Yesterday, Attorney-General George Brandis introduced new anti-terror laws into the Senate, after pledging earlier in the week to renew the Howard government’s preventative detention and control order policies until 2025. Police also issued preventative detention orders earlier this week for the first time. But how do the current laws work exactly and what sort of powers will be extended to the authorities? Crikey breaks down the issue.

How did it all begin?

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Following the 2005 London bombings, the Howard government introduced a series of anti-terror laws. The key features of the bill included a new form of arrest known as “control orders”, updated sedition offences, new questioning, and increased abilities to detain suspects including preventative detention orders and additional search and seize powers.

What’s a preventative detention order?

A preventative detention order allows senior Australian Federal Police members to detain suspected terrorists. According to the Australian government’s website, police can detain people under preventative detention orders only when there is a threat of an imminent terrorist attack and the order might assist in preventing it, or immediately after a terrorist attack if it is likely that vital evidence will be lost.

What are a person’s rights under preventative detention?

A person can be detained under Commonwealth law for a maximum of 48 hours without charge, and under state and territory laws a person can be detained for 14 days.

A person who is detained under a preventative detention order has several rights, including: the right to contact a lawyer, family members and employers; the right to be treated humanely; the right to receive a copy of the preventative detention order; and the right to seek an interpreter if he or she has difficulty speaking English.

If a warrant is acquired from a federal judge or magistrate, ASIO also has the power to detain suspects up to seven days and question them for up to 24 hours.

Have they ever been used?

During last week’s anti-terror raids in Sydney, three people were issued with preventative detention orders — this is the first time the orders have ever been used. Dubbed Operation Appleby, the busts are said to be the largest counter-terrorism raids in Australian history. More than 800 federal police raided 25 Sydney properties and alongside ASIO and NSW police, they subsequently detained 15 people. An additional 70 officers were also involved in raids in Brisbane’s south.

The ABC reported that during the raids in Brisbane, suspects arrested were in possession of machetes, balaclavas and military fatigues in preparation for similar attacks.

So far, two people have appeared in court. One has been placed on a two-year good behaviour bond for possessing a Taser device and fined $500 for retaining four rounds of ammunition. The other man appeared in court last week under accusations of plotting to murder a member of the public at the command of Islamic State (also called ISIS or ISIL).

It is not yet known whether some suspects are still in detention, though this may be difficult to find out, as a NSW judge issued a sweeping suppression order that prevents reporting of controversial preventative detention orders indefinitely.

What’s a control order? 

Control orders are sought out by the Australian Federal Police with the attorney-general’s consent. According to the Australian government website, a person can be subjected to a control order if there is grounds it will “substantially prevent a terrorist attack” or if the individual has trained with a listed terrorist organisation.

Restrictions of a control order include: forcing a suspect to wear a tracking device or be fingerprinted; requiring a suspect to report in at a certain time and place; and ensuring a suspect remains in certain premises during certain times of the day.

Other restrictions prevent suspects from being in certain areas or leaving Australia, communicating or associating with terrorist organisations, carrying out certain activities (such as work) and accessing certain forms of technology such as the internet.

What new measures is the government hoping to implement?

Brandis’ Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 allows the minister for foreign affairs to designate particular regions (such as parts of Iraq) as “no-go areas”. If Australians visited any of these regions, they would have to prove they were there for legitimate purposes (e.g. journalism, providing aid or visiting family) and not engaging in terrorist activities.

But Brandis denies that the bill reverses the onus of proof and says the areas covered by the bill would be “narrowly defined”.

He also introduced a second bill, making it easier for intelligence officials to access computers and giving them legal immunity for covert operations. Controversially, the penalty is up to 10 years’ imprisonment for revealing covert operations, and some say it could lead to the imprisonment of whistleblowers, journalists and bloggers.

Brandis argued on Wednesday that the increased powers were necessary as the threat of terrorism was more “immediate” than it had been in decades. The night before, police shot and killed an 18-year-old suspected of associating with radical Islamist groups in Melbourne. The issue is currently being investigated.

At Monday’s press conference Brandis had announced that the update on the new laws had been partly influenced by members of the Islamic community. He suggested the new laws wouldn’t weaken existing legislation and announced that both the detention and control order laws will take effect until 2025, through an updated sunset clause. The senate is currently debating the issues.

Nick O’Brien, an associate professor in counter-terrorism at Charles Sturt University, says extending the laws to 2025 is a bad idea. “I worked with the prevention of terrorism act in the UK, and that was renewed every year,” he said. “I think the danger is you end up radicalising more people … You could end up doing more damage than good.”

The new laws led to speculation by Liberal Democratic Party and Family First senators that the legislation could grant ASIO the power to torture. Brandis denied those claims in Monday’s press conference: “The Australian Security Intelligence Organisation has never practised torture, it does not practise torture, and it never will.”

*Correction: An earlier version of this story incorrectly stated that suspects in preventative detention could be questioned. 

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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