A cautionary tale: counter-terrorism legislation

In August the Prime Minister announced that the COAG Review of Counter-Terrorism Legislation would specifically look at control orders, preventative detention and the emergency stop, question and search powers of police. Submissions to the COAG Review Committee have now closed and the Committee has to report within 6 months. But will the Review Committee fully appreciate the practical effects and unintended consequences for individuals and their families as a result of poorly drafted Counter-Terrorism legislation, and will it recognise the potential for misuse in some political climates?

The specific focus is whether the laws under review are 'necessary and proportionate'. Many submissions highlighted the difficulty of making this assessment in the absence of publicly available material regarding the current threat to Australia of a terrorist attack and of a bill of rights as a benchmark against which to measure intrusions upon the human rights and civil liberties of Australians.

Only two interim control orders have ever been made. They were for Joseph Thomas and David Hicks. Hicks' control order expired in December 2008. I spoke with David Hicks recently about the effect of control orders on him and his family.

He said the control order may as well have applied to everyone in the family even though they had done nothing wrong. "It's punitive rather than preventative. It modified our behaviour. Even if they weren't monitoring us it had the desired effect."

Hicks' private telephone conversations with his counsellors and health providers were monitored. The telephone conversations with his lawyers were monitored. Friends stopped communicating with them because they did not want to be swept up in the monitoring process.

Hicks was authorised to use only one phone line, his mobile phone. If another phone rang in his vicinity he couldn't answer it nor could he contribute to a discussion on speaker phone. He had to remain silent.

Hicks was unable to use a computer for twelve months because the police couldn't work out how to place the computer on their network. For information about the world he had to rely on newspapers and television, with their lack of depth and questionable quality.

All trips had to be authorised. Hicks wanted to surprise his partner on her birthday by taking her to a special venue but he had to get authorisation from the Australian Federal Police to do so. "If you don't get permission in time, you lose your flights and your money." They were often indiscreetly followed by Australian Federal Police officers in motor vehicles.

Hicks describes how "You always had to be on your guard because the penalty for breach of the control order was five years imprisonment."

Although Hicks is unable to say whetherAustralian Federal Police Officers ever actually entered his private residence, Section 3UEA of the Crimes Act 1914 (Cth) does permit the police to enter premises without a warrant and under their own authority in certain circumstances.

In the end Hicks and his partner gave up and confined themselves to a set address and in effect, to isolation.

According to Aloysia Brooks, human rights advocate and founder of The Justice Campaign, "David had been tortured and this inhibited his ability to recover: how could he defend himself? What was the point of subjecting him to a control order when he had not been convicted of a crime?"