The government’s latest counterterrorism bill brings into question the delicate balance of protecting the community while maintaining the principles of justice. By Karen Middleton.

Proposed counterterrorism laws in the spotlight

When shadow attorney-general Mark Dreyfus briefed Labor MPs on Tuesday about the next set of proposed counterterrorism laws, he remarked that he was detecting a kind of community fatigue on the subject.

There had been so few submissions to parliament’s joint standing committee on intelligence and security, assigned to examine the government’s legislation, that he contacted some relevant organisations and pressed them to offer their views.

In the end, the committee received 17 submissions and four supplementary additions. Their contents were enough for the multi-party committee to raise significant concerns about the legislation.

The committee’s resulting report, tabled quietly three weeks ago, proposed changes to the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, concerned it broadened the security agencies’ powers too much and didn’t offer sufficient legal protection for people suspected of planning a terrorist attack.

Among those making submissions, which included the Human Rights Commission, there was agreement that agencies needed adequate powers to keep Australians safe. But there was also alarm about the legislation’s reach.

The politics of defending rights and freedoms are complicated in the age of terrorism. Those urging caution are mindful of the delicate balance required to ensure the law protects the community from harm to the maximum possible extent without eroding the principles of justice and fairness underpinning the system.

The challenge is to keep people safe without making it too easy for the state – the government – to spy on people, harass them or lock them up without evidence.

Public opinion would seem to favour giving security agencies some power to pry – provided they have a good national security reason. 

On Thursday, the Canadian-based non-partisan think tank, the Centre for International Governance Innovation, published the findings of a survey of 24,143 internet users in 24 countries – including Australia – gathered between November 20 and December 4 last year.

Conducted by international polling company Ipsos, it found most users supported governments accessing the content of private online conversations for “valid national security reasons” – although these reasons were not defined.

In Australia, 1007 respondents were surveyed and 75 per cent either agreed or strongly agreed. 

And 83 per cent agreed that when someone is suspected of committing a crime, governments should be able to find out whom they have contacted online.

1 . ‘Careful balance’

Introducing the counterterrorism bill into parliament in November last year, Attorney-General George Brandis said it was designed to “reflect lessons learnt from recent counterterrorism investigations and operational activity”.

Brandis told the senate “the bill seeks to maintain a careful balance between enhancing our law enforcement capabilities and protecting individual rights”. He said ASIO was investigating several thousand leads and persons of concern. “More than 400 of these are high-priority cases. That’s more than double the number since early 2014.”

The bill covers the use of control orders to restrict and monitor the movements of people the agencies believe may commit or enable a terrorist act but who have not been convicted of – or charged with – an offence.

The law has allowed control orders since 2005 and the courts have granted just six. 

They restrict the activities of people suspected of intending to do harm without the security agencies having to meet the burden of proof required to have them charged with an offence.

Currently, the minimum age for a control order is 16 years. The new legislation lowers that age to 14 years, prompted by the murder of police accountant Curtis Cheng outside Parramatta police headquarters in Sydney on October 2 last year.

His killer was 15-year-old Farhad Khalil Mohammad Jabar, shot dead when police returned fire.

2 . Control order concerns

In the Labor caucus this week, only one MP asked Dreyfus questions about the legislation – retiring member for Fremantle and former United Nations human rights lawyer Melissa Parke.

Parke has concerns about the whole control order regime. She says the lower age range would not have prevented the events at Parramatta and she questions the effectiveness of control orders as a preventive tool. 

“In that case, police were not aware of him until he committed the offence,” she told The Saturday Paper. “If there’s a 13-year-old who does something, are we going to move it down there?”

The legislation proposes that for juveniles placed on interim control orders, court-appointed “advocates” should be assigned to represent their best interests in subsequent proceedings – but not before the interim order is made. 

They would not have to act on the children’s instructions and could disclose information to the court deemed to be in the children’s best interests, even against their wishes.

The legislation also broadens how “imminent” an attack needs to be before a person may be taken into short-term custody without charge on a “preventative detention order”.

Rather than being “expected” to occur within 14 days, the legislation says instead that it simply “could” or would be “capable” of occurring in that time.

It also extends the agencies’ monitoring and search powers over people on control orders. 

