistent and that now, a criminal who should be in jail for life will walk out of jail, knowing that it is possible to escape the law. Again justice has not been achieved for the community as a whole as an obvious criminal will be allowed back into the community without serving what society sees as an appropriate sentence.

3.    The reduction of the sentence has deterred other victims of sexual assault from reporting the incident as the legal process for the R v Skaff case was lengthy and emtionally traumatic. Therefore by reducing the sentence victims may see it as a waste of time and emtions. In this aspect justice has not been achieved for other victims of sexual assault

4.    The fact that there was a jury misconduct and that there was a retrial displays the justice given to the accused. This aspect shows the fairness of an unbiased case or ‘natural justice’.

Quote from Sydney Morning Herald Article - ``How many times do women have to be constantly let down and disappointed by the legal system?'' Women's Health NSW executive officer, Denele Crozier, said.

The "extreme'' reduction in Skaf's sentence would confuse the community about the way rapists are dealt with by the law, she said.
"What message are we giving to other women to encourage them to come forward to find some measure of justice?'' she said.
"It's just shocking and we are outraged.''

Speech

Good Morning Mrs Bourke and fellow class mates

This morning I am here to talk to you about a disturbing and horrific case R v Skaf. Bilal Skaf was a young man who sexually assaulted and raped teenage girls. Since the day Bilal Skaf was charged he has shown no remorse for his actions what so ever. I will ask you now before I give you the details of this case, do you think this is fair?

On the 10 August 2000 two females aged 17 and 18 accepted a lift from Chatswood, lured by the offer of marijuana. They were taken to Northcote Park, Greenacre, where they were forced to perform oral sex on eight males.

On the 12 August 2000 another victim was raped at gunpoint by two males at Gosling Park, Greenacre, having been lured there by one of the rapists, who was an acquaintance. She escaped before she could be raped by another twelve males waiting their turn.

On the 30 August 2000.a woman, named C at the trial was lured from a train at Bankstown by the promise of marijuana. She was then raped at three separate locations by 14 males over a period of six hours. As a final humiliation they hosed her down with water. Racist comments were also made to her.

The perpetrators of these gang rapes referred to in this case were small groups of young males of Lebanese Muslim background, while the victims were females of European descent. The perpetrators were alleged to have made racist comments against their victims in the course of the offences, leading some to categorise them as hate crimes.

 During the trial the text messages of one of the Bilal Skaf, were disclosed as containing sentiments such as "When you are feeling down ... bash a Christian or Catholic and lift up".

The ring-leader of these gang rapes was Bilal Skaf . Skaf was sentenced to a record 55 years imprisonment as new legislation was brought in specifically for this offence. This legislation was the Crimes Sexual Assault in Company Act, which dramatically increased the sentences for gang rapists by creating a new category of crime known as Aggravated Sexual Assault In Company.

On September 16, 2005, the New South Wales Court of Criminal Appeal reduced Skaf's 55 year sentence to a maximum of 28 years, with parole available after 22 years. Bilal Skaf will now be eligible for release on February 11, 2023. One of the main reasons behind his reduction of sentence was that two jurors miscarried the trial by conducting their own experiment at the crime scene while deliberations were taking place.  As there was to be a new trial the victims would have to be called back to testify. The victims stated that it would be too emotionally traumatic for them. This led to more legislation being brought in so that Victim Impact Statements could be used in retrials. The question was ‘were they as effective in arousing the emotions of the jurors to give the accused a harsh enough sentence?’

When the case arose it was during the 2000 Olympic Games, some members of society felt that the government and legal system enforced a large sentence in order to show that Australia was a safe place to visit.

The original sentence reflected the thoughts and ideas of the community towards gang rapists at the time of the court hearing. Community standards were upheld by Justice Finnane DCJ. At the time of the sentencing, society was strongly against gang rapes as there was considerably more media coverage of gang rapes than in previous times.

The excessive sentence that Justice Finnane gave heighteed tensions between Muslim and non-Muslim Australians and was seen by the Muslim community in Australia as racist. Some media representatives and members of the community think that this may have been one of the reasons the sentence was reduced.

