Workshop Report

On 4 July 2017, the Centre for Socio-Legal Studies hosted a workshop, supported by the University of Oxford's ESRC Impact Acceleration Account, which brought together academics and practitioners to discuss a variety of potential reforms to Australia's anti-terrorism laws. The seminar was organised by Dr Jessie Blackbourn (CSLS, Oxford) and attended by Dr James Renwick SC (Australian Independent National Security Legislation Monitor), Mark Mooney (Principal Adviser INSLM), Dr Fergal Davis (King’s College London), Dr Alan Greene (Durham), Dr Tom Hickman (Barrister, UCL), Rory Kelly (Oxford), Dr Nicola McGarrity (UNSW Australia), Dr Lawrence McNamara (York/Bingham Centre), Angela Patrick (Barrister), Kartik Raj (Human Rights Watch), and Professor Lucia Zedner (Oxford).

The workshop was timed to coincide with the Australian INSLM’s visit to the UK in July 2017, which formed part of a fact-finding mission to inform his most recent review of Australia’s anti-terrorism laws. The report of the review was submitted to the Australian government on 7 September 2017 and is intended to inform parliament's decision to re-enact, amend, or repeal various laws in 2018. Workshop participants were provided a unique opportunity to engage in dialogue about the anti-terrorism law reform process in Australia and the UK in a setting which highlighted the relevance of academic research to law reform practitioners. The workshop focused on a discussion around a number of themes in anti-terrorism law, including: control orders, closed material proceedings, preventative detention, the role of domestic and international human rights instruments, states of exception, and the review process.

The following notes of the workshop were taken by Maayan Ravid.

Workshop Report

The jurisdiction and authority of the Independent National Security Legislation Monitor (‘INSLM’) is defined by statute. It entails review, Royal Commission like powers, and can hold private and public hearings.

I am the third Monitor, the office is based on the UK Independent Reviewer of Terrorism Legislation role. The office has no direct statutory authority to look at the surveillance regime unless it is related to a review that the INSLM is conducting. I have an own motion power to look at the listed statutes or incidental matters - ‘anything in relation to counter-terrorism or national security’. The Parliamentary Joint Committee on Intelligence and Security (‘PJCIS’) has to date had a limited role but is about to get a broader role looking at operational matters similar to that in the UK, and they can task the INSLM to conduct reviews.

The office is entrusted with the task of looking back at state conduct, in contrast to Human Rights commissioners who look at parliamentary Bills, to ascertain how the law worked, its implementation, whether it was effective in preventing terrorism, is consistent with human rights commitments, and has sufficient safeguards.

The INSLM has authority to look at anything related to counter terrorism or national security. There are a half dozen statutes, specific terrorism related laws to draw on. The fundamental questioning of the Act is crucial: is the law necessary? Is it proportionate to threat? Does it contain adequate safeguards?

1. Continuing detention for high risk offenders and Control Orders

Currently there are 21 people serving time for terrorist offences, 40-50 persons before the courts on terrorism charges, and 70 ongoing investigations. Abdul Nacer Benbrika, the first person to be released in 2019, will be an important case for post-sentence orders.

Control Orders have existed since 2005, but they have only been used six times since then, and their continued use or abolishment is uncertain. The first Monitor recommended their abolition, but parliament did not accept it. Continuing detention orders were introduced in 2016. In dealing with persons considered high risk terrorist suspects, an important distinction must be made between persons convicted of terrorist offences who a judge finds cannot safely be released, and those who have not been convicted.

One possibility is to draw on the example of the existing system for high risk sex offenders. A judge decides whether someone should be released, released on conditions, or not at all. An application is made by the Attorney-General, there is a compulsory examination by a psychiatrist, and a report produced on behalf of the Attorney-General which the controlee is entitled to receive. Evidence of past behaviour is allowed, and the judge performs a predictive assessment as to whether the person will be able to stay away from a particular kind of crime.

This path is only partially helpful for high risk terrorist offenders, as the control order is issued by a different court and judge to the continuing detention order. A single court for determination of all parts of the process (non-release, and release on conditions) might prove better.

2. Special advocates

Special advocates have only recently been introduced and it is not yet known how they will be used, but it is anticipated that they will be used only rarely. The introduction of special advocates in control orders in Australia is based on their use in the UK. Is this a case of transference from the UK to Australia? Is it actually needed?

