More on anti-terror

Richard Ackland has a powerful and angry article in this morning’s SMH about the Howard government’s anti-terrorism bill (a topic about which I’ve blogged here and here):

The design of the legislation is to conscript the federal judiciary into sprinkling holy water over assessments made by ASIO and the Federal Police. If one of Papa Doc Howard’s tonton macoutes points the bone at you, basically you’re a goner.

I agree with many of Ackland’s comments, but he does play a little fast and loose with the text in his characterisation of the procedures for issue of “control orders”:

In the case of control orders a federal policeman is supposed to knock-up a bit of paper for the attorney-general saying it is “considered on reasonable grounds” that such an order would substantially assist in preventing a terrorist act or that someone is reasonably suspected of providing or receiving terrorist training.

If the A-G ticks off on that consideration or suspicion then a federal judge or magistrate can be asked to make a control order. All the judge is given is a copy of the attorney-general’s consent and the piece of paper from the federal coppers. That’s it. The person affected is not heard, there is no appeal and the proceedings are not open.

In fact the “piece of paper” the AFP or ASIO must provide to the Attorney-General and then the Court must contain:

(a) a draft of the control order to be requested;
(b) a statement of the facts and other grounds on which the member considers it necessary that the order should be made;
(c) an explanation as to why each of the obligations, prohibitions and restrictions to be imposed on the person by the order is necessary;
(d) a statement of the particulars and outcomes of all previous requests for control orders and preventative detention orders in relation to the person.

Those particulars are not dissimilar to the ones required for applications for questioning, search or wiretap warrants, so describing the document as just a “piece of paper” is perhaps a bit cute, though nevertheless arguably fair. The potential consequences for the subject of a control order are much more drastic and long-lasting than for any of these existing warrants.

In those circumstances, one would think that the minimum requirement for fairness and accountability would be that the AFP or ASIO be required to disclose the actual evidence or other material on which they have based their statement of facts, grounds and explanatory reasons. Otherwise how is the issuing federal judge or magistrate to make any meaningful assessment of whether there is in fact a reasonable basis for suspicion sufficient to impose quite drastic and long-lasting restrictions on a citizen’s liberty? Without such a requirement, an ASIO officer could simply submit to a judge an application baldly stating (say) that the suspect had received terrorist training with Al Qaeda in Afghanistan in 2001, and the issuing judge would have no way of assessing the strength or reliability of that assertion. On what material was it based? Could ASIO have mistaken the suspect for another person with a similar name? Was the suspect just paying an innocent visit to Uncle Omar in Kabul?

If the issuing judge isn’t required to be shown the evidence and the suspect isn’t required even to be told that the proceedings are taking place let alone allowed to know the evidence against him or her (as is the case), then it really is a case of the judiciary being used to “sprinkle holy water” over an assessment made in secret by the spooks.

Admittedly, suspects have a right to seek revocation of a control order under the current draft of the Howard bill, but even then they’re not expressly entitled to know the alleged facts or evidence against them. One would expect that the ordinary common law rules of natural justice would normally operate to require such disclosure in any event, but that then gives rise to obvious difficulties and operational uncertainties. Far better to draft the bill in a way that makes these entitlements clear.

Despite his scathing assessment, Ackland expresses pessimism about the current Howard bill being ruled unconstitutional by the High Court. Personally, I can’t see how the provisions (especially the control order sections) could possibly pass muster in their current form, even with the Court’s present conservative majority. This simply isn’t an exercise of judicial power (i.e. it breaches the separation of powers doctrine), quite apart from offending the so-called Kable “incompatibility” doctrine (or the federal equivalent thereof).

Where I differ from Ackland and other civil libertarian opponents of the anti-terrorism bill is in acknowledging that some such law is almost certainly needed. Intelligence assessments apparently indicate that somewhere betwen 80 and 800 Australian residents may have received some form of terrorist training in fairly recent years. Even if quite a few of those assessments are mistaken and other suspects have changed their minds and sen the error of their ways, it’s a fair bet that some still harbour murderous intentions. As Tim Blair noted the other day:

Mohammad Sadique Khan, the oldest of the four London suicide bombers, trained in a Jemaah Islamiah camp in the Southern Philippines during 2001 and was hosted on a visit to South-East Asia by the mastermind of the October 2002 Bali attack, Hambali …

A BBC report on the Bali-London links yesterday suggested that the British-born Khan, who worked as a primary school teacher’s aide with the children of immigrant families, was in contact with al-Qaeda figures for five years before the London bombings.

