Independent Review of Australian Anti-Terrorism Laws: An Effective Oversight Mechanism?

Jessie Blackbourn - 6th June 2013

On Tuesday 14 May, the second report of Australia’s Independent National Security Legislation Monitor was tabled in the federal parliament. The report recommended sweeping reforms of a number of Australia’s most contentious anti-terrorism laws, including those providing for control orders, preventative detention orders and the questioning and detention of non-suspects by the Australian Security Intelligence Organisation (‘ASIO’). 

In tabling the report in the parliament, Attorney-General Mark Dreyfus stated that the Government would take a ‘long look’ at the report and consult widely with the States and Territories – a process not normally known for its brevity. Thus, it is unlikely that the Government will take any action prior to the federal election in September this year; reform of anti-terrorism laws is not normally a popular policy choice for Australian governments, who seem unduly concerned about appearing ‘soft’ on terrorism. Recent attacks in Boston at the end of April and in London, just last week, might offer the Government further excuse to put these reforms on hold.

However, the Government should be wary of ignoring the Monitor’s recommendations – after all, it established this novel office of anti-terrorism review in 2010 to provide oversight of the fifty-plus laws enacted in Australia since the September 11, 2001 terrorist attacks. And the Government gave the Monitor substantial powers to carry out this function – powers which aren’t replicated in the UK’s office of Independent Reviewer of Terrorism Legislation, on which the Independent Monitor is based.

For example, the Independent Monitor has significant coercive information gathering powers. The Monitor may hold a hearing and summon a person to attend, require a witness at a hearing to take an oath or affirmation and request a person to produce documents or information. There are penalties which apply to persons who refuse or fail to attend a hearing or to provide the information requested. These powers extend to all persons, including government ministers and members of Australia’s security and intelligence organisations, such as the Australian Federal Police and ASIO. In contrast, the UK’s Independent Reviewer has no formal information gathering powers – he must rely on the goodwill of those from whom he is requesting the information, as well as their assurances that they have disclosed fully all the relevant material.

However, like the office of Independent Reviewer in the UK, the Monitor has no power to bind the Australian government to his recommendations, or even to compel the government to provide a response to his report. The UK government has often provided only limited responses to the often very long and detailed reports of the Independent Reviewer. Most frequently the government ‘notes’ the Reviewer’s recommendations, or states an intention to keep them ‘under review’. Occasionally, the government might agree with the Reviewer’s proposed reforms, however, it is not always the ‘right time’ to implement them. This has meant that anti-terrorism law reform in the UK has progressed at a slow pace.

The Independent Monitor has provided detailed, well-reasoned proposals for the reform of a number of Australian anti-terrorism laws which, based on all the available evidence, he considers to be unnecessary, disproportionate and ineffective for the purposes of preventing terrorism. It is to be hoped that the Australian government does not adopt the same tactic as the UK, but instead pays heed to the office of independent oversight which it established, and which is now calling for important and timely reforms of Australia’s most controversial anti-terrorism laws.

Dr Jessie Blackbourn is a postdoctoral research fellow on the ARC Laureate Fellowship project ‘Anti-Terrorism Laws and the Democratic Challenge’ in the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

Dr Blackbourn will be speaking at the Durham Human Rights Centre on June 12, 2013 as part of an international workshop on ‘Critical Debates on Counter-Terrorist Judicial Review’.  Details can be found here

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