Author: Adam Henschke
1.1 Brief Summary of Contemporary Terrorism in Australia
Australia’s counter-terrorism practice can be explained by three types of terrorist events; large acts of indiscriminate global terrorism, a series of smaller more discriminate acts within the Asia Pacific Region (APac) and random high profile low lethality domestic terrorism. In each of these three types the actors were motivated by different variations of religious extremism – as such, the government position is that the main threat in Australia is from anti-Western violent Sunni Islamist extremists.
‘Indiscriminate global terrorism’ refers to Australian citizens killed indiscriminately in, and Australian solidarity in response to, attacks around the world in which Australians were not targeted specifically for being Australian. The second set involve Australian citizens targeted outside Australian borders in the APac region. The third type is domestic terrorist actions that involve lone actors or small groups.
Between September 11 2001 and the end of 2015, approximately 110 Australians have been killed in terrorist actions with the 2002 ‘Bali Bombings’ seeing the largest single number of Australians killed: 202 people were killed, including 88 Australians. Domestically, to the end of 2015, only three successfully attacks occurred within Australia though the public still see terrorism as a serious threat.
1.2 International terrorism
The AQ 9/11 attacks caused a major shift in Australian counter-terrorism. Events in Europe like the Charlie Hebdo shootings (7 January 2015) and the Bataclan attacks (13 November 2015) in Paris, in the UK attacks through 2017 (Westminster, 22 March, Manchester 22 May, London Bridge 4 June) and in the US, such as the Boston Marathon bombings (April 15, 2013) and then the shooting at the Pulse nightclub in Orlando, Florida (12 June, 2016) have had a discernible impact on the Australian population’s sense of vulnerability to terrorism. These events happened in regions of the globe that are geographically distant from Australia. Though these events were not directly targeting Australia or Australians per se they resonated deeply: many Australians have European heritage and/or are familiar with European and American cities and regions. Australian familiarity with the particular regions lends itself to solidarity with, and certain vulnerabilities, to events in Europe and the US. Coupling the sense of public fear with the political drive to be seen to do something against international terrorism, these high profile indiscriminate international events play a role in Australia’s understanding of terrorism, and feed into Australian CT practice.
1.3 Regional terrorism: APac Region, Jemaah Islamiyah and the rise of so-called IS
A series of terrorist acts in and around Bali and Indonesia have also played a major role in Australian CT. Bali is an island province of Indonesia and is a major tourist destination for Australians. Three bombs exploded on 12 October 2002 in Bali, killing 202 people, including 88 Australians. These bombings were orchestrated and conducted by JI, an Islamic extremist group frequentily connected to AQ. The official threat to Australian interests in Indonesia being raised to High in September 2001 by ASIO. Bali in particular was seen as a particularly desirable target by fundamentalists due to the high numbers of Westerners, low security presence and minimal chances of Muslim casualties. This targeting of Westerners indicated to Australia and other western countries that they were being targeted by JI, thus driving specific CT responses to JI and its affiliates, and as these targets were civilians in ‘soft’ areas, the attacks intended to spread the sense of fear in the Australian public.
Two subsequent attacks occurred involving Australians in the south east Asian region. The Australian embassy in the Indonesian capital Jakarta was a target of a bombing in 2004 killing nine. In 2005, four more Australians were killed in two bombings of Bali restaurants. The attacks were claimed by JI (Embassy bombing) or suspected to have involved JI. In combination with the 2002 Bali bombings, they had the effect of making Australians feel vulnerable to terrorist attacks in our region and have driven a series of collaborations between Australia and Indonesia. In the middle of 2017, the southern Philippines city Marawi on the island Mindanao, became a flashpoint for Islamist militants, with hundreds killed and approximately 200,000 people fleeing from the conflict. Martial law was introduced to the whole island of Mindanao, the Armed Forces of the Philippines were in conflict with two Islamist groups: Abu Sayyaf and the Maute group. In the following months, the fighting and insurgency have continued, and in early September, the Australian Defence Minister committed soldiers for training purposes two Orion spy plance and around AU$20 million in aid.
