Control orders restrict the liberty of an individual in order to protect the community from future terrorist acts. Australia introduced control orders following the example of the United Kingdom, the first and only other nation to enact such measures. Yet in 2011 the UK abolished its control order regime, and replaced it with a more targeted system of Terrorism Prevention and Investigation Measures (TPIMs). In light of these reforms, what future is there for the Australian control order regime? This article compares the design and use of the Australian control order regime with the UK regime on which it was based, and the new system of TPIMs. The authors question whether there was, or is now, any adequate justification for the Australian control order regime.The authors conclude
The future of the Australian control order regime has recently been considered by the Monitor, in his 2012 annual report, and by the COAG Review. In its written submissions to the COAG Review, the AFP asserted that control orders were a necessary “alternative measure” to the criminal justice system. The AFP argued that the repeal of the control order regime “would create a substantial vacuum in counter-terrorism options” and compromise its ability to protect the Australian community from terrorism and “respond to extraordinary events, such as terrorism on the scale of September 11 and the Anders Breivik attacks”. In response, the COAG Review reported that numerous other submissions had criticised the control order regime, called for its repeal and suggested it should never have come into existence in the first place. Nevertheless, it concluded (with very little elaboration or explanation) that: The clear purpose of protecting the community and preventing a terrorist attack in Australia presently warrants the continuance of [the control order regime]. There remains a genuine risk of terrorist activity in this country, although its level should not be exaggerated. On that basis, control orders are, for the time being, necessary and justified in the counter-terrorism legislative scheme. We consider however that the present safeguards are inadequate and that substantial change should be made to provide greater safeguards against abuse and, in particular, to ensure that a fair hearing is held.
The Monitor expressed in stronger terms grave doubts about the necessity and efficacy of the control order and its impact on individual liberties. He recommended that the control order regime should be repealed, but replaced with a more targeted system of “Fardon-type provisions authorizing [control orders] against terrorist convicts who are shown to have been unsatisfactory with respect to rehabilitation and continued dangerousness”.
Are these recommendations justified and sufficient, or ought the Australian control order regime be repealed altogether? Charting out the ‘parallel lives’ of the Australian and UK control order regimes has revealed three important points relevant to answering this question. First, as the COAG review acknowledged, the UK control order regime was enacted to deal with terrorism-related activity in a way which mediated the constraints imposed by the ECHR and the UK criminal law. Secondly, the Australian control order regime was enacted in the wake of the London bombings to follow the example of the UK, despite Australia facing none of the difficulties which prompted the enactment of the UK regime. As a result, the foundations of the Australian control order regime were always shaky. Australia introduced control orders because the UK had done so — not in response to any evidence that Australia’s existing counter-terrorism laws were inadequate, or that Australia needed such laws. This has manifested in the fact that the Australian control order regime has been so rarely and unconvincingly used.
Thirdly, the two control order regimes were not identical. Though the Australian law borrowed heavily from the UK precedent, there were significant differences between the two regimes. The UK regime was also constrained by legal principles that do not apply in Australia; namely, the human rights protected by the ECHR. It is therefore difficult to transcribe the criticisms made of the UK regime to Australia because so many of these criticisms were framed in terms of compatibility with ECHR rights. It is also simplistic to conclude that the repeal of the UK regime necessarily justifies the repeal of the Australian regime. Given this, what can the abolition and replacement of the UK control order regime tell us about the future of the Australian control order regime?
Though not conclusive, the UK reforms are clearly relevant. The UK control order regime was described as international “best practice”; a precedent which Australia ought to follow, even if only in broad terms. The fact that this regime was found to be disproportionate to its preventative purpose, unnecessarily restrictive of human rights and of limited utility provides good reason to reconsider the ongoing justifiability of the Australian regime. The UK reforms are also relevant because they reveal significant problems with mechanisms of this general type. Control orders restrict individual liberty on the basis of predicted future dangerousness, via a process not attenuated by the safeguards of the criminal law. This poses a serious affront to basic values of liberty and fairness. These are values which are, or ought to be, as important in Australia as in the UK. This is especially pertinent given, in key respects, the Australian control order regime is more invasive and less procedurally fair than both the repealed UK control order regime on which it was originally modelled and the new UK TPIM regime. This is difficult to justify given the greater potential of Australian law to prosecute people for terrorist acts, and the lower threat of terrorism faced by the Australian community.