Questions to the room from James Renwick and Mark Mooney:

There is no model for predicting future terrorist behaviour, so the expert report will be liable to be rejected. Government will be forced to work with research and academia to develop such a predictive tool.

If persons in gaol express continued intent of engaging in offences, can a judge conclude non-release, or release on conditions?

Responses:

Professor Lucia Zedner noted that the use of experts is problematic. Their expertise is presented to the court as unassailable, whereas psychiatrists’ actual ability to predict is limited. Drawing on the example of sex offender risk assessments is also problematic. With sex offenders, statistically significant inferences can be made based on wide scale studies, whereas with counter-terrorism offences the population size of offenders is too small to extrapolate statistically significant findings. Drawing analogous risk-assessment implications is problematic, as the regime is contested in itself.

Possible solutions may be inspired by the inquisitorial Scottish model which mandates an independent risk-assessment authority. Or an adversarial system in which experts are provided by both sides. Both the state and the controlee produce reports. However, it is questionable whether the adversarial approach is best suited to resolving a forensic dispute and it may be better being resolved inquisitorially.

Mark Mooney discussed a meeting with Dr Pressman concerning VERA 2, a predictive tool which is being developed based on a six country EU study commencing later this year. It is not ideal but perhaps valuable. It is not an actuarial tool, so it does not rely on a huge dataset, it is designed to deal at the individual level.

Dr Tom Hickman noted that future risk assessment is something that already exists in the UK in the parole board, there is nothing alien to the UK system about a judgment being made about future risk. Should not think in terms of risk assessment and psychological reports as not being something that is already done. What is different in this case is the assessment of Islamic extremist views and a propensity to violence.

The parole board is a judicial body that sits in between criminal and civil matters, a hybrid between the adversarial and inquisitorial system. The parole board can examine evidence that is not given to the individual. However there is a question as to whether the parole board has access to closed materials.

Lucia: It must be remembered that actuarial risk assessment tools were developed in the 1970s and 1980s because of a concern about forensic psychiatry risk assessment limitations, and the lack of accuracy of clinical assessments. Risk assessment is in place, and is accepted as a norm in the parole system, however longitudinal studies of parole board releases show a very poor correlation between those assessed as higher risk and those who go on to offend.

This raises the question of whether judges can be trusted with this responsibility? A 2010 study titled Unjust Deserts: imprisonment for public protection^[1] raises many concerning points regarding indeterminate sentences for public protection (IPP) introduced in the Criminal Justice Act 2003.

Tom: The best predictive tool of future risk is past acts, for example if a person has done something concrete that is an indicator of risk. Otherwise there ought to be a very strong presumption that offenders should be let out subject to conditions that lessen over time. The most troubling thing about the original regime was its indefinite nature. The problem is not one of expertise - judges continually make difficult decisions - but one of legitimacy; no judge wants to be the one who lets a terrorist out. There is then a preference for an expert board which might feel more insulated from pressure.

Angela Patrick queried whether the controlee has access to an open process and to a psychiatric report. She asked whether there were appropriate safeguards in place when convicting in the first place. Have there been cases when judges were convinced by the would-be controlee’s expert not to detain? When closed material is being introduced into a civil procedure, it is only challengeable via special advocates. The process becomes highly punitive through access restrictions.

Dr Nicola McGarrity asked whether as an emerging discipline, is psychiatry the right tool to rely on? How many resources does the controlee have to bring his or her own ‘experts’? Does this system place the burden on the judge to decide what is within the scope of expertise, when we do not yet know what the discipline includes?

Dr Fergal Davis stated that the analogy with the sex offender regime is problematic, it is not a perfect analogy as it puts a lot of faith in the adversarial system to contest evidence. How successful have sex offenders been in challenging the expert evidence? Presumably, it is likely to be very low. Transferring the same system to the terrorism context would therefore be problematic. An evaluation of success rates in contesting evidence can challenge the substantive assessment of risk, and the controlee’s ability to provide his or her own experts.

It was highlighted that both scepticism in the system and trust in the system develops over time and as a field of litigation develops, it is based on experience of use. In the first few years, particularly given the possibility of limited resources in terms of the number of special advocates, it is difficult to expect judges and advocates to be sufficiently specialised.

