A publication of the Centre for Advancing Journalism, University of Melbourne

Backing for terror law pull-back, but government goes softly

LEGAL and human rights groups have backed a softening of Australia’s most controversial counter-terrorism laws, but fear the Federal Government is in no rush to push through changes recommended by two key reviews.

Words by Chris Shearer

Ben Schokman, of the Human Rights Law Centre, said the organisation welcomed the findings of the two reviews, which call for the dumping of controversial provisions such as “preventative control orders” and ASIO’s right to interrogate suspects for up to a week without charge.

He described the reports — issued by the Independent National Security Legislation Monitor and a committee of the Coalition of Australian Governments (COAG) — as balancing more fairly the nation’s security needs with human rights.


“The pursuit of community safety and protection of country is an important end, but that is an end that isn’t inconsistent with human rights principles,” he told The Citizen.

Nicola McGarrity, a lecturer in law at the University of New South Wales who helped the Gilbert and Tobin Centre of Public Law prepare its submission to each review, also praised the findings.

“I was very happy with the recommendations of both. . . on the whole I think both are excellent.”

She said that while civil liberty issues would always be prominent in debates over counter-terrorism laws the reports were about “ensuring the laws are practical, ensuring that they’re workable and ensuring that they are effective”.

“The lesson of these two reports is that some of Australia’s anti-terrorism laws do not satisfy that criteria,” she added.

But Ms McGarrity cautioned: “I think the fact that these reports were released on [the day of the Federal Budget] is concerning as it’s a very strong indication that the Labor government wants to bury these reports.”

The attorney-general’s office has indicated it will consult with the states and territories on the recommendations, but has not offered a timetable for the discussions.

The Attorney-General, Mark Dreyfus, has been similarly non-committal, saying only that the reviews played “a vital role in ensuring the security and the freedom of Australians”.

“In light of the recent terror attacks in Boston, it is clear that it is as important now as it ever was to maintain strong capabilities in the fight against terrorism,” he said when the reports were tabled last month.

“Our counter-terrorism framework has held us in good stead so far, but we cannot afford to stop being vigilant.”

John Howard, whose government introduced the tough laws in the aftermath of the September 11, 2001 terror attacks on the US and 2002 Bali bombing, said in an email exchange via a spokesman: “I continue to support the anti-terror legislation.”

Mr Schokman, meanwhile, doubted that the Gillard Government intended acting on the reports ahead of September’s federal election given its electoral woes, but warned that ignoring the recommendations of the reports would be a mistake.

“In addition to remaining vigilant about the potential threat of terror, we also need to be just as vigilant about making sure that the laws are necessary, reasonable and proportionate.

“Why is it that you would establish and set up a body…[which] has clearly undertaken an extensive, analytical and important process and then not listen what it has to say?”

Click here for a rundown of the proposed reforms.

The proposed legal changes vary from minor tweaks to an overhaul of some of Australia’s most controversial counter-terror provisions.

However, the reviews of the Independent Monitor, Bret Walker, and COAG committee did not concur on all issues.

Both reports recommended the repealing of preventative detention orders, which allow for people to be detained for up to 14 days provided there is an imminent threat of a terrorist attack or if, directly after an attack, it is likely that vital evidence will be lost.

The reports argued that these powers were not effective, were an unnecessary threat to civil liberty and had not even been used since their introduction a decade ago.

The reports also argued that the current definition of terrorism should be amended, with hostage-taking included as a terrorist offence and separate offences being created for the acts of threatening an attack or creating a hoax threat. It was also argued that the crime of associating with a terrorist be abolished.

However, the Monitor’s review looked separately at some of ASIO’s powers, recommending the repealing of its ability to detain people without charge for up to seven days. As a trade-off, the agency would be able to get more readily short-term questioning warrants so as to interview suspects.

Mr Walker said there was no reason for ASIO to have the seven-day powers, which amounted to “a drastic interference with personal liberty and freedom”, although his report notes that none of the longer detention warrants had been issued since inception of the laws in 2003, while only one questioning warrant had been issued since 2006.


