University: Constitutional Law 1 - Evaluating the SAFE Act (Australia)

This report provides an evaluation of the SAFE Act (Securing Australia from Extremists Act) within the framework of Australian Constitutional Law. It examines the balance between national security and individual rights, focusing on the Act's compliance with the Australian Constitution and the division of powers between the federal parliament and the states. The report analyzes the powers granted to the minister under the Act, including the declaration of emergencies and the designation of individuals as terrorists, and assesses their potential impact on civil liberties. It also explores the Act's provisions for identity cards and national audits, comparing them to existing legislation such as the Australian Social Security Act 1991. The report highlights the historical context of terrorism in Australia, referencing events like the Sydney Hilton Hotel bombing and the Bowral siege, and discusses the need for specific anti-terrorism legislation. It concludes by acknowledging the potential benefits and risks associated with the SAFE Act, emphasizing the importance of balancing security measures with constitutional principles.

Constitution of Australia
Evaluating the SAFE ACT (Securing Australia from Extremists Act)
1/10/2020
University
Student Credentials

Constitutional Law 1
Constitution of Australia and a brief Idea behind SAFE Act
In accordance with the Federal System, the federal parliament as well as the states does not
have any sovereignty of the parliament. The constitution created the commonwealth
parliament under which it has only a limited set of powers. The powers of every state’s
legislation are inherent while being controlled by the constitution of the state as well as the
powers of the commonwealth1.
As per the context, the supremacy of the parliament basically has two major definitions; out
of which, one discusses about the parliament’s or the legislature’s powers to create or stop the
regulation of a certain law if required; while, the secondary definition talks about whether the
laws made by the said legislation or the parliament can be challenged or not, as when a law is
passed or regulated throughout the country or state in relation with a certain subject, the
availing of that law in anyway, the judiciary cannot review or challenge the said law or act2.
It seems that that second definition is quite consistent with the judicial review practices as
well as the federal system as it is not possible for the judiciary to review based upon the
merits of the parliament or the legislature whenever required3.
The Safe Act mentioned by the Senator Drax here, is mostly in accordance with the safety of
the country’s citizens from the extremist situations that are quite violent and much harmful to
the country as a whole. However, they are not entirely in accordance with the constitution of
the Australia as they contradict a few constitutional laws of the country4.
1 Parliament of Australia, "Commonwealth Of Australia Constitution Act", Parliament Of Australia (Webpage,
2020) <https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?
_id=956BE242B820434A995B1C05A812D5E1&_z=z#covering_clauses-proclamation_of_commonwealth>.
2 Parliament of Australia, "Part I - General", Parliament Of Australia (Webpage, 2020)
<https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?
_id=50618E1FB9444725835968B98A49083E&_z=z#chapter-01_part-01_01>.
3 The Australian Constitution, "The Australian Constitution – Parliament Of Australia", Australian Parliament
(Webpage, 2020) <https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/
Constitution.aspx>.
4 Parliamentary Education Office, "Australian Constitution - Parliamentary Education Office", Peo.Gov.Au
(Webpage, 2020) <https://www.peo.gov.au/understand-our-parliament/how-parliament-works/the-

Constitutional Law 2
The action or the steps then taken included just calling out the armed forces when the siege
took place and that rose numerous legal issues in relation with the same and they stayed and
went along for almost a time period of 20 years or two decades or even more5. Irrespective of
the numerous reports that stated that there was an urgent need to introduce a new legislation
in the country that only deals with issues such as the terrorist act or national emergency
scenarios where the safety of the citizens is in danger. The only option the recommended by
the government then gave was to bring about military aid as well as civil power. Though for a
long time period, these suggestions kept on roaming around as a bill but later in the years, it
was actually properly reviewed and amended as per the need be in accordance with the
security of then coming up Sydney Olympics. All the security then needed to be apt and to
prevent any issues related with security breach6.
As per the universal law, that the constitution of the country must not be infringed in any
manner while making a law or creating a law or even incorporation of one cannot be done in
this case if it infringes any of the constitutional laws. As constitution law is quite important
for a country to follow due to its nature of being a supreme law in the country that facilitates
the basis of a person being one from that country. It provides a certain set of rights that the
citizens of the country can enjoy or in general as well as certain duties towards the country
that need to be fulfilled being a citizen so as to promote the growth, be it economically or
even generally of the country. A constitution is something or a written set of provisions
according to which the governmental powers are regulated. These precedents assist as well as
australian-constitution/australian-constitution/> .
5 Justin Huntsdale, "How The Military Took Bowral To Protect Commonwealth Leaders 40 Years Ago", ABC
News (Webpage, 2018) <https://www.abc.net.au/news/2018-02-20/anniversary-of-military-occupation-of-
bowral/9464328>.
6 Parliament of Australia, "Terrorism And The Law In Australia: Legislation, Commentary And Constraints –
Parliament Of Australia", Parliament Of Australia (Webpage, 2020)
<https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/
rp0102/02rp12>.

