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Hardy, Kerian; Williams, George --- "Two Decades of Australian Counterterrorism Laws" [2022] MelbULawRw 21; (2022) 46(1) Melbourne University Law Review 34


TWO DECADES OF AUSTRALIAN COUNTERTERRORISM LAWS

KEIRAN HARDY[*] AND GEORGE WILLIAMS[†]

11 September 2021 marked 20 years since the September 11 attacks on New York City and Washington DC. In this article, we map Australia’s legal responses to terrorism across those two decades. We report the total number of counterterrorism laws enacted by the federal Parliament and the average time taken for parliamentary debate. After recapping laws from the first decade, we focus on the second decade of lawmaking, setting out key powers and offences and assessing how the laws have been interpreted by courts and reviewed by independent bodies. Finally, we identify recurring themes and challenges from the second decade. The sheer volume of laws, their scope, and their speedy passage through Parliament raise significant concerns for fundamental rights and the health of Australia’s democracy.

CONTENTS

I INTRODUCTION

11 September 2021 marked 20 years since al-Qaeda attacked New York City and Washington DC. The attacks had a profound impact not only on global security, but also on domestic law. In response to September 11, Australia enacted its first national counterterrorism laws and in the years since has developed a substantial legal framework that continues to expand. These laws represent some of the most contentious and far-reaching statutes ever enacted in Australia. They extend traditional notions of criminal responsibility, grant intrusive powers to police and intelligence agencies, limit media reporting in the public interest, and allow for secretive trials.[1] They challenge democratic values and fundamental rights, including those to liberty, free speech, freedom of the press, a fair trial and freedom from arbitrary detention.[2]

In this article, we map two decades of Australian counterterrorism laws. We focus on laws made by the federal Parliament, though we note that a significant number have also been enacted by the states and territories. The sheer volume of the federal laws is striking, and so is their scope.[3] In the first decade after September 11, the federal Parliament enacted 55 laws in response to terrorism.[4] Roach dubbed this ‘hyper-legislation’,[5] as Australia’s counterterrorism laws far outnumbered those in other countries, including those with a higher threat level.[6] Many of Australia’s laws were pushed through Parliament in haste, leaving little time for debate.[7] This problematic pattern of counterterrorism lawmaking continued through the second decade — and shows no sign of abating.[8]

One of us has previously written on the first decade of counterterrorism laws,[9] and so we focus in this article on the second decade after September 11, from 11 September 2011 to 10 September 2021. Despite the substantial lawmaking in the first decade, Australia’s counterterrorism laws continued to grow in number and scope, as well as in their novelty. For example, the threat from Islamic State (‘IS’) and foreign fighters led to expansive new offences and powers, including the power to strip the citizenship of dual nationals and keep offenders in prison beyond their original sentence.[10] This power to extend detention, possibly indefinitely, was a clear concession that criminal laws for terrorism cannot eliminate its long-term risks.[11]

In Part II, we explain our method for determining what counts as a counterterrorism law as compared to broader security and policing legislation.[12] We recap key laws enacted in the first decade, including the statutory definition of terrorism, preparatory offences, control orders, preventative detention orders and questioning and detention warrants. Some of these measures were subject to sunset clauses — legislative expiry dates — but they have been routinely renewed, even in the face of repeated calls to repeal or amend them.[13]

In Part III, we catalogue the second decade of Australia’s counterterrorism laws. We report the number of laws enacted, on top of the 55 from the first decade, giving the total number of Australia’s counterterrorism laws to date. We report the average time the laws were debated in Parliament. We also outline key laws from this period. Many of these newer laws were designed as responses to IS, but their scope is often far wider.[14] Finally, we assess how the laws have been interpreted by courts and reviewed by independent bodies.

Our purpose in mapping these laws is not simply to quantify their number, but to provide a record of Australia’s federal legislative response to terrorism since 2001 and to identify persistent themes and challenges. The 20th anniversary of September 11 affords an opportunity to take stock and to identify areas for reform and improvement. In Part IV, we identify four key areas of concern, including that, to an even greater extent than in the first decade, Australia’s counterterrorism laws threaten free speech, freedom of the press, and the health of our democracy. Significant doubts also remain as to whether Australia has the most effective measures in place to combat the long-term risks of terrorism.

