Terrorism and National Security Reform

The Project on National Security Reform (PNSR) is a nonpartisan non-profit organization government structures need to be more agile and efficient in order to combat new threats such as terrorism, transnational crime, and rogue states.
Table of contents

In that time, four annual reports were produced, three of which contained recommendations for legislative reform. In particular, legislation will be introduced to enable ASIO to request the suspension of an Australian passport or foreign passport held by a dual national in certain circumstances, and to improve the collection and admissibility of evidence gathered overseas.

It also agreed to review the new laws after five years. The COAG Review Committee was tasked with reviewing the operation, effectiveness and implications of certain Commonwealth, state and territory counter-terrorism laws. The potential reforms related to telecommunications interception and access to telecommunications data; telecommunications sector security; and legislation governing the AIC, particularly ASIO.

It made two recommendations on a potential mandatory data retention regime, specifically that if the Government decides to legislate for a mandatory data retention regime:. Finally, the PJCIS recommended that the Telecommunications Act be amended to provide a telecommunications security framework that includes:. As noted above, the recommendations not addressed in the Bill are currently the subject of a further Parliamentary inquiry. Australian Privacy Law and Practice report, dated May , particularly recommendation The remainder were noted, accepted in part or in principle or were to be given further consideration.

Editorial Reviews

However, in some instances where legislative amendment was required, it did not actually eventuate. The warrants are intended as intelligence gathering and preventative tools, not investigative tools. As such, a person is questioned on the basis that they can provide information about a potential terrorism offence rather than on suspicion of having committed an offence, and detained on the basis of preventing the person from damaging evidence or alerting someone involved in a terrorism offence to the fact it is being investigated.

However, it considered the laws could be improved and should continue to be subject to a sunset clause.

Reviews & endorsements

A table outlining recommendations made by the INSLM and the COAG Review that accord with or contradict recommendations of earlier reviews, the content of earlier recommendations and information on any relevant government responses is provided in the Appendix. An order extending the period of detention to 48 hours may only be granted by a judge of a state or territory Supreme Court, a Judge, a former judge who served at least five years as a judge in one or more superior courts, or certain members of the Administrative Appeals Tribunal.

The INSLM noted that this would accord with international practice, including several conventions on terrorism and the inclusion of hostage-taking for terrorist purposes in a model definition of terrorism prepared by a former United Nations Special Rapporteur. Acts of terrorism may still occur during armed conflict; therefore the unqualified exclusion of armed conflict will encourage misapplication of the principles of public international law.

It countered that the proper avenue for prosecution of crimes committed in the context of an armed conflict to be the war crimes offences in Division of the Criminal Code. The INSLM considered that Australia should not criminalise under domestic law acts that are lawful under international humanitarian law, and also that acts that are unlawful under international humanitarian law should be excluded from the definition and treated as such, instead of as acts of terrorism. The offence of financing terrorism was inserted into the Criminal Code in The offence applies if the person was an Australian citizen or resident at the time, or if the person was present in Australia before engaging in the relevant act and their presence in Australia was for a purpose connected with the act.

It argued that this may not always be possible in the contemporary environment:. The AFP has observed that an increasing number of Australians are travelling overseas with the intention to engage in hostile activity. In such cases, individuals may have a general desire or intention to fight for a 'cause', but are not concerned with nor have they turned their mind to the country in which that fighting might occur.

That is, the person travels to State X with the intention of engaging in hostile activity somewhere but not necessarily State X, or even State Y. Following consent from the Attorney-General, an application for a control order may be made to an issuing court. The interim control order must specify a day on which the person may attend the court so it can confirm or revoke the order, or declare it to be void.

Some of the key issues concerned the impact of the procedures for ex parte interim COs on the principles of natural justice and procedural fairness, the breadth of the threshold for the issue of COs, the adequacy of procedures to ensure a fair hearing and the inclusion of a criminal offence for breaching a CO.

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They had been applied for and issued only in relation to two individuals—Jack Thomas and David Hicks. Proof of terrorist crime plus proven dangerousness would be much less disturbing of the principle of legality than the latter without the former. And susceptibility to this future supplement to sentence could be seen as fitting the deserts of terrorist convicts. Their established guilt of offences with the defining characteristics of terrorism, including its motivations, amounts to a badge of dangerousness to society.

Those who can be shown at the end of their usually rather long sentences of imprisonment to have resisted CVE [countering violent extremism] attempts or to have failed to show rehabilitation easily fit a Fardon model. That is, they are the very type of convict — not just suspect — against whom restraints after expiry of sentence are justifiable. One factor that seems to have influenced the different recommendation of the COAG Review Committee is the weight it accorded a submission from, and discussions with, the AFP and possibly other agencies.

The report includes the following quote from the AFP submission:. The AFP considers that control orders remain a necessary and proportionate preventative measure and form an important part of the counter-terrorism toolkit. The removal of the control order regime would create a substantial vacuum in counterterrorism options, reducing the tools available to police to respond to the evolving trends of terrorist planning and modes of attack and increase the risk to community safety.

It also accepted that aspects of the two COs that have been made were problematic. However, it considered that those obstacles did not tell the whole story:.