The problem that arose after the reduction of the sentence was that it deterred other victims of sexual assault from reporting incidents as the legal process for the R v Skaff case was lengthy and emtionally traumatic. Therefore by reducing the sentence victims may see it as a waste of time and emtions. In this aspect justice has not been achieved for other victims of sexual assault.

R v Skaf was a lengthy and costly case to the tax payers. Bilal and his brother Mohammed who was also a member of the gang rapes used the legal aid system. Bilal and his brother insisted on a Muslim representative from Legal Aid, failing which, could have led to the contentious prospect of the defendants being able to cross examine the witnesses themselves. The situation was averted by further legislation being put through the New South Wales parliament.

R v Skaf raised many issues within society and the legal system of New South Wales. This case led to the questioning of whether the legal system is effective for the individual and the community. The issues I have spoken about today are only some of the issues raised in this case. The majority of society feel that they have been let down in this case as the legal system which is there to protect them has appeared to fail. Why is serious sex offender being let off in less than 20 years? Denele Crozier a Women's Health NSW executive officer  asked the question many women had asked after the appeal were established ``How many times do women have to be constantly let down and disappointed by the legal system?''

To leave you today I ask you yet again, do you think this is fair?

Thank you

Father of Rape Victim Statement

http://sheikyermami.com/2007/05/22/father-of-rape-victim-avoid-the-courts-there-is-no-justice-sort-it-out-yourself/

 

Muslim Gang Rapists Demand Muslim Lawyers

Stormfront.org

http://www.stormfront.org/forum/showthread.php?t=77668

LAST UPDATED: 22.06.03

First Accessed 21.06.06

 - gave insight into how certain community members felt towards the case. Was rather obscene but showed how passionate some people were.

Rape victim may not have to give evidence in Skaf retrial

7.30 Report, ABC Broadcasting Corporation

Reporter: Emma Alberici

http://www.abc.net.au/7.30/content/2005/s1297095.htm

LAST UPDATED: 04.02.05

First Accessed 19.05.06

 - good information about importance of victim impact statements

REGINA v BILAL SKAF

AustLII Databases

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2005/297.html

LAST UPDATED: 16/09/2005

First Accessed 05.05.06

- gave details of the case chosen

REGINA v SKAF, GHANEM & HAJEID [2004] NSWCCA 74 (7 April 2004)

AustLII Databases

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2004/74.html

LAST UPDATED: 29/04/2004

First Accessed 05.05.06

- gave the details of the case chosen

Sentence slashed: gang rapes not 'worst category'

Sydney Morning Herald – Fairfax Digital

http://www.smh.com.au/news/national/sentence-slashed-gang-rapes-not-worst-category/2005/09/16/1126750110895.html

LAST UPDATED: 16.09.2005

First Accessed 28.05.06

 - gave insight into the community’s feelings towards the appeal being reduced

Sentencing of Bilal Skaf

Australian Broadcasting Corporation - FOUR CORNERS

http://www.abc.net.au/4corners/stories/s675775.htm

First Accessed 20.05.06

- gave easy to understand, details of the case chosen

Sydney Lebanese-Australian gang rapes

Wikipedia

http://en.wikipedia.org/wiki/Sydney_gang_rapes

LAST UPDATED 13.06.2006

First Accessed 20.06.06

 - had a informative time of events list and background information on the rape case

Rape victim may not have to give evidence in Skaf retrial

7.30 Report, ABC Broadcasting Corporation

Reporter: Emma Alberici

http://www.abc.net.au/7.30/content/2005/s1297095.htm  - good information about importance of victim impact statements

Michael Atteya

Terrorism- Michael Atteya

Terrorism

Brief outline of the issue of terrorism, and why individual countries need to respond

The word terrorism is derived from the French word terrorisme, and has been used frequently since the 9/11 attacks on the WTC. Despite its frequent use, Terrorism is generally used to refer to the committing of criminal acts by organised groups, designed to provoke fear in the general public or a group of people in order to achieve political objectives.  [1]

The key features of terrorism are violence, the use of civilian targets, a political or religious objective, and the group will usually claim responsibility. The largest and most well known terrorist group is Al Qaeda, responsible for the 2001 attacks on New York.

Terrorism has a historical backdrop, but modern weapons allow small terrorist “cells” to do great damage with just a small number of participants.

