26 Feb 2016
Canberra shouldn't outsource counter-terrorism policy
Last week, the Parliamentary Joint Committee on Intelligence and Security tabled its eighth report in 12 months on counter-terrorism legislation, a similar number to 2014. The Foreign Affairs and Defence Committee, by comparison, completed only four reviews last year, while the Committee on the Commission for Law Enforcement Integrity completed just one.
PJCIS is one very busy committee.
Its latest offering, the Advisory Report on the Counter-Terrorism Legislation Amendment Bill 2015, provides some important lessons for Australian counter-terrorism.
The most substantive amendments in the bill considered by the committee related to the control order and preventative detention regimes — and its most sensitive proposal was to reduce the age at which a control order can be made from 16 to 14 years.
While few control orders have been issued by the courts to date, the numbers are increasing in response to the current threat environment.
The bill was tabled in Parliament just weeks after the murder of police accountant Curtis Cheng in Parramatta by a 15-year-old.
In presenting the bill, Attorney-General George Brandis highlighted the urgency and practical necessity of the law to meet gaps identified through “recent counter-terrorism investigations and operational activity” and the increased threat level.
Somewhat surprisingly, the PJCIS has recommended the use of special advocates in control order matters.
A special advocate is a ‘‘security-cleared’’ lawyer who can access, but not pass on, classified information on behalf of the defendant.
The system originated in Britain and Canada as a workaround to comply with mandatory human rights conventions, and their experiences have not been without controversy.
Human rights activists continue to criticise the regime for not showing evidence to the defendant, while law enforcement agencies in those countries express concern about compromising classified information and the potential need to drop prosecutions to protect sources.
The special advocate model has previously been proposed in Australia, and rejected.
In 2012, the scheme was considered in relation to adverse ASIO security assessments of irregular maritime arrivals.
However, the government sensibly identified an alternative approach that balanced procedural fairness with protecting classified information, by appointing an independent reviewer. The High Court, meanwhile, found procedural fairness was provided through existing mechanisms.
Before proceeding further, the consequences of special advocates for control orders and other litigation areas need to be examined.
Part of the problem with the committee’s work is that the public consultation is narrowly focused on criticising or defending draft proposals, which leads to compromise.
Rather than considering whether proposals are the most effective additions to countering terrorism within a broader architecture, its suggested amendments tinker around the edges.
The report’s 20 recommended amendments fall primarily into two categories: additional human rights and privacy assurances, and additional reporting obligations.
Human rights advocates will be unhappy that this is all they achieved. Police and intelligence agencies will be unhappy with the price they had to pay to get their proposals through. The Australian public may well ask whether this overall process is really improving Australia’s security.
A key issue highlighted by this report is the lack of an Australian counter-terrorism strategy.
An Australian counter-terrorism strategy would explain to both parliamentarians and the broader public what the government aims to do. It would also provide clear guidance as to how its activities fit into that strategy and balance with human rights and privacy.
It is the government’s role to direct counter-terrorism strategy and policy, and to explain, consult and engage with the community.
Leaving this public consultation to the committee means the government misses a powerful opportunity to explain, and importantly draft, legislation in consort with the broader community.
The process also takes a long time. And time is a precious commodity in counter-terrorism.
This review took three months, and even with bipartisan support — largely assured through the committee process — it will be months before the bill can be tabled in Parliament.
Under COAG arrangements, the states and territories must be consulted and agree to the proposals. If all goes well — and there’s no early election — the bill might be up at the winter session.
This means it will be about a year since drafting commenced on a package that was considered urgent. And this for something relatively uncontentious.
While the PJCIS does an admirable job, there are clearly some problems with defaulting to the committee every piece of our voluminous and ongoing counter-terrorism legislation.
Judgment needs to be used in understanding how best to ensure public consultation and scrutiny while seeking to enable Australia’s counter-terrorism capability. This is where the government should lead, not outsource.
The valuable resources and expertise of the PJCIS could then be focused where they are needed.
Jacinta Carroll is head of the Australian Strategic Policy Institute’s Counter Terrorism Policy Centre
The Australian, p28