Counter-terrorism and national security legislation reviews: a comparative overview

The real thrust of the UK control order system was the inability, for whatever reason, to prosecute the person who posed a terrorism risk in the community. That, as we see it, is essentially the same basis that underlines and frames the Australian legislation. That is, there is, other than by way of criminal prosecution, a need to protect the community from attack and prevent the carrying out of a terrorist act on these shores.

The offence of associating with terrorist organisations was inserted into the Criminal Code by the Anti-terrorism Act No. The evidence does not persuade the Committee of the need for the offence in the first place, given the already wide ambit of terrorism offences under current law in Australia, the breadth of the definition of 'terrorist organisation' contained in the Criminal Code , and other existing laws such as the law of conspiracy and accessory liability.

It went on to make six recommendations in relation to the association offence, two of which were addressed through amendments. The Sheller Review recommended the association offence be repealed. The Government does not support this recommendation. The Government considers that there is no justification for removing the offence nor is there evidence that the offence is being misused to capture legitimate activities. The Government does, however, consider that the fault elements could be clarified, first by applying strict liability to the question of whether the organisation is a proscribed or listed organisation and secondly by introducing a new offence that the person was reckless as to the nature of the organisation.

The PJCIS shared the concerns of the Sheller Review, and recommended that the offence be re-examined, taking into account the recommendation of the earlier review.

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The Government supports recommendation The Government will refer the matter for examination by the new National Security Legislation Monitor once appointed. The majority of the Committee has significant problems with the very existence of the association offence in section The majority of the Committee is persuaded by the submissions received, however, that section Fundamentally, the criminalisation of mere association is a troubling concept.

It is perfectly plain that, where mere association transmutes into an action or actions in preparation for a terrorist act with the need to prove the statutory intentions and purposes inherent in that legislative phrase , prosecution will be an appropriate consideration. There is no empirical evidence, however, to demonstrate that the presence of the association offence has had either of these effects.

At the same time, there is no empirical evidence to show that the mere presence of the offence has offended Muslim sensibilities, at least to any significant extent. Ultimately, however, the majority consider that the section is neither necessary nor effective Rather, the report focuses specifically on the appropriateness of the exceptions to it. Essentially, the INSLM argues that the exception concerning close family associations is illogical—that meeting with a family member intending thereby to assist a terrorist organisation to expand or continue to exist could never reasonably be regarded as a matter of family or domestic concern.

Further, several of the recommendations made by those reviews have been made previously and not taken up by the Government of the day. The following table outlines recommendations made by the INSLM and the COAG Review that accord with or contradict recommendations of earlier reviews, the content of earlier recommendations and information on any relevant government responses.

The Committee notes that, in the criminal law context, an officer is not necessarily required to demonstrate that information can be obtained another way. However, there is a persuasive argument that, in the context of extraordinary and coercive powers that are to be used as a measure of last resort, the issuing authority should be independently satisfied that other methods of collection would not be effective.

This will require ASIO to provide a factual basis to their claim that other methods of intelligence gathering would not be effective. It will also act as a strong safeguard against potential misuse of coercive questioning powers, for example, to lay the groundwork for charge of false and misleading information, where the information is already known to the agency.

In its response , the Government rejected this recommendation partly on the basis that issuing authorities are not in a position to make such an assessment: The Committee recommends that the penalty for disclosure of operational information be similar to the maximum penalty for an official who contravenes safeguards. When considering an appropriate penalty for the secrecy offences, the INSLM compared them to others in the ASIO Act and elsewhere and concluded that a maximum penalty of two years would be consistent.

Controlled operations are covert operations carried out for the purpose of obtaining evidence that may lead to prosecution for a serious offence. Under the scheme, participants in a controlled operation who may be law enforcement officers or other authorised participants such as informants are protected from criminal liability for engaging in conduct in the course of, and for the purposes of, the controlled operation. There are also a range of safeguards within the scheme, including restrictions on the particular conduct that may be authorised and the duration of operations.

So, for example, under such a scheme if DSD was to intercept the communications of an Australian person outside Australia a ministerial authorisation might be required. However, if ASIS or ASIO was to ask an agent what they know about an Australian person who may be allegedly involved in terrorist activity or to task an agent to try to find out if any Australian persons are present at a terrorist training camp, specific ministerial authorisation would not be required.

The case for a special terrorism law regime is made out on the basis that terrorism is qualitatively different from other types of serious crime. Terrorist violence is typically directed toward the public to create fear and promote political, religious or ideological goals. We believe that terrorist violence is seen by the public as something distinctive from other serious crime.

A serious criminal offence committed for personal reasons, no matter how heinous, does not fall into that category and should be prosecuted under separate offence provisions. Commissions and Counterterrorism Policy: Responding to the first wave of anti-American terrorism 5.

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Grappling with the rise of Al Qaeda 6. Findings, implications, and the effort to end the Iraq War. His scholarship and commentary have been published in Foreign Policy, TheAtlantic. He has served as a member of the Intelligence and Counterterrorism Expert Advisory Groups for Barack Obama's presidential campaign, as a speechwriter for former U. This title is available for institutional purchase via Cambridge Core Cambridge Core offers access to academic eBooks from our world-renowned publishing programme.

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