II THE FIRST DECADE: 2001–11

In the first decade after September 11, from 11 September 2001 to 10 September 2011, the federal Parliament enacted 55 counterterrorism laws.[15] These are set out in Appendix A. They include laws in four categories:

1 laws introduced in response to threats of terrorism;[16]

2 laws addressing procedural issues associated with the Category 1 laws, including evidence rules and review mechanisms;[17]

3 substantive amendments to laws in Categories 1 and 2;[18] and

4 laws needed to enable laws in Categories 1, 2 or 3.[19]

This method captures all the laws enacted by the federal Parliament that were introduced in response to terrorism or that are necessary parts of that legal framework. It includes amending legislation, as most of Australia’s counterterrorism laws inserted changes to longstanding primary Acts.[20] The method is conservative in that it does not include a significant number of laws on related topics, such as cybersecurity, immigration, customs and organised crime.[21] The count also does not include federal legislative instruments and the many state and territory laws or regulations made in response to terrorism.[22]

Of the 55 laws in the first decade, 48 were enacted under Prime Minister John Howard’s Liberal–National Coalition government between 2002–07, at a startling rate of one every 6.7 weeks.[23] Between 2007–11, when the Labor government was in power, the federal Parliament enacted only seven counterterrorism laws. This was a significant drop in Australia’s ‘hyper-legislating’ for terrorism, with a greater focus on strengthening accountability.[24] A major development was the creation of the Independent National Security Legislation Monitor (‘INSLM’).[25] The INSLM is an independent statutory office that assesses whether Australia’s counterterrorism laws are necessary and proportionate, and contain sufficient safeguards to protect individual rights.[26]

The starting point of Australia’s counterterrorism laws is a broad statutory definition of terrorism in s 100.1 of the schedule to the Criminal Code Act 1995 (Cth) (‘Criminal Code’). This defines a ‘terrorist act’ as any threat or action intended to influence a government by intimidation or to intimidate a section of the public, and which is intended to advance a political, religious or ideological cause.[27] A terrorist act can cause any in a list of harms, including death, serious bodily injury, serious property damage, serious risks to health or safety, or serious interference with electronic systems.[28] There is an exemption for political protest, advocacy, dissent or industrial action, though the scope of this is yet to be tested.[29]

Stemming from this definition, the laws enacted in the first decade created a substantial counterterrorism law framework. They were introduced primarily in response to September 11, the Bali bombings in 2002 and the London bombings in 2005, with the greatest number of laws enacted in 2002 (14) and 2004 (12).[30] Several were based on laws first enacted in the United Kingdom (‘UK’),[31] though Australia went beyond that template in several respects. This was possible because Australia lacks a national human rights framework like the Human Rights Act 1998 (UK).[32] A prominent example of an Australian law that went beyond the UK template was the power for the Australian Security Intelligence Organisation (‘ASIO’) — Australia’s domestic intelligence organisation — to detain people not suspected of any crime for the purposes of gathering intelligence.[33] Another is the power for Australian police to detain people under preventative detention orders.[34] Those measures illustrate what is possible in a democracy without national, enforceable protections for human rights.

The major powers, offences and processes introduced in the first

decade include:

An offence for committing a ‘terrorist act’;[35]

Preparatory offences, which make it an offence to provide or receive terrorist training, possess ‘things’ connected with preparation for terrorism, collect or make terrorist documents, or do any other act in preparation or planning for a terrorist act;[36]

Group-based offences, stemming from the definition or proscription of a ‘terrorist organisation’, which make it an offence to direct the activities of, be a member of, recruit for, train with, fund, support or associate with a member of such an organisation;[37]

Questioning and detention warrants, which allowed ASIO to detain non-suspects for up to seven days, and to coercively question them in eight-hour blocks[38] where this would ‘substantially assist the collection of intelligence that is important in relation to a terrorism offence’;[39]

