Control Orders and Now for Something Completely Not Different: Anti-terror Laws the Fifth Tranche

Thursday 15 October 2015 @ 12.46 p.m. | Crime | Legal Research | Immigration

On 12 October 2015, the Federal Attorney-General Senator George Brandis (the Attorney-General), announced in a public statement the fifth installment or tranche, of the government's ever growing raft of counter terrorism laws. Featured in this package of measures was a widening of the age groups to which a "control order" can be applied.

"The new laws will, among other things, lower the age at which a control order can be applied from sixteen to fourteen years of age."

The new proposals are said by the Attorney-General to have been developed ". . . in conjunction with NSW and other States and Territories ..." and to be part of the Governments evolving response to terrorism ". . . to ensure that our police and security agencies have the powers they need to keep our community safe".

In a longer speech in the Senate on 13 October 2015, the Attorney-General responded to a question about the proposed new tranche of terrorism legislation by indicating that:

"Since the 12th of September last year, when Australia’s national security agencies raised the National Terrorism Public Alert level to High, 24 people have been charged as a result of nine counter terrorism operations around Australia. That is more than one third of all terrorism related arrests since 2001."

These types of consideration were indicated as warranting even more legislation and powers to deal with terrorism.

Timing

The proposed legislation is expected to be before the parliament in November 2015, having been drafted after a lengthy consultation processes which the Attorney-General has indicated in his Senate speech, stretches back over the last 12 months.

"The Government has been discussing a range of reforms with law enforcement and security agencies, and with the States and Territories to respond to lessons learned from the increased operational activity of the past 12 months."

The proposed legislation is to include amendments to implement recommendations from the Council of Australian Governments Review of Counter-Terrorism Legislation as well as ". . . the learnings from that operational activity".

Key Changes Proposed

The key changes in the proposed legislation (among others mentioned but not detailed in the Attorney-General's speech) are:

lowering the age for a control order from 16 to 14 years, subject to appropriate safeguards;
facilitate the monitoring of individuals subject to control orders through enhanced search, telecommunications interception and surveillance device regimes;
providing greater protection to sensitive information in control order proceedings; and
the introduction of a new offence of "incitement of genocide".

Control Orders - The Current Position

The current law relating to control orders is to be found primarily in the Criminal Code Act 1995 (Cth) (No 12 of 1995) - see in particular "The Criminal Code" in the Schedule to the Act at Chapter 5-The security of the Commonwealth, Part 5.3-Terrorism Division 104 - Control orders.

As the the current law around control orders stands, before the proposed changes, such orders can only be issued to someone under the age 18 for a maximum period of three months. What can be done with such orders is that they can be used to stop the subject of an order from visiting certain specified places, or from communicating with certain specified people. The subject of an order can also be required not to leave Australia and restricted from owning or using certain items which might include items like a PC or internet connection. A control order can also require them to wear a tracking device, not to leave a certain specified place for a designated period of time and to report to someone at a certain time and place.

The nature and ambit of such orders is already wide and such orders can be applied to someone who has not been charged with an offence as long as the Australian Federal Police (the AFP) have obtained the permission of a court and the Federal Attorney-General to do so. It should be further noted that as the ABC reports, the Federal Attorney-General's Department website indicates:

". . . a person can be subject to a control order - 'if it substantially helps prevent a terrorist attack', if they have been convicted of a terrorism offence, or if they have trained with a listed terrorist organisation."

It is important to note that the Attorney-General has indicated that the Government's proposal to reduce the age of people who can be issued with control orders from 16 to 14 "will include extra safeguards for people under 18", however, it has not yet been indicated what those safeguards will be.

Comment, Reaction - Food for Thought

The changes are widely reported as being requested by the NSW Government, and agreed to by the Federal Attorney-General, following on the Parramatta shooting, although this is denied by the PM who says the laws were already in process before the Parramatta shooting. However, with reports that the NSW Premier has also requested changes to Federal laws including:

extending the length of time terrorism suspects can be kept in custody for questioning; and
extending the current four hours before a court application needs to be made to extend the detention period to up to eight days to four days, with a court able to extend the detention period to 28 days;

It seems unlike that the Parramatta shooting is not a key influence to bringing forward the proposed changes.

The reaction of civil liberties groups and bodies representing the legal community has been quite clearly against the laws.

The NSW Council for Civil Liberties is reported as saying that ". . . existing laws were adequate and the proposed changes would be excessive". The council president Stephen Blanks is reported as saying:

"The proposed laws are undoubtedly going to be in breach of human rights standards, . . . The idea of detaining 14-year-old children for questioning without charge, and secretly for long periods of time, should be obviously unacceptable to the whole community."

The ABC News reports Greg Barns from the Australian Lawyers Alliance as saying that the laws proposed would have the opposite effect of further radicalise young Australians:

"The more oppression you provide to younger people, the more it spurs them on, . . .The way to do it is to get in amongst these communities and get in amongst their leaders to ensure these young people are not being radicalised — but you don't do that by putting control orders on people."

A counter view reported is that of Deakin University anti-terrorism expert Professor Greg Barton who is reported as indicating that control orders that limit movement and associations could prove useful.

"I think the control order, even for children as young as 14, with proper checks and balances and limits, may well be a productive thing because it's a way of protecting them from malign influence, . . ."

A further, interesting point on the efficacy of such laws is made by Michael Bradley in article for the ABC's The Drum where he points out that

"The inconvenient facts, that Man Haron Monis had been under close surveillance, which the police had dropped, and that they could already have obtained his data under existing laws but didn't, were discarded in the legislative rush."

Possibly, there might be an argument for using the existing laws better.

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