You’d be naive to imagine there aren’t a few Sadique Khans in Australia, biding their time for the right opportunity to wreak havoc. At the moment, security authorities clearly lack adequate powers to keep such people under effective surveillance.

But it is possible to legislate an effective regime which both meets the constitutional difficulties discussed here and previously and provides suspects with adequate protection of their human rights/civil liberties. It would simply require the establishment of a powerful independent commission consisting of senior retired judges, to perform the functions presently envisaged for federal courts and judicial officers. The commision would both oversee and approve the issue of control orders and preventative detention orders, and ensure that the subjects of those orders were treated in accordance with internationally-accepted human rights standards. ASIO and AFP would be required to produce to a commissioner all the evidence and other material on which allegations are based, and suspects would have rights of appearance, representation and appeal. They would also be entitled to know and contest the evidence against them, except to the extent that AFP or ASIO was able to satisfy the commissioner that disclosure of the evidence would significantly compromise intelligence sources or endanger people’s safety. Even in that case, the suspect’s lawyer could view and contest the evidence as long as that lawyer held an appropriate security clearance and undertook not to disclose sensitive evidence to the suspect himself.

Such a regime would be effective from a security viewpoint, would avoid constitutional problems with separation of powers or the Kable doctrine, and would adequately protect the rights of suspects. We can only hope that something along these lines is being discussed by the Commonwealth, State and Territory Attorneys-General as we speak (write).

PS A powerful independent commission like this one could also be given the role of supervising and ensuring the proper treatment of asylum seekers in mandatory administrative detention, another area of notorious alleged abuse of human rights standards.

But I won’t be holding my breath waiting for such an initiative from Howard or his esteeemed Amnesty International alumnus Phillip Ruddock. I wonder why self-styled “libertarian” bloggers never seem to concern themselves even momentarily with these sorts of basic liberties? The only sorts of freedoms that appear to concern most of them are their own rights to private property, avoidance of taxation, and anything else that might inhibit their middle class personal pleasures. They’d be more honest if they styled themselves “I’m-alright-Jack-ians”.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Tim
Tim
2022 years ago

Ken, I don’t understand the reference to the Sadique Khan story. How does this show the need for ‘some such law’? I must be missing something.

Ken Parish
Ken Parish
2022 years ago

Tim

The paragraph immediately following the quote about Khan explains what I mean.

Dave Ricardo
Dave Ricardo
2022 years ago

Perhaps I’ve missed something, but how can suspects exercise their “right to seek revocation of a control order” if a “suspect isn’t required even to be told that the proceedings are taking place.”

Are they supposed infer, after they’ve been held incommunicado for x weeks, “ahah! I’ve got a control order against me!”. And if they do so infer, do they get to say to their interrogtators “could you just excuse me for a mo while I head down the courts to revoke the control order?”

“It would simply require the establishment of a powerful independent commission consisting of senior retired judges”

Yes, I can just see the Howard government handing control of its anti-terrorism policy to Elizabeth Evatt and Gerard Brennan. Hell will freeze over first.

“except to the extent that AFP or ASIO was able to satisfy the commissioner that disclosure of the evidence would significantly compromise intelligence sources or endanger people’s safety”

A yawning gap, I’m afraid. You can be sure that most of the information will come from informants in the Islamic community. Hard to ASIO consenting to letting suspect Mohammed know that he’s been shopped by his brother in law or the local iman.

“Even in that case, the suspect’s lawyer could view and contest the evidence as long as that lawyer held an appropriate security clearance and undertook not to disclose sensitive evidence to the suspect himself.”

Puts the lawyer in an impossible position.

Ken Parish
Ken Parish
2022 years ago

Dave

I’m sure you’re correct that, left to its own devices, the Howard government might not set up such a tribunal, and especially might not appoint appropriate retired judges to it. But in this case Howard needs the co-operation of the States and Territories to secure the power of preventative detention for any more than 24 hours or so. It’s not unreasonable to hope that some of the Premiers might still have enough concern for human rights protection to insist on the sorts of provisions I’ve outlined.

As for your comment about excluding suspects from access to sensitive intelligence information but allowing the suspects lawyer access, I agree that it raises difficult ethical issues. But not unprecedented ones. The Commonwealth Administrative Appeals Tribunal has always had precisely the powers I’m suggesting. And here’s what the very Sir Gerard Brennan you mentioned said about them way back in 1979 when he was the first President of the AAT. In Re Pochi and the Minister for Immigration and Ethnic Affairs, Brennan J said:

“In the ordinary exercise of this Tribunal’s jurisdiction, the Tribunal is required by its statute (s.36(4)) to apply the principle that the parties “should be made aware of all relevant matters”, and that is a principle from
which the Tribunal departs with reluctance when it is considering the deportation of an alien resident, whose right to remain in Australia is
revoked by a deportation order. Such a person is prima facie entitled to a full hearing of his case, and to the protection which such a hearing is designed to give … An alien resident is not accorded the protection to which he is prima facie entitled when he is denied access to
the case made against him.