Control orders, which impose significant restrictions on individual liberty, including curfews and electronic monitoring, without requiring evidence of criminal guilt;[40]

Preventative detention orders, which allow police to detain individuals incommunicado for up to 48 hours (and up to two weeks under state law) to prevent an imminent terrorist act or preserve evidence in relation to a

recent attack;[41]

Secret evidence rules, which allow for closed court hearings and for national security information to be admitted in summary or redacted form;[42]

Extension of pre-charge detention for up to 24 hours, with an additional week of possible ‘dead time’ during which the detention can continue;[43]

A presumption against bail unless ‘exceptional circumstances’ exist;[44]

Enhanced surveillance powers, including through tracking devices and ‘B-Party’ warrants that allow the interception of communications beyond the person under investigation to anyone ‘likely to communicate’ with them;[45]

Warrantless searches, which allow police to enter premises without a warrant ‘to prevent a thing ... from being used in connection with a

terrorism offence’;[46]

‘Urging violence’ offences, which make it a crime to urge the overthrow of the Constitution or government, interference in parliamentary elections, or violence against a group or individual on the basis of their race, religion or political opinion;[47] and

Strengthened powers relating to aviation and transport security,

customs and border security, anti-money laundering and

counterterrorism financing.[48]

The impact of these laws on human rights — including rights to liberty, privacy, a fair trial, freedom of speech, and freedom from arbitrary detention — are

well documented.[49]

The framework laid out by laws from the first decade after September 11 remains almost entirely in place. In fact, many of these laws exist in exactly the same form in which they were enacted, except where their reach has been expanded. The only example of a significant power being repealed since is ASIO’s power to detain people for questioning.[50] By contrast, ASIO’s questioning warrants — under which an individual faces five years in prison for refusing to answer a question — not only remain but are now available for children as young as 14.[51]

This first decade of counterterrorism lawmaking created a significant, problematic foundation on which the second decade of laws was built. In documenting these laws, one of us identified four key lessons from the period.[52] First, it was clear after September 11 that Australia needed laws to prevent terrorist acts[53] — in part because preventive measures were mandated by the United Nations Security Council.[54] However, this did not justify the number or scope of the laws enacted. Second, the laws were passed with undue speed, leaving inadequate time for public and parliamentary debate.[55] For example, the first package of five Bills enacted in March 2002, which created many core parts of the framework, passed the House of Representatives in two days.[56] Third, enacting such a vast counterterrorism law framework with clear incursions into fundamental rights was possible because Australia lacks enforceable human rights protection at the national level.[57] As a result, Australia’s counterterrorism laws are often more extreme and intrusive than equivalent measures in other Western democracies, including our closest allies in the Five Eyes alliance.[58] Finally, these significant investments in coercive prevention via legal means were not matched by investment in countering violent extremism programs to address the long-term causes of terrorism.[59] In Part IV, we find that these lessons, supplemented by new trends, hold true today.

III THE SECOND DECADE: 2011–21

A Volume and Speed of Lawmaking

Australia enacted 37 laws in the second decade after September 11, from 11 September 2011 to 10 September 2021.[60] This is fewer than the first decade, but it represents more than two thirds of the same volume. Given that a substantial framework already existed, this number is perhaps even more striking, and cements Australia’s reputation for ‘hyper-legislation’.[61] Importantly, the laws added in this second decade were not mere tweaks or amendments to the existing framework. Some gaps may have needed filling,[62] but the laws in the second decade went much further and included some of the most rights-infringing measures seen in the last 20 years.[63]

The primary catalyst for some laws in the second decade was the threat from IS and foreign fighters travelling to the conflicts in Syria and Iraq.[64] However, as we outlined elsewhere, many of the laws enacted in response to that threat either did not relate to it directly or extended beyond its scope.[65] As the

threat from IS reduced, these laws remained in place and lawmaking

continued in response to threats of espionage, foreign interference and

right-wing extremism.[66]

Adding this second decade onto the first, we can report that the federal Parliament enacted 92 counterterrorism laws between September 11 and the 20th anniversary of those attacks on 11 September 2021.[67] In Appendix A, we list these laws across both decades. In Figure 1 below, we chart the number of laws enacted each year.

