Counter-terrorism laws—review and reform

Monica Biddington, Law and Bills Digest

Key issue 
Major reviews have been undertaken and the new Parliament may consider their recommendations with a view to improving counter-terrorism laws. This article provides an overview of recent reviews recommending change, and in some cases repeal, of specific counter-terrorism laws.

The 2010 Counter-Terrorism White Paper and the more recent National Security Strategy state that the threat of terrorism to Australia and our interests is real. Terrorism has become a persistent and permanent feature of Australia’s security environment. It threatens Australians and Australian interests both at home and overseas. The Government’s intelligence agencies assess that further terrorist attacks could occur at any time.

Since 2001, 38 people have been prosecuted in Australia as a result of counter‐terrorism operations and 22 people have been convicted of terrorism offences under the Criminal Code Act 1995 (the Criminal Code).

Anti-terrorism laws since 2001

The most controversial aspects of the counter‑terrorism laws introduced since 2001 are found in Part 5.3 of the Criminal Code; namely control orders, preventative detention orders and questioning warrants. Further, academic and independent commentary for almost a decade has widely supported amending the definition of terrorism. As early as 2009, aspects of the legislation have also been of concern to the international community. The United Nations Human Rights Committee commented on the vagueness of the definition of ‘terrorist act’ within counter-terrorism legislation and requested that Australia reconsider the legality of its power to detain people without access to a lawyer and in conditions of secrecy.

A control order is issued by the Australian Federal Police and places specific restrictions on a person’s movement, communication and associations. These are used when the AFP considers that an order would substantially assist in preventing a terrorist attack or when a person has trained with a terrorist organisation. Two have been issued, one against David Hicks and one against Jack Thomas (whose conviction was subsequently overturned).

A preventative detention order (PDO) allows a person to be detained where the AFP believes there is an imminent threat of a terrorist attack. To prevent the attack happening or to prevent the destruction of relevant evidence after an attack, a PDO allows a person to be held for up to 14 days without charge and without judicial authorisation. It has been noted that these particular provisions in the Criminal Code have not been used. While the reviews have focused on Part 5.3 of the Criminal Code, there are other existing legislative means by which a person can be detained. For example, Dr Mohamed Haneef was detained for 12 days in 2007 on suspicion of being involved in terrorist activity under section 23DB of the Crimes Act 1914, which sets out timeframes for the detention of a person arrested for a terrorist offence.

Law enforcement agency powers to prevent or investigate terrorism activity have also been the focus of recent review. In June 2013 the Parliamentary Joint Committee on Intelligence and Security tabled its Report of the Inquiry into Potential Reforms of Australia's National Security Legislation. The focus of this report was telecommunications interception reform, telecommunications sector security reform and Australian intelligence community legislation reform.

Major recent reports

In May 2013, the government released the report by the Council of Australian Governments (COAG) which reviewed an extensive range of counter-terrorism laws in all jurisdictions. The review made almost 50 recommendations, including that preventative detention provisions be repealed and the definition of terrorism be amended to include ‘hoax threats’, psychological harm and ‘hostage taking’.

Another major report on terrorism laws was prepared by the Independent National Security Legislation Monitor (INSLM), Bret Walker SC. Walker was appointed to this position in 2011 with the task of reviewing the operation and effectiveness of national security laws. Some of the recommendations are similar to those made by the COAG Review, but the INSLM report also found that aspects of the laws, such as control orders under Division 104 of the Criminal Code are ineffective, inappropriate and unnecessary. It is worth noting that the INSLM had access to a broader range of information, including classified sources.

A key difference between these two major reports is that the COAG review concludes that legislative provisions allowing for control orders should be amended, rather than repealed, to ensure that a control order is a last resort measure.

In August 2013 the then Attorney-General, Mark Dreyfus, and shadow Attorney-General, George Brandis, were not willing to state whether they would adopt recommendations by the INSLM and COAG.

The Australian Labor Party said that it would carefully consider the reports before reaching a final position on the substance of the recommendations.

The Coalition has stated that subject to ‘specific recommendations’ of the INSLM, which will be carefully considered, it has no plans to make material alterations to the anti-terrorism legislation introduced under the former Coalition Government following the 11 September 2001 attacks. The specific recommendations are not further specified.  More broadly, the Liberal Party policy platform states that a Coalition Government will deliver improved counter-terrorism and domestic security measures in Australia and secure our ports and airports.

Future

If the new Parliament decides to reform aspects of counter-terrorism legislation it should consider the recommendations from these detailed reviews as well as considering the broader national security landscape, which encompasses telecommunications, surveillance and intelligence.

Further reading

N Brew, Surveillance in Society—telecommunications data retention, Parliamentary Library Briefing Book, Parliamentary Library, Canberra, 2013.

Independent National Security Legislation Monitor, Annual Report, Department of Prime Minister and Cabinet, Canberra, 20 December 2012.

Council of Australian Governments, Review of Counter-Terrorism Legislation, Attorney-General's Department, Canberra, 2013.

G Williams, ‘A decade of Australian anti-terror laws’, Melbourne University Law Review, 35(3), 2011, p.1136.

 

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