The most notable examples of modern terrorism were the 9/11 attacks on the world trade centre, the first and second Bali bombings, the 2004 attacks in Madrid and the London train bombings.

These catastrophic events brought modern terrorism to the forefront of western politicians minds, and highlighted the need for individual countries to respond to terrorism through public education and the creating of legislation to deal with terrorists.

Terrorism is fast becoming a global problem, and international bodies do not have the capacity to deal with it. Therefore, the responsibility lies with individual countries to assess appropriate ways of responding whilst considering the unique needs of their people.

Compare and contrast the response of the Australian government and one other country’s government to this issue.

The response of the Australian government to the issue of terrorism is similar in nature to that of the United Kingdom.

Unlike London, Australia has not experienced a terrorist attack within its borders.

Before 2001, Australia had very limited laws in place relating to terrorism. Since then, 26 different pieces of legislation have been put into place, and the government has spent more than 5 billion on counter-terrorism and security.[2]

A key step in Australia’s response to terrorism was The ASIO Legislation Amendment Act 2003, which gave ASIO more questioning and detaining powers. Specific pieces of Border security, aviation and maritime legislation were also created.[3]

The most important piece of legislation relating to terrorism is the Anti-Terrorism Act (No. 2) 2005, which creates mechanisms for the government to list different security organizations, creates preventative detention, modernises sedition laws and allows for control orders.

The UK legislation does allow for control orders, but clear procedural safeguards exist. The person affected by the control order is entitled to a full hearing in which the court hears evidence as to whether reasonable grounds exist and if each specific control orders are necessary.

Many new law and amendments were made in the area of telecommunications,[4] with John Howard stating, “In the difficult fight against the new menace of international terrorism, there is nothing more crucial than timely and accurate intelligence.”[5]

This idea also led to the creation of law that make it easier for law protection Authorities to collect information relating to terrorist attacks.[6]

At the time of the London bombings, The Terrorism act 2000 and the Anti-Terrorism, Crime and Security Act 2001 was already in place to deal with terrorism. The more recent Prevention of Terrorism act 2005 replaces section 4 of this act.[7] The main feature is; like Australia’s most recent anti-terrorism act, that it gives the home secretary power to make control orders on suspected terrorists.

The contrast between UK terrorism laws and Australia’s is the United Kingdom Human rights act. This act ensures that other terrorism laws are evaluated by clear standards that protect individual rights and ensure that a proper balancing process is ensured[8]. This also means that the prevention of terrorism act and any subsequent counter-terrorism legislation is subject to great judicial review and can be declared incompatible with the Human rights Act. Australia has no Bill of rights or equivalent documents.

Another difference is the “preventative detention” that Australia’s legislation holds. ASIO already has the increased powers that the UK ‘detention without charge’ allowed. Therefore the purpose of Australia’s preventative detention is more to lessen the chance of an attack-taking place.

Public advertising campaigns are utilised by both countries. Australia launched the “Alert but not Alarmed” campaign in 2001, and Britain promoted the “That person is you” posters and radio ads.

The http://www.nationalsecurity.gov.au contains similar information to the Terrorism information at the British governments website. http://www.londonprepared.gov.uk/antiterrorism/index.htm. They feature current security warnings, public notices and general information about terrorism laws.

The National security website includes information about the different government departments that play a role in responding to terrorism, including the National counter terrorism committee that was established on the 24^th October 2002.. The role of the NTCT is to “contribute to the security of the Australian community through coordination of a nation-wide cooperative framework to counter terrorism and its consequences.” [9]Representatives from many departments including the Australia federal police, ASIO and EMA meet twice a year.

The response of the Australian and United kingdom governments to terrorism is similar in nature, but does contain some differences in the details of the legislation.

evaluate the effectiveness of Australia’s domestic legal response to the global challenge of terrorism, and analyse the impact of this response on human rights in Australia.

In the past five years, Australia has introduced 26 new pieces of legislation to combat terrorism. The vast majority of these laws are effective in preventing terrorism, but human rights groups and legal experts are concerned that terrorism is being used to justify human rights abuses. This is most especially evident in the Anti-terrorism Act 2005, and the Australian security intelligence organization Amendment (terrorism) Act 2003.

