Author: Nyman Gibson Miralis
Subject: Control Orders
Keywords: preventing terrorist attack, AFP, Crimes Act, Australian Constitution, Attorney-General, human rights, Independent National Security Legislation Monitor (INSLM)
What is a control order?
A control order imposes obligations, prohibitions and restrictions against a person for the purpose of protecting the public from a terrorist attack. The power to issue a control order is conferred on a Court provided that specific statutory criteria are met. A control order can only last a maximum of 12 months. However, for people aged between 14 -18 years old, control orders cannot last longer than 3 months.
The Australian Federal Police (AFP) can make an application to the Court for a control order to be issued.
A control order can only be issued if:
- It would substantially assist in preventing a terrorist attack, or
- The person has:
- provided, received or participated in training with a listed terrorist organisation, or
- engaged in a hostile activity in a foreign country, or
- been convicted:
- in Australia of an offence relating to terrorism, a terrorist organisation or terrorist act, or
- in a foreign country for an offence that would constitute a terrorism offence within the definition of the Crimes Act if such conduct occurred in Australia.
The Court must also consider the potential impact a control order may have on a person’s personal and financial circumstances.
Under a control order, a person may be restricted or prohibited from:
- leaving Australia;
- associating or communicating with specified individuals;
- accessing technology including the internet;
- possessing or using certain articles or substances.
A person may also be required to:
- allow himself or herself to be photographed;
- allow impressions of his or her fingerprints to be taken;
- participate in specified counselling or education;
- remain at a specified premises between specified times on specified days, but for no more than 12 hours within any 24 hours; and
- wear a tracking device.
How have the courts interpreted control orders?
In 2007, the High Court of Australia in Thomas v Mowbray held that control orders were valid under the Australian Constitution.
The majority held (among other things) that:
- Control orders were validly enacted under the Parliament’s legislative power to make laws with respect to matters of ‘defence’; and
- The issuance of control orders by a Court was a permissible exercise of judicial power under the Constitution because these were akin to other preventative measures such as Apprehended Violence Orders.
How often are control orders issued?
Under the law, the Attorney-General is required to provide a report in respect of control orders at the end of each financial year.
According to these reports:
- In 2016-17, 1 control order was confirmed and varied;
- In 2015-16, 1 interim control order was made, and 1 control order was confirmed and varied; and
- In 2014-15, 3 interim control orders were made.
The controversy with control orders
From a human rights perspective, control orders pose a significant issue because they severely limit and interfere with a person’s right to freedom of expression, association and privacy.
Such an order can be obtained without the need for sufficient evidence to warrant criminal prosecution. The AFP only needs to adduce evidence that satisfies the lower civil standard of proof for their control order application to be successful.
Accordingly, there is concern that control orders may be considered an alternative to criminal prosecution especially when there is a lack of evidence. Arguably, such evidentiary concerns provide a legitimate basis for obtaining a control order only in circumstances where there is an urgent need to prevent a terrorist attack.
Control Order safeguards
To combat these rights concerns, Parliament has established a special advocate’s regime.
Secret or highly-classified information is often used against a person in control order proceedings. Consequently, a person (and their legal representatives) would not be entitled to be present at such proceedings. Thus, the regime allows security-cleared lawyers to represent a person’s interests in closed court.
Recommendations of the Independent National Security Legislation Monitor (INSLM)
The INSLM is a statutory position created to review and ensure that Australia’s national security and counter-terrorism legislation is consistent with Australia’s international obligations.
The first INSLM criticised that control orders in their present form were not effective, not appropriate and not necessary. The second INSLM also endorsed a number of recommendations to improve the control order regime. But despite such criticism, the regime has been extended in a number of ways (i.e. minimum age of controlee reduced from 16 to14).
The present INSLM has also recommended for the existing control order regime to continue for another 5 years. Notwithstanding the significant deprivation of human rights under a control order, such concerns were outweighed by these main justifications (among others):
- The terrorism threat level remains at ‘probable’;
- The overall security environment is steadily worsening; and
- The deterrent effect of control orders through mandated counselling and education has had a beneficial impact on controlees.
Nyman Gibson Miralis advises and represents individuals and corporations dealing with international and national security investigations and probes, interviews, administrative decisions and related court proceedings. If you require assistance, contact one of our expert criminal defence lawyers