Two further issues arise. At the point of application for detention under a continuing detention order, an application for a control order is also possible. If the application for a continuing detention order is unsuccessful, then this leaves a back-pocket power of applying for a control order. The process then becomes ‘prosecution by series of trip-wires’; prosecuting controlees for breach of conditions, not even re-offending. These are administrative alternatives to investigation and detention. If the police think these people are going to offend, then there will be intelligence on them, offences are very broadly drafted, and the data collected is probably vast. Prosecution should be the priority.

Dr Lawrence McNamara raised a concern about the parallel process enabled by the High Risk Terrorist Offenders Act, that allows for control orders to be considered at the end of a sentence for terrorist offences as an alternative option to a continuing detention order. This creates a temptation of reaching into the closed proceedings for control orders, and using that material and any intelligence on the potential controlee in proceedings for continuing detention orders. An additional concern is where person are released with conditions, if breached then this becomes a criminal offence.

Dr Alan Greene noted the importance of the different thresholds used: burden of proof versus beyond reasonable doubt. He also noted that the analogy between continuing detention orders and parole is problematic; continuing detention is not really extending a sentence, but actually giving a new sentence. This is a distinct difference from someone who has been sentenced to life and is potentially being released on parole, but is then subject to an additional period of detention. Questions arise over whether a distinction needs to be drawn between the severity of the offence and the length of the sentence, and between completed and inchoate offences.

Lawrence also queried whether applications by the state have requested detention on fewer occasions in the sex offender context. He noted that there is probably a political sensitivity regarding detention times for sex offenders that is not likely to translate well to the terrorism context.

Nicola noted that the new continuing detention order had a one year cap. However, it can continue on a rolling basis. Does it then end up being an indefinite form of detention? This will be important at the sentencing stage, as the judge has the ability to dictate a sentence. Judges are usually reluctant to accept evidence given on behalf of the offender. Continuing detention will many times turn into indefinite detention.

Questions to the room from James Renwick:

What is the role of special advocates in the UK control order regime?

Could special advocates meet once a year to discuss best practices?

From a resource perspective, will legal aid be able to provide equality of arms, with barristers of comparable authority on both sides?

What recommendations can I make to ensure the system works better?

Open Discussion (responses from various participants):

• Tom highlighted that funding problems persist in the UK; special advocates do not get paid for training colleagues or new special advocates, for example, in developing the sort of arguments that are likely to be successful. Also noted that a special advocates support office exists in the UK, however it is part of the Government Legal Department, and is staffed by people who are serving as government lawyers.
• Angela noted that national security expertise is very limited. Closed material proceedings make it very difficult for special advocates to test intelligence material or cross examine experts. In principle, special advocates can cross-examine, but in practice, we understand that this rarely happens. Special advocates do not, in practice, have the ability to call expert rebuttal witnesses. This is because the ability to find people who can produce robust counter-points to the state’s intelligence - that is, credible witnesses with up to date intelligence expertise - is limited, especially considering time constraints. The effectiveness of special advocates has been limited, despite judges and courts saying they are important. State access to intercepted communications, surveillance, access to translators, maintains an imbalance. A good point of reference here is the evidence given to the Joint Committee on Human Rights by the Special Advocates, and their response to the Justice and Security Green Paper in 2012 (authored by Angus McCulloch QC, one of the leading special advocates and Martin Chamberlain QC, a now former special advocate).

• Angela raised the issue that special advocates do not have sufficient time to apply for access to material in closed proceedings, or to assess information. They are appointed too late, and material from government is served late. Additionally, the process is disorganised, and document dumps a short time before the hearing is a persistent complaint from the special advocates. Also highlighted that special advocates are unable to ask questions of excluded persons. There is a mechanism whereby special advocates can ask questions of the excluded person via the judge, but special advocates would like this system to work more effectively.
• Tom noted the problem of insufficient time for special advocates to follow up the material they receive and make applications for additional closed materials; special advocates therefore typically only receive the intelligence reports that are submitted. Another disadvantage of special advocates is that they are temporary, appointed last minute and lack of access to information. Also suggested that continuity is needed;  a case manager or single judge to deal with every case, start to finish, with ample time to provide a proper oversight role.
• Lucia highlighted that in Canada special advocates spend days interviewing clients prior to trial in an effort to anticipate all possible questions that they would not be able to ask once the closed hearing has started and they have access to closed material (after which point they are not permitted to communicate with their client).

