The Australian Human Rights Commission is urging the government to use the current low terror-threat level to end its extraordinary preventive detention regime for potential offenders, criticising its “significant impact on human rights”.
In 2005, after the London terror attacks, the Australian government introduced laws to give what were meant to be temporary, extraordinary powers to police to hold people in “incommunicado” detention, without charge, for 48 hours to prevent a future terror offence.
These preventive detention orders were acknowledged to significantly infringe on human rights, but were justified by the extraordinary terror threat Australia faced at that time.
The laws also introduced the power to make control orders – which can include curfews, travel bans, tracking device requirements, and prohibitions on speaking to particular people or going to certain places – to prevent a future crime.
The powers were supposed to cease in December 2015, after a decade, but have been extended four times since and were due to lapse at the end of this year.
The Labor government has proposed to extend them again until December 2026.
But the Australian Security Intelligence Organisation lowered the terror threat level to “possible” in November, the second lowest danger level, and said “the factors that contributed to raising the terrorism threat level in 2014 no longer exist, or persist to a lesser degree”.
In submissions to a parliamentary Joint Committee on Intelligence and Security inquiry, the AHRC and the Law Council of Australia called for the end of prevention orders and control orders.
“Such extraordinary powers are neither necessary nor proportionate having regard to the reduced terrorism threat level in Australia, the presence of comprehensive state and territory counter-terrorism frameworks, and evidence that these powers have very rarely been used to date,” the Law Council’s submission said.
In a hearing this week, the Liberal senator James Paterson pointed to the recent rapid change in the security environment in Israel, and questioned whether there wasn’t “some value in [the powers] being there for peace of mind, in case the security environment does deteriorate” in Australia.
Rosalind Croucher, the AHRC’s president, said the proposition of holding on to extraordinary powers “just in case” they were needed at some later point was not very convincing.
“To use the ‘just in case’ rule is not a very convincing way of supporting continued powers which are really quite extraordinary and were introduced in an extraordinary context,” she said.
She said control orders were being used as a substitute for criminal prosecutions. That made it hard to justify their continued use, Croucher said.
In 2021, the government introduced new powers to detain or supervise convicted terror offenders at the conclusion of their sentence. That regime has been the subject of strident criticism, including by the Independent National Security Legislation Monitor.
The AHRC said the 2021 supervision powers, known as extended supervision orders, were better targeted and made the 2005-era powers redundant.
“We have drawn attention to the change in the security environment, but that’s not our primary reason for wanting these laws to sunset,” said the AHRC’s deputy director legal, Graeme Edgerton.
“These were submissions we were making in 2020, when the security environment was higher as well. What we say is there are effective alternatives that are better targeted to human rights.”
Barrister David John Neal, who served on the Law Council’s criminal law council, had acted for Harun Causevic, a teenager who was subjected to Anzac Day dawn raids and was put on a control order for 10 months. A terror charge against him was dropped, and a court later found “no direct evidence” linking him to potential terror offending.
Causevic’s family has since sued over the raid and received a payout from the commonwealth.
Neal described Causevic’s control order as “extremely invasive” and leading him to become a “hermit for that period”.
“In considering the balance between the rights of individuals and the right to protect ourselves, the system at the moment allows too much leeway for significant abuses, which led to quite serious psychological harm to him – to say nothing of the impact on his family, especially in the event of a dawn raid where they were terrorised,” Neal said.
“I think we have to be conscious in this that we are dealing with fallible institutions, and to be perfectly frank, the role of the AFP in that case demonstrated the risks of having [overly] broad powers.”
