By Paul Gregoire and Ugur Nedim
Currently, some of the most extreme Commonwealth counterterrorism laws are under the review of the Parliamentary Joint Committee on Intelligence and Security (PJCIS). And if recent reports from an executive oversight body are anything to go by, these laws will be given the green light for renewal.
On August 9 last year, the PJCIS commenced its review into the “operation, effectiveness and implications” of counterterrorism stop, search and seizure powers under the Crimes Act 1914, as well as the control order and preventative detention order regimes set out in the Criminal Code.
These measures were brought in by the Anti-Terrorism Act (No 2) 2005, which was introduced into parliament by then-attorney general Philip Ruddock in the wake of the July 2005 terrorist attacks in London.
The terrorist legislation monitor
The PJCIS review follows on reports released by the Independent National Security Legislation Monitor (INSLM) into these laws, which are set to expire on September 7 this year.
The INSLM is an independent statutory body charged with ensuring that federal counterterrorism and national security legislation is in line with the rule of law, and doesn’t infringe upon the individual rights of Australians.
Sydney barrister Dr James Renwick SC is the current INSLM. In his reports into search powers, and the order regimes, Dr Renwick recommended that all the laws be renewed for another five years. And he only suggested a few, minor amendments be made.
Federally governed places
The stop, search and seizure measures that relate to terrorist activities are contained under division 3 of part IAA of the Crimes Act. They provide federal, state and territory police with search powers on Commonwealth places, which are areas the federal government holds exclusive power over.
Commonwealth places include airports, defence establishments, the various federal courts and the High Court. An officer can search an individual at such a place if they have reasonable grounds to suspect a person has committed, is committing, or is about to commit, a terrorist act.
The legislation also provides that police can carry out a search without reasonable suspicion in areas designated as “prescribed security zones.” These are Commonwealth places that have been declared a zone by the attorney general in order to assist in preventing, or responding to, a terrorist act.
Under the provisions of the Act, a police officer can request a suspect’s name, as well as stop, detain and search the individual. And if the person is found to be in possession of a terror-related, or serious offence-related item, an officer may seize it.
Section 3UEA of the Crimes Act provides officers with emergency powers to enter a premises without a warrant if they reasonably suspect there’s an item that could be used in a terrorist offence within the premises, or that a person’s life or safety is under threat.
According to Dr Renwick, these powers have never been used, but they’re “more essential” than ever due to terrorism threats.
And the only recommendation he made in regard to the search powers was that after they’ve been used, there should be a requirement that this is reported to relevant authorities, such as the attorney general.
The provisions of the Control Order (CO) regime are contained in division 104 of the Criminal Code. After written consent is provided by the attorney general, a senior Australian federal police (AFP) officer may request a CO. And both the Federal Court and the Federal Circuit Court can issue them.
A CO can be placed on an individual over the age of 14 if it is thought it will protect the public from a terrorist act, or prevent support or facilitation of such an act or engagement in hostile activity in a foreign country.
And a request for a CO can even be based on hearsay evidence if the source of the evidence is identified.
These orders can place far-reaching controls upon various aspects of an individual’s life, including restrictions on being in certain places, as well as restrictions on movement, association, and using specified forms of technology.
An order can be enforced for up to 12 months. And breaching the conditions of such an order can result in a penalty of up to five years imprisonment.
These orders have only ever been issued on six occasions.
Abolish the system
The Law Council of Australia’s submission to the PJCIS review recommended that the control order regime be abolished. This is in keeping with the 2012 recommendation of former INSLM Bret Walker SC, who suggest it be repealed, and replaced with a system of post-sentence control orders.
However, if the regime is not repealed, then the Law Council made a number of other recommendations, which included that the burden of proof in relation to an order should be at the “beyond reasonable doubt standard,” and that “an inference should only be drawn if it is rational.”
A group of academics stated in their PJCIS submission that similar provisions to those of the Commonwealth preventative detention regime, set out in division 105 of the Criminal Code, do not “exist in any comparable nation.”
The five academics, include UNSW professor George Williams and Oxford Law Faculty research fellow Dr Jessie Blackbourn.
Preventative detention allows an individual to be held in custody, effectively incommunicado and without charge, for up to 48 hours in order to prevent a terrorist act being carried out in the next 14 days, or to preserve evidence relating to a recent terrorist act.
However, police are not allowed to question the detainee whilst they are in custody.
A senior AFP officer may apply for a preventative detention order (PDO) via a former, or acting, judge of a federal court, or a state or territory supreme court, or to the president or deputy president of the Administrative Appeals Tribunal.
For a PDO to be issued, there must a reasonable suspicion that the subject will engage in a terrorist act, or they possess an item connected with such an act, or they’ve partaken in the planning of one.
However, in the case of preserving evidence of a terrorist act which has occurred in the last 28 days, there doesn’t have to be any evidence that the detainee has partaken in any wrongdoing, or is even suspected of committing a crime.
Preventative detention laws also exist in state and territory jurisdictions. In NSW, an individual can be held for up to 14 days under these measures. In 2014, when orders were issued for three men, an indefinite suppression order was applied to prevent reporting on the use of these laws in the state.
In their submission, the academics outlined that preventative detention infringes upon freedom of movement, association and arbitrary detention. It also infringes upon “client legal privilege as any communication between the person and a lawyer must be capable of being monitored.”
In the case where a PDO is issued to prevent a terrorist attack, the academics said that there are a range of alternative measures that could be employed, such as laying charges, applying for a corrective order, or applying for an ASIO questioning warrant.
The academics further explained that these alternate measures would be far more effective as police would be allowed to question suspects. They also argue that these measures shouldn’t be used to preserve evidence, in the case of individuals being detained who aren’t suspected of any offence.
In light of these reasons, the five academics recommended that the preventative detention regime be abolished.
Dr Renwick also briefly reviewed the Continuing Detention Order regime (CDO), the provisions of which are contained in division 105A of the Criminal Code. He did so out of concerns regarding its interoperability with the control order regime.
The CDO regime commenced on June 7 last year. It’s provisions were introduced under the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016.
These orders provide that terrorist offenders who are considered to pose an “unacceptable risk” of committing an offence in the future can have their period of detention extended after their prison sentence has ended.
The Australian attorney general can apply to a state or territory supreme court for a CDO to be issued. The orders can extend a terrorist offenders detention for up to three years at a time. And subsequent CDOs can be applied for as earlier orders expire.
Tightening post-sentence provisions
The INSLM recommended that state and territory supreme courts be given jurisdiction to issue an extended supervision order (ESO), so as to provide a less restrictive measure that doesn’t require the subject to be held in custody.
The Law Council outlined that the test for a CDO should be that the court is satisfied that there are reasonable grounds to suspect an individual will engage in a future offence, rather than that they just pose an unacceptable risk.
The council further recommended that the attorney general should be required to consider a lesser measure, such as a CO or an ESO, before applying for a continuation of detention. And a CDO application should be based on the sworn explanation of a senior AFP officer.
The erosion of freedoms
In tabling his reports that call on these laws to remain, Dr James Renwick SC pointed out that the National Terrorism Threat Level is at probable. And he listed four serious terrorist acts that were carried out in the UK over three months last year.
However, as NSW Council for Civil Liberties president Stephen Blanks told Sydney Criminal Lawyers® last month, the real issue with legislating laws that erode citizens’ basic rights, is not how these laws are applied at present, but, it’s how subsequent governments could utilise them.
“These powers are not used, or are used on extremely rare occasions,” Mr Blanks warned, “but, they sit on the statute books and represent a danger for society, because of their capacity to be misused in the future.”