In contrast to US, UK and European experiences of terrorism where they have seen a series of a high profile domestic attacks, a main driver of Australia’s CT is its exposure to, and engagement with, terrorism and CT in our region; Australians killed, maimed and targeted largely outside of the country.
1.4 Domestic terrorism and lone actors/small groups
Since 2015, Australia has seen some acts of domestic terrorism with attacks conducted by individual actors or small groups Lone wolf, lone actor and other small group terrorists The small numbers of internally guiding actors poses a special challenge to counter-terrorism. The emerging worry of lone actors and small groups is driven by the combination of so-called IS’s use of social media and the vulnerability of a small number of Australians vulnerable to radicalisation. In some analyses, the effectiveness of radicalisation in Australia is dependent on existing networks and associations with terrorist activists and sympathisers. Harris-Horgan etc hold that in each plot has had strong links to previous cells and individuals with connections to international jihadist networks. This, they argue, is specially important as individuals are seen to be more susceptible to involvement because of the influence of close friendship and family influences, moreso than any other recruitment. The international terrorism like that advanced by so-called IS drives aspects of domestic CT policy and practice in Australia.
The terrorist threat to Australia can be understood in (at least) three ways: the official government threat level, the objective threat , and the subjective sense of the threat.
2.1 Official Government Threat Level
The official threat level was raised to High in September 2014, reflecting the Australian Security Intelligence Organisation’s (ASIO) judgment that “a terrorist attack was likely” later renamed as Probable – which is functionally equivalent to High. A major driver of this was the conflict in Iraq and Syria in 2014-2016, the declaration of a caliphate by so called-Islamic State and the attraction it posed to Australian citizens to join so-called Islamic State. Since raising the threat level in 2014, Australia has experienced 5 lone-actor terrorist attacks: Endeavour Hills & Lindt (2014), Parramatta (2015), Minto (2016), Brighton (2017).
2.2 Objective Threat
Domestic threats typically are low technology, low numbers of actors and require minimal coordination. With ASIO noting that “[O]nshore attacks since 2014 were all conducted by single individuals using relatively simple weapons (two with knives and two with firearms)”. The minimal loss of life and limited capacity of terrorist activities in Australia is underwritten by a series of effective counter-terrorism operations.
The current threats in the domestic space are driven by three interlinked factors; Australians travelling to and then returning from Iraq and Syria, lone actors and the capacity of social media to ‘remotely radicalise’ Australians. One of the main drivers of threat internationally is the conflict in Iraq and Syria, and the effectiveness of so-called Islamic State in recruiting people from around the world. The declaration of the caliphate by Abu Bakr al-Baghdadi, the leader of so-called Islamic State in June 2014, motivated many people around the world to travel to the region to join the with so-called Islamic State in the conflict Iraq and Syrian conflict, Australians included. In order to prevent Australian citizens joining the fight in Iraq and Syria, ASIO issued adverse security assessments for 62 passports. This number has declined since its peak in 2014-2015. With the retraction of territory and military control by co-called Islamic State in Iraq and Syria, many countries are now facing the challenge of returnees, so called-foreign fighters.
If the European experience is any guide, returning fighters pose a particular threat due to the ‘veteran effect’, where those with direct experience of conflict become leaders for new recruits. This concern stems from two aspects that veterans bring to terrorism practice. First, given their battlefield experience, they may have the necessary skills to orchestrate complex terror plots, including ones that involve explosives, rather than low casualty attacks involving single actors and knives. Second, they may be more effective recruiters, acting as what Zammit et al call ‘facilitators’ , acting between those interested in committing terrorist violence and foreign groups like so-called IS or acting as entrepreneurs who reach out to the disaffected and vulnerable to recruit them to the jihadi cause.
