Control Order Safeguards Report – Part 1
Part 1 of the Report considered the advisability of introducing a system of ‘Special Advocates’ into the regime, as recommended in the Advisory Report on the Counter-Terrorism Legislation Amendment Bill (No 1) 2014 by the Parliamentary Joint Committee on Intelligence and Security, tabled on 20 November 2014 in the context of the Counter-Terrorism Legislation Amendment Bill (No 1) 2015. Part 1 of the Report was tabled in Parliament on 5 February 2016.
Introduction
The then Prime Minister referred the following matter to me pursuant to s 7 of the Independent National Security Legislation Monitor Act 2010 (INSLM Act):
… whether the additional safeguards recommended in the 2013 Council of Australian Governments Review of Counter-Terrorism Legislation in relation to the control order regime should be introduced, with particular consideration given to the advisability of introducing a system of special advocates into the regime, as recommended in the advisory report on the Counter-Terrorism Legislation Amendment Bill (No 1) 2014 by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) – tabled on 20 November 2014.
The 2013 Council of Australian Governments Review of Counter-Terrorism Legislation (the COAG Review) recommendation in relation to special advocates is as follows:
RECCOMENDATION 30: Criminal Code – Control orders – Special Advocates
The Committee recommends that the Government give consideration to amending the legislation to provide for the introduction of a nationwide system of ‘Special Advocates’ to participate in control order proceedings. The system could allow each State and Territory to have a panel of security-cleared barristers and solicitors who may participate in closed material procedures whenever necessary including, but not limited to, any proposed confirmation of a control order, any revocation or variation application, or in any appeal or review application to a superior court relating to or concerning a control order.1
The Parliamentary Joint Committee on Intelligence and Security (PJCIS) recommended that the INSLM ‘consider whether the additional safeguards recommended in the 2013 Council of Australian Governments Review of Counter-Terrorism Legislation should be introduced. Particular consideration should be given to the advisability of introducing a system of ‘Special Advocates’ into the Regime.’2
Other relevant safeguards are not considered in this part of the Report.
The Reference from the former Prime Minister assumes the continued availability of control orders following the amendments to Division 104 of the Schedule to the Criminal Code Act 1995 (Criminal Code) in 2014. Control orders have been a controversial remedy. The previous INSLM, Bret Walker SC, recommended that they be abolished.3 That was not accepted. Some submissions to this inquiry contain prior calls for abolition and highlight alleged flaws in the control order regime.4 There is a duty to review the control order legislation pursuant to the INSLM Act apart from this Reference. The issue of abolition will be considered in that context rather than in this Reference. In the meantime the issue of safeguards is important as the government remains committed to the availability of control orders.
The PJCIS is currently considering the Counter-Terrorism Legislation Amendment Bill (No 1) 2015 (the 2015 Bill), which includes amendments to the control order regime, and is due to report in February 2016.
The PJCIS has asked for my views in relation to special advocates in that context to be provided by 1 February 2016.
Hearings and consultations on the Reference concluded in December 2015. Preparation of the Report on the Reference is in train but will not be completed by 1 February. In these circumstances it is appropriate to deliver the first part of the Report relating to special advocates, in the context of the 2015 Bill, to the Prime Minister, in accordance with section 30 of the INSLM Act.
Because of the purpose and timing of this part of the Report, a knowledge of the current legislation governing control orders, the history and operation of that legislation and the commentary about it, as well as the contents of the 2015 Bill and the Explanatory Memorandum (EM), will be assumed. I have taken into account the report of the Parliamentary Joint Committee on Human Rights on this Bill.5 This Report will be more succinct than may otherwise have been the case.
1 Council of Australian Governments Review of Counter-Terrorism Legislation 2013, p 97.
2 Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Counter-Terrorism Legislation Amendment Bill (No 1) 2014, November 2014, Recommendation 1.
3 Independent National Security Legislation Monitor, Declassified Annual Report 20th December 2012, Recommendation II/4.
4 Gilbert and Tobin Centre of Public Law has recommended the abolition of control orders (18 September 2015, Annexure 2, page 4, Recommendation 19). The Law Council of Australia also has recommended repeal of the control order regime (30 September 2015, page 3). The Australian Human Rights Commission (AHRC) raise concerns that the control order regime may be in breach of the right to: arbitrary detention, privacy, rights to freedom of movement, expression and association, found in articles 9, 17, 12, 19 and 22 of the International Convention on Civil and Political Rights (ICCPR), respectively. The AHRC is also concerned that control orders do not provide effective review procedures (17 September 2015, p 2). See also Michael Bradley, Marque Lawyers (18 September 2015, p 1) and Lisa Burton and George Williams, ‘What future for Australia’s Control Order Regime’ (2013) Public Law Review Vol 24, pp 182-208.
5 Parliamentary Joint Committee on Human Rights, Thirty-second report of the 44th Parliament, 2015, pp 3-38.