• Tom noted that focusing on practical issues distracts the conversation from the more fundamental, difficult aspects of the regime, such as the unwillingness to disclose material that should be disclosed, and the expansion of the use of special advocates far beyond the immigration setting, thereby legitimising the process.
• It was noted that there has been a gradual creeping expansion of the use of special advocates, they are now used in employment courts, civil claims against the State, military. This is concerning in the absence of a clear assessment of how well they are working, and how information is shared.
• Fergal noted that hyper-legislating in response to terrorist attacks has expanded control orders beyond their original purpose.
• The Australian Federal Police (‘AFP’) and Attorney-General’s Department are not applying for control orders as they are becoming increasingly concerned about intelligence, evidence, and not wanting to reveal their sources or international collaboration.
• Analogy to criminal litigation is not appropriate because of the inability to access to all of the information. It is a departure from fundamental principles, as shown in the Justice and Security Act 2013.

• Tom questioned whether legal aid was available to controlees in Australia. In the UK, article 6 of the European Convention on Human Rights, which protects the right to a fair trial is relevant. For control orders and Terrorism Prevention and Investigation Measures (‘TPIMs’), the secretary of state imposes the order in the first instance, which is followed by an appeals procedure. This brings the case in front of a judge. Both legal aid and costs protection is available in control order and TPIMs cases in the UK.

• In al Rawi,[2] the Supreme Court held that in the civil context the legislature needed to legislate for any new use of special advocates, the government could not rely upon special advocates under the inherent jurisdiction of the courts. This led to the expanded use of special advocates and closed process to civil proceedings.
• Causevic[3] was held under a Preventative Detention Order (‘PDO’) in connection with the Anzac Day terrorism plot in Melbourne and subsequently a control order following the withdrawal of terrorism charges. At the interim control order hearing stage, material adduced did not need to abide by the rules of evidence, however, at the confirmation stage, the rules of evidence did apply.

1. Declared areas

Declared areas are a small piece of the larger foreign-fighter picture. They are designated locations which are lawless areas in which terrorists are in control. It is a crime to travel to these areas unless you can prove that your purpose is legitimate, that is, it falls within the enumerated list which is limited and prescriptive, and does not allow for exceptions, or state given permits. Two areas are declared areas: Mosul and Raqqa.

It is the state’s view that there is no legitimate reason for someone to travel to, or be in, Mosul or Raqqa, which is the main location of current ISIL (‘Islamic State’) operations. It is inevitable that simply by being there, persons would become involved in terrorist activity in some way, or get caught up in supporting the organisation.

2. Stop, Search and Seize

Every State and Territory in Australia has its own joint counter-terrorism team consisting of local and federal law enforcement and intelligence actors, that maintains readiness for national counter terrorism threats. The State and Territory forces will be the first responders, meaning federal powers are less likely to be used, unless there is a national counter-terrorism incident, for example, involving weapons of mass destruction or a cross-border event. In such a case, there is the capacity for a nation-wide response and the federal police will take the leadership role. The federal police also deal with stop, search and seizure powers at Commonwealth places such as airports, though these are true emergency powers and have never been used.

3. Role of the Monitor

The office looks at how the laws work in practice, whether they are effective in preventing and deterring terrorism, and in responding to terrorism, whether they are consistent with Australia’s international human rights obligations and whether they have sufficient safeguards. Still feeling the way with public comment, but considers that engaging with the parliamentary committees themselves is preferable, particularly the relationship with the PJCIS, which is the most bipartisan committee, as they are the people who can improve the parliamentary process.

The Monitor works two days a week and is currently conducting three reviews which must be submitted to the Prime minister by September. The office is assisted by Principle Advisor (Mark Mooney), as well as one counsel assisting for each report.

Though based on a statutory regime, the office is occasionally asked to take on additional roles. It has been suggested that the Monitor should appoint special advocates and advise on Bills.

Alan asked what the mens rea was for this offence, and whether it referred to the act of travel or movement across the border.

James explained that there is no mens rea in Australian law, it has been replaced by a fault element and a physical element. The fault element for this offence is recklessness.

Mark noted that Denmark has a similar system of declared zones.