A further element in modern terrorism is the use of social media by groups like AQ and so-called IS to remotely radicalise people, something that ASIO sees as a major risk. There is also a trend towards lone actor/small group self initiated attacks involving low technology. These are driven in part by stricter and more effective CT efforts that prevent people from travelling to conflict areas and return with the relevant skill sets to orchestrate and conduct complex high casualty attacks domestically. Recognising this, so-called IS have used social media as a communicative platform to advocate low tech jihad: In 2015, the spokesman for so-called IS Abu Muhammad al-Adnani urged simple attacks using things like bullets, knives, cars, even rock and boots..
Parallel to effective counter-terrorism intelligence and practice, Australia’s relatively low numbers of plots and successful attacks can be explained in part by the lack of facilitators, a limited pool of people in relevant ethnic diaspora and the effectiveness of intelligence and travel restrictions. As Shandon Harris-Horgan and Andrew Zammit note, the Lebanese diaspora present a particular pool of potential recruits, where twenty of the thirty three prosecution of individuals, for alleged terrorism offences motivated by jihadist ideology have been of Lebanese birth or descent. Coupling this need for a diaspora with the argument that family and close friends are a strong driver of radicalisation and violent action and the role of veterans and facilitators are also of primary relevance, then it would seem that Australia’s objective threat remains relatively low. That is, while attacks are likely, given the small number of people likely to be radicalised, commit a terrorist act and have the necessary skills for a mass casualty event, the impact in terms of numbers is quite low.
2.3 Public Sentiment And Fear
Direct death and destruction is not the only aspect of terrorism. It is differentiated from other catastrophes and violence through its willingness and capacity to spread fear through a population, and such, the subjective sense of fear must also play a role in counter-terrorism policy and practice. The public sentiment around terrorism in Australia sees terrorism as a serious threat. The Lowy Institute, which runs annual polls on public sentiment in Australia, saw that terrorism and national security ranked the fifth highest priority, 68% of respondents saying they were ‘very important’. Though the numbers of those killed and directly harmed by terrorism in Australia is quite low, the sense of fear and threat posed by terrorism remains high.
This turns on a distinction between objective and subjective threat. Spreading a sense of subjective fear is part of the terrorist methodology. In each of the three event types described above, indiscriminate international terrorism starting with the 9/11 attacks, events in Bali and the recent domestic challenges drive widespread fear and that plays a major role in shaping Australian understanding of terrorism. This perception remains today – the 2015 Australin Counter-terrorism strategy is focussed on the threat posed by those who claim to act in the name of Islam.
Insofar as a terrorist organisation constrains itself to ‘official targets’, such as government and authority, then the common members of the public will not feel like they are at risk. The indiscriminate attacks by Man Monis domestically and in Europe, UK and the US, however, drive the notion that any individual Australian could be the target of terrorist violence. Two examples of this are the deliberate listing of particular Australian suburbs Brunswick, Broadmeadows and Bondi in 2016 by so-called IS in 2016, and statements like that of an Australian media figure Sonia Kruger, who wanted to see an end to Muslim immigration in Australian she wanted to feel safe and to see freedom of speech”. While the Victorian Police Chief Commissioner Graham Ashton passed off the references to Brunswick, Broadmeadows and Bondi as propaganda and Kruger was heavily criticized for her opinions, the two examples show the deliberate intention by so-called IS to spread fear in Australia and that sectors of the population are indeed threatened by them.
This public fear ties directly to political sentiment. Tony Abbott, Australian Prime-Minister (2014-2016) repeatedly referred to the so-called IS as a threat to Australia, going so far to say that “The tentacles of the death cult have extended even here as we discovered with the Martin Place siege last December”. Not long before that, Australia saw high profile politicians Speaker of the House, Bronwyn Bishop, and the president of the Senate, Stephen Parry, seek to ban burqas from parliament house. The point here is that public and political sentiment in Australia belies the objective threat: while very few people have been killed, and very few in Australia, there is a high sense of threat which plays a role in CT policy.
