Paul Farrell theguardian.com, Tuesday 23 September 2014
No end date on NSW supreme court order against reporting on information about order made before counter-terrorism raids
Barristers review court lists outside the supreme court of NSW. Photograph: Tracey Nearmy/AAP
A sweeping suppression order will prevent reporting of controversial preventive detention orders used in last week’s counter-terrorism operations indefinitely.
A non-publication order preventing disclosure of any information about the use of the lock-up powers means details of the order will remain secret until a New South Wales supreme court judge rules otherwise.
The judge’s ruling is so broad that a supreme court spokesman says even his name cannot be reported.
NSW police, Australian federal police and ASIO officers took part in major operations across NSW and Queensland last Thursday. There were 15 people detained in the raids. One man was charged with a terrorism offence and another man was charged with an offence related to possessing a firearm.
On Friday the Australian federal police revealed they had obtained preventive detention orders for three men before the counter-terrorism raids, in the first instance the anti-terrorism powers have been used since the Howard government introduced them over a decade ago.
But what amounts to an order that indefinitely prohibits reporting on the details of the orders, and even the reasons supporting them, will remain in place until a further order is made by the supreme court.
A judge granted the preventive detention orders in the supreme court last Wednesday before the raids. A broad non-publication order remains in place over the orders.
The judge ruling on the non-publication order said: “The names of the parties to the proceedings, the evidence in the proceedings, including the oral evidence, the affidavit of the plaintiff (sworn 17/9/14) and the judgment delivered on 17/9/14 are not to be published to any person except as required to comply with any provisions of the Terrorism (Police Powers) Act 2002.”
A spokeswoman for the supreme court said “the order remains in place until further order of the court”.
The ruling is unusual because it does not have a date of expiry that would allow details to be reported. Under the Court Suppression and Non-Publication Orders Act a judge would need to assign an end date or future event that would signal an end date to a non-publication order.
But the 2002 anti-terrorism act, under which preventive detention orders can be made, has no such requirement, effectively allowing indefinite suppression orders to be made.
NSW Greens MLC David Shoebridge has repeatedly raised concerns about closed-door proceedings in the supreme court, where matters are heard only before a judge and prosecutors or police.
“There’s nobody usually opposing these orders when they’re made. This is an ongoing critique we have of these preventative detention regimes, and it’s a feature of other anti-terrorism regimes.”
“That’s why we need a public interest monitor to be able to test these claims and the evidence, so that the court can make an informed decision.”
He added that “at the minimum we should be insisting on redacted version of the reasons being provided so that we can understand the policy considerations around making these preventative detention orders.”
On Monday the attorney-general, George Brandis, also signalled the federal government would seek to renew the preventive detention order and control order regime, despite their sparing use over the past decade. The laws were due to expire next year, but the government plans to introduce legislation to retain them until 2025.
Dr Lesley Lynch, the secretary of the NSW Council for Civil Liberties, called on the federal government to allow the “extraordinary power” to lapse as scheduled.
“It is disturbing that the government has made a decision, on the run, to extend the sunset clauses for the ASIO extraordinary counter-terrorism powers for another 10 years,” Lynch said.
“These powers breach longstanding rights and freedoms hard won over centuries. That’s why parliament determined they were ‘extraordinary’ and only enacted them for a short term – initially three years.”
Brandis said the government would seek to retain the controversial orders in the second tranche of national security legislation scheduled to be brought to parliament on Wednesday.
