By Adam Fletcher

Australia’s ever-expanding anti-terror laws were in the spotlight again last week when the Parliamentary Joint Committee on Intelligence and Security (JCIS) tabled its report on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015. It recommended the Bill be passed, subject to a long list of amendments (20 in all).

The report gives us an opportunity to compare the approach of two different parliamentary committees, as the JCIS report follows the report of the Joint Committee on Human Rights (JCHR) on the same Bill from December last year. The JCHR’s was an initial report, and contained a lot of questions about human rights compatibility for the Attorney-General (the JCHR will issue a final report on the Bill after it has finished corresponding with the A-G).

Concerns about children’s rights

One of the Bill’s major measures is the extension of control orders to 14 and 15 year-olds (currently they can only be imposed on adults and children aged 16+). This expansion comes despite the former Independent National Security Legislation Monitor’s finding that control orders are ineffective and should be scrapped.

The JCIS’ first recommendation was that, when considering placing these harsh restrictions on children, courts should treat their best interests as a ‘primary’ consideration, but the safety and security of the community should be the ‘paramount’ consideration. The JCHR also pointed out that the best interests of the child were not listed as a ‘primary’ consideration in the Bill (in line with the requirements of the Convention on the Rights of the Child [CRC]), but the JCIS recommendation really defeats the purpose of having a ‘primary’ consideration if another relevant consideration is ‘paramount.’ In making this recommendation, the JCIS was adopting the Attorney-General’s Department’s approach.

The JCIS also recommended that the Bill be amended to provide that a child has the right to legal representation in control order proceedings (Recommendation 2). This is more in line with the JCHR’s human rights concerns, and addresses a glaring potential breach of article 12 of the CRC – the right of children to be heard, including in official proceedings affecting them. The Bill as drafted would put in place a special court-appointed advocate system, which both committees thought was inappropriate. The JCHR noted:

The court-appointed advocate would not be acting as the child’s legal representative and, as such, is not obliged to act on the instructions or wishes of the child.

The Explanatory Memorandum for the Bill states that it is the Government’s ‘policy intent that [the measures in the Bill] are extraordinary measures which are to be used sparingly – and this is especially so with children.’ However, as Australian Lawyers for Human Rights point out, this intention is not reflected in the Bill itself.

Preventive Detention Orders

The next major issue with the Bill is its expansion of Preventive Detention Orders. As with Control Orders, a review of the Preventive Detention Order regime in 2013 (by the Council of Australian Governments) concluded that it is ‘neither effective nor necessary’ and should be repealed. Yet once again, the Government is seeking to expand it.

These orders can be issued when a terrorist attack is “imminent”. The Bill changes the definition of an imminent attack from one which ‘must be expected to’ occur in the next 14 days to one which ‘could’ occur. The JCHR explained that:

…the changes would mean that a terrorist act would be imminent if it was capable of being carried out and could occur in the next 14 days, without there being a need to suspect that such an act is likely to occur within the next 14 days—as the explanatory memorandum notes, this could mean that the act could occur within months.

The JCHR went on to note that the Explanatory Memorandum does not explain the rationale for lowering the threshold in this way – it only states that the current test “can be interpreted as ‘imposing impractical constraints on law enforcement agencies’ in certain circumstances.”  As is often the case with these national security Bills, no examples are given and ‘operational advice’ from law enforcement agencies is merely alluded to rather than set out.

Rather than quibble over the lower threshold itself, the JCIS simply recommended removing the word ‘imminent’ to avoid the perceived inconsistency with that word’s ordinary meaning (Recommendation 15). Presumably, the Government will be pleased with the JCIS’ pragmatic solution to its terminological problem.

The JCHR report sets out a number of other human rights concerns with the Bill, including:

• Privacy issues raised by a proposed control order monitoring regime;
• Fair trial issues with the use of information gained under an interim control order subsequently voided, and
• Equality of arms issues raised by allowing information to be withheld from subjects of control orders (and their lawyers).

The JCIS addresses these issues (see its Recommendations 9/13/14, 10 and 4 respectively). It also makes some good recommendations in respect of transparency/reporting (Recommendations 6, 11 and 12).

How will the Government respond?

The Attorney-General’s response to the JCHR’s questions appears to be pending (at least, it does not appear in the committee’s next report tabled on the 2^nd of February). His media release in response to the JCIS report gives little away. It will be interesting to see how many of the (quite serious) issues with the Bill are addressed in the final version. The Bill is before the Senate at the time of writing and you can track its progress here.

Overall, as one would expect given its mandate, the JCHR’s report delves deeper into the human rights issues with the Bill. However, research I am conducting for my thesis indicates that the JCIS’ concerns are much more likely to be heeded – even where they coincide with those of the JCHR. Whether this is due to the high-powered composition of the JCIS or the philosophical objection of Ministers to human rights law (or a bit of both) is not entirely clear.

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