Australia’s counter-terrorism institutional landscape involves coordination and cooperation with institutions and government departments coordinating activities, and cooperating internationally with countries in the region and internationally. The Department of Prime Minister and Cabinet (PMC) coordinates policy. The Australia-New Zealand Counter-Terrorism Committee (ANZCTC) receives information and analysis from intelligence agencies and is the primary CT coordinator. The Attorney General’s coordinates operations, national security, crisis management and provides relevant legislative advice. Beyond these main coordinating nodes, there at least 17 government agencies involved in national security. In mid 2017, the government announced a new ‘Home Affairs’ portfolio, which will affect these arrangements, however the specific structure of this is not yet public.
Figure 1: Commonwealth CT functions and activities in 2014, taken from the Review Of The Commonwealth’s Counter-Terrorism Machinery.
3.1 International Engagement
The focus here is on Australia’s military and diplomatic engagement in issues relating to terrorism. The 2016 Defence White Paper saw that the Government needed continue its commitment to fighting international terrorism, including its involvement with the international coalition against so called IS.
Following the 9/11 attacks on the US by AQ, Australia joined with the International Security Assistance Force (ISAF) in Afghanistan, in Operation Slipper which included military elements and command, communication and logistical support to the Middle East Area of Operations. Australia’s involvement evolved, starting with deployment of Special Forces troops in 2001, shifts to reconstruction and landmine clearing efforts by mid-2005 and then a rise in engagement to cease at the end of 2014. It has been longest military conflict that Australia has been involved in, with more than 26,000 soldiers serving in the conflict.
More recently, the Australian Defence Force (ADF) contributed to international efforts with Operation Okra as the conditions in Iraq and Syria declined. Approximately 780 personnel have been deployed as part of Operation Okra which has so far involved air-support provided by the Air Task Group and international training provided by the training group Taji.
The ANZUS treaty plays a key role in Australia’s military engagement in Afghanistan, Iraq and Syria. Stemming from ANZUS, Australia sees cooperation with the US as a central feature of its national security, and was explicitly referenced by Prime Minister Howard’s speech on the Australian decision to enter the 2003 Iraq war with the US. “Of course our reliance with the United States is also a factor, unapologetically so… Alliances are two-way processes and our alliance with the United States is no exception and Australians should always remember that no nation is more important to our long-term security than that of the United States”. The point here is that a great deal of Australia’s international engagement around CT derives from the importance of the relation between the US and Australia; Australian national security is thus understood to be very tightly linked to relations with the US.
3.2 Regional Cooperation
Following the Bali Bombings of 2002, Australia took an active role in the region that included capacity development and intelligence sharing. This began with a rapid response to and cooperation between the Indonesian health and disaster services and health care workers in territory capital Darwin, at the top of the Northern Territory in Australia. This produced the development of the National Critical Care and Trauma Response Centre (NCCTRC) in the Royal Darwin Hospital to help with rapid responses to any future mass casualty emergencies in the region. The NCCTRC has subsequently been a key resource following natural disasters in the region.
Australian and Indonesian policing relations were bolstered by the development of the Jakarta Centre for Law Enforcement and Cooperation (JCLEC). Jointly operated by the Indonesian National Police and the AFP, the JCLEC is a key resource for regional capacity building. Training approximately 17,000 law and justice officials in countering violent extremism, terrorism financing, and counter-terrorism prosecutions.
So, on this, deriving from the Bali attacks in 2002, and evolving in response to JI and more recent fears about the rising influence of so-called IS and potential political social instability in the APac region, Australia’s CT practice includes cooperation within the APac region.
