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National security law update

Andrew Zammit
Federal

Australian citizens continue to join proscribed terrorist organisations in Syria and Iraq. This has gone from being a neglected security concern to becoming the Australian government’s ‘number one national security priority’.

The result is that three sets of new national security legislation are being introduced in quick succession, which carries great risks for human rights and effective counter-terrorism.

Several of the proposed changes do make sense. For example, there is an amendment designed to make it easier for the Australian Secret Intelligence Service (‘ASIS’, our external intelligence collection agency) to spy on suspected Australian fighters overseas on behalf of the Australian Security Intelligence Organisation (‘ASIO’, our domestic intelligence collection agency). This was recommended by both the Parliamentary Joint Committee on Intelligence and Security and the Independent National Security Legislation Monitor (‘INSLM’), and is clearly tailored to address this specific threat.

Another proposal is to allow ASIO to confiscate passports without having to go through the Foreign Minister, provided it is only for a short period (likely to be around seven days). This does not constitute a new power (ASIO has had the ability to cancel passports for over a decade) and does not reduce the suspect’s appeal rights. The suspect could still challenge the merit of the adverse security assessment through the Security Appeals Division of the Administrative Appeals Tribunal, and challenge the process through the Federal Court or the Inspector-General of Intelligence and Security.

However, the Abbott government isn’t simply making sensible tweaks to existing laws based on the recommendations of independent inquiries. They are also introducing extremely doubtful new laws, such as a tabloid-driven proposal to cut off welfare payments of suspected jihadists.

Of concern are proposals to lower the thresholds required for imposing interim control orders and preventative detention orders, from ‘considers on reasonable grounds’ to ‘suspects on reasonable grounds’. No case has been made as to why this is necessary, and it goes explicitly against the recommendations of multiple inquiries. The Council of Australian Government (‘COAG’) Review of Counter-Terrorism Legislation recommended adding extra safeguards to control orders while the INSLM recommended abolishing them except for when used against convicted-but-released terrorists. Both the COAG Review and the INSLM recommended abolishing preventative detention orders altogether. The government is not only maintaining these powers, but reducing the safeguards on them.

The most worrying proposal could require any Australian returning from Syria and Iraq to prove they were not involved in terrorism. This reversal of the burden of proof departs dramatically from Australia’s legal traditions. These proposals have encountered a strong backlash from Muslim communities, demonstrated by a recent boycott of the Federal Police Eid Dinner in Sydney and subsequent boycotts of meetings initiated by Tony Abbott to discuss the legislation.

The risk posed by Australians joining violent extremist groups in Syria and Iraq is real, and has been for over two years. There is also a genuine need for legislative changes.

Unfortunately, the government’s current approach doesn’t effectively address this need, and instead marks another attempt to rush questionable new laws through Parliament in the face of a perceived crisis. Several of the proposed changes risk harming innocent people, alienating cooperative communities, and complicating counter-terrorism efforts.

ANDREW ZAMMIT is a researcher at Monash University’s Global Terrorism Research Centre.

(2014) 39(3) AltLJ 195
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