Australia’s counter-terrorism tranches

The new parliament will soon pass more national security (mainly counter-terrorism) legislation. This has happened every few months from late 2014, following the increased terrorist threat resulting from the Syrian civil war and the rise of the “Islamic State”.

Commonwealth Attorney-General George Brandis has popularised the term tranche for each of these new sets legislation. These tranches can be hard to keep track of, and generate a lot of controversy. So this post outlines the tranches so far, with a few thoughts on the debates about them.

 

Tranche 1: National Security Legislation Amendment Bill (No. 1) 2014

The first tranche was mainly about implementing the recommendations of the 2012 national security inquiry, and most of it was reasonable. Some of the critical commentary was way off the mark, with unfounded claims that the bill would legalise torture and allow ASIO to monitor “the entire internet” with one warrant.

I only had a few objections to this bill. For example, it made sense to allow ASIO officers to conduct “special intelligence operations” (that is, to infiltrate terrorist cells without the fear that they could face prosecution for breaking laws in the process), but I objected to the disclosure restrictions in Section 35P which went beyond the AFP’s disclosure restrictions for controlled operations, but with less oversight.

The disclosure restrictions have since been eased, to some degree, following the Independent National Security Legislation Monitor (INSLM)’s inquiry into Section 35P.

 

Tranche 2: Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014

The second tranche was much more worrying. It introduced the declared area (or “no go zone“) offence, where Australians returning from declared areas in Syria and Iraq would have to prove they weren’t terrorists. The tranche also merged foreign incursions offences and terrorism offences together in a very blunt manner, and introduced new restrictions on speech.

However, this tranche also had bits I strongly agreed with (particularly relating to passports and foreign evidence) and bits I was wary of but acceptted (such as lowering thresholds for several existing powers like control orders, though this was done without adding the control order safeguards recommended in the COAG CT review).

 

Tranche 2.5? Counter-Terrorism Legislation Amendment Bill (No.1) 2014

This was quickly followed some small changes that were not announced as a “tranche”, because they were mainly about tweaking some of the previous tranche. So they could be considered a sub-tranche, and they mainly involved more adjustments to control orders and intelligence-sharing.

One problem with this tranche, which was fortunately fixed by the Parliamentary Joint Committee on Intelligence and Security (PJCIS), was that its initial draft would have removed some of the judicial discretion on control orders. Traditionally, a judge who approved a control order could scrutinise each proposed restriction on the suspect’s liberty and reject any restrictions that the police couldn’t sufficiently justify. Read the Harun Causevic ruling to see this process playing out.

The original version of this bill would have taken that discretion away, meaning that a judge could either say yes to a control order, accepting every restriction the Federal Police called for, or say no altogether. Fortunately the PJCIS rejected this, and the government accepted that, so each restriction on liberty can still be argued over in court.

 

Tranche 3: Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014

Then there was the third tranche, data retention. I wasn’t instinctively opposed to data retention but was largely sceptical, given the risks it carries for personal liberties, doubts that the data would be kept securely, the risks posed to press freedom and the poor record of data retention in some other countries.

I’m also sceptical of several arguments from the anti-data retention side, such as that no counter-terrorism or public safety benefits will result at all from it. The UK’s Independent Reviewer of Terrorism Legislation’s latest report found benefits from bulk data collection(though that’s not quite the same thing).

But on the whole, I’m still unconvinced that the benefits will outweigh the risks.

Now that we have data retention, a big question is how to evaluate it. What sort of review could be done to examine the first year or more of data retention and test the arguments of each side? It would probably be too big for the INSLM, who’s job only goes for 60 days per year. We are due for another external review of Australia’s intelligence agencies (the Flood Review recommended one every five to seven years and the last one was in 2011), civil society groups could push for it to include an examination of what difference data retention has made so far.

 

Tranche 4: Australian Citizenship Amendment (Allegiance to Australia) Bill 2015

Next came the fourth tranche, the citizenship-stripping bill. For the first time ever, I was 100% opposed to a piece of national security legislation.

The PCJIS’s amendments have removed many of its worst aspects. The original draft could strip the citizenship of Australians within Australia who hadn’t been convicted of a crime, and listed “damage to Commonwealth property” as one of the offences that could result in this. It also may have had an evidence threshold lower than that of confiscating passports (it’s unclear, see pages 6-7 here).

Thanks to the PJCIS’s changes, the bill that ended up passing is not nearly as bad. However, it still allows for Australians suspected of terrorism (provided they are dual-nationals and overseas at the time) to lose their citizenship without being convicted, thanks to a “self-executing” clause. This obfuscating term caused a lot of debate in the PCJIS hearings and hid that a group public servants (which we know now will be in the form of the Citizenship Loss Board) will decide which dual-national Australians will lose their citizenship, without guilt being proved.

Within Australia, it can only be used against dual-nationals who have been convicted. However, even if the law is used only against undeniably genuine terrorists, I don’t see merit in it.

 

Tranche 5: Counter-Terrorism Legislation Amendment Bill (No.1) 2015

Then we had the fifth tranche, which we are still in the middle of. It mainly involves adjustments to control orders, such as lowering the age of who they can be used against (from 16 to 14) and allowing the use of secret evidence in control order proceedings.

When the PJCIS released its report on the bill, the government announced it would pass it. This then got put aside, presumably because the double dissolution election got in the way or because they were waiting for Part 2 of the INSLM’s report on control order safeguards.

On Thursday, Turnbull said that the bill’s new version would be presented soon. We haven’t seen it yet, but if the “special advocates” recommendations are implemented (so that the secret evidence can be challenged), I don’t find this tranche a huge worry in itself.

 

Tranche 6: indefinite detention?

There will soon be sixth tranche, which I’m deeply apprehensive about.

In August a COAG meeting of Attorneys-General agreed to introduce legislation to detain convicted terrorists who had served their sentences if they were deemed to pose an unacceptable risk. Their detention would be reviewed periodically, and could be indefinite. On Thursday Turnbull announced that these laws would be presented to Parliament soon, along with other changes.

 

So these are the tranches that we have had, or are about to have. Given the threat, several of the changes were justified. However, the overall trend is excessive and illiberal, and looks set to continue.

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