3 . ‘Reasonable suspicion’

Law Council of Australia president Stuart Clark said agencies should be required to have a “reasonable suspicion” that a person is breaching a control order before the tougher monitoring provisions were applied, and that an “imminent” attack should have to be “likely” not just possible. “Otherwise, a person could be detained without charge on the basis of the mere theoretical possibility of a terrorist act.”

The joint standing committee on intelligence and security recommended dropping the word “imminent”, but keeping the new definition. It also wants controls placed on the proposed monitoring and search powers and access to warrants and recommended scrapping the court-appointed advocates and guaranteeing young people subject to control order applications legal representation instead.

It said an individual must be allowed enough information about the allegations to give proper legal instructions and that the government should change its legislation so “special advocates” are appointed to represent the interests of the person subject to a control order application.

Special advocates would take part in closed-court proceedings in which security agencies are asking a judge to place a person under a control order. 

In proceedings where the person and his or her lawyer are not allowed to be present because hearing details of the agencies’ reasoning could allow them to tip off others or accelerate any planned attack, the advocate would appear instead.

Under the proposed new legislation, the individual and the lawyer would also not have any access to the original national security information on which the application is being based, while those in the court could access the whole lot.

The individual and lawyer may have access to an abridged or redacted version but that would not be guaranteed. They also wouldn’t have access to the evidence of any sworn witnesses giving evidence against them. A special advocate would take their place in the courtroom and challenge the evidence presented, but never communicate any of it to the individual or the lawyer.

4 . Considering recommendations

The report recommended this legislation go to the parliament no later than the end of this year. The opposition has indicated it will only agree to pass the bill if the government adopts all of the committee’s recommendations.

In the past, when the committee has spoken, the government has listened and implemented all proposed changes.

A spokesman for the attorney-general told The Saturday Paper the government was considering the report. 

But the intelligence and security committee is not the only body raising concerns about the government’s new legislation. Late last year, parliament’s joint committee on human rights, whose job it is to scrutinise legislation to ensure it doesn’t breach Australia’s obligations under international law, also raised potential concerns and asked Brandis for more information.

Its report is due to be published early next week. And a month ago, the Independent National Security Legislation Monitor issued a separate report containing implied criticism of the legislation in its current form.

The former and first monitor, Bret Walker, SC, urged the government to abandon control orders altogether – a recommendation it rejected. Walker served from April 2011 until his term expired in April 2014, and wasn’t reappointed. The office was left vacant for eight months, until the Abbott government appointed the Honourable Roger Gyles, QC, whose term expires in August next year. 

Gyles has now recommended changes to the counterterrorism legislation in relation to control orders.

His report examined the idea of special advocates and endorsed it. Gyles said the system should be introduced before the proposed changes to control orders took effect. He will report on other aspects of the legislation later.

Clark told The Saturday Paper: “The appointment of the special advocate should be a last resort, where the trial judge is satisfied that no other alternative will adequately meet the interests of fairness.”

The states and territories, via the Council of Australian Governments, recommended special advocates in 2013, but Australia’s governments are also considering going further.

5 . Longer jail time

As well as working on nationally consistent pre-charge detention laws, they are drafting laws to keep people convicted of terrorism-related offences in jail beyond the end of their sentences if they continue to pose a risk.

The plan is modelled on legislation in place in some states to allow convicted sex offenders to be kept in jail after they have served the required time.

The Law Council has concerns about this concept, too. Clark told The Saturday Paper any move to restrict a person’s liberty to prevent criminal activity should only be made under court order, based on probative evidence and with legal representation and rights of appeal.

“A preventative detention regime must not amount to an evasion of the limits on the criminal justice system,” Clark said. “We should not create the potential for the equivalent of criminal punishment without the due process guarantees that underpin a fair trial. The prohibition on double punishment must also be carefully upheld.”

Melissa Parke believes this is where control orders might be employed if they are to be a useful tool – to monitor somebody who has been convicted, jailed, and released but still poses a threat.

“That would be preferable to having people kept in prison indefinitely, although you would have to have proper checks and safeguards in place to ensure it wasn’t being abused,” she said.

“I’m really concerned about another set of incursions on Australian civil liberties without sufficient justification. Where do you stop?”

This article was first published in the print edition of The Saturday Paper on March 5, 2016 as "Control limits".

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Karen Middleton is The Saturday Paper’s chief political correspondent.

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