Shouts from the desert

The following is my impression of various controversial aspects of the Anti-Terrorism Bill (No. 2) 2005. I evaluate each of the aspects here to determine whether it has adequate safeguards, and include some reflections on related areas of the law. This evaluation only looks at whether, assuming we want to have laws of this kind, the proposed laws are suitably formulated. As I have previously stated, we have not been given sufficient evidence - or even the kind of evidence we need - to decide that laws of this kind are necessary. It is unfortunate that the alleged need for these laws has been based on fear-mongering and rhetoric rather than reasoned argument.

Overall drafting

The drafting of this Bill is very good - there has obviously been a great deal of highly skilled effort put into this Bill. Given the time frames for its drafting, an outstanding job has been performed here.

Control orders

This regime is to be introduced into the Criminal Code Act 1995 (Cth) by amendments in schedule 4 of the Anti-Terrorism Bill (No. 2) 2005. Section numbers referred to below are the section numbers to be inserted into (or already present in) the Criminal Code.

The control orders regime has a number of safeguards. The order can only be made on the application of a senior member of the Australian Federal Police to a Court (s104.3). That person must normally get the approval of the Attorney-General (s104.2). Both the Attorney-General and the Court must be informed of many detailed elements, and specifically must be presented with any arguments the applicant is aware of that the target of the order might present to oppose it. Where these details are knowingly misleading (which they can be if literally true but crafted to give a false impression), the applicant commits an offence punishable by 12 months imprisonment (ss137.1 and 137.2), and may also be guilty of perjury.

The court must be satisfied on the balance of the probabilities that each obligation or prohibition in the order is necessary, and is reasonably appropriate and adapted (a term of art in law that you can sufficiently understand for present purposes as meaning it does not impose restrictions greater than is necessary) to protection of the public from a terrorist act (s104.4(1)(d)). Even though this talks about "the balance of the probabilities", this is a tougher standard than you probably think - where there is an accusation that the person is involved in terrorist activity, the accusation is a serious one, and "the balance of the probabilities" is affected by what is known as the rule in Briginshaw v Briginshaw - that the more serious the allegation, the stronger the evidence must be to satisfy the balance of the probabilities.

The person on whom the order is made must be given an opportunity to attend court for a hearing to confirm, vary, void (that is, declare that it was never valid) or revoke the order (s104.5(1)(e), s104.14), so the person will have the opportunity to defend against the effect of the order.

The orders that can be made are listed in s104.5(3). The most serious of these restrictions in my view are s104.5(3)(c), which may require a person to "remain at specified premises between specified times each day, or on specified days", and s104(3)(f), which can prohibit or restrict a person accessing or using particular types of communication or technology, including the Internet. The seriousness of these restrictions means that a court will rarely find them appropriate or adapted to the purpose. For example, a blanket provision on accessing the Internet is unlikely for anybody but somebody who is alleged to be a terrorist - since a restriction on usage that prevents the communication of particular matters would be sufficient.

Another restriction is that on associating or communicating with particular individuals (s104.5(3)(e)), but such orders cannot prevent (s104.5(4)) association with family members in relation to matters normally within the family domain (s102.8(4)(a)), attendance at a place of worship in the course of practising a religion (s102.8(4)(b)), the provision of humanitarian aid (s102.8(4)(c)), or the provision of legal advice of kinds broadly relating to the matters at hand (s102.8(4)(d)) or any legal advice unless the other person is specifically mentioned in the order (s104.5(5)).

In urgent circumstances an order may be made without the prior consent of the Attorney-General (ss104.6-104.9), but the consent of the Attorney-General must be obtained within 8 hours otherwise the order ceases to have effect (s104.10).

Even after the order has been confirmed by a court, an application can be made to vary or revoke it (ss104.18-104.20), and the Commissioner of the AFP must make such an application if the necessity for the order has diminished to any degree (s104.19). These applications do not have to be made to the same court that issued the original order, and the application is for a new decision rather than an appeal and so the orders are not susceptible to being manipulated by a small cadre of extremist judges - if a judge were to make an order in dubious circumstances, the person affected could apply to another court to have the order revoked and in such circumstances gets a fresh hearing by a new judge.

The control orders regime automatically ceases to have effect 12 months after it has commenced (s104.32).

It would be extremely hard to seriously abuse this proposed system. The orders are given and revoked in open court, so they would be subject to media scrutiny. The target of the order has multiple opportunities to have it set aside in a way that would prevent abuse without the conspiracy of many judges with police, the Attorney-General, and the media. Such a scenario is so unlikely that it can be disregarded entirely.

The control orders regime can be compared with the existing system of Apprehended Violence Orders for domestic and neighbourhood violence at the State level. Except for the most extreme restrictions in the control orders proposal, the AVO system provides for similar restrictions on the personal liberties of the affected person. If the AVO restrictions constitute acceptable restrictions on civil liberties, then given the scope and impact of terrorist violence, the control order restrictions are not out of proportion - and given the multiple opportunities available for the target of a control order to challenge the order and the safeguards in place to diminish the likelihood of abuse, the control orders regime is in many respects fairer to the person targeted than the AVO regime.

In some respects, the proposed control orders regime provides for a less onerous burden on the person targeted than the alternative of detention orders or, as I shall discuss, the common law option.