picture-1600BY KEIRAN HARDY

Following the recent shooting in Parramatta of NSW Police accountant Curtis Cheng, Attorney-General George Brandis announced that the government will introduce new national security legislation in the November sitting of Parliament. The major amendment that is proposed will lower the age at which a control order can be imposed (from 16 to 14 years). Under a control order, a person can be subjected to a range of significant restrictions on liberty – including curfews, electronic monitoring and restrictions on communication and association – without a finding of criminal guilt.

The Attorney-General announced that the Bill will also provide greater protection for sensitive information in control order proceedings, allow enhanced surveillance of individuals subject to control orders, and introduce a new offence of incitement to genocide. It appears that the government has so far resisted NSW Premier Mike Baird’s calls to increase the period available for pre-charge detention of terror suspects (from eight to 28 days), although the draft legislation has not yet been made public.

This Bill will be the fifth tranche of national security legislation introduced since 2014 in response to the threat of ‘foreign fighters’. The others were the:

  1. National Security Legislation Amendment Act (No 1) 2014 (Cth) (‘NSLAA’), which expanded ASIO’s intelligence gathering powers and strengthened offences for intelligence whistleblowing;
  2. Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth) (‘Foreign Fighters Act’), which focused directly on the threat of foreign fighters by introducing new criminal offences and further customs and immigration powers;
  3. Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth) (‘Metadata Act’), which implemented a mandatory data retention regime; and
  4. Citizenship Legislation Amendment (Allegiance to Australia) Bill 2015 (Cth) (‘Citizenship Bill’), which will provide powers to revoke the Australian citizenship of dual citizens who engage in terrorism-related conduct.

The shooting of Mr Cheng by a radicalised 15-year old highlights the real danger of young individuals being inspired by events overseas and committing acts of terrorism on Australian soil. However, the idea that this problem could be solved by subjecting children to severe restrictions on liberty as proposed by Brandis is no less concerning.

The aim of this post is to analyse the impact of the four previous tranches of anti-terror laws on rights and liberties, the process by which these laws were enacted, and the necessity and effectiveness of these laws as responses to the threat of foreign fighters. It will use this analysis to reflect on what lessons the Abbott government’s record of national security lawmaking holds for the government’s latest proposal.

  1. Impact on Rights

In many respects the four tranches of anti-terror laws introduced by the Abbott government effected greater incursions into individual liberties than even the most controversial measures introduced by the Howard government in response to 9/11 and the London bombings. The declared area offence introduced by the Foreign Fighters Act, which effects serious incursions into freedom of movement, is a key example. It creates an offence, punishable by 10 years’ imprisonment, for merely entering or remaining in an area of a foreign country that has been declared by the Minister for Foreign Affairs as a ‘no-go zone’. The offence also impacts on the presumption of innocence, as it effectively reverses the onus of proof. Defendants are required to show that they entered or remained in the area solely for a legitimate purpose, including providing humanitarian aid or conducting family visits. The available defences are few in number, which means the legislation criminalises a range of legitimate behaviours, such as entering a zone for commercial purposes or to visit friends who are not relatives.

Another example is the ‘special intelligence operations’ regime, introduced by the NSLAA. This provides unprecedented powers to ASIO officers, who will now receive immunity for engaging in unlawful acts during special undercover operations approved by the Attorney-General. Public discussion of these operations is prohibited by a disclosure offence, punishable by five years’ imprisonment, which does not require any intention to prejudice security and includes no exemption for information disclosed in the public interest. This offence provides no protection for legitimate whistleblowers and directly impacts on the freedom of the press to report on any corrupt or unlawful conduct in which ASIO is involved.

Finally, the proposed measures in the Citizenship Bill continue this hard-line and broad-ranging stance against terrorism. The Bill will strip the Australian citizenship of dual nationals, including young children, for engaging in conduct that falls under a number of problematic terrorism offences and even for damaging Commonwealth property. There is no requirement that the rules of natural justice be followed in notifying the person. It is possible that the Turnbull government will narrow the scope of the Bill in line with recommendations by the Parliamentary Joint Committee on Intelligence and Security (PJCIS), but to date there have been no public announcements to this effect.

  1. Parliamentary Process

A second major feature of the Abbott government’s anti-terror lawmaking was the urgency with which the legislation was introduced and the general lack of regard for proper democratic process. The Foreign Fighters Act provides the clearest example of this. The Bill amounted to more than 160 pages and introduced some of the most substantive and controversial amendments to Australia’s anti-terror laws in nearly a decade. Yet, interested parties were given just eight days to make submissions to the PJCIS inquiry into the Bill. The legislation was then given three days’ scrutiny in Parliament, with debate in the House limited to just two hours.

