"Unique legislative regime" needs on-going review

19 Sep 2008

We need a watch kept on the operation of Australia’s terrorism laws, writes ANDREW LYNCH

THE return of the jury verdicts in the trial of Abdul Nacer Benbrika and others was correctly described as “the most successful terrorist prosecution that this country has seen” by the Attorney-General, Robert McClelland. But does this mean the laws are “working”? Despite the successful prosecution of Benbrika and others, and also the acquittal of some of their associates, the role that aspects of our anti-terrorism laws might be playing in national security is still open to question. Mr McClelland refrained from asserting the laws were perfect, but instead remarked that the government examines their operation generally on an “ongoing basis.” That is reassuring, but there is a strong case for the ongoing review of the laws to be independent from the government. The Senate’s Legal and Constitutional Affairs Committee is currently holding an inquiry to determine whether to create an Independent Reviewer of Australia’s terrorism laws. Where has this idea come from, and how would an Independent Reviewer help? The Liberal MP Petro Georgiou first called for an Independent Reviewer in October 2005 - during the debate over the Howard government’s introduction of control orders, sedition offences, and the banning of organisations for advocacy. He suggested that public alarm over the new laws would be eased by the creation of a sort of terrorism watchdog - modelled closely on the office of Independent Reviewer in the United Kingdom. Earlier this year, Georgiou introduced a private member’s bill to this end, arguing that “the challenge of protecting security without undermining fundamental rights requires constant vigilance, but the reality is that the machinery of vigilance in Australia is deficient.” This has the support of experts and two bipartisan parliamentary committee reports. But disappointingly both the Howard and the Rudd governments have been cooler in their enthusiasm for the creation of an office of Independent Reviewer. When Georgiou introduced his Bill in the House of Representatives in March, the new government shut the debate down. The Bill was since been brought to the Senate by concerned Liberals. The Commonwealth probably suspects that the Reviewer will be a thorn in their side - but this is not at all borne out by experience in the United Kingdom. The position of Independent Reviewer was first created there to review “temporary” laws dealing with terrorism stemming from Northern Ireland. The office now exists mainly to review laws designed in the wake of September 11. The Reviewer, Lord Alex Carlile, reports annually to the Home Secretary about the operation of terrorism laws, taking into account both their effectiveness and impact upon individuals. Carlile also offers opinions on proposed changes to the law and also responds to ad hoc requests for reports from the government or parliament. These reports are used to inform political and public debate. On the whole, the Independent Reviewer is regarded as a success in the United Kingdom, though there has been some concern that the Reviewer is not “independent” enough. The UK Parliament’s Joint Committee on Human Rights has recommended that Carlile should report directly to the legislature not the government, and it expressed surprise at Carlile’s unwillingness to offer clear criticism of some of the laws. When Carlile strongly supported the Brown government’s law allowing 42 day pre-charge detention, one commentator described him as “an enthusiastic advocate for the government.” There are several lessons for Australia from Britain’s experience of an Independent Reviewer. The positives are clear. First, ongoing and integrated examination of how the complex body of anti-terrorism law works enables early identification of inherent problems. Second, it helps to depoliticise the very contentious debates about these laws and their importance overall to national security efforts. Third, it reassures the community that a kind of “watchdog” exists to report publicly on laws which they fear might be used against them. At the same time, the Georgiou bill should avoid some of the negative issues which have clouded praise of the UK’s Reviewer. The most important move would be to establish not one but several Independent Reviewers who function as a panel. This allows a range of perspectives and expertise while minimising the risk that the office is seen as too ready to accept the government’s position. Thankfully, Australia has little history of political violence. But we are overconfident if we think we have perfected our approach to the creation and implementation of laws in this complex area, while a jurisdiction like the UK, with decades of experience of terrorism, sees value in subjecting its laws to continual review. In the Lodhi case of 2006, Chief Justice Spigelman described Australia’s terrorism laws as “a special, and in many ways unique, legislative regime.” It seems prudent to keep a steady eye on their operation.

Andrew Lynch is director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales 

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