Daniel Hurst, political correspondent

theguardian.com, Friday 10 October 2014

AFP says ‘further urgent refinements’ to the orders are needed, including expanding purposes for which they can be used

An Australian federal police officer patrols the front of parliament house in Canberra. Photograph: Stefan Postles/AAP

The Australian federal police are lobbying for a relaxation of “time-consuming” rules they must follow to obtain interim control orders against terrorism suspects.

They also want to expand the purposes for which they can seek control orders, which are currently limited to protection of the public from a potential terrorist act.

Court-issued control orders can impose restrictions on a person, such as the wearing of tracking devices, bans on communicating with particular people, or places they can go.

The Abbott government is already making changes to the control order regime in its foreign fighters bill, but the AFP has set out its case for additional amendments in its submission to a parliamentary inquiry.

“In light of recent operational experience, the AFP is of the view that further urgent refinements to control order legislation are necessary to address the current terrorist threat environment,” said the submission, which was published on the parliament’s website this week.

“For example, the application process for control orders as set out in the current legislation is complex and time-consuming. The AFP considers that this process could be streamlined in a way that does not detract from any important accountability mechanisms or safeguards.”

The AFP suggested “refining” the documentation to be provided to the attorney general and the court as part of the process of seeking an interim control order.

“Currently, the legislation practically requires the AFP to have its entire case ready – akin to a brief of evidence – before seeking an interim control order,” it said.

“In a live operational environment, the AFP will be trying to manage a known terrorist threat, but will still be working through the information that has been collected as the result of search warrants, and is still [being] collected by investigators and intelligence officers.”

The government has already moved to expand the powers of security agencies including the AFP and the Australian Security Intelligence Organisation (ASIO), citing the domestic security risk posed by citizens returning from fighting with extremist groups in the Middle East.

The second national security bill – which is expected to be debated by parliament later this month – expands the instances in which a control order can be sought.

It also creates provisions making it easier to prosecute fighters returning from overseas conflicts – but the efficacy of those provisions have been called into question by eminent legal experts, including the former independent national security legislation monitor, Bret Walker.

Walker told parliament’s intelligence committee this week that a new provision creating declared “no-go zones” for Australians, likely to include parts of Iraq and Syria, would not deliver what the government wanted in terms of enhanced capacity to jail jihadists.

Labor has now signalled it has issues with the “no-go zones” – the centrepiece of the new bill.

The shadow attorney general, Mark Dreyfus, told Sky News he was not yet convinced the legislation was workable. “I think we have to be careful when we look at new laws about whether they will work in practice, whether they truly add to the armoury of powers that our agencies have got,” he said.

“On this one, the public submissions, the public evidence that has been given, pointed to a host of problems.”

Dreyfus said one had to ask in this instance whether or not the proposed law was part of the problem or part of the solution. “The public disquiet that’s been expressed about it does raise some issues,” he said.

The new criteria proposed for control orders will allow them to apply to people who have engaged in armed hostilities in a foreign state.

Control orders will also be issuable for people convicted in Australia or elsewhere of a terrorism-related offence.

But despite the expanded criteria, the AFP said, a court would still have to be satisfied that the conditions were for the purpose of preventing a terrorist act.

“This means that control orders would not be available where a person has engaged in conduct which falls just short of directly engaging in training or hostile activity overseas or who is supporting or facilitating terrorist acts (but not directly committing such acts),” the AFP submission said.

“More importantly, control orders would not be available where the purpose of the order is to prevent persons supporting or facilitating terrorist acts or hostile overseas activity.”

The AFP argued for an expansion of the preventative purposes for which a control order could be obtained, saying it was just as important to prevent or disrupt people who were providing critical support to terrorism or hostile activities overseas.

Control orders, introduced as part of the Howard government’s counter-terrorism law reform, are controversial and rarely used. As of last month, only two such orders had been issued in Australia.

Walker reaffirmed his concerns about the existing control order scheme when he addressed the parliamentary joint committee on intelligence and security on Wednesday.

“At the moment the control order provisions require things to be proved which are so close to that which is good enough for a prosecution brief to launch criminal proceedings directed towards a conviction and sentencing, that nobody has been able to show me, either during my investigations or since, any practical reason to have these things on the books,” Walker said.

“The fact that they have been used twice only in those somewhat anomalous or special cases in all this time would rather suggest, given the efficiency of the agencies and the sustained significance of terrorist threat during that period, that these are really not useful as they presently stand.

“I would much prefer people to be prosecuted rather than to be the subject of these control orders.”

The Law Council of Australia told the committee in a submission that it considered control orders to be “extraordinary powers” involving the “restriction of liberty based on suspicion rather than charge”.

The attorney general, George Brandis, indicated last month that the AFP had raised the need for changes to the control order regime, but the submission published this week provided much greater detail about what the police were seeking.

The government’s new legislation includes an expansion of powers for the AFP, including the ability to secretly search a property and not inform the target of the warrant for six months.

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