2022_2100.jpg

Figure 1: Number of Counterterrorism Laws Enacted by the Australian Federal

Parliament, 2002–21

This chart shows an initial spike in response to September 11, and the drop-off under Labor from late 2007 to 2013. There is another significant spike in 2018 and 2019, as the threat from IS subsided,[68] which demonstrates how counterterrorism lawmaking continues over time as threats evolve.

The relatively low volume between 2014 and 2017, considering the breadth of powers introduced in response to IS and foreign fighters,[69] shows that the scope of individual laws is more significant than the volume of lawmaking through Parliament. However, charting the volume helps to understand the ebbs and flows of lawmaking over a longer period. Overall, it shows sustained lawmaking across two decades, with very little downtime.

The total number of pages across all 92 pieces of legislation is 5,559.[70] In addition to the volume of laws passed, also striking is the speed with which they have progressed through Parliament. Across all the legislation, the Bills spent an average of 2.47 days in the House of Representatives and 2.3 days in the Senate.[71] These are very generous figures, as they count the days Bills were introduced into either House, even if they were not debated. The days listed for second and third readings were also counted in full, even though a Bill would only be debated for a small portion of the day.[72]

It is unrealistic to think that Australia’s counterterrorism laws were adequately considered and debated on such short timelines. These averages also suggest that the Senate, which devoted less time than the House of Representatives, did not play as significant a role in scrutinising government Bills as might have been expected. This illustrates a recurring political theme of bipartisanship on matters of national security and the enactment of counterterrorism laws. The presence of bipartisanship meant that there was little or (usually) no doubt that a measure introduced by the government would be enacted by Parliament. The only question was how quickly the law would be enacted and whether it would be subject to amendments.

B Scope of Counterterrorism Laws

Below we set out the significant offences and powers introduced in the second decade. This is necessarily brief and selective; more detail and critique of specific laws can be found in existing sources.[73] We focus on cataloguing the major developments in chronological order.

1 Special Intelligence Operations

Australia’s first legal response to IS and foreign fighters introduced Special Intelligence Operations (‘SIOs’).[74] An SIO is an undercover operation approved by the Attorney-General in which ASIO officers receive immunity from civil and criminal liability.[75] SIOs do not provide immunity for acts that cause death, serious bodily injury, or serious property damage, or which involve the commission of a sexual offence or constitute torture.[76]

Section 35P of the Australian Security Intelligence Organisation Act 1979 (Cth) (‘ASIO Act’) is a disclosure offence attached to the SIO regime. ASIO officers and contractors face five years in prison for releasing information that relates to an SIO.[77] The penalty doubles if the disclosure endangers health or safety or prejudices an SIO, or if the person intends those consequences to occur.[78] Any other person (such as a journalist or member of the public) faces five years in prison if the disclosure would endanger health or safety or prejudice an SIO, and 10 years if they intend or know those consequences will result.[79]

2 Intelligence Disclosures

The National Security Legislation Amendment Act (No 1) 2014 (Cth) also strengthened disclosure offences for intelligence officers in the Intelligence Services Act 2001 (Cth) (‘Intelligence Services Act’).[80] It is an offence punishable by 10 years’ imprisonment for an intelligence officer to disclose information obtained in the course of their duties.[81] Offences for ‘[u]nauthorised dealing with records’ apply where an employee copies, records or possesses information outside the terms of their employment.[82]

3 Foreign Incursions Offences

A second tranche of laws contained more direct responses to IS and the threat of foreign fighters. Offences previously contained in the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) were moved into the Criminal Code with increased penalties.[83] A person who enters a foreign country with intent to engage in ‘hostile activity’, or prepares such an incursion, faces life in prison.[84]

An offence for entering or remaining in a ‘declared area’ was particularly controversial.[85] The Minister for Foreign Affairs can declare any area of a foreign country as a prohibited area; any person who enters or remains in that area faces 10 years in prison.[86] There are exemptions, including for bona fide family reasons, humanitarian aid and professional news reporting.[87]