The government’s approach to the Metadata Act was more positive, as significant changes were made to the Bill in response to the PJCIS report. However, some of these changes were so significant that it gave cause to wonder whether the government had made ambit claims for new powers in the knowledge that some might not succeed, or whether the Bill was produced so quickly that it contained several drafting errors.

The sidelining of democratic scrutiny is a familiar problem in national security lawmaking. Similar issues were evident in the years following 9/11 when the Howard government enacted Australia’s first national anti-terror laws. It is hoped that the Bill soon to be introduced into Parliament will not be rushed through on a similarly urgent timetable.

  1. Necessity

Before these legal responses to the threat of foreign fighters were introduced, the Australian Parliament had already passed 61 pieces of anti-terrorism legislation. Most of these laws were enacted between 2002 and 2005, meaning that Australia had a comprehensive anti-terrorism law framework in place nearly a decade before the recent threat of foreign fighters became a national security issue. These laws include broad preparatory offences for terrorism, group-based offences relating to terrorist organisations, expanded surveillance powers, control orders, and preventative detention orders.

Given this, the Abbott government’s claims in 2014 that Australia needed new, urgent and extensive measures to counter the threat of foreign fighters should be doubted. Certainly, some of the measures introduced by the Abbott government were timely and even overdue. This category of laws would include changes recommended by the Independent National Security Legislation Monitor, such as relaxing restrictions on foreign evidence in terrorism-related proceedings and allowing ASIO to temporarily suspend a person’s passport while conducting further checks.

However, the suite of laws went far beyond this. The NSLAA addressed intelligence whistleblowing, which was not directly related to the threat of foreign fighters, and metadata retention had been the subject of longer-term discussions and a previous inquiry under the Labor government. The Foreign Fighters Act extended sunset clauses on powers which were not due to expire for 12 months or more, which postponed an important opportunity to review those powers for no added benefit to security.

  1. Effectiveness

Finally, as a practical matter, it is doubtful how effective the Abbott government’s new anti-terror laws are likely to be in combating the threat of foreign fighters. Prosecution of foreign fighters under the new offence provisions is likely to be difficult for a variety of reasons. For example, Australians who travel to Iraq and Syria to engage in terrorism may never intend to return home, making their arrest and prosecution in an Australian court unlikely.

In other cases, the gathering of sufficient evidence for successful prosecutions will be challenging. This will pose a problem not only in relation to unlawful acts committed overseas, but also on Australian soil. For example, after an alleged plot to attack the Anzac Day commemorations in Melbourne, 18-year old Harun Causevic was held initially under a preventative detention order and then charged with various terrorism offences. Those charges were subsequently dropped due to a lack of evidence and Causevic pleaded guilty to three relatively minor weapons charges under Victorian law.

Finally, as the recent Parramatta shooting tragically illustrates, Australia’s vast anti-terrorism law framework has not, to date, been effective in deterring young individuals from supporting Islamic State and becoming involved in terrorism. On the contrary, there is a very real risk that severe anti-terrorism powers will contribute to this problem by aggravating perceptions that the government is targeting Muslim communities.

Conclusion

The Abbott government’s four tranches of anti-terror laws were a return to the outdated, post-9/11 rhetoric of ‘balancing’ rights and security. Such rhetoric favours expanded powers for police and intelligence agencies over proper democratic process, even when there is no evidence that the laws are necessary or that they will be effective. This kind of lawmaking is driven by the need for government to be seen to be ‘doing something’ in response to terrorism. It precludes a more measured, considered response to the real and complex threat that terrorism poses to our community.

The change in leadership provides an opportunity for the Turnbull government to reflect on the Abbott government’s legacy of national security lawmaking. Detailed consideration should be given to the impact of these laws on rights and liberties, their necessity and likely effectiveness. Parliament must also be given adequate opportunity to scrutinise the detail of the proposals. Responses to terrorism often involve concerning incursions into individual liberties and must be subject to robust scrutiny and democratic debate.

This blog is based on multiple submissions to the PJCIS inquiries on the Abbott government’s anti-terror laws by Keiran Hardy, Nicola McGarrity and George Williams.  

Keiran Hardy is a Research Fellow in the Faculty of Law at UNSW and Co-Director with Nicola McGarrity of the Terrorism Law Reform Project in the Gilbert + Tobin Centre of Public Law. He is currently conducting a project into the sharing of big data across government, and from 2016 will take up a position as Lecturer in the School of Criminology and Criminal Justice at Griffith University.

Suggested citation: Keiran Hardy, ‘Lessons from anti-terror lawmaking in response to foreign fighters’ on AUSPUBLAW (2 November 2015) <https://auspublaw.org/2015/11/lessons-from-anti-terror-lawmaking/>