Yet the powers conferred upon this Tribunal by s.35(2) are not intended to lie dormant – they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a
proper entitlement to confidentiality is not lightly established). …

To exclude a party, a further criterion must be satisfied. As it must appear that the exclusion of the party is essential to preserve the proper confidentiality of the information needed to determine the application, it is necessary to show that the information is of such importance and cogency that justice is more likely to be done by receiving the information in confidence,
and denying the party access to it, than by refusing an order to exclude the party. This criterion is not easy to satisfy though it is possible to do so. The criterion is not easy to satisfy because an applicant’s interest in a
hearing fair to him can be over-ridden only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly
appears. In R. v. Home Secretary, Ex parte Hosenball (1977) 1 W.L.R.766, Lord Denning M.R. acknowledged that the public interest in confidentiality can be paramount. He said at p.782:

“When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice.”

In the present case, the public interest in protecting the confidentiality of the sources of information obtained to combat crime conflicted with the interests of the applicant in meeting the case made against him. The public interest prevailed, as it did in Hosenball’s case, wherein Geoffrey Lane L.J. said (at p.784):

“It may well be that if an alien is told with particularity what it is said he has done it will become quite obvious to him from whence that information has been received. The only person who can judge whether such a result is likely is the person who has in his possession all the information available . . . If he comes to the conclusion that for reasons such as those which I have just endeavoured to outline he cannot afford to give the alien more than the
general charge against him, there one has the dilemma. The alien certainly has inadequate information upon which to prepare or direct his defence to the various charges which are made against him, and the only way that could be
remedied would be to disclose information to him which might probably have an adverse effect on the national security. The choice is regrettably clear: the alien must suffer, if suffering there be, and this is so on whichever basis of argument one chooses.”

Nevertheless, if an applicant is not given a full opportunity to deal with confidential information adverse to his interests, the probative force of the information must be particularly cogent if that information is to be acted upon. There are notorious risks in failing to hear an opposing view – slender proofs may falsely seem to be tipped by the weight of insubstantial factors.

In the present case, the public interest in protecting the sources of information used to combat crime was paramount, and it was necessary to ensure confidentiality of the evidence which referred to information of that kind given to Detective Jenkins. In a court of law, the evidence would not have been given at all (Marks v. Beyfus (1890) L.R.25 Q.B.D.494 at p.498).
Accordingly, the applicant and the public (but not the applicant’s counsel and solicitors) were excluded while Detective Jenkins gave some of his evidence.

Tim
Tim
2022 years ago

The paragraph immediately following the quote about Khan explains what I mean.

Yes, but what I was getting at, didn’t the UK police already have these powers, including arrest without warrant and extended detention under the UK terrorism Act? I’m just trying to get at the fact that even with these powers, there is no guarantee at all that they will do any good. So then the question is, are they worth it? (I mean, the other thing the gov keeps telling us is that an attack is inevitable. Isn’t that wanting it both ways? )

I accept that there are arguments pro and con–and hope people will make them–but as I’ve said at my joint, the ultimate point is that the government should make the case. So far they haven’t: they take it as self-evident while it is anything but.

Ken Parish
Ken Parish
2022 years ago

Tim

I haven’t examined what powers UK authorities had before they introduced the additional provisions Howard is now modelling his reforms on. But I’m certain that Australian authorities have until now lacked power to obtain extended surveillance orders against terrrorism suspects (i.e. beyond wiretap or search warrants).

The current Howard bill contains powers for mandatory attachment of tracking devices to suspects and various other powers that will clearly make ongoing surveillance of potential terrorists much easier. I’m not sure how much more of a case you expect to be made in any public forum. It has been asserted that there are 80-800 Australian residents who have received some form of terrorist training. The Premiers apparently have been given access to much of that material and are convinced by its force. We can’t reasonably expect that the details will be publicly released, because we can reasonably accept they would compromise intelligence sources. Surely it isn’t too much of a stretch to accept that we need extended surveillance powers in a situation where more probably than not there are dozens if not more Australian residents who are trained and motivated to commit acts of horrific terrorism on Australian soil, and where we actually know the identity of at least some of them.