Part 5.3 of the Criminal Code Act 1995 (Criminal Code) covers Australia’s laws against terrorism, while Part 5.5 of the Criminal Code covers Australia’s laws against foreign incursions and recruitment. Both of these areas are administered by the Attorney General’s department. For this, the legal approach in Australia is concerned with who counts as a terrorist, what counts as terrorism and who has the authority to decide on these.
4.1 Legal accounts of terrorism
Australian law is relatively broad in who can be considered a terrorist, covering both actions and threats as acts of terrorism: One can be a terrorist in Australia without committing a terrorist act. Second to this, in Australian law, terrorist acts or threats to act include property, health and disruption to critical infrastructure. Australian law contains elements of motivation and violence/harm. In terms of motivation, an act is a terrorist act if “it intends to coerce or influence the public or any government by intimidation to advance a political, religious or ideological cause”. Further, Australian law requires the act or the threat to act to be significantly violent or harmful. It must cause at least one of the following: “ death, serious harm or danger to a person; serious damage to property; a serious risk to the health of safety of the public; serious interference with, disruption to, or destruction of critical infrastructure such as a telecommunications or electricity network”.
Australian law covers a range of supporting activities that could be considered terrorist offences, beyond the act/threat to act including planning/preparation, financing, providing and/or receiving training, possession, collection or making documents that could help in terrorist acts. Planning counts as a possible terrorist act. Finally, public communications that urge violence and advocate terrorism are prohibited. Like many other countries, in 2002 Australia added terrorist organisation offences to the 1995 Criminal Code Act. There are currently 23 listed organisations, including AQ, ISIS and JI. In terms of listing this is under the discretion of the Attorney General, when a group “is directly or indirectly engaged in preparing, planning, assisting or fostering the doing of a terrorist act, or advocates the doing of a terrorist act”.
This all seems particularly aggressive, with the mere thought of a terrorist act or some level of recklessness being enough to convict someone, with the Attorney General having discretion about what organisations count as terrorist, provoking criticism. Legal scholars like Christopher Michaelsen have described Australian CT laws as “some of the most draconian anti-terrorism laws in the Western world”, and Keiran Hardy and Clive Williams arguing that the Australian law does not effectively confine the operation of legislation to its intended purposes, nor is it drafted consistently in reference comparable jurisdictions. However, under Australian law acts done in ‘good faith’ exist to protect freedom of speech, and listing of an organisation by Attorney‑General subject to review by the Parliamentary Joint Committee on Intelligence and Security.
In recent years, the group Hizb ut-Tahrir has been the focus of debate of banning organisations. The group is not currently amongst the listed organisations in Australia. This is neither to suggest that Hizb u-Tahrir should be banned, nor that the Australian government has the balance exactly correct. Rather, this indicates that, despite the relatively broad legal definition of a terrorist act, or support for such an act has not necessarily resulted in widespread arrests or convictions: in the period between 9/11 and late 2015, there have been with 35 prosecutions and 26 convictions for terrorism-related offences.
4.2 Intelligence Gathering: Australian Security Intelligence Organisation Act 1979
Security intelligence in Australia is primarily province of the Australian Security Intelligence Organisation (ASIO). Under the ASIO act, “ASIO can question people to gather information for preventing terrorist attacks. In limited circumstances, a person can be detained for this purpose… ASIO must have a warrant issued by a federal judge or federal magistrate before it can use its questioning and detention powers.” The ASIO act was amended in 2003 to grant ASIO a ‘special powers warrant’, which cover questioning and detention, which is similar to a subpoena, in that it compels the subject to appear for questioning by ASIO before a Prescribed Authority. These have been subject to controversy – Lisa Burton and Clive Williams claiming that the individuals subject to the warrants “are not informed of the reason the warrant was issued, have limited access to legal representation and have no right to silence or to the privilege against self-incrimination. The ASIO Act also prohibits anyone from disclosing information about the fact that a Special Powers Warrant was issued or the way it was used, subject to limited exceptions”.
