A cautionary tale: counter-terrorism legislation

In August the Prime Minister announced that the COAG Review of Counter-Terrorism Legislation would specifically look at control orders, preventative detention and the emergency stop, question and search powers of police. Submissions to the COAG Review Committee have now closed and the Committee has to report within 6 months. But will the Review Committee fully appreciate the practical effects and unintended consequences for individuals and their families as a result of poorly drafted Counter-Terrorism legislation, and will it recognise the potential for misuse in some political climates?

The specific focus is whether the laws under review are ‘necessary and proportionate’. Many submissions highlighted the difficulty of making this assessment in the absence of publicly available material regarding the current threat to Australia of a terrorist attack and of a bill of rights as a benchmark against which to measure intrusions upon the human rights and civil liberties of Australians.

Only two interim control orders have ever been made. They were for Joseph Thomas and David Hicks. Hicks’ control order expired in December 2008. I spoke with David Hicks recently about the effect of control orders on him and his family.

He said the control order may as well have applied to everyone in the family even though they had done nothing wrong. “It’s punitive rather than preventative. It modified our behaviour. Even if they weren’t monitoring us it had the desired effect.”

Hicks’ private telephone conversations with his counsellors and health providers were monitored. The telephone conversations with his lawyers were monitored. Friends stopped communicating with them because they did not want to be swept up in the monitoring process.

Hicks was authorised to use only one phone line, his mobile phone. If another phone rang in his vicinity he couldn’t answer it nor could he contribute to a discussion on speaker phone. He had to remain silent.

Hicks was unable to use a computer for twelve months because the police couldn’t work out how to place the computer on their network. For information about the world he had to rely on newspapers and television, with their lack of depth and questionable quality.

All trips had to be authorised. Hicks wanted to surprise his partner on her birthday by taking her to a special venue but he had to get authorisation from the Australian Federal Police to do so. “If you don’t get permission in time, you lose your flights and your money.” They were often indiscreetly followed by Australian Federal Police officers in motor vehicles.

Hicks describes how “You always had to be on your guard because the penalty for breach of the control order was five years imprisonment.”

Although Hicks is unable to say whetherAustralian Federal Police Officers ever actually entered his private residence, Section 3UEA of the Crimes Act 1914 (Cth) does permit the police to enter premises without a warrant and under their own authority in certain circumstances.

In the end Hicks and his partner gave up and confined themselves to a set address and in effect, to isolation.

According to Aloysia Brooks, human rights advocate and founder of The Justice Campaign, “David had been tortured and this inhibited his ability to recover: how could he defend himself? What was the point of subjecting him to a control order when he had not been convicted of a crime?”

As the Centre of Public Law pointed out in its submission to the Committee: “One cannot help but suspect that the making of a control order against Hicks was driven by political, not legal or investigative, concerns.”

Brooks is concerned that many Australians complacently believe that if you’re not doing anything wrong you haven’t got anything to worry about. When you read the informed submissions made to the committee, she has a point.

How many Australians are aware that the definition of terrorism act extends to serious damage to property or if it seriously interferes with, or seriously disrupts, or destroys, an electronic system including an information system, a telecommunications system, a financial system, a system used for the delivery of essential government services, a system used for or by an essential public utility, or a system used for or by a transport system? Is this common knowledge among “hacktivists”, like Anonymous?

Do Australians appreciate the definitional inadequacies, evidential burdens of proof and recklessness fault elements in offences relating to ‘training’, possessing a ‘thing’, and making or collecting a document connected with a terrorist act, or the preparatory offence which casts a net over ‘any act‘ without a requirement that it be connected to a particular terrorist act?

What about if you find yourself involved in a ‘proscribed’ organisation when the Attorney-General is not obliged to notify the general public or the organisation before the decision to proscribe is made?

Many of the submissions to the Committee raise serious concerns about the ability of an AFP officer to conduct searches on people in a ‘prescribed security zone’, as declared by the Attorney-General, which wouldn’t even require the person to be a suspect, about the fact that the laws stretch further than the requirements of international instruments, about the lack of inadequate safeguards against police abuse and the scope to breach our obligations under the International Covenant on Civil & Political Rights.

Add to that the breadth of ASIO’s powers and it’s a frightening proposition, to say the least, that as a “good global citizen” Australia authorises the detention in secret of non-suspect citizens by an intelligence gathering agency. Respected human rights lawyer, Gareth Peirce, carefully articulates where secrecy, power and the death of justice leads in her book ‘Dispatches from the Dark Side’.

The last decade has seen an explosion of laws giving unprecedented powers to security and intelligence gathering organisations, most of which were never properly debated and have flown under the public radar. That has necessitated a huge diversion of taxpayer funds – in times of economic hardship and widespread cost-cutting otherwise – to fund the expansion of those organisations and their operations, but we have no idea whether any of that money is well spent because of the secrecy that surrounds them.

The fact that the committee was formed to look at these issues is at least a first step. Let’s hope the committee does its job diligently and, most importantly, objectively. If it does, its report just might nudge the government to make appropriate provisions for judicial review and establish independent bodies to properly scrutinise and randomly audit the agencies involved in implementing our counter-terrorism legislation. The report should make interesting reading.

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