A key review of Australia’s counter-terrorism legislation, including state and territory laws, has been left in limbo by COAG nearly 18 months after it was scheduled to start.

The COAG review of counter-terrorism legislation was agreed under the Howard government in 2006 amid concerns about safeguards and possible abuse of counter-terrorism legislation. Commonwealth, state and territory leaders had held a special meeting on counter-terrorism in 2005 before the Howard government introduced draconian new laws that substantially curbed basic legal rights, with little time for Senate scrutiny. Then-ACT chief minister Jon Stanhope incurred the wrath of the government by releasing a copy of the draft laws.

The review is significant because it would examine not merely the hardline laws imposed by the Howard government and left in place by Labor, but state and territory counter-terrorism laws as well. The review was scheduled to start in December 2010 and be concluded by June last year. But has yet to commence.

In September, the Government told the Senate in response to a question from Greens Senator Scott Ludlam that “the Review will commence as soon as the arrangements have been agreed through COAG” and that “COAG needs to agree to the funding, terms of reference and membership of the Review Committee.”

Friday’s COAG communiqué contained no mention of the review.

Greens senator Lee Rhiannon has pursued the issue with Commonwealth officials. In October, a senior Attorney-General’s official conceded that “it has drifted. We are all ready and set to go. I think it is just a question of when appointments etc will be settled.”

One of the reasons claimed by A-Gs for the delay was “interaction with the legislation monitor”. The Independent National Security Legislation Monitor — currently Sydney barrister Bret Walker SC — was established in 2011 to provide an ongoing review of Commonwealth legislation; Walker provided his first report, which primarily identified issues to be addressed later, in March.

But when asked about his involvement with the COAG review, Walker told an estimates hearing in February that he’d had no discussions with anyone about it.

Attorney-General’s had been fudging excuses for why the review hadn’t started, Rhiannon complained. “If Australia’s excessive counter-terrorism laws are not independently and regularly reviewed we run the risk that they become normalised and their principles creep into other areas of criminal law.”

It adds to the decidedly cavalier approach A-Gs seems to adopt to explaining major national security issues to Senate committees. This reached ludicrous heights last year when ASIO directly and bluntly contradicted the rationale provided by the department for expanding ASIO’s powers.

But the intelligence review is by no means the first significant issue to go missing off the COAG agenda. In 2010, COAG agreed a large-scale series of reviews of housing supply and affordability to be conducted over the course of 2010 and the first half of 2011 with the last reports due by mid-2011.

The reports, if they’ve been done, have never seen the light of day, and since then, housing has vanished from the COAG agenda, as if it never existed. The only mention of housing has been recommendations to COAG about priorities in the National Affordable Housing Agreement. The only politician to mention housing since then has been Joe Hockey.

In the case of national security laws, it suggests politicians of both major parties like the draconian laws just how they are.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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