Manifestly, Howard can’t guarantee that the existence of extended surveillance powers will prevent all terrorist attacks, but it will clearly assist to reduce the likelihood. And as long as there are adequate protections of the human rights of suspects (and I think the ones I am suggesting meet that test), that’s a worthwhile goal and an acceptable trade-off to achieve it IMO.

Tim
Tim
2022 years ago

Ken, more later, time permitting but fyi, even Ruddock says the 800 figure is fanciful:

“The Australian newspaper today quoted security sources as saying that spy agency ASIO estimated between 700 and 800 Muslim extremists living in Australia could be motivated to carry out an attack.

A year ago, the nation’s security agencies said they were closely monitoring the activities of 70 to 80 Australians known to have trained with terrorist groups in Pakistan and Afghanistan.

But in the wake of the London bombings, ASIO has identified up to 800 people deemed a potential security risk, the newspaper said.

ASIO chief Paul O’Sullivan yesterday briefed the Council of Australian Governments on the latest security situation.

But Mr Ruddock said today there was no suggestion in the briefing of such numbers.

“Those figures are speculative – they bear no relationship to any of the briefings that were given yesterday by the director-general of ASIO,” Mr Ruddock told the Nine Network.”

Ken Parish
Ken Parish
2022 years ago

Even if we assume the figure is 80, and 3/4 of them are mistakes or have changed their minds, that still leaves 20 trained, determined terrorists living in Australia, or 5 groups of the size of the one that perpetrated the London bombings. Debates about the precise numbers are something of a red herring. If you accept that there is a strong probability that there are SOME trained terrorists here, there is a clear need for some legislative regime that will enable security agencies to keep tabs on as many of them as are known as reliably as reasonably possible (while simultaneously being very mindful of basic civil/human rights.

Tim
Tim
2022 years ago

Don’t disagree with any of that, Ken. Presumably, though, the fact that we know about these people means we know about these people, and presumably they are being watched? Combine that with the fact the Britain already had prev. detention capabilities and it didn’t stop the underground bombing suggests that the case for efficacy of tougher rules isn’t that self-evident.

But as I say, don’t disagree with any of what you say.

It’s also all very well to say that the govt can’t discuss this stuff for operational reasons, but the government simply doesn’t want to discuss the issue at all – aided and abbetted by the Labor states, I should add. If Stanhope hadn’t published the draft legislation, we wouldn’t have what discussion we have had. So sure, there is a case of operational security, but that’s not the issue in regard to how the government/s is handling this. There is certainly case for more public, and especially, more parliamentary debate.

Ken Parish
Ken Parish
2022 years ago

Tim

I also don’t disagree with most of your points. Indeed even this morning’s Weekend Oz editorial makes the point for much more open, extensive debate about the bill.

Where I take issue with you is on the proposition that the London bombings somehow either establish that stronger surveillance powers don’t work, or at least undermines the case for their efficacy. Here you’re setting up a classic straw man. No-one is (or sensibly could) argue that any set of surveillance powers or enhanced resources could ever provide cast-iron assurance against a terror attack. You may still get perpetrators whose identities were completely unknown as even marginally potential risks, or you might get known risks who manage to elude the best-trained surveillance for long enough to commit a terrorist act. But neither of those scenarios suggests that we should simply not bother to watch the potential terrorists we DO know about to the maximum of our capability. And that should include providing additional surveillance powers (with appropriate safeguards) where necessary.

To keep 80 or more suspects under continuous human surveillance (the only real option under present laws) would take trained manpower resources that neither ASIO nor AFP currently possess. An ASIO spokesperson asserted the other day that it takes 30 human “tails” to keep just one suspect under continous observation. I have no way of knowing whether that’s true, but it sounds plausible. With just 80 surveillance targets, that means 2,400 trained ASIO “tails”!!! Implementing powers to enable suspects to be compulsorily fitted with tracking devices/bracelets, and be subject to orders preventing them from approaching obvious potential terrorist targets, will allow for more effective surveillance without needing to recruit thousands (or perhaps tens of thousands) of Australians and train them as ASIO “tails”.

derrida derider
derrida derider
2022 years ago

I’m no lawyer or security professional, but it seems to me that the incommunicado provision of the detention can only punish the innocent. Any potential terrorist will by now already have arranged for a simple code when they get their one phone call. It’s only those with no reason to believe they should be affected who will truly be sent into nacht und nebel.

As for the judicial order have you ever heard of a questioning, wiretap or search warrant request being refused? I haven’t. If only a completely untested case is to be put I think it will be child’s play to get such an order, whether it is truly warranted or not.

I can live with preventive detention, but that the person doesn’t get confronted with the case against them and have adequate opportunity to challenge it WILL (not may) lead to abuses and errors.