Deficiencies of heavy-handed anti-terror laws … Police mismanagement and failure to comply … Covert search warrants … Preventative detention orders … Major shake up for continuing detention orders … Citizenship stripping laws get scrambled … Max Shanahan dives into the quagmire  

Such a revision became inevitable given the preponderance of legislative instruments that have arisen since 9/11. Between 9/11 and 2019, 82 federal anti-terror laws were enacted, with States also introducing their own extensive suites of legislation. 

Attempting to legislate for extraordinary new manifestations and typologies of terror, coupled with oppositions often unwilling to conduct extensive scrutiny of national security legislation, has led to a range of measures that would not ordinarily be tolerated – including continuing detention orders, covert search warrants, and citizenship stripping powers. 

The NSW Law Enforcement Conduct Commission’s recent review of elements of the Terrorism (Police Powers) Act 2002 meted out heavy criticism to the state police for their poor oversight and use of the preventative detention and covert search warrant (CSW) powers afforded to them under the Act. 

The government also came in for a bollicking over their failure to act on recommendations from a previous review of the powers. 

Covert Search Warrants

The CSW powers – introduced in 2005 – allow police, on application to the Supreme Court, to search premises without the knowledge of the occupants in order to respond to, or prevent, a terrorist attack. 

The Commission found that “the Standard Operating Procedures (SOPs) for covert search warrants which [the police] had on file … were both years out of date and did not reflect all the relevant provisions in the Act.” 

Furthermore, the forms which were on file “contained a number of errors” which meant that police failed to comply with legislative requirements when executing these warrants. 

Indeed, all four of the covert search warrants executed during the reporting period presented serious compliance issues. In three searches, police took DNA samples, despite only having received authorisation to “test a thing” for one of those searches. 

As the LECC noted, “the covert collection of DNA samples is currently unregulated in NSW”. In addition, only one of the four searches was recorded on video – and then only partially. Finally, in all four of these compromised searches, the key roles of an “exhibit officer” and an “independent officer” were not performed. 

Simple errors made by police included using a form that applied under a different Act when reporting to the relevant judge upon execution. 

Ultimately, the LECC recommended a number of changes to forms and procedure for the execution of search warrants. However, greater opprobrium was reserved for the preventative detention powers.

Preventative Detention

The preventative detention powers – also introduced in 2005 – enable police to apply to the Supreme Court for an order permitting them to detain an individual for up to 14 days to “prevent a suspected imminent terrorist act or preserve evidence of a recent terrorist act”. 

The powers have only been used once, and not at all during the reporting period. 

As with covert search warrants, the LECC found the police’s forms and procedures to be out of date – indeed, the police “do not have any current, corporately endorsed SOPs [standard operating procedures] or forms for those powers,” concluding that the NSW police were … 

“… not operationally ready to use the preventative detention powers. This is despite the fact that the … powers have been available to police since 2005. 

“The Commission is very concerned that the preventative detention powers continue to be legally available to police …”

The LECC recommended that parliament “consider immediately repealing the preventative detention powers” when they expire in 2023. 

However, despite a previous recommendation to repeal the powers in 2017, they have since been extended twice beyond their sunset clause – despite both the Independent National Security Legislation Monitor (INSLM) and the COAG Committee recommending the removal of the power. 

There’s been no word yet on the government’s response to the report. 

Moving to Canberra, the INSLM – currently the West Australian Grant Donaldson SC – has commenced an inquiry into Division 105A of the Criminal Code, which allows for the continuing detention of terrorist offenders. 

Under the scheme, terrorist offenders may be detained for a further three years beyond the expiration of their sentence, if a judge can be convinced that they pose an unacceptable risk of committing a terrorist act when released. 

Theoretically, the provisions allow for indefinite detention, with no limitations on the issuance of consecutive CDOs. 

The previous attorney general George Brandis introduced the provisions in 2016, arguing that the existing post-detention control order regime was inadequate: 

“There may be some circumstances where, even with controls placed upon them, the risk an offender presents to the community is simply too great …”

The Commonwealth provisions have only been used twice since their inception, with control orders deployed with far greater frequency, despite their supposed inadequacy. 