The two reviews differed on the issue of control orders, which determined where a person could go, who they could interact with, what activities they could carry out and what technology they were allowed to use.

The issue of control orders has been particularly controversial because Australian Federal Police officers do not need to provide the subject of a control order with evidence for why the order has been put in place provided they believe it necessary to foil terrorist activity.

The COAG review argued that the current control order regime could be kept with greater safeguards, including creating an independent body to review evidence that might affect national security.

However, the Monitor’s report suggested repealing entirely the control order legislation, arguing that it was not necessary, proportionate or effective.


How the counter-terror measures evolved 

2001 — September 11 attacks on New York and Washington herald a new era of terror, killing almost 3000 and injuring more than 6000.

2002 — 202 people, including 88 Australians, are killed when terrorists detonate several bombs in Bali’s popular Kuta district on October 12. John Howard calls the attacks “wicked and cowardly”. The government passes several pieces of anti-terrorism legislation, with more being drafted.

2003 — Parliament adopts the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 , granting ASIO new powers to search, detain, question and intercept communications of those suspected of having committed — or are planning to commit — an act of terrorism. ASIO’s right to hold a person for questioning for up to seven days without charge stirs controversy.

2004 — A succession of anti-terror legislation is endorsed by parliament — the Anti-terrorism Bill, 2004; Anti-terrorism Bill (No.2), 2004; Anti-Terrorism Bill (No.3), 2004. Some of the changes are:

• Terrorism suspects can be questioned for up to 24 hours before being charged or released;

• It becomes an offence to be a member of a terrorist organisation, with the government granted the right to proscribe organisations;

• It is an offence to associate with someone who is openly a member or supports the activities of a proscribed organisation, if that association is deemed to provide support in some way to that organisation.

2005 — In the aftermath of the London underground bombings, the federal government adopts the Anti-Terrorism Act 2005. Designed to protect Australia from attacks similar to those in the UK, it adds a new layer of robust powers, including:

• Preventative detention orders, in which an individual may be detained if suspected of being about to commit a terrorist offence;

• Control orders, which can prevent a person from being in or leaving certain areas, communicating with certain people, owning or using certain things, carrying out certain activities, including work, and accessing certain technology, including the internet;

• A penalty of life imprisonment for anyone convicted of funding a potential terrorist attack;

• Increased powers for police to request information about named individuals.

Almost coinciding with the passing of these laws, Abdul Nacer Benbrika and 16 other men are arrested in raids in Sydney and Melbourne on terrorism related offences. (Their 2008 trial would see Benbrika sentenced to 15 years’ jail, with six associates jailed for between four and seven-and-a-half years.)

2007 — Dr Mohamed Haneef is detained and questioned by federal police for 12 days after a SIM card that had belonged to him was discovered on a perpetrator of the Glasgow International Airport attack. On July 14 he is charged with intentionally providing support to a terrorist organisation. After being granted bail, Immigration Minister Kevin Andrews revokes Haneef’s visa for failing a “character test”, placing him in immigration detention.

The charges are subsequently dropped, and a judicial review leads to the quashing of the Minister’s decision. The ruling is upheld on appeal to the Full Federal Court. The government’s handling of the case is widely-criticised, prompting renewed calls for better safeguards in Australia’s anti-terror laws.

2011 — Bret Walker, SC, is appointed head of the newly-formed Independent National Security Legislation Monitor (INSLM). The Gillard Government asks the monitor to “review the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation on an ongoing basis.” Walker is charged with deciding whether the laws “contain appropriate safeguards for protecting the rights of individuals, remain proportionate to any threat of terrorism or threat to national security or both, and remain necessary”.

2012 — The monitor’s first report is released in March. The report foreshadows recommendations for key changes to Australia’s counter-terror laws.

In August, the Council of Australia Governments (COAG) commences its own review of counter-terrorism legislation.

2013 — The second annual report of the INSLM and the COAG review of counter-terrorism laws are tabled in federal parliament on May 14.

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