4 Advocacy Offence

The second tranche also introduced an offence of advocating terrorism. A person who ‘advocates’ the doing of a terrorist act or terrorism offence faces five years in prison if they are reckless as to whether another person will engage in that conduct as a result.[88] To advocate terrorism means to counsel, promote, encourage or urge it.[89] This wording was also used to expand the grounds for proscribing a terrorist organisation.[90]

5 Expanded Control Orders

The second tranche, and subsequent laws, expanded the grounds for making control orders. In the first decade, a control order could be made if an issuing court was satisfied on the balance of probabilities that ‘making the order would substantially assist in preventing a terrorist act’.[91] From 2014, new grounds were added relating to training with terrorist organisations, engaging in hostile activity overseas, prior convictions for terrorism, preventing the support or facilitation of terrorism, and preventing the support or facilitation of hostile activity.[92] The court must be satisfied that each of the restrictions and obligations contained in the order are reasonably appropriate and adapted to one of the three purposes of the regime.[93]

Later, the control order powers were expanded so that control orders could be issued against children 14 years of age or older.[94] In line with international law,[95] the issuing court must consider the ‘best interests’ of the child.[96] However, the need to prevent terrorism and hostile activity, and support or facilitation of the same, remain the ‘paramount’ considerations.[97]

6 Metadata

The third tranche of laws in response to IS required communications service providers (‘CSPs’) to retain ‘metadata’ for two years.[98] Metadata is not legally defined, but CSPs must retain various data about every communication made using their services, including the date, time, location, sender, recipient, names, addresses, and billing and payment information.[99] This data may be accessed by ASIO, police, and other designated ‘enforcement agencies’ without a warrant.[100] Police and enforcement agencies can access metadata for the purposes of enforcing the criminal law, enforcing a law that imposes a pecuniary penalty, protecting the public revenue, or finding missing persons.[101]

7 Citizenship Stripping

The Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) allowed the Australian citizenship of dual nationals involved in terrorism to be revoked.[102] Following an update to the regime,[103] this can now be done on two grounds. First, the Minister for Home Affairs can revoke citizenship where he or she is satisfied that a dual national has engaged in terrorism-related conduct either while overseas or, having since left, while in Australia.[104] Second, the Minister may revoke citizenship where the person has been convicted of a terrorism or related offence and sentenced to three years or more in prison.[105] In either case, the Minister must be satisfied that the person, by their conduct, has repudiated their allegiance to Australia, and that it would be contrary to the public interest for the person to remain an Australian citizen.[106]

8 Continuing Detention

The Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth) provided for continuing detention orders (‘CDOs’).[107] A CDO can be issued by a state or territory supreme court, on application by the Minister for Home Affairs, in relation to a person serving a prison sentence for a terrorism or related offence.[108] The person may be detained for up to three years beyond the term of their original sentence.[109] The court may make the order if it ‘is satisfied to a high degree of probability ... that the offender poses an unacceptable risk of committing’ a terrorism or related offence if they are released into the community.[110] The court must be satisfied that no less restrictive measure, such as a control order, would be effective in preventing that risk.[111] Successive orders can be made in relation to the same person,[112] which raises the possibility that a terrorism offender could be imprisoned indefinitely.

9 Encryption Laws

The Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth) — commonly called the ‘encryption laws’ or ‘TOLA’ — was designed to combat terrorist use of encrypted messaging applications, such as WhatsApp and Telegram.[113] Under the scheme, Australian police and intelligence agencies can request or require assistance from technology companies anywhere in the world.[114] This can be done in three ways. First, a company can be formally requested to provide voluntary assistance.[115] Second, a ‘technical assistance notice’ can require a company to provide support.[116] Third, a ‘technical capability notice’ can require a company to provide support by developing a new method or technology.[117] The types of support to be provided can include removing encryption or modifying or substituting part of the company’s service.[118] The main limitation is that the support cannot introduce a systemic weakness or vulnerability into a product.[119] There are civil penalties for companies that fail to comply with technical assistance or capability notices,[120] and a criminal offence for disclosing information about use of

the powers.[121]