The key piece of Australia’s domestic legal response to the global challenge of terrorism is The Anti Terrorism Act 2005. The laws will help prevent terrorism, but questions have been raised at whether it is worth the negative impact they will have on human rights.

The first concern is found in schedule one, with it now being possible to officially list a terrorist organization. This act broadens the law against being a member of an organization to when the leader of an organization praises a terrorist act; every single person who is a member of that group is a criminal. This makes it easier to identify and prosecute members of terrorist organizations, but this could lead to breaches of the right to freedom of opinion and expression found in article 19 of the Universal Declaration of human rights (UNDHR), and is against the principle of each person being responsible for his own actions and not being punished for a crime that somebody else commits.

The Act makes it a crime to give money to somebody and be reckless about whether that money goes to a terrorist organization. Michael Walton points out that under this law, an Australian donating to an overseas charity could be guilty of this offence if they do not inquire to where the money will end up.  Therefore this law is not effective because it is disproportionate to its aim. This law would be much more effective if it required mens rea.[10]

A control order is a specific restriction imposed by upon a person by a court that restricts where they can go, do or even who they can communicate with. A person does not have to be charged with a crime to have one of these imposed, as long as the court is satisfied that an order would substantially assist in preventing a terrorist attack. John North, President of the law council of Australia said that these laws do not do not respect the separation of powers[11]. He also said that judicial power receives a fair procedure, which does not occur in relation to control orders. These laws threaten freedom of movement, religion and association by restricting the actions of innocent people.

Also included in schedule four is preventative detention. The purpose of this is to hold a person (again, without charging them) that they suspect is planning to engage in an imminent terrorist act for 48 hours. During this time the person is not allowed to tell others where they are, and the police and ASIO cannot question them during this time. Proposed state legislation means that this time period could be extended to two weeks- a huge infringement on freedom from arbitrary detention. This law would be effective with dealing with terrorism as it provides an avenue to detain people suspected of an imminent terrorist attack.

Amendments to sedition laws are also included in the Anti-terrorism act 2005. It seeks to criminalize incitement to violence against religious, racial, or political groups. An article in the human rights defender points out that while prohibiting incitement to violence against religious groups sends a vital normative message to society, presenting as a counter-terrorism law stigmatises group-based violence as terrorism, when is conceptually different. It also states, “collapsing these categories can only reinforce the stereotyping of certain ethnicities or religions as terrorists”. Sedition laws could therefore be classed as ineffective as they are not appropriate for dealing with the issue of terrorism.

The effectiveness of the ASIO legislation act 2003 has been called into question as it is gives ASIO more power but not more resources. The numbers of Australia’s key domestic intelligence agency has been downsized over the past

15 years. From 1988 to 1998, its numbers were slashed by a third from about 800 to 535. [12]

It now has only 587 full-time staff to monitor a country of 20 million gives ASIO the power to detain and interrogate people as young as 16 if it believes they have information on terrorist activities[13]. ASIO is also able to seek warrants to detain people for up to a week and question them in three eight-hour blocks. Amnesty international said “National security was invoked to justify the erosion of human rights safeguards in…laws on anti terrorism measures”

Australia’s domestic legal response is generally effective and it reflects community standards, but its effectiveness would be increased by better resource efficiency. The governments response does not balance the needs of the individual over society, which can be seen by the individual human rights abuses or the lack of safeguards preventing them.

Evaluate the effectiveness of international law in addressing this issue. 500 words.

“Effective international action against terrorism requires a strong cooperation at bilateral, regional and multilateral levels” [14]

Australia is a signatory nation to 11 of the 12 international instruments dealing with terrorism. [15]

International law has proved effective at providing a guideline for Australia’s domestic legal response to terrorism. Most of Australia’s domestic laws were introduced in order to implement international treaties. An example of this is the Crimes (Aviation) act 1991, which implemented three different treaties.[16]

The 2001 Attacks on New York highlighted the need for Australia to sign two treaties. The first of these was the international convention for the suppression of Terrorist bombings (1887), which made it a universal offence to intentionally use explosive devises against a public place with intent to cause death or serious injury or cause major economic loss.  This Convention was implemented under the Criminal code amendment (suppression of Terrorist bombings) Act 2002.