Angela highlighted that in the UK, control of travel and control of return is managed by TPIMs and Temporary Exclusion Orders (‘TEOs’). Entry is subject to conditions determined by the state. This produced a process of managed return; the secretary of state can impose TEOs and TPIMs, and there are additional powers relating to seizure of passport and preventing of travel at airports.

The Danish approach is different; the state invites people to come back, engage in de-radicalisation, and then utilises returnees for intelligence collection. This raises questions about why the UK state is not making use of the intelligence opportunities presented by persons who have returned, and who can be de-radicalised and engaged with for information gains.

Dr Jessie Blackbourn highlighted that current knowledge is that only one TEO has been used to date.

Lucia noted that the process of ‘managed return’ resulted from an amendment to the Counter-Terrorism and Security Act 2015.

Tom highlighted two problems that TEOs raise: the first issue is passport revocation. The second issue relates to turning away citizens and the right to return to the country of citizenship. Refusal of entry into the UK is not allowed according to Magna Carta. There is also the question of citizenship  revocation which might render a person stateless. Al Jedda was accused of working for the resistance in Iraq and helping an explosives expert enter Iraq in 2005. He was interned in Iraq but when he was released, his citizenship was stripped. He managed to prove that it would leave him stateless. This led to the introduction of a new provision that would allow citizenship to be revoked even in these circumstances where it might render someone stateless.

Alan stressed that rendering people stateless serves as a step toward depriving them of access to diplomatic protections, and that this is problematic in respect to international human rights.

Fergal: Regarding the prescribed Security Zones in Australia, what is the public portrayal of these areas? In the UK, section 44 of the Terrorism Act 2000, which enabled the police to stop and search without reasonable suspicion in particular zones, was widely misused. It applied to the whole of London and the police used stops and searches to target particular demographics. It was eventually struck down as being disproportionate and then there was a 90% drop in suspicion-less stops in one year. The legislation was subsequently amended. Schedule 7 powers to stop and search without suspicion still apply at airports.

Questions to the Room from James Renwick:

While keeping in mind that the office cannot be in charge of everything and still maintain independence, should there be any amendments made to the statute to make the office more effective? What should be learned by other monitor models?

Lucia asked whether the Monitor can provide input into the legislative process, even if this is not part of his statutory duties. Could the Monitor examine if the legislation is consistent with the democratic process? For example, could he look at the process by which past legislation was enacted and how much scrutiny had been afforded, for example by parliament or parliamentary committees and then taken into consideration in the parliamentary process.

Angela suggested that perhaps the Monitor could phrase his opinion as: “I have been tasked to review this, it has substantial problems, it has not been put through ample parliamentary review, it should be repealed, reviewed, redrafted.” In the UK, for example, the Anti-Terrorism Crime and Security Act 2001, which brought in indefinite detention, was subject only to light-touch examination by parliament. It did not undergo particularly robust scrutiny and therefore it is time for the legislature to reconsider the legislation. This is important where the legislature gives a margin of appreciation or deference to the executive.

Lawrence suggested that the INSLM use involvement with media as a platform to engage with the public. He noted that a public profile can help to foster a sense of independence from the intelligence services, and from legislative and national security bodies. The visibility otherwise is of a relationship between PJCIS and the INSLM. Such a profile should not be developed in a time of crisis, but rather beforehand so that people have a sense that this person has a distinct role. It also might be worthwhile to engage with the press as a pathway to engaging with the public; the media has a preference for direct interviews rather than simply reporting comments.

Fergal noted that this was something that David Anderson did very well, but raised the issue that the hyper-partisanship of Australian politics means that engagement with the media might well backfire.

Tom mentioned that members of parliament often do not know whether anti-terrorism legislation is in fact necessary, as they rarely get to see the evidence upon which its justification is based. It is possible to design legislation to improve the situation. For example, the indefinite detention provisions of the Anti-Terrorism, Crime and Security Act 2001 were time limited and had a Committee of Privy Councillors review it after the fact. The House of Lords decision in the Belmarsh case in 2004 was a response to the Privy Council Review.

