Counter-terrorism law changes unnecessary, say top criminal lawyers
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Version 0 of 1. Leading criminal lawyers have raised serious concerns about the federal government’s plans to retain and expand laws to detain people without charge which, since their creation in 2005, have never been invoked. The attorney general, George Brandis, released the government’s second tranche of national security legislation late on Tuesday night. The bill creates new offences that could see people who engage in foreign incursions overseas face life in prison. But the government is also seeking to keep the Howard-era preventive detention and control order regimes, which are seen as highly controversial because they allow people to be subject to police restrictions or detention without charge and with limited judicial oversight. Preventive detention orders allow a person to be detained without charge for up to 14 days. Control orders can restrict a person’s freedom of movement or their associations for much longer. The new bill seeks to keep the existing laws and make a number of expansions including: The explanatory memorandum of the bill says: “The enduring nature of the terrorist threat and the heightened risk posed by returning foreign fighters justifies the continued existence of the PDO [preventive detention orders] regime. In the evolving terrorism landscape, it remains an appropriate preventative mechanism in rare situations where immediate and preventative action is required by Australia’s law enforcement agencies.” Despite the insistence on keeping the controversial laws, there have been no preventive detention orders ever issued under commonwealth legislation in the past 10 years. There have been only two control orders issued. The only preventive detention orders ever issued in any Australian jurisdiction were made under the similar NSW regime last week as part of the major counter-terrorism operation that saw more than 800 police involved but only one person charged. The AFP confirmed three men had been placed on the orders, although a veil of secrecy surrounds them with an indefinite order restricting publication of any details about their cases. The former independent national security legislation monitor Bret Walker SC said he did not understand why control orders and preventive detention orders were necessary, given the powers already available to police and intelligence agencies. “There is already for the police under the criminal code, and for Asio under other provisions, powers to question people while they are detained for that purpose,” he said. “I do not understand why you would then invent a third system. “The problem is that people think that passing laws makes us safer. Well not unless the laws are necessary because we lacked powers to keep us safe. The existing laws should be properly implemented.” A Brisbane barrister, Stephen Keim SC, who represented Mohamed Haneef in 2008 when he was detained and charged, said the changes to the threshold from belief to suspicion was a much lower test to meet and it allowed police to be “a little more trigger-happy” in their use of the laws. The charges against Haneef were subsequently dropped. “It is a substantial change. There’s case law that explains in great detail the difference between suspicion and a belief and it’s quite significant that this is a power that can be exerted over people in circumstances where they are not accused of having committed a criminal offence,” he said. “It sort of allows everybody to be a little more trigger-happy. We’re going to be able to lock a lot more people up because we don’t need to have enough information. “That’s the concern – that by lowering the threshold you make that whole process easier to happen.” The bill is set to introduced into parliament on Wednesday. The Senate is debating the first tranche of national security legislation, which significantly expands Asio’s powers and creates new offences that could see journalists prosecuted for disclosing information about certain types of intelligence operations. |