Constitutional Law 3
provide specific direction in which the government needs to regulate or use its powers so as
to govern the nation.
The SAFE Act or the Securing Australia from Extremists Act is one such act that covers the
aspects related to emergency situations such as the one that took place in the September 2019
such violent and extremist situation can be in some manner be dealt with the law as such
however, there is a grey area to where this act is as it does not fully comply with the
constitution. In the part 1 (a) of the SAFE Act it declares that the minister holds the power to
declare an emergency if required or if there is a situation as such that needs or requires the
declaration of emergency while in Part 1 (b), it is ‘he’ (the minister) who holds the power to
declare a certain individuals as the terrorists of the people who pose a threat to the whole
country or the security of the country. The Minister also holds the power to send this above
mentioned person who has posed as a threat to the country or the security of the country to
the DSC facility for protective detention as such up to the time period of six months as per
the (c) of Part 1.
The Part 2 of the Act talks about the need for Identity Card for each citizen revolving around
the basic identity of the citizens that they ought to keep with themselves most of the time.
Though the (b) is regarding the participation of every citizen in a certain National Audit by
filling out a questionnaire relating to their monetary aspects as in what kind of assets they
hold and the income they earn and as such so that the government can keep a track of each
citizen’s whereabouts. To tend to the similar issue, the Australian Social Security Act 1991
was passed just to make sure that every citizen is provided optimum security and safety as
well as they need not take out each and every paper or document each time they are asked for
certain document7. All they need to do is draw out their social security card as it resolves all
7 Will Sanders, "Opportunities And Problems Astride The Welfare/Work Divide: The CDEP Scheme In Australian
Social Policy", Hdl.Handle.Net (Webpage, 2019) <http://hdl.handle.net/1885/145571>.

Constitutional Law 4
the issues concerned8. Though the law is quite strong and efficient, the Safety Act specifies
all of these in much detailed manner and tends to each and every aspect in a different
subsection.
There is no comparison of both the laws, however, these attacks as such take place due to
lack in legal system of the country. Certain individuals who enter the country without any
information regarding their backgrounds or anything as such which is authentic and trustable
and plan on harming the country is not an option. There need to be firm steps taken and an
emergency shall be declared as soon as possible so that appropriate steps can be taken.
Introducing a new law like the Safety Act or the Securing Australia from Extremists Act
might be a beneficial step as in accordance with this act a particular person as in the minister
shall have the power to declare emergency so that particular steps can be taken and the issue
can be resolved as soon as possible.
As stated in the Act, a Board that deals with certain emergency related issues which is the
Government Security Protection Board. This shall provide powers to minister to appoint the
members of the board who ultimately help the minister take certain decisions in emergency if
required and how the emergency has to be dealt with. In cases where there are war like
situations, if registration related to conscription is necessary or even control the social media
in scenarios as such and another aspect that can be taken into consideration while the
emergency is taking place is the power provided to the board to take control of the social
media of certain individuals if necessary. Or even it might compel the citizens to provide
their own social media accounts to be accessed by the individuals from board.
8 Parliament of Australia, "Identity Cards And The Access Card – Parliament Of Australia", Parliament Of
Australia (Webpage, 2019) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/
Parliamentary_Library/Publications_Archive/archive/identitycards>.