Australia’s CT strategy can be explained by reference to three interacting values – safety, security and community. On safety, the idea here is that the government has a responsibility to protect people from becoming terrorists or engaging in terrorist related activities. Security, in contrast, is the idea that the Australian government, nation, people etc., require protection against terrorists or engaging in terrorist related activities. For community, the idea is that, ultimately, it is Australian communities that are the targets of terrorist acts, who are directly engaged in CT responses and as there is a rise in remotely radicalised domestic terrorists, communities represent the source of potential future terrorists.
5.1 Evolution of Australia’s Counter-Terrorism Strategy
Australia’s counter-terrorism evolved following the events of 11 September 2001. The 2004 Counter-Terrorism White Paper Protecting Australia Against Terrorism led to the 2010 Counter-Terrorism White Paper Securing Australia|Protecting Our Community and following changes in the international realm, the evolving terrorist threat and changes in government, the CT Strategy 2015 Strengthening Our Resilience, was released. It has five core elements
- challenging violent extremist ideologies
- stopping people from becoming terrorists
- shaping the global environment
- disrupting terrorist activity within Australia
- effective response and recovery
These aims are supported by a three part strategy, to disrupt activities, undermine support and promote community cohesion.
The three suggested drivers of this evolution were indiscriminate global terrorism, discriminate acts within the Asia Pacific Region (APac) and random high profile low lethality domestic terrorism. In relation to the threat, I proposed that the objective threat is relatively low, while the public sense of threat is relatively high. Insofar as these positions on cause and threat are reasonably accurate, then the evolution of CT policy can be seen to be guided by the changing nature of terrorism in combination with changes in Australian government: while CT policy must be sensitive and responsive to changes in terrorism practice and actions, Australia’s political landscape has also changed substantially in the past 15 years. The point here that the evolution of Australia’s CT strategy was only in part in response to changes in terrorism; the political aspects also played a key role.
5.2 Safety: Challenging violent extremist ideologies and stopping people from becoming terrorists
In the 2015 CT Strategy, the first two elements revolve around a broad notion of safety. That is, the Australian strategy looks at ways in which to protect Australian citizens from supporting terrorism, up to and including active participation in terrorist activities domestically and abroad. In this sense, it is guided by a notion of keeping people safe from becoming terrorists.
To explain this notion of safety, consider a plan by five Australians to join so-called Islamic State that was stopped while they were attempting to leave the country. Given relatively strong border controls and the threat of passport cancellation and potential preventative detention (see below), the five people were caught in north eastern Australia intending to travel from the north eastern Australian state of Queensland to Indonesia and then onto Iraq and Syria. The distance between Queensland and Indonesia is in the range of 5,000km and the intended mode of transport would have made the trip very dangerous, resulting in the group being called ‘tinny terrorists’, acting Prime Minister Barnaby Joyce labelling them ‘clowns and buffoons’. This example, and the derision the people received belies the lack of threat felt from these individuals were more a danger to themselves than to other people. The intervention was thus to keep them safe, rather than to secure Australia against them.
One step in effective counter-terrorism is to challenge the ideas that drive violent extremism and radicalisation. For instance, efforts to challenge and reject the ‘grievance master narrative’. The second core element involves more active efforts to stop people becoming terrorists. In the 2015 Strategy, family friends and community are seen as the frontline defence against people becoming terrorists.
The 2015 strategy explicitly states that the priority of Australian counter-terrorism operations is to intervene to save lives, even if such interventions come at the cost of gaining evidence necessary to legally prosecute suspects. Again, safety – here at a community level – is a key and foundational value guiding the current strategy.
5.3 Security: Shaping the global environment and disrupting terrorist activity within Australia
In contrast to safety, the third and fourth core elements of Australia’s CT strategy are focussed towards more traditional security practices – use of the military, police and other agencies to fight wars and intervene to stop terrorist acts. Cooperation with and formal information sharing arrangements with the so-called Five Eyes countries (Australia, Canada, New Zealand, the United Kingdom and the United States), military engagements in Afghanistan, Iraq and Syria, and the cooperation with New Zealand on the ANZCTC and regional engagement with Indonesia, particularly through the JCLEC (mentioned above) are central to the Australian efforts to shape the global environment.
