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As the government prepares to lower the age at which control orders can be applied to include 14-year-olds, critics question the use of a policy that upturns the notion of ‘innocent until proven guilty’. By Lauren Williams.

Harun Causevic and the danger of control orders

Harun Causevic leaves Melbourne Magistrates’ Court in August after terrorism charges against him were dropped.
Credit: AAP

Harun Causevic is one of the most watched men on earth. The 18-year-old must wear a GPS tracking device locked around his ankle at all times. He must reside at his Hampton Park home in south-east Melbourne every night. He must not be close to military establishments or certain places of worship. His phone and internet access have been reduced, and he must not communicate with five of his known associates. Under a preventative detention order, Causevic has already spent four months in prison.

The extensive restrictions were imposed on Causevic despite the fact he was cleared of any terrorism crime. While he pleaded guilty to minor weapons offences, the charges against him in relation to allegations he was preparing a terrorist attack on Anzac Day were dropped by a Melbourne Magistrates’ Court in August.

But the extraordinary measures were implemented on the basis that Causevic’s “extremist views” make him a danger to society and a terrorist threat. The restrictions on his movements and communications are part of an anomalous set of laws, known as control orders, allowing preventive measures to be taken against suspected terrorists.

Control orders have been controversial since they were first introduced in 2005. Last month they attracted controversy again, when the federal attorney-general, George Brandis, sanctioned a proposal by New South Wales Premier Mike Baird to lower the age at which control orders may be implemented, from 16 to 14. Baird also wants the current maximum detention period to be extended from eight to 28 days.

The changes, which look set to be approved by most states and territories, were precipitated by the shooting death of police accountant Curtis Cheng outside NSW Police headquarters in Parramatta in Sydney’s west, at the hands of 15-year-old Farhad Khalil Mohammad Jabar. Jabar was subsequently shot dead by police.

Punitive rather than preventative

The Australian Federal Police can request an interim control order from the Federal Court when they suspect, on reasonable grounds, that the order will help prevent a terrorist act. The orders can also be made to inhibit the support for a terrorist act or support for hostile activity in a foreign country. Additionally, a control order may be granted if the AFP suspects an individual has provided, participated in, or received training from a listed terrorist organisation, provided support for hostile activity in a foreign country, engaged in hostile activity in a foreign country, or been convicted in Australia or a foreign country of a terrorist offence.

But the orders expose the philosophical problem of preventive policing policies. Testing their effectiveness is difficult, because the proof that they are working is not whether something does occur but whether it doesn’t. Unlike other preventive laws – such as apprehended violence orders (AVOs), or supervision orders for sexual offenders – control orders can be applied on the basis of future intentions rather than on the basis of a crime already having been committed.

As Andrew Lynch, Nicola McGarrity and George Williams note in their book Inside Australia’s Anti-Terrorism Laws and Trials, “This is more than a breach of the old ‘innocent until proven guilty’ maxim: it positively ignores the notion of guilt altogether”.

The other strange thing about control orders is that while they are designed as preventive measures, the effect is punitive. Lynch, a professor of constitutional law at the University of NSW, explains: “Control orders are a strange kind of way in which the court is involved in a kind of ‘pre-punishment’.”

Restriction of movement, in some cases compelling an individual to remain at a location for up to 12 hours a day, indisputably constitutes a deprivation of liberty, Lynch says. He went as far as to compare it to house arrest. Police must establish that the conditions of the order are proportionate, but in the absence of a crime by which to measure the threat, how that proportionality might be established renders it an exercise in probabilities.

Causevic’s lawyer, Rob Stary, has no doubt that the order restricting his client’s movement constitutes a deprivation of liberty. More than simply being ineffective, since the control order was made on the basis of evidence of a crime that never happened, he says it was implemented maliciously as a form of punishment after the AFP failed to secure a conviction. Unlike AVOs, control orders are being used as an alternative to criminal charges.

“The AFP was bitter about this,” Stary says. “This was used as propaganda; they wanted to be seen to be punishing [Causevic] for something.”