10 Espionage and Foreign Interference

The National Security Legislation Amendment (Espionage and Foreign Interference Act 2018 (Cth) overhauled Australia’s espionage offences.[122] These apply where a person ‘deals’ with information concerning national security which will be communicated or made available to a ‘foreign principal’ (including foreign governments, organisations, and terrorist organisations).[123] Dealing with information includes receiving, possessing, copying or recording it.[124] The definition of ‘national security’ includes any information relating to Australia’s political, economic or military relations with other countries.[125] An offence punishable by 25 years’ imprisonment applies where the person is reckless as to whether their conduct will prejudice Australia’s national security.[126] It is also a crime to prepare for an espionage offence.[127]

11 Temporary Exclusion Orders

Under the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 (Cth), the Minister for Home Affairs may issue a Temporary Exclusion Order (‘TEO’) in relation to a person if the Minister suspects on reasonable grounds that the order would substantially assist in preventing a terrorist act; training with a listed terrorist organisation; or support for, or facilitation of, a terrorist act; or if ASIO has assessed the person to be directly or indirectly a risk to security.[128] A TEO can be issued against any Australian citizen of at least 14 years of age.[129] If a person enters Australia while a TEO is in force, they commit an offence punishable by two years’ imprisonment.[130] The maximum time limit for these restrictions is two years, though subsequent orders can be issued against the

same person.[131]

12 Abhorrent Violent Material

In response to the Christchurch massacre, which was livestreamed by the attacker on Facebook, the federal Parliament enacted laws relating to ‘abhorrent violent material’ (‘AVM’). AVM is audio, visual or audiovisual material that depicts acts of terrorism, murder or attempted murder, torture, rape, or kidnapping.[132] Internet service, content and hosting providers (whether in Australia or overseas) must refer this content to the Australian Federal Police (‘AFP’) within a ‘reasonable time’ after becoming aware of it, and content and hosting service providers must ensure its ‘expeditious removal’.[133]

C Counterterrorism Laws in the Courts

From September 2014 — when Australia’s threat level was raised to ‘high’[134] in response to IS — until August 2020, 110 people were charged following 51 counterterrorism operations.[135] During this period, for the first time since 2001, two people were convicted of engaging in a terrorist act.[136] Three other men pleaded guilty to charges of aiding, abetting, counselling or procuring the commission of a terrorist act; Raban Alou, Talal Alameddine and Milad Atai supplied the gun used by 15-year-old Farhad Jabar to kill New South Wales Police accountant Curtis Cheng.[137] These prosecutions were significant as they related to completed terrorist acts. By contrast, in the first decade, all of Australia’s terrorism prosecutions were pre-emptive in relating to conspiracies and plans not yet finalised, or other ancillary and group-based offences.[138]

1 Pre-Emption and Prediction

Most prosecutions remain pre-emptive, and the courts have reaffirmed this purpose. Offenders who are arrested before they follow through on their plans can be sentenced based on the severity of the acts they had contemplated, not committed. In Director of Public Prosecutions (Cth) v M H K [No 1]

(‘DPP v M H K’),[139] the Victorian Court of Appeal explained this in relation to the catch-all preparation offence in s 101.6 of the Criminal Code, which criminalises the preparation and planning of terrorist acts:

[T]he statutory offence created by s 101.6 of the Criminal Code was designed to ensure that persons, who plan to commit dangerous acts of terror in our community, be intercepted early, well before they are able to perpetrate such acts and thereby cause the appalling casualties that invariably result from acts of terror. It is for that reason that an assessment of the criminal culpability of a person, convicted of such an offence, is not measured purely by the steps and actions taken by the offender towards the commission of the act of terror, but, in addition, by a proper understanding and appreciation of the nature and extent of the terrorist act that was in contemplation ...[140]