The International convention for the suppression of the financing of terrorism (1999) requires parties to take steps to prevent and counteract all financing of terrorists, and requires states to hold those who finance terrorists accountable. It also provides for the freezing of assets and funds of terrorists.

This treaty was implemented under the suppression of the Financing of terrorism act 2002.

These examples show that international law can be effective in creating a framework for a domestic response, and can regulate policies between different countries on the issue of global terrorism.

For a law to be effective, it must reflect community standards. The key to the effectiveness of international law is that the international community must have similar standards. Success in this area can be demonstrated by the different countries that have signed the various counter-terrorism treaties. The sustaining of positive diplomatic relations between countries is an effective motivation for adhering to a treaty.

The following quote shows why international law can be effective as a counter-terrorism measure:

“The best defense of our Security lies in the spread of our values. But we cannot advance these values except within a framework that recognizes their universality. If it is a global threat, it needs a global response, based on global rules.” [17]

Tony Blair, Prime Minister of the United Kingdom         

Another measure of the effectiveness of an international law is if is resource efficient. The war in Afghanistan (specifically Australia’s involvement) is an example of the effectiveness of coordinated international action.[18] Soldiers of Australia’s special air service regiment assisted soldiers from many different nations in defeat of the Taliban and the strong Al-Qaeda presence. It is much more effective for countries to create allies when fighting terrorism.

It is important that a law effectively balances the rights of society and the individual. The nature of the United Nations is that it concentrates more on the good of society as a whole than individual people. The impact of anti-terrorism laws on human rights is outlined in the previous section of this report.

 The effectiveness of international law in dealing with global terrorism is greatly limited by State sovereignty. Treaties hold no power unless they are incorporated into domestic legislation.

There is an International court of Justice that could make rulings on breaches of these treaties, but participation in the ICJ is strictly voluntary. Even if a country did agree to accept the rulings of the ICJ, the lack of an international police force means that the court has no real power to enforce its rulings.

Michael Atteya

[1] Some information taken from Hot topics: legal issues in plain languages issue 42 2003.”What is terrorism?”

[2] “Terror Australis: The debate to date” by Garth Nettheim in Human rights defender

[3] The Aviation Transport Security Act 2004 ;The Maritime Transport and Offshore Facilities Security Act 2003; The Border Security Legislation Amendment Act 2002

[4] The Surveillance Devices Act 2004; The Telecommunications Interception Legislation Amendment Act 2002;

[5] Quote taken from a transcript of the Prime ministers address to the nation on the 20^th March 2003, at the announcement of Australia’s involvement in the war in Iraq,

[6] The ASIO legislation Amendment act 2003; The ASIO legislation Amendment (terrorism) Act 2003;

[7] facts taken from http://www.mi5.gov.uk/output/Page70.html

[8] Idea taken from Andrew Lynch in the Article “Don’t lie back and think of England: comparisons on the process and substance of counter-terrorism laws” Found in the Human rights defender special edition, Published by the Australian human rights centre: The university of New South Wales.

[9] www.nationalsecurity.gov.au accessed

[10] “The Anti-Terrorism bill (no.2) 2005” by Micheal Walton Found in the Human rights defender special edition, Published by the Australian human rights centre: The university of New South Wales.

[11] Issues in society: Human rights. Volume 227 Editor Dustin Healey.

[12] “What ASIO needs: Better resources, not more power” by Christopher Michaelsen

[13] “Amnesty slams Australia’s human rights record, the age, 26^th may 2004

[14] Advancing the national interest: Australia’s foreign and trade policy white paper

[15] A little information taken from http://www.state.gov/s/ct/rls/rm/2003/23256.htm

[16] Convention on offences and certain other acts committed on board aircraft (Tokyo, 1963); Convention for the suppression of Unlawful seizure of aircraft (The Hauge, 1970; Convention for the suppression of Unlawful acts against the safety of Civil Aviation (Sabotage).

[17] Original source for quote was not found in this brochure for the International criminal law networks conference on Effective counter-terrorism and the rule of international law.

[18] “Advancing the national interest: Australia’s foreign and trade policy white paper” found at http://www.dfat.gov.au/ani/chapter_3.html accessed on the 14th of March at 5:30 pm.

Michael Atteya

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