Constitutional Law 5
The board in such cases can also punish individuals or the citizens who do not comply with
the orders passed or the statements passed by the board in circumstances as such that are of
urgency or emergency.
Australia faced its first actual exposure towards the international terrorism was the bombing
that took place in the Sydney Hilton Hotel that happened in the March of 19789. After this
attack as well as the ‘Siege of Bowral’ later next day took place one after another. At that
time here was an urgent need to take specific steps so as to cope with the circumstances as
soon as possible. Instead the situation then was dealt with a very high level of carelessness
and unpreparedness as well. There were lacks in aspects such as the legislative as well as
administrative, as per what was required from the government at that time. In such terrorist
scenarios the responses that shall be provided or might be provided or shall be apt for that
particular scenario was nowhere to be found then.
Australia on its own faced major instances where issues such as the violence motivated by the
political parties or even crimes related to social security or even organised crime for that
matter. But only a few cases related to terrorism have been dealt with in Australia. By
learning from them or the past experiences, laws have been already made in most of the
issues namely, the ones dealing with incursions that are foreign, other major offences, civil
power being provided with the defence aid, international law being implemented and also the
intelligence services. All are provided, but with a certain specific limitations. Though the
Australian country only lacks in one area in relation with legislation, which is that, in
Australia there is no specific legislation or statues that deal with terrorism or if commonly
stated there is no anti –terrorism statute or legislation as such that has been dedicated to the
exclusivity of this cause.
9 Jean Kennedy and Brooke Wylie, "'Mum Went Into Hysterics': Daughter Of Bombing Victim Remembers
Sydney Hilton Blast 40 Years On", ABC News (Webpage, 2018)
<https://www.abc.net.au/news/2018-02-13/sydney-hilton-hotel-bombing-daughter-of-victim-40-years-on/
9425336>.

Constitutional Law 6
The only model as such in this connection is the local model that has never been much of use
before also known as the Northern Territory Criminal Code10. This legislation of Australia is
based upon the United Kingdom’s Prevention of Terrorism Act (The provisions were
temporary) of the years 1974-1976. Though, this Act was enacted upon without any proper
clarification of the actual or future foreseeable threats upon the Northern Territory.
Hence, the Act that has been presented by the senator is quite the one that the Australian
Legislation requires and is quite apt for the current situation. This Act has been made in order
to cover all the prior deficiencies in the legislation of the Australia. However there are risks
aligned with every new thing or act that is introduced, as there is no foreseeable future or
service as such to figure out how successful the said act will become in the Australian
legislation. This addition will only prevent any future possibilities of the taking specific
actions in the time of need or emergency for that matter. This Act might prove as the
milestone in the Australian Legislation where it prevents major terrorism or acts such sever
from taking place.
10 Lorana Bartels and Rick Sarre, "Law Reform Targeting Crime And Disorder" [2017] The Palgrave Handbook of
Australian and New Zealand Criminology, Crime and Justice.

Constitutional Law 7
Bibliography
Journals
Bartels, Lorana and Rick Sarre, "Law Reform Targeting Crime And Disorder" [2017] The
Palgrave Handbook of Australian and New Zealand Criminology, Crime and Justice
Websites
The Australian Constitution, "The Australian Constitution – Parliament Of
Australia", Australian Parliament (Webpage, 2020)
https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/
Constitution.aspx
Parliament of Australia, "Part I - General", Parliament Of Australia (Webpage, 2020)
https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/
link.aspx?_id=50618E1FB9444725835968B98A49083E&_z=z#chapter-01_part-01_01
Parliament of Australia, "Commonwealth Of Australia Constitution Act", Parliament Of
Australia (Webpage, 2020)
https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/
link.aspx?_id=956BE242B820434A995B1C05A812D5E1&_z=z#covering_clauses-
proclamation_of_commonwealth
Parliament of Australia, "Terrorism And The Law In Australia: Legislation, Commentary
And Constraints – Parliament Of Australia", Parliament Of Australia (Webpage, 2020)
https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/
Parliamentary_Library/pubs/rp/rp0102/02rp12
Huntsdale, Justin, "How The Military Took Bowral To Protect Commonwealth Leaders 40
Years Ago", ABC News (Webpage, 2018)

Constitutional Law 8
https://www.abc.net.au/news/2018-02-20/anniversary-of-military-occupation-of-bowral/
9464328
Kennedy, Jean and Brooke Wylie, "'Mum Went Into Hysterics': Daughter Of Bombing
Victim Remembers Sydney Hilton Blast 40 Years On", ABC News (Webpage, 2018)
<https://www.abc.net.au/news/2018-02-13/sydney-hilton-hotel-bombing-daughter-of-victim-
40-years-on/9425336>
Sanders, Will, "Opportunities And Problems Astride The Welfare/Work Divide: The CDEP
Scheme In Australian Social Policy", Hdl.Handle.Net (Webpage, 2019)
http://hdl.handle.net/1885/145571
Parliament of Australia, "Identity Cards And The Access Card – Parliament Of
Australia", Parliament Of Australia (Webpage, 2019)
https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/
Parliamentary_Library/Publications_Archive/archive/identitycards
Parliamentary Education Office, "Australian Constitution - Parliamentary Education
Office", Peo.Gov.Au (Webpage, 2020)
<https://www.peo.gov.au/understand-our-parliament/how-parliament-works/the-australian-
constitution/australian-constitution/>