The tendency for police to apply punitive policies in the absence of enough evidence to pursue formal charges was noted by the former Independent National Security Legislation Monitor (INSLM), Bret Walker, in his 2012 review of the control order regime. He argued for the complete repeal of the legislation, or for it to be reframed as a post-conviction set of laws.

“The belief that there is not enough evidence could be an intuitive belief by the police that there is a case although it is not supported by enough evidence,” he wrote in the report.

“This is not a justification for Control Orders … the rule of law requires that the possibility that someone has committed a criminal offence produces consideration of prosecution and nothing else in terms of official action to restrain that person’s liberty.”

Lynch agrees: “If criminal law expands its ambit to cover stages of preparatory planning, then control orders do not appear to be necessary.”

The fact that police have used them sparingly also indicates their limited effectiveness, says Lynch. “They just don’t appear to be very useful.”

Ramping up reactive counterrorism laws

The escalating terror threat in Australia is real. Daesh recruiters have deployed resources to the recruitment of youth, and the age of those being recruited is reducing. A Council of Australian Governments (COAG) review of control orders found that the genuine risk of terrorist activity made control orders necessary, but recommended that they should not be sought on the basis of mere suspicion.

Until now, despite the AFP considering the use of control orders in a number of cases, only six have been issued. Two of those were implemented following a criminal sentencing – of “Jihad Jack” Thomas and David Hicks. Another two interim control orders were issued for men who have not been identified in December 2014. Causevic and an associate of Jabar make up the six, meaning two-thirds of the control orders have been issued in the past 18 months.

“Making control orders available to be imposed on children as young as 14 will not suddenly increase their utility,” says Lynch.

“So what we are talking about is really almost a peripheral element of the anti-terrorism laws which are used to keep us safe. At the same time, this third extension of the control order scheme in 12 months may work against the government’s renewed focus on working constructively with sections of the community to deter radicalisation.”

Since the emergence of Daesh and the heightened terrorism alert, Australia has struggled to adopt a coherent counterterrorism response. Experts have repeatedly warned that without social engagement and comprehensive youth and community work to increase political participation, with the aim of reducing the sense of alienation among at-risk youth and strengthening social cohesion, then a purely security-oriented response will not only be ineffective, but may actually further alienate young people. The idea is that over-policing will only heighten a well-documented sense of persecution among Muslim youth, making them more hostile to police and authorities. The fact that police were the target of Jabar’s attack should not be overlooked.

Yet the response has been to consistently ramp-up counterterrorism laws in what Lynch has termed “reactive” and hasty legislating without sufficient scrutiny. Australia now has more counterterrorism legislation than anywhere in the world, with 64 pieces of legislation. It hasn’t dented the threat.

“To justify a new measure, the law has to be effective,” Lynch says. “If it is not effective, it just adds to the pile of counterterrorism legislation, which looks like mere theatrics. It feeds into the sense among some in the community that they are being targeted.”

Threat of orders may radicalise

Sheikh Ahmed Abdo, a Muslim police chaplain and youth worker, says Muslim youth who already feel targeted will respond with typical teenage rebellion. “If they see themselves as being watched, then they may want to rebel for the sake of rebellion.”

While it is too early to assess the impact of the control order on Causevic, Stary says, there is so far no indication his client has softened his views. Causevic continues to hold a sectarian world view that sees Western society as the enemy.

“He espouses a view that is very black and white,” Stary says. “It is an attack on my brothers and sisters and I am duty bound to act. He talks in terms of Sunni and Shia.”

Stary plans to challenge the order but laments the fact that there had been no community intervention as Causevic and his friends began to show signs of wayward behaviour. “Nobody intervened. Nobody intercepted them,” he says. “Nobody talked to them about our role in Syria. They were never allowed to have the debate.”

To date, there has been no adoption of any of the recommendations of the INSLM or COAG. Nor has there been any assessment of how age affects criminal liability, response to detention, or reception to counselling. It remains to be seen whether the enlarged scope of the control order scheme will see them acquire greater prominence in policing. And yet the only way to measure their failure will be if another attack occurs, perhaps at the hands of a 12-year-old.  

This article was first published in the print edition of The Saturday Paper on Nov 7, 2015 as "Control groups". Subscribe here.

Lauren Williams
is a freelance journalist.

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