BACKGROUND
The NSW Government is currently using tough anti-terror laws against an Aboriginal man who is serving sentences for unrelated crimes. These measure was placed after the Lindt Cafe siege where offenders that are close to the end of their prison sentence for serious matters may be subject to Extended Supervision Order or Continuing Detention Orders. Premier Gladys Berejiklian stated:
“NSW has some of the toughest terrorism laws in Australia and they will be further strengthened by these new measures to protect the community from known dangerous offenders”
This controversial measure is subject to an application made from the Attorney General and to a discretionary order by a judge. This must be satisfied to a high degree of probability that the offender poses as an “unacceptable risk” of committing a serious offence after completing their sentence. The offender does not need to have committed a terror-related offence in the past.
THE LAW AND ITS CURRENT APPLICATION
One prime example was in February this year, where the NSW Supreme Court refused to make an Extended Supervision Order against an incarcerated 43-year-old Aboriginal man who was never charged with terrorism.
The Aboriginal man was originally sentenced for 18 months after damaging the windows of a police station and two police cars with a rock. One day prior to this incident, he was charged with a small possession of cannabis and resisting arrest, which caused the outburst. During his period of imprisonment, he had allegedly told other inmates that he was a “political activist”, who “would like to blow up Parliament House” and “set fire to police stations”. This was in addition to his written letters threating violence against police as part of his campaign to legalise illicit drugs in Australia.
The Court heard the NSW Government application as the offender was near ending his non-parole period. In his Judgment, Supreme Court Justice Mark Ierace had concluded that inmate had no intention of carrying out his threats. He continues that the repetition in public and or in prison, “may well constitute a criminal offence” but not in itself a terrorist act.
WHERE DO WE GO FROM HERE?
Since the September 11, 2001 terrorist attacks in the United States, our government has responded to this threat here and overseas by fast tracking dozens of new laws. It was famously described by Professor Kent Roach as “hyper-legislation”. This was due to calculation done by UNSW Professor George Williams where since the attack and the Howard government change in November 2007, there was a new anti-terror law passed on average every 6.7 weeks.
The declaration and rise of the caliphate by the Islamic State in 2014 expediently increased the push for further legislation. This included the National Security Legislation Amendment Act (No 1) Act 2014 (Cth), whereby exempted undercover ASIO officers from any criminal prosecution, unprecedented expansion for this organisation to computer networks and restricted the leaking of classified documents.
These laws, in combination, surpass the United Kingdom, Canada and even the United States initial response to the terrorist threat. Australia overall provides an interesting case as a nation who had little direct experience the terrorism of 9/11 has dramatically increased counter-terrorism. Even after the 2005 London bombing, Australia had effectively copied British tactics such as control orders, preventive arrest and even made it a criminal offence to go to “declared area” of a foreign country.