In submissions, the CDO imposed upon Abdul Nacer Benbrika – an Algerian citizen since the cancellation of his Australian citizenship – was criticised as illogical and superfluous, given his inevitable deportation or immigration detention upon the expiration of his sentence: 

“Benbrika still adheres to his violent jihadist ideology after 15 years in prison. There appears to be no logic to detaining him for an additional three years … If he remains an unreconstructed jihadists after 15 years in prison then it is highly likely he will remain so in three years time and the threat he poses will remain. 

“The other use of the CDO, with respect to Blake Pender, involved an offender with significant mental health and substance abuse issues and it is difficult to believe that the drafters of the legislation envisaged it being used on someone whose adherence to a radical Islamist ideology was as marginal (even if his violent behaviour was real) as Pender’s.”

The Law Council of Australia reiterated its position from previous reviews that the CDO regime is “not a necessary or proportionate response to the threat of terrorism” and should not be renewed when the provisions are due to expire in 2026. 

In public hearings, Donaldson said it was “odd” that Division 105A “seemingly quite deliberately” does not include rehabilitation or reintegration as goals of the CDO regime. 

According to The Guardian, Donaldson has “signalled he will probably call for a major shake-up … including raising the bar for detaining people after their sentence expires and that ‘control orders’ for people not convicted of crimes, should be abolished”. 

Such a finding would contradict the Parliamentary Joint Committee on Intelligence and Security, which recommended less than a year ago the extension of the control order regime, adding that the CDO regime was “a legitimate and proportionate means of ensuring the safety of the Australian community” despite its “impact on the human rights of an individual”.

The Donaldson inquiry will continue with a further public hearing on August 31. 

It won’t have been missed by Justinian’s readers, but to add to the pushback against Australia’s anti-terror architecture, the High Court found the citizenship stripping provisions in s.36B of the Citizenship Act to be invalid in Alexander & anor v Minister for Home Affairs. 

The majority concluded that the provision – which permits citizenship cessation if the Home Affairs Minister is satisfied that an individual engaged in certain proscribed conduct – involved the exercise of an exclusively judicial function. 

Of all of Australia’s many anti-terror provisions, the citizenship stripping laws perhaps have attracted the most attention. 

Concerns have been raised over the potential for individuals to be left stateless, in breach of international obligations. For example, Neil Prakash’s Australian citizenship was cancelled on the basis of a departmental assessment that Prakash is a Fijian citizen, yet the Fijian government denies any such status. 

Likewise, while formal dual-citizenship may exist, the cessation of Australian citizenship often merely fobs off suspected terrorists and foreign fighters onto other, less appropriate, countries. 

Jacinda Ardern criticised Australia’s decision to cancel Suhayra Aden’s citizenship, forcing New Zealand to accept the suspected IS supporter and her children, despite Aden having lived in Australia since she was six years old.

“If the shoe was on the foot we would take responsibility, that would be the right thing to do, and I ask of Australia that they do the same.”

Even the security agencies have raised concerns over the utility of citizenship cessation laws. In submissions to a PJCIS inquiry on the matter, the AFP raised concerns that it may not be able to lay certain charges against suspected terrorists who have had their citizenship stripped. 

ASIO went further, submitting that the provisions may have “unintended or unforeseen adverse security outcomes – potentially including reducing one manifestation of the terrorist threat while exacerbating another” and may in some instances “curtail the range of threat mitigation capabilities available to Australian authorities”.

While the High Court’s ruling is certainly a blow to one of the major hallmarks of the last government’s widespread anti-terror laws, there is likely to be little practical effect. 

Section 36D – which allows for citizenship cessation upon conviction of a terrorist offence – remains on foot. It is this provision that has been used in the vast majority of citizenship cancellations.

Furthermore, the scrutiny of the terrorism-law regime comes as the threat from Islamic State and the prospect of foreign fighters is greatly diminished, when compared to the time when the second, post-9/11 wave of national security legislating was at its peak. 

In this sense, desuetude – as can be seen with the NSW preventative detention provisions – is likely to be more responsible for the relaxation of extraordinary anti-terror measures than any judicial or oversight intervention.