This followed the approach of the New South Wales Supreme Court in

R v Lodhi[141] and R v Elomar.[142] It means that sentencing courts carry out a predictive exercise in which offenders are punished based on a future attack they are likely to carry out. Hence, the level of punishment is determined, in part, by the severity of the acts contemplated, not committed. Essentially, the court is asking: what type of attack was likely to be carried out, and how serious would it have been? For this reason, counterterrorism laws are said to adopt a ‘pre-crime’ approach to criminal justice.[143] Offenders are sentenced based on their plans and contemplated future actions, rather than acts completed or attempted in the past. This has parallels in the law of conspiracy, but it goes further, as inchoate liability can be attached to each substantive preparatory offence. A commonly prosecuted offence is for a conspiracy to prepare a terrorist act — not a conspiracy to carry one out.[144]

Given that s 101.6(1) criminalises preparation, the severity of the attack being prepared for is certainly a valid consideration in sentencing. However, there is also an inherent tension in the courts’ approach. On the one hand, sentencing judges ascribe a high degree of probability to the offenders’ actions, thereby justifying a more severe punishment on the basis of likely future harm.[145] On the other hand, they explain that the attacks can be in their very early stages: the offenders need not have identified a target, the precise nature of the attack, or who will carry it out.[146] This concedes that the plans are nascent and uncertain; the eventual attack could take very different forms, or the offenders may choose not to follow through on their plans.

2 Prejudicial Evidence

Several appeal judgments have considered whether extremist material which provides evidence of contemplated future acts is prejudicial. In R v Abbas, the defendants were convicted for a conspiracy to prepare a terrorist act against possible key targets in Melbourne.[147] On appeal, they challenged the presentation to the jury of extremist videos depicting beheadings, suicide bombings, attacks against military forces, mass graves, and other gruesome content.[148] One defendant submitted ‘that the videos were highly emotive and that most jurors would find them particularly disturbing and distressing’.[149] Two of the defendants argued that this created a risk of unfair prejudice which outweighed the probative value of the evidence.[150]

The Victorian Supreme Court held, following Elomar v The Queen[151] and Benbrika v The Queen,[152] that jury members are sufficiently ‘robust’ to view this material and use it rationally, if properly directed and cautioned and if steps are taken to limit its impact.[153] This includes redacting the most ‘brutal’ parts of the videos and limiting the total number played.[154] In R v Dirani [No 6], the New South Wales Supreme Court held that this type of content would ‘provide the jury with a clear and more direct understanding of what the Accused was thinking and intending’.[155] This approach raises the challenging notion that offenders can be convicted and sentenced for their intended future conduct as evidenced by videos and images of extreme acts of violence committed by others.

3 Deterrence and Denunciation

The courts have confirmed that deterrence and denunciation are the dominant purposes of punishment under counterterrorism laws. In DPP v M H K, the defendant was a 17-year-old male who planned to build improvised explosive devices and detonate them in a public area to kill civilians.[156] Following his arrest, he was held in youth detention, where he completed more than 30 counselling sessions with a chaplain of the Islamic Council of Victoria.[157] He enrolled in two subjects for his high school qualification.[158] He subsequently pleaded guilty to engaging in conduct contrary to s 101.6(1) of the

Criminal Code and was sentenced to seven years’ imprisonment.[159] At his sentencing hearing, the Islamic chaplain and college principal gave evidence of his ‘transformative’ rehabilitation and greater maturity.[160] Nonetheless, on appeal by the prosecution, his sentence was raised to 11 years’ imprisonment.[161] The Victorian Court of Appeal reaffirmed R v Lodhi and other cases in which deterrence and denunciation were given ‘primary importance’:[162]

[W]hile the potential rehabilitation of the respondent is an important sentencing factor, nevertheless, in a case such as this, it must give way, to a significant degree, to the requirements that the sentence be adequate so as to sufficiently express the court’s and the community’s repugnance at the actions and intentions of the respondent, and to deter other like-minded ... young people from embarking on, and proceeding down, the same pathway ...[163]

Despite his youth, the court reasoned, any mitigating factors and prospects of rehabilitation should be ‘given substantially less weight than in other forms

of offending’.[164]

The harsher approach to sentencing was understandable given the severity of the young man’s plans for violence. However, the explicit foregrounding of deterrence and denunciation over rehabilitation does not sit well with the globally recognised need for youth interventions and deradicalisation programs under the broad heading of ‘countering violent extremism’ (‘CVE’).