The Reshaping of Control Orders in the United Kingdom: Time for a Fairer Go, Australia!
Walker, Clive, Melbourne University Law Review
The Australian version of control orders under div 104 of the Criminal Code (Cth) was very much hewn in the image of the United Kingdom's Prevention of Terrorism Act 2005 (UK). These orders allow severe restrictions on personal freedoms to be imposed on terrorist suspects without proof of any criminal offence. Disquiet about the legitimacy of control orders in the United Kingdom has now resulted in a reform process, the outcome of which is the Terrorism Prevention and Investigation Measures Act 2011 (UK). A critical assessment in an Australian context of these British reforms is timely because of the recently released Council of Australian Governments Review of Counter-Terrorism Legislation as well as the second annual review by the Independent National Security Legislation Monitor. This article will advocate that, despite misgivings, some variant of control should be retained in Australia and that the revisions embodied in the TPIM Act (and some beyond) are worthy of emulation.
CONTENTS I Introduction II Background to Recent United Kingdom Reforms III Overview of the New United Kingdom Legislative Scheme IV TPIMs as Measures of Prevention V Enhanced TPIMs as Measures of Prevention VI TPIMs as Measures of Investigation VII The Mechanics of TPIMs A Initial Applications B Court Processes C Quasi-Judicial Review by Secretary of State for the Home Department D Political and Independent Review VIII Policy Transfer to Australia A Validity of Comparison B Comparisons in Detail 1 Substance 2 Procedure 3 Oversight C The Existential Issue IX Conclusion
The common legal heritage between Australia and the United Kingdom is profound, but some aspects are more fondly savoured than others. Control orders may represent an exceptional aspect of that relationship since they entail highly negative connotations. It is a fact that the Australian version of counter-terrorism control orders under div 104 of the Criminal Code (Cth) (1) were very much hewn in the image of the United Kingdom model, which appeared in the Prevention of Terrorism Act 2005 (UK) c 2 ('PTA 2005'). (2) As is well-known, these orders allow severe restrictions on liberty and movement, as well as rights to communication, association, and property, to be imposed on terrorist suspects without proof of any criminal offence. (3) Having lured Australia into a fine morass, the British legal system perhaps now owes some duty of care to offer a better model. Although, it must be observed that Australians are quite capable of compounding their own difficulties, such as by spreading the notion of control orders to outlaw motorcycle gangs ('bikies'). (4) The purpose of this paper is didactic rather than evangelical. No claim is made here that United Kingdom control orders were necessarily the right product for Australia in 2005. But this paper embeds a twin thesis. First, given that the United Kingdom legislature has now replaced the PTA 2005 with the Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23 ('TPIM Act'), (5) it is argued that the Terrorism Prevention and Investigation Measures ('TPIMs') so enacted are a better option for the United Kingdom on the basis that, overall, they demonstrate a greater deference to the rights of individuals. The second thesis is that, if some variant of control orders are to be retained in Australia, TPIMs and their reformed features are worthy of some emulation in Australia too.
It may seem almost quixotic to select this topic for examination given that only two counter-terrorism control orders have ever been issued in Australia, the subjects being Jack Thomas (6) and David Hicks. (7) However, there are four reasons why this examination is timely.
First, there is the justification of the recently released Council of Australian Governments' Review of Counter-Terrorism Legislation ('COAG Review') chaired by the Hon Anthony Whealy QC. …