Control Order Safeguards Report – Part 2
Part 2 of the Report considered the recommended safeguards to the control order regime generally. This report was tabled in Parliament on 5 May 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 Council of Australian Governments (COAG) established a Review Committee to review and evaluate the amendments that had been made to counter-terrorism laws including the control order provisions of the schedule to the Criminal Code Act 1995 (Cth) (Criminal Code).1 The principle to be taken into account was that anti-terrorism laws must be necessary, effective against terrorism, contain appropriate safeguards against abuse, and be exercised in a way that is evidence-based, intelligence-led and proportionate.
The COAG Review commenced in August 2012 and reported in March 2013.2 The Report contained a number of recommendations about safeguards in relation to control orders. Some of the recommendations were adopted in whole or in part in legislative amendments in 2014. This report deals with those that were not. The members of the Review Committee, chaired by the Hon Anthony Whealy QC, a retired judge from the New South Wales Court of Appeal who had experience of conducting terrorism trials, had an impressive range of relevant experience.3
On 29 January 2016, I provided the first part of this Report to the Prime Minister. It dealt with the advisability of introducing a system of special advocates into the control order regime in the context of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 (the 2015 Bill). This part deals with all relevant recommendations.
As I said in the first part of this Report, the Reference from the former Prime Minister assumes the continued availability of control orders following the amendments to div 104 of the Criminal Code in 2014. Control orders have been a controversial remedy. The previous INSLM, Bret Walker SC, recommended that they be abolished.4 That was not accepted. Some submissions to this Inquiry contain or reference calls for abolition and highlight alleged flaws in the control order regime.5 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 modus operandi of this Review is described in Appendix C.
1 See Criminal Code div 104.
2 Council of Australian Governments Review of Counter-Terrorism Legislation Report 2013 (COAG Report), p 2 [9].
3 The Committee members included: Mr Richard Bingham, South Australian Ombudsman; Assistant Commissioner Mike Condon, State Crime Operations Command, Queensland Police; Mr Graeme Davidson, Deputy Director, Commonwealth Director of Public Prosecutions; Judge David Jones AM, retired Victorian County Court judge and current Victorian Law Reform Commissioner; and Assistant Commissioner Justine Sanders APM, Manager Counter-Terrorism Domestic, Australian Federal Police.
4 Independent National Security Legislation Monitor, Declassified Annual Report 20th December 2012, Recommendation II/4.
5 The Gilbert and Tobin Centre of Public Law has recommended the abolition of control orders: Gilbert and Tobin Centre of Public Law, Submission No 5 to INSLM Inquiry into Control Order Safeguards, 18 September 2015, Annexure 2, p 4, Recommendation 19. The Law Council of Australia has also recommended repeal of the control order regime: the Law Council of Australia, Submission No 8 to INSLM Inquiry into Control Order Safeguards, 30 September 2015, p 3. The Australian Human Rights Commission (AHRC) raised concerns that the control order regime may be a breach of the human rights relating to arbitrary detention, privacy, freedom of movement, expression, and association, found in arts 9, 17, 12, 19 and 22 of the International Convention on Civil and Political Rights, respectively. The AHRC is also concerned that control orders do not provide effective review procedures: Australian Human Rights Commission, Submission No 2 to INSLM Inquiry into Control Order Safeguards, 17 September 2015, p 2. See also, Marque Lawyers, Submission No 4 to the INSLM Inquiry into Control Order Safeguards, 18 September 2015, p 1, and Lisa Burton and George Williams, ‘What Future for Australia’s Control Order Regime?’ (2013) 24 Public Law Review 182.