The UK reforms are also relevant to the final stage of the inquiry: would it be sufficient to reform the Australian control order regime, or should it be repealed? The UK insisted that control orders had to been replaced with a more tailored mechanism of a broadly similar kind. This was based on the fact that two of the difficulties that spurred the creation of the control order regime in 2005 were still evident: the inability to deport or detain non-citizen potential terrorists and an inability to use intercept evidence in court.
These problems still do not exist in Australia. Intercept evidence can — now, as in 2005 — be used as evidence in prosecutions for Australia’s many and broad terrorism offences. As the Monitor reported, the possibility that a person may be charged with a terrorism offence at an early stage diminishes the “effectiveness, appropriateness and necessity” of control orders. There is still no principle of domestic law that prevents the Australian government deporting non-citizens, or keeping them in (potentially indefinite) immigration detention. Provided the process by which the detention is ordered is compatible with the separation of powers, the Australian government can preventatively detain non-citizens or citizens who are thought to pose a security risk. In fact, Australia’s federal Parliament has already enacted a separate regime of preventative detention orders.
In this legal landscape, what legitimate purpose could control orders play in Australia? The answer appears to be none. This is reflected in the fact that control orders have been so rarely and unconvincingly used in Australia. Only two control orders have ever been made and only one of those confirmed. Moreover, neither of the two orders made in Australia appeared to serve a legitimate purpose. In the case of Jack Thomas, a control order was used to circumvent the procedural safeguards of the criminal law and impose restrictions on an individual who was ultimately not found guilty of any terrorism offence. In the case of David Hicks, the control order seemed to serve very little purpose as it was imposed against a man who had already served his sentence for a highly questionable criminal conviction. These cases suggest that the Australian control order is not just unnecessary, but can dangerously subvert the processes and principles of the criminal law. This conclusion is supported by the most recent report of the Monitor, which stated that he had found: no evidence that Australia was made appreciably safer by the existence of the two [control orders] issues. It follows that neither [control order] was reasonably necessary for the protection of the public from a terrorist act.
This casts real doubt on the AFP’s claim that the repeal of the control order regime “would create a substantial vacuum in counterterrorism options” and the COAG Review’s conclusion that “control orders are necessary and justified”. Hypothetical and alarmist claims that control orders may be needed in the future to deal with “terrorism on the scale of September 11 and the Anders Breivik attacks” should not be allowed to distract from the fact that control orders have not proven to be necessary or useful. Indeed, it is quite difficult to see how a control order could possibly have prevented either of those horrific attacks. The only concrete justification given for the Australian control order regime, apart from the now discredited UK precedent, is the claim that control orders are cheaper than covert surveillance. Whether true or not, this is a poor rationale for extraordinary powers that permit such significant restrictions of individual liberties.
It is not surprising that the Australia Parliament reacts to terrorist attacks against neighbouring countries or close allies, particularly when those attacks kill or injure Australian citizens. It is also understandable that governments may follow the lead of nations with more experience of terrorism by working with whatever legislative precedent is to hand. However, this creates the risk of importing legislative concepts that are not a necessary and proportionate response to Australia’s particular counter-terrorism needs. This has proven to be the case with control orders. The fear and outrage that the London bombings generated caused Australian parliamentarians to look abroad for ways to strengthen Australia’s counterterrorism laws, and the UK control order regime is what they found. That regime has now been thoroughly discredited. It has been replaced with a new regime of TPIMs, which are undoubtedly an improvement, but continue to cause significant human rights concerns. The UK government decided that this was a justifiable balance to strike, for reasons which do not exist in Australia. All this suggests that it would not be sufficient for Australia to reform its control order regime, as the UK has done. There is simply no basis for the Australian regime at all.