I have a new article on ASPI’s blog The Strategist about Australia’s need to take independent reviews of national security legislation seriously. You can read the article here.

This is a companion post to go into some more detail about the sources and background.

Last year, these  four independent reviews of national security legislation were tabled in Parliament:

Independent National Security Legislation Monitor – declassified annual report 20th December 2012
Department of the Prime Minister and Cabinet (DPMC)
14 May 2013

Council of Australian Governments review of counter-terrorism legislation
Council of Australian Governments (COAG)
14 May 2013

Report of the inquiry into potential reforms of Australia’s national security legislation
Parliamentary Joint Committee on Intelligence and Security (PJCIS)
24 June 2013

Independent National Security Legislation Monitor – annual report 7th November 2013
Department of the Prime Minister and Cabinet (DPMC)
12 December 2013

The brief period of media discussion following the reports focused on their most controversial parts, such as the INSLM’s calls to abolish ASIO’s detention powers and the AFP’s preventative detention powers. The response of both major parties was simply to avoid doing anything that could result in them being accused of weakening national security.

When the then Attorney-General, Mark Dreyfus, tabled the COAG report and one of the INSLM reports (after 5pm on budget night, when there’d be minimal media coverage) he stated “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…. Our counter-terrorism framework has held us in good stead so far, but we cannot afford to stop being vigilant.”

And that was it. There was no other response to these reports from the Gillard government, or from the Rudd or Abbott governments.

This is really unfortunate. These are extremely valuable reports, and where they have made recommendations to remove existing powers they have also provided detailed arguments that doing so will not harm national security, which at the very least deserve a similarly detailed response and not just assertions of ‘national security’ back.

Moreover, most of the recommendations were actually about more mundane issues, such as that some of Australia’s counter-terrorism legislation is so poorly-worded as to make it unusable, or that some bits leave dangerous gaps.

My article for the Strategist focused on one of these gaps, using the recent disappearance of a convicted terrorist, Khaled Sharrouf, as an example of why these reviews deserve a response.

The INSLM’s 2012 report made a proposal to reshape Australia’s control order regime. While the report opposed control orders in most circumstances (particularly when used against people acquitted of terrorism offences like Joseph Thomas) it argued that obtaining a control order for a convicted terrorist, when there’s sufficient evidence they continue to pose a danger, should be made much easier than it currently is (see pages 43-44).

The flaws and problems of the CO provisions discussed above are most evident and pressing in cases where COs are proposed to be made against persons before charge and trial, after trial and acquittal or who will never be tried. On experience to date in Australia, and consideration of the different but comparable experience in the UK, there is a vanishingly small category of such cases, in any event.

Even if by misfortune those numbers were to increase appreciably, the proper response need not and should not involve COs in their present form. Instead, the twofold strategy obtaining elsewhere in the social control of crime should govern. First, investigate, arrest, charge, remand in custody or bail, sentence in the event of conviction, with parole conditions as appropriate. Second, and sometimes alternatively, conduct surveillance and other investigation with sufficient resources and vigour to decide whether the evidence justifies arrest and charge. (And, meantime, surveille as intelligence priorities justify.)

On the other hand, the dangerous and outrageous social transgression constituted by proven terrorist crime presents ample justification for COs against terrorist convicts where they can be shown to present what may be called unacceptable risks if they were free of all restraint upon release when their sentences of imprisonment expire.

Recommendation II/4: The provisions of Div 104 of Part 5.3 of the Code should be repealed. Consideration should be given to replacing them with Fardon type provisions authorizing COs against terrorist convicts who are shown to have been unsatisfactory with respect to rehabilitation and continued dangerousness.

By his next report, he sounded very concerned about this recommendation being ignored (pages 4-5):

Recommendation II/4 was for consideration of authorizing control orders against persons convicted of terrorism, after their release from any imprisonment to which they have been sentenced, if they are shown to have been unsatisfactory with respect to their rehabilitation and continued dangerousness. The intention was to make available a form of protection against the threat posed by such proven offenders, upon their release into the community. The proposal was for a much more simply obtained form of control order than is presently the case, including for such proven offenders. It drew on established analogues with respect to recalcitrant sexual offenders. When the recommendation was made, there were about ten terrorist convicts already released, and about thirteen still imprisoned, of whom about three are quite likely to be released in the next five years.

Indirect support for such an approach may be seen in the following UK experience.

The Court of Appeal of England and Wales has considered notification requirements (imposed for 10 years from the date of release from imprisonment) on convicted terrorists. The Court held the notification requirements4 to be appropriate and not disproportionate, and upheld them as compliant with the European Convention on Human Rights.5 The Court held that the scheme is not disproportionate when set against the legitimate aim of the prevention of terrorism and considering “the relatively moderate intrusion caused by the interference with the private lives of convicted terrorists”.6 The Court held that terrorism offences fall into a special category and that “even if it is the case that there may be exceptional cases [where a terrorist offender can be said to pose] “no significant future risk”, their possible existence does not preclude a general requirement of relatively moderate interference in a context such as this”. 7

The Court held it was “important to keep in mind the gravity of the disorder or crime which is being sought to be prevented” finding that terrorism offences have unique features which compound concern (acts committed by someone motivated by extreme political or religious fanaticism) and if anything calls for a precautionary approach it is counter-terrorism.8

The INSLM’s recommendation was made on 20th December 2012. Nothing has come to the attention of the INSLM about any governmental or official response to it.

The Abbott Government has recently been talking about how seriously it takes counter-terrorism. Responding to these four unanswered reviews would be a good start.

To find out more about Sharrouf’s disappearance and what it says about counter-terrorism law reform, it see my Strategist article here. For more information about Khaled Sharrouf and the Pendennis plot, see his sentencing document here. See also the sentencing document for the main Sydney Pendennis trial, particularly paragraphs 20-24, 30-34, 42, 103, 140. Sharrouf was also an unindicted co-conspirator in an aborted second Pendennis trial in Melbourne, see paragraphs 1-3, and the sections titled “The Current Trial – Evidence” and “The Haines evidence”.