Susan Donkin

Preventing terrorism and controlling risk : a comparative analysis of control orders in the UK and Australia

Introduction.- Legal Framework.- Criminological Insights.- From Crime Prevention to Crime Pre-emption.- Control Order Case Studies.- Discussion.

Australian Responses to 9/11: New World Legal Hybrids?

The central hypothesis of this chapter is that the post 9/11 era has spawned a new hybrid form of terrorism regulation. The Oxford English Dictionary defines hybrid as follows: “Derived from heterogeneous or incongruous sources; having a mixed character; composed of two diverse elements; mongrel” (Oxford English Dictionary, 2nd edn, online version, http://www.oed.com/view/Entry/89809, Accessed 4 Aug 2011). Hybrid for the purpose of our legal analysis is defined as a measure or law containing elements/characteristics of two previously distinct legal entities. The contention is not entirely novel. Control orders in the United Kingdom as hybrids between criminal and civil law, and melding powers of an executive/judicial nature. Equally, in the Australian context, scholars have identified the hybridisation of techniques of power, as well as the blurring of police and military powers, and crime and war. Hybrids are not however exclusive to terrorism law. Legal hybrids are also evident in fields such as drug law and public order, where strict liability, reverse onus clauses and civil standards of proof have been long applied. That said, the scale and extent to which regulatory efforts to counter terrorism in Australia span various modes of governance (criminal versus civil measures; judicial versus administrative power) makes legal hybrids a mode of regulation worthy of examination.

Critical perspectives on the evaluation of counter-terrorism strategies: counting costs of the ‘war on terror’ in Australia

The events of 11 September 2001 (9/11), as well as subsequent inter- national terrorist attacks in Bali, Madrid and London, have had a profound effect on political and law enforcement priorities in Australia. The 9/11 attacks led to significant increases of expenditure on counter- terrorism (CT), with the adoption of new coercive legislative powers, the reprioritising and reorganising of police and security agencies and an expanded capability of the military to take action against terrorist threats at home and abroad. This investment in CT has been staggering. For instance, it is estimated that the Australian Federal Government spent over

Comparing Control Order Implementations

8 billion (AUD) on counter-terrorism efforts (excluding military spending) in the first five years post 9/11. By comparison, the US Department of Homeland Security expenditure between 2003 and 2011 totalled

The Changing Face of Risk

286,781 million (USD). Of course, the cost of the so-called ‘war on terror’3 is measurable not only in financial terms. CT legislation and policies have eroded many fundamental liberal ideals, principles and doctrines, spawning an extensive human rights critique which we do not intend to rehearse here. Notwithstanding the substantial human and financial cost of the ‘war on terror’, governments rarely justify the adoption or evaluate the effects of new CT initiatives by reference to scientifically informed research. The sensitive nature of CT casts a shroud of secrecy over the activities of those agencies responsible for developing and implementing new policy initiatives. Although the justifications for confidentiality in terms of national security are comprehensible, some have suggested that secrecy may also serve as a cloak for incompetence.

Crime Prevention: Back to Basics

The statutory analysis of the control order regimes highlighted important distinctions between how the two countries incorporated the restriction of opportunities to engage in terrorism-related activity into the legal framework. While the British provisions are more executive-driven, their Australian counterparts provide for greater judicial input. Moreover, the Australian statute incorporates both a reactively preventive and pre-emptive rationale. It is perhaps not surprising then that the differences in approach are also reflected in the practical application of the control order scheme. Probably the most obvious difference is the number of control orders issued. Given that there have only been two Australian control order cases, this chapter begins with an examination of the legal issues arising from Jack Thomas and David Hicks’ control orders. Due to the number of British cases, a summary of the legal challenges illustrates the principal tests to the scheme.

The Legal Framework

The previous chapters have highlighted that much of the criticism arising from control orders stems from their lack of adherence to procedural safeguards. Yet, both the British and Australian governments have described control orders as a necessary tool to protect their citizens from the enormous and uncertain risk posed by terrorism. Indeed, risk is the underlying rationale and justification for the state’s protective mandate (Aradau and van Munster 2007; Feeley and Simon 1992), and its use of exceptional measures. Modern states have a duty to protect their citizens (Ashworth 2009), but there has been a long debate about how they go about doing so. In recent years, risk has evolved, moving toward assessment and management of risky populations, introducing a more preventive focus in criminal justice. The rise of actuarial approaches in criminal justice has also filtered into the debate on terrorism, preventive legislation being just one example thereof. This chapter expands on risk as it applies to terrorism and the development and implementation of (pre-emptive) Anti-Terrorism legislation.

Preventing Terrorism: An Exceptional Legal Hybrid?

The previous chapters have highlighted how the risk of unpredictable and grave harm has been used to construct controversial legal hybrids aimed at preventing terrorist attacks. Exemplified by control order regimes in the UK and Australia, this precautionary approach to anti-terrorism law has been repeatedly challenged, resulting in the abolishment and replacement of the British scheme and reviews of Australian anti-terrorism laws. One of the principal criticisms levelled at control orders has been the extent of restrictions and obligations imposed on individuals who are suspected of posing a terrorist threat, but have not been found guilty of any offence. Traditionally, preventive restrictions of this magnitude have been reserved for individuals whose previous criminal conduct has indicated that they pose an exceptional risk to the general population. In the case of controlees, however, such risk assessments are inherently intelligence-based, a lack of evidence precluding criminal prosecution.

The Pre-emptive Turn in Criminal Justice

The aim of this chapter is to conduct a statutory analysis of the legislation providing the legal framework for control orders. I begin by providing a brief account of the developments immediately preceding the introduction of the control order regime in the United Kingdom, before providing an overview of the provisions contained within the Prevention of Terrorism Act (PTA) 2005, describing the two types of control orders and the procedure involved in issuing them. The same procedure is then repeated for the Australian Anti-Terrorism Act (No. 2) 2005, highlighting similarities and divergences between the two statutory instruments.

Executive Terrorism Prevention and Risk Control

Since their introduction in 2005, terrorism control orders have been divisive owing to their ability to impose serious restrictions and obligations on individuals’ liberty based on an intelligence-led, low standard of proof in a civil process originating with the Executive. Advocates of the scheme, of whom there are comparatively few, argued that control orders were performing an important function, albeit imperfectly (Simcox 2010). While some acknowledged that such impositions on individual liberty without prior conviction may be seen as controversial, they believed the enormous threat to public safety posed by terrorism is sufficient justification (Ruddock 2007). On the other hand, control orders have been widely criticised by politicians, civil liberties organisations and academics alike, much of the criticism focusing on procedural issues and human rights implications. Control orders have been described as unsafe, unfair, and undermining the right to a fair trial and the presumption of innocence (Liberty; Zedner 2007), which goes against British traditions of liberty and justice.