The Attorney-General George Brandis has gone part of the way to addressing concerns about the government’s anti-terrorism legislation by offering several amendments, as the government moves to progress its first round of national security reforms into Parliament.
On Friday, Brandis announced the government had accepted all of the recommendations of the Joint Committee on Intelligence and Security in relation to its first bill, which will come before Parliament for consideration this week. After a unanimous committee report, Labor is expected to support the bill. This morning, Brandis announced that the government’s second bill, dealing with powers to prevent, and prohibit, Australians travelling to conflict regions like Syria and Iraq, would be modified, with a sunset clause for the sections specifically addressing the prohibition on travelling to or remaining in “no-go” areas. That prohibition would end in 2025.
Brandis also revealed that, following representations from the Muslim community, proposed amendments that would extend permanently the control and preventive detention powers in the existing Howard-era anti-terrorism legislation — currently scheduled to sunset in 2015 — would be amended to sunset in 2025. Those powers were recommended for abolition by the former Independent National Security Legislation Monitor, Bret Walker SC, who noted they were inappropriate and had never been used; while other recommendations by Walker to strengthen anti-terror laws were taken up by the government, his recommendation to dump the preventive detention and control order powers was notably ignored. The New South Wales government had also criticised the powers as “unworkable”. However, the powers were — doubtless coincidentally — used for the first time in last week’s terror raids in NSW and were slated to be made permanent until Brandis’ announcement this morning.
The bill to implement the prohibitions relating to foreign fighters, and the extension of preventive detention and control order powers, will be introduced this week but will be referred to JCIS for review, with the intention of parliamentary passage next month.
The government will also add an explicit prohibition on torture to the current bill before parliament in relation to the controversial “special intelligence operation” provisions, which enable the establishment of ASIO operations in which ASIO officers may break the law with legal impunity, except for murder, serious physical harm and sexual offences. SIOs will cover covert operations and are similar to the Australian Federal Police’s “controlled operations”, but have attracted criticism for the draconian nature of the prohibition on revealing information about them, primarily from Australian media outlets.
The torture prohibition addresses what Brandis correctly described as a “red herring”, the claim that immunity from criminal laws would allow ASIO to engage in torture. Crossbench Senator David Leyonhjelm seemed particularly convinced about the threat of torture, despite the dearth of evidence that Australian agencies have ever used torture (or that the AFP had taken advantage of the “controlled operations” legislation to do so) and that it would still be illegal under the bill as it stood. Nonetheless, Brandis has elected to shut down debate on the point by adding an explicit reference to torture.
The key problem with SIOs remains with who can authorise them — under the bill as amended in the wake of the JCIS report, the Attorney-General — and the lack of any external authorisation. The preventive detention and control order provisions have a requirement for an external judicial authorisation process, meaning there is some form of external oversight of these draconian, and suddenly conveniently useful, powers. That is the real problem with SIOs, not the silly fiction that ASIO is about to take up torture.
On the other hand, Brandis is to again be commended for staying with the precedent established by one of his predecessors, Nicola Roxon, and referring the second batch of legislation to JCIS, albeit for a somewhat shortened review. It’s a very different approach to that of the Howard years, when Philip Ruddock routinely rammed through the most appalling legislation and any attempt to critique was smeared as supporting terrorism.