Jessie added that whilst the House of Lords decision in the Belmarsh case in 2004 did build on the Privy Council Review, the indefinite detention powers also required renewal in parliament on a yearly basis and would have sunset at the end of five years anyway. The Privy Council was required to review the whole of the Anti-Terrorism, Crime and Security Act 2001 under a strange mechanism, if the Privy Council specified any part of the legislation in its report, then the government had to call a parliamentary debate, otherwise it would automatically lapse. The Privy Council specified the whole of the Act, but most of the debate centred on the indefinite detention provisions. The government’s response in that debate was not very robust and no change were made to the law. Also noted that different levels of scrutiny are really important for effective oversight, such as parliamentary committees and independent reviewers. A plurality of reviews can be useful, but multiple reviews at the post-enactment stage can create forum-shopping.

Fergal highlighted that the effectiveness of pre-enactment parliamentary committees is affected by the political environment, and is contingent on committee pride and self-awareness. External actors scrutiny on committee’s lack of scrutiny is important and the PJCIS does this. The Parliamentary Joint Committee on Human Rights (‘PJCHR’) did this in the past, but members of the committee have been co-opted, as they are involved in the report, they do not want to jeopardise it.

Alan stressed that the importance of the Monitor was that unlike the court or the legislature, that are focused on a specific law or case, a reviewer has the ability to develop a birds eye view and take a comprehensive look at anti-terrorism legislative landscapes.

Rory Kelly noted the importance of examining the scope and form of offences themselves, for example, the inchoate nature of offences. He also highlighted that it is best to marry both substantive and procedural scrutiny. Otherwise, the same quantum of evidence that is criticised in a civil or hybrid sphere may be relied on to prove a criminal offence. By way of example, the regulation of terrorism training through control orders, then an offence in Australia. This is particularly important in pre-cursor offences - such as inchoate offences, incitement, researching airline tickets, possession of materials - which despite their distance form completed wrongdoing have high maxima.

Angela stated that over-emphasis on one option for review, such as the Independent Reviewer, instead of realising that there are multiple layers of review, is misguided. Should not look at one siloed part of the oversight regime in isolation, but rather it has to be looked at in conjunction with other parts of the review framework. It would be helpful if this was more coherent, though having a lot of eyes looking at the problem is not necessarily a problem.

Additional Suggestions for Monitor Activities Collected from Various Persons:

• Examining conditions in custody suites;
• Reviewing whether adequate rehabilitation systems exist in prison, as this has a direct impact on the operability of the high risk offender regime;
• The legality of any long term continuing detention regime should be scrutinised.

Final Thoughts

Alan stressed the importance of the definition of terrorism and queried why there is a need for a singular definition. Broad phrasing is a problem, and multiple definitions for different purposes might make for be a better approach.

Fergal emphasised the importance of political rights review, rather than judicial review and noted that external actors are necessary for that process.

Lucia proposed that an increased focus is needed on the consequences of the application or misapplication of terrorism legislation to those not actually involved in terrorism.

Nicola highlighted the need to focus on countering violent extremism projects and to evaluate the legislative regime for high risk offenders.

Jessie suggested that the Monitor should make recommendations in plain English, stating the meaning of recommendations in clear, definitive terms.

Lawrence noted that the public perception of the office, and its perceived closeness with other offices, especially when engaging with disenfranchised communities, is crucial. How do those communities perceive you? As a part of the state? Or a monitor of the state?

Rory suggested examining maximum sentences for terrorism offences which are regularly highly inchoate. As Australian judges are unbounded by sentencing guidelines, there is the possibility that will be affected significantly by the high maxima set by the legislature. This poses a serious threat to proportionality not just in the maxima, but in sentences handed-down.

Angela noted that proportionality and necessity assessment should be conducted by an independent authority and that it was important to be clear about means, methods, and your understanding of the role. Being very clear about your approach to assessment as crucial for public understanding of your role, and of who you are.

Tom stressed that public confidence and engagement is paramount if the office is to work. He suggested being self-consciously open, transparent, accessible, and communicative. Examining the bits of laws that are not working well will also build public confidence.

Finally, it was suggested that attention needed to be paid in regards to control orders, revocation of citizenship, and prolonged detention, in particular in how they play out in immigration regulation. Emphasised the need to look beyond comparable commonwealth contexts to other legal systems. Gave the examples of France which has introduced similar laws with no oversight, no connections to terrorism, or spatial limitation, and Spain which has focused on internet expression. It is important to look beyond commonwealth category.