Disruption is concerned with law enforcement and national security measures, agencies and practices. One central organising feature around disruption was the development of the Joint Counter-Terrorism Teams (JCTTs). The JCTTs exist in each Australian jurisdiction and are comprised of state and territory law enforcement agencies, the AFP and ASIO. Through collaboration and coordination, they help investigate, disrupt and prevent terrorist activity. Though disruption is primarily about domestic terrorism, due to cooperation with the Five Eyes countries and other partners, disruption operates at the regional and international levels as well.
Disruption can occur at a series of points along a terrorist plot – from initiation of the plot all the way to its activation. Operation Pendennis is an example of ‘pre-emptive disruption’. It ran from 2004-2005, resulting in charges being brought against 22 suspects, with 18 people ultimately convicted. Operation Pendennis is especially relevant to Australia and ‘pre-emptive disruption’ as the majority of convicted terrorists in Australia were caught in Operation Pendennis, and latter investigations involved friends and families of the targets in Pendennis.
Response to an imminent or active terrorist incident is the province of the relevant state and territory agencies. This was demonstrated in the Martin Place siege where the state level New South Wales police force was lead agency. While state level agencies are the relevant actors in responding to domestic terrorism, Special Operations Command was initiated in 2002 to give military support in extreme cases. This has not occurred to date.
5.4 Community: Effective response and recovery
In addition to recognising the need to engage communities as part of effective counter-terrorism, the Strategy states that a “[i]ndividuals within a cohesive community – one that values respect, individual freedoms, democracy and the rule of law – may be more resilient to violent extremist ideology”. The relations between communities with members vulnerable to recruitment and government counterterrorism agencies are fundamental to effective CT programs and policies. The community perceptions of trust and the fairness of counterterrorism programs and polices play an important role in community support for those programs. As stated in the Royal United Services Institute for Defence and Security Studies report on lone actor terrorism, “[a]n important tool in combatting the lone actor terrorist threat is therefore ensuring the public is able to recognise extremist behaviour, has avenues to report it and, crucially, is willing to do so” (Ellis et al., 2016, p. iix). While family and close-friendships are seen as one of the major determinants of violent extremism in Australia, research on countering violent extremism and deradicalisation see family and other close relationships as a core element in drawing people away from violent extremism. Effective community counterterrorism only occurs when there is good collaboration and relations between police and intelligence agencies and domestic communities where people are at risk of becoming terrorists.
6.1 Control Orders, Preventative Detention Orders
A series of legal instruments have been developed in response to the changing national security environment. Control orders give courts the power to impose restrictions on free movement and communication. On the control orders, it is possible for a person to be ‘known’ to be engaged in planning a terrorist action, but the investigating police (for example) to be lacking in enough legal evidence to reliably secure a conviction. The standards of legal evidence are very high – ‘beyond a reasonable doubt’, and act to support the presumption of innocence. Rather than lower the standard of evidence, a control order thus seeks to bridge the gap between knowledge and legal evidence. In half the cases where the AFP were considering control orders, due to a lack of sufficient evidence for prosecution. And, so the reasoning goes, because terrorism is such a special type of crime, a different standard is justified. Former Attorney General Philip Ruddock justified them in this way: “Yes, we are dealing with something that is very different and that is not understood in the context of criminal law as we know it. But in our view the circumstances warrant it. That is the justification”.
Control orders are controversial. They do not rely on guilt in the standard legal sense, they may become an alternative to the existing criminal justice system, and can permit information to be withheld during the control order process. Rebecca Ananian-Welsh and George Williams raise a third concern with the control orders. When they were initially proposed, they were justified by reference to the special threat of terrorism. They argue, however, that the Control Orders slid in application, leading to them to be used against non-terrorists in a spate of ‘anti-bikie’ laws, intended to curb the threat from outlaw motorcycle gangs.
In contrast to control orders, preventative detention orders can allow detention of suspects where there is an imminent attack, or just after an attack has occurred. Currently, the federal government is seeking to standardise the period of preventative detention to 14 days nationally. Controversies about preventive detention derive from their impact on core human rights and civil liberties, particularly the presumption of innocence. Rebecca Ananian-Welsh has argued that they violate the Australian Constitution, specifically Chapter III which gives a strict separation of judicial power for federal courts (Ananian-Welsh, 2015). Adding further controversy, in response to a number of teenage lone actors, the scope of the Preventative Detention Orders was expanded to allow preventative detention of people from 14 years old, for up to 14 days, and there are currently discussions about lowering this 10 years old.
On preventative detention, the maximum time of 14 days can be explained in part by the need to secure evidence. For instance, it may be apparent that a person or group are about to commit a terrorist act, and the security agencies need to intervene to prevent that from happening. As mentioned, Australian CT practice preferences immediate community security over conviction, but active intervention can lead to the targets and their collaborators destroying evidence. Moreover, as planning and coordination might involve computers, smart phones, etc., with encryption, it can take significant time and resources to rescue necessary evidence. Holding suspects in preventative detention can thus be useful at preserving and accessing evidence. This not necessarily justifying control orders or preventative detention, rather, it is offering some part of the explanation as to why these tactics have been introduced.
6.2 Foreign Fighters
On the issue of foreign fighters, in 2015 Australia passed updated legislation that permitted relevant agencies to stop certain people from leaving the country to go to regions of conflict. The Foreign Fighters bill was the focus of much discussion in the Australian parliament and in the wider community in early-mid 2015. This discussion was likely influenced by the actions of Khaled Sharrouf. Sharrouf fled Australia under a false passport in late 2013 to join so-called IS. He gained notoriety in 2014 after images were released of his seven year old son holding the severed heads of victims of so-called IS. His Australian citizenship was subsequently revoked by the Minister and in August 2017 reports emerged that Sharrouf had been killed.
In line with legal constraints on foreign fighters, travel certain geographic regions are declared area offences, with the Minister for Foreign Affairs having the authority to declare particular areas as proscribed. Arguably, and controversially, the Foreign Fighters legislation can be seen as part of the pursuit of safety as much as security – while part of the motivation of the legislation is undoubtedly to protect Australians against attack, it can also be explained as a way of protecting vulnerable Australians from making a stupid decision to join with terrorists. However, such ‘safety’ motivations would need to accord with and be part of an integrated community outreach program.
6.3 Data Retention
Following the interest in online radicalisation and the general emergence of information technologies as a central part of modern terrorist activity, in 2015, the Australian government amended the 1979 Telecommunications (Interception and Access) Act in order to standardise the collection and retention of metadata. This update requires telecommunications service providers to retain specific metadata for a minimum of two years. Additional subscriber information must be retained for the life of the account and for a further two years after the account is closed. These changes were motivated by the claim by the Attorney General’s department that access to data “is central to almost all serious criminal and national security investigations”.
At the time of introduction, the laws were subject to much community discussion, and continue to be contentious given the potential to expand the use of the data beyond serious criminal and terrorist investigations. The use of metadata is subject to reviews and inquiries by the Parliamentary Joint Committee on Intelligence and Security and the Independent National Security Legislation Monitor. A controversy arose in early 2017 when it was made public that the AFP had accessed the metadata of a journalist as part of an investigation into a leak of official documents. This recent issue points to three things – first, that metadata can be and is being used for non-terrorist purposes. Second, that this specific event was actually illegal – the AFP accessed the metadata without a warrant. And third, that the AFP recognised this transgression and made it public.