Independent National Security Legislation Monitor – annual report 28th March 2014

18 Jun 2014

This report reviews the appropriateness and effectiveness of Australia's counter-terrorism legislation, focusing on ASIO's passport confiscation powers, laws relating to Australians fighting in foreign conflicts, and other issues.


Chapter II reports that Part IIIAAA of the Defence Act 1903 (Cth) is with one exception appropriate (in the sense discussed in Chapter II of the INSLM’s First Annual Report). The call out powers are also, based on the same considerations, necessary (again, in the sense discussed in Chapter II of the INSLM’s First Annual Report). Mercifully, there are no empirical data to enable the INSLM to report whether, in practice, these provisions for the call out powers are effective (again, in the sense discussed in Chapter II of the INSLM’s First Annual Report). However, the INSLM has not found any reason to doubt the suitability of these laws to achieve their intended purpose, in practical terms. That does not mean that continuing consultation should not be had, in particular with ADF officers experienced in the area, to detect in advance any curable defects in the efficient deployment of lawful military force against terrorism in Australia.

The one exception noted above consists of non-compliance of Division 3B of Part IIIAAA of the Defence Act with ICCPR. The ADF should not be authorized to kill innocent passengers and crew in airliners.

Chapter III seeks to reconcile with the CT Laws the related legislation comprising the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). There are defects in Commonwealth statutory powers and authorities desirable to counter terrorism, in relation to that overlap. The matters concerning which the INSLM makes recommendations in this area are relatively urgent, given the currency and gravity of the involvement of Australians in Syria.

Chapter IV confronts what may be an intractable difficulty in the proper administration of criminal justice in countering terrorism: the typical need to investigate and prove events and circumstances that took place in foreign countries. Some of the most significant examples of these countries suffer from extraordinary breakdowns of law and order.

Chapter V is also actuated by some urgency pointed up by current experiences in Syria. We need more rapid control of the way passports are used to facilitate travel for the purposes of terrorist activity. The topic engenders a broader and deeper concern with dual citizenship.

Chapter VI is the INSLM’s response to matters raised by agencies, themselves in response to the INSLM’s request for suggestions as to practical improvements to the laws governing their counter-terrorist activities. It is intended to advance effectiveness while observing appropriateness.

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