Opinion Pieces - Scrutinising our counter-terrorism laws (2008)

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Scrutinising our counter-terrorism laws

Author: Graeme Innes AM, Human Rights Commissioner

Publication: ON Line Opinion (Fri 6 November 2008)

In 2006, I was a member of the Government-appointed Sheller Committee, which recommended the establishment of an independent review of counter-terrorism laws.

Two years later, a private Senator's bill to create an Independent Reviewer of Terrorism Laws has been introduced into Parliament, which means that the issue is finally on the legislative agenda.

Additionally, the acquittal of Jack Thomas by a Victorian Supreme Court jury – five and a half years after he was arrested in Pakistan for receiving funds from a terrorist organisation, and after a trial, multiple appeals and a retrial – has also sparked renewed calls for regular, independent review of the practical operation of Australia’s counter-terrorism laws.

It is a proposal that now has the support of a bi-partisan Senate Committee which, two weeks ago, recommended the establishment of an Independent Reviewer, the role of which would be carried out by a panel of three people.

Despite the controversial and complex nature of counter-terrorism laws, counter-terrorism experts are in agreement that existing review mechanisms are piecemeal and inadequate. An Independent Reviewer would provide depoliticised, integrated advice about how well counter-terrorism laws are working in practice – scrutiny of the kind that is not presently taking place.

In 2006, the Sheller Committee was not asked to consider the most controversial aspects of counter-terrorism laws, such as ASIO's questioning and detention powers and the use of control orders and preventative detention orders.

An Independent Reviewer could provide vital scrutiny, not only of these laws, but of other controversial counter-terrorism powers, including the provisions in the Crimes Act that allowed police to detain Dr Haneef in solitary confinement and question him for 12 days without charge.

In the absence of a Charter of Rights, an Independent Review could help address the human rights concerns that have dominated public debates about counter-terrorism laws. It would do this by asking an extremely important question: ‘Do our counter-terrorism laws comply with our international human rights obligations?’

Establishment of an independent watchdog that would ensure that Australia’s efforts to protect national security do not inadvertently trespass on fundamental rights is a very good idea. However, it will only work if the Government responds to and acts on the watchdog’s advice.

At present, formal government responses to the Parliamentary Joint Committee, the Sheller Committee and the Australian Law Reform Commission remain outstanding.

The Sheller Report made 20 recommendations aimed at clarifying the scope of offences relating to terrorist organisations and at responding to concerns that Muslim Australians felt unfairly targeted by the counter-terrorism laws.

Many of these recommendations were subsequently endorsed by a bi-partisan parliamentary committee.

Also in 2006, the controversial sedition offences were reviewed by the Australian Law Reform Commission (ALRC). It recommended 30 changes to the law in order to draw ‘a bright line between freedom of expression – even when exercised in a challenging or unpopular manner – and the reach of the criminal law’.

But what has happened to all these recommendations? The Government assures us they are ‘under consideration’. Yet we do not know when, or even if, we can expect action.

It is, of course, the prerogative of Parliament to implement or refuse to implement the recommendations of independent reviewers as it sees fit. But when the recommendations of major reviews are met with inaction and silence, it is hard not to be sceptical about the practical impact a new review body might achieve.

It is therefore imperative that legislation for the establishment of a counter-terrorism watchdog make it obligatory that the Attorney-General respond to the Independent Reviewers’ recommendations in Parliament within 90 days.

Decisive government action needs to be taken in response to the recommendations made by these three major counter-terrorism reviews for improvement of Australia's counter-terrorism laws.

Implementing these recommendations will not remove the need for an Independent Reviewer. But it will mean that the Independent Reviewer will not have to waste time repeating recommendations that address problems for which we have already been offered solutions.

(Graeme Innes is Australia’s Human Rights Commissioner)