Inside Story

Anti-terror laws and the knowledge gap

Two new reports spell out pragmatic and overdue reforms to Australia’s anti-terrorism laws. But does the political will exist to act, ask Jessie Blackbourn and Nicola McGarrity

Jessie Blackbourn & Nicola Mcgarrity 23 May 2013 2022 words

Attorney-general Mark Dreyfus says the government will take a “long look” at the reviews.

“Hyper-legislation” is how Canadian law professor Kent Roach has described the fifty-four anti-terrorism laws passed by the Australian parliament since the 9/11 terrorist attacks in the United States. Last Tuesday, two major reports on those laws were tabled in federal parliament. Both were highly critical and called for sweeping reforms, but both were lost in the coverage of that day’s Budget speech.

The first report was prepared by the Review of Counter-Terrorism Legislation set up by the Council of Australian Governments. When COAG agreed to a further strengthening of Australia’s anti-terrorism laws shortly after the London bombings in 2005, it insisted that the laws be reviewed after five years. The mandate it gave its review committee was very broad, covering all aspects of the laws that had been enacted or substantively amended in 2005.

The second report has quite different origins. This is the second annual report prepared by the Independent National Security Legislation Monitor, Bret Walker SC. This office was established in April 2010 to conduct a broad, ongoing review of Australia’s anti-terrorism laws. The role of the Monitor was a significant improvement on the piecemeal approach that had traditionally been taken to anti-terrorism review.

Both Walker and the COAG review make recommendations about the definition of terrorism, control orders and preventative detention orders. Only Walker, however, discusses the most controversial of all of Australia’s anti-terrorism laws, ASIO’s questioning warrants and detention warrants. George Williams, the Anthony Mason Professor of Law at the University of New South Wales, has described the detention warrants – which permit the secret confinement of non-suspects by Australia’s domestic intelligence agency – as “rotten at their core” and “more consistent with the apparatus of a police state, such as General Pinochet’s Chile, than the laws of a modern democracy.” The most significant of Walker’s recommendations is that these warrants should be abolished. Given that they have never been used and are inconsistent with fundamental human rights, it is hard to disagree with this proposal.

One of Walker’s great strengths is his pragmatic approach. He recognises, for example, that the horse has bolted in relation to coercive questioning by law-enforcement and intelligence agencies and therefore doesn’t recommend that ASIO questioning warrants be repealed. Instead, he concentrates on ways of improving the issuing process for the warrants by creating more rigorous safeguards.

The level of agreement between the reports on the overlapping material is striking. Both recommend a narrowing of the definition of terrorism and repeal of the preventative detention order regime. Under the latter, a person can be detained for up to forty-eight hours – and fourteen days under state and territory law – to prevent an imminent terrorist attack or to preserve evidence after an attack.

Tabling the two reports in parliament, attorney-general Mark Dreyfus argued that the simultaneous reviews would enable governments “to better assess the different options available to serve the Australian people.” The more information the federal government has before it, in other words, the better equipped it will be to make decisions of national significance. In practice, though, the likelihood is that the federal government will play one review off against the other.

The reports differ in at least one major respect. Australia’s anti-terrorism laws allow the courts to issue a control order restricting a person’s liberty – by way of a curfew, for instance – to protect the public from a terrorist act. The COAG review recommends that this regime be retained; Walker calls for its repeal. We would be surprised if the federal government doesn’t choose the path of least resistance – the less politically difficult recommendation of the COAG review. In the aftermath of the Boston bombings, any reluctance on the part of the government to “water down” the anti-terrorism laws can easily be justified on the ground that it is implementing a “balanced” reform agenda.

Such a result would be highly disappointing. Walker’s recommendations are not particularly radical. His report – like that of the COAG review – starts from the premise that Australia faces a significant terrorist threat and specific anti-terrorism laws are needed to respond to that threat.

A minimalist approach to reform would deliver the office of the Monitor a near-fatal blow. The office’s role is to review the operation, effectiveness, implications, appropriateness, proportionality and necessity of the anti-terrorism laws, a far from easy task. Walker spent his first year in office and his first annual report detailing the multitude of issues raised by Australia’s anti-terrorism laws. He then set out a methodology for himself and future Monitors to follow. This second annual report has filled the only gap in the first – the lack of any substantive recommendations – and its recommendations are thoughtful, measured and principled.

Now is the time for the federal government to demonstrate that the office has teeth – that it has a real influence on the law-reform agenda. If Walker’s recommendations are simply ignored, this will inevitably set the tone for the relationship between future governments and Monitors. It is unlikely that the office of the Monitor would ever recover.

ANY evaluation of the reports – and any decision between conflicting recommendations – comes down to the quality of their respective analyses. Because any watering down of the anti-terrorism laws is always going to be politically difficult, especially in an election year, it is vital that any reforms are accompanied by persuasive reasoning.

While both reports recommend that the preventative detention regime should be repealed, their reasoning is quite different. Walker’s assessment finds “no evidence of, or argument based on realistic scenarios about, cases where the AFP [the Federal Police] would be powerless under ordinary laws but would be beneficially empowered under the PDO provisions.” He reaches this conclusion only after a detailed analysis of the vast range of other anti-terrorism powers available to the police, including pre-charge detention, arrest and searches, all of which he says are more effective in investigating terrorism than are the detention orders. In fact, with questioning prohibited under the orders, they may in fact be counterproductive.

The failure to adopt a similarly holistic approach is a major deficiency of the COAG review. It rejects any discussion of laws that lie outside its terms of reference – refusing, for example, to consider how the “material support” offence might be amended to criminalise some forms of association with a terrorist organisation. This means that while the COAG review ultimately reaches the same conclusion as Walker – that preventative detention orders should be repealed – its reasoning is far from persuasive.

The COAG review doesn’t propose repealing preventative detention orders on the grounds that they are unnecessary, ineffective or disproportionate. Its conclusion rests on a claim by the police that the administrative procedures governing these orders are “unduly onerous and cumbersome.” This is perhaps unsurprising given that the terms of reference of the COAG review focus on “effectiveness.” The consequence, however, is that the COAG review has left the door ajar for the government to reform preventative detention orders rather than repealing them wholesale. In light of Walker’s strong condemnation of the regime, this would clearly be an unsatisfactory outcome.

It is important to recognise that there is also much of value in the COAG review. It goes beyond the report of the Monitor by examining the terrorism offences and the process for listing a terrorist organisation. Among other things, the COAG review urges a repeal of the offence of associating with a member of a terrorist organisation, an offence that not only has a minimal connection – at best – with the threat of terrorism but is also inconsistent with freedoms of speech and association. It also recommends that the grounds on which an organisation may be banned should be narrowed considerably. An organisation should not be banned because it merely “praises” the doing of a terrorist act.

On its own, the COAG review would provide ample scope for very welcome reforms of the anti-terrorism laws. It suffers, however, by a comparison with Walker’s report, particularly in relation to its recommendations about control orders. The COAG review concludes that “the clear purpose of protecting the community and preventing a terrorist attack in Australia presently warrants the continuance of the [control order] legislation” but it offers almost no evidence to back this up. It failed to conduct any independent inquiries into the effectiveness of control orders in protecting the public or preventing a terrorist attack. Instead, it relies almost entirely on the testament of the AFP that repealing the control orders regime would “compromise the purpose of preventative options to respond to extraordinary events, such as terrorism on the scale of September 11 and the Anders Breivik attacks.”

For his part, Walker reasons that the community is better served if someone is prosecuted for a broad preparatory offence or placed under surveillance rather than made the subject of a control order. He concludes that there is “no evidence that Australia was made appreciably safer” by these orders and that “neither” of the two control orders that have been issued in Australia “was reasonably necessary for the protection of the public from a terrorist act.”

UNDERLYING the differences between the COAG review and Walker’s report is the level of access they each had to classified information. Because the COAG review had no special powers to access information or to compel witnesses to provide evidence, it relied on publicly available material and any information the agencies chose to provide. Walker, on the other hand, is granted unprecedented access to information under the Independent National Security Legislation Monitor Act 2010. As well as receiving submissions and consulting widely with the public, his office held private hearings with the police and intelligence agencies and these agencies were compelled to provide Walker with classified information. He was, for example, able to read the complete files of the two men who have been subject to control orders.

Australian governments have tended to justify our extraordinary anti-terrorism laws on the basis of secret evidence. We know that these laws are justified, they say, but national security prevents us from telling you why. Walker’s report blows this wide open. He saw all the information that is available to the government and yet he still considers control orders – and other aspects of the anti-terrorism laws – to be unnecessary, ineffective and disproportionate. Like the COAG review, his report presents commonsense recommendations to reform laws that are ineffective or even counterproductive. Implementation of these reforms would leave us with a body of anti-terrorism laws that is better capable of protecting the community and preventing a terrorist act.

Reform in this field is, however, as much about political will as it is about logic. Releasing the reports on the day of the federal Budget provides a good indication of the degree of resolve within the current government, and tabling the reports simultaneously also provides an opportunity for it to adopt a lowest-common-denominator approach. This is how Australian governments of both political persuasions have treated previous anti-terrorism reviews. Despite no fewer than six major reports spelling out the need for reform, governments have only tinkered around the edges of the laws.

According to the attorney-general, the government will take a “long look” at the reviews before responding. This almost certainly means that no action will be taken before the federal election in September. Indeed, it is difficult to see how legislation could be drafted and debated with only a few parliamentary sitting weeks remaining. But reform of the anti-terrorism laws should not be permitted to go off the boil. The pressure should be on whichever party wins the election to act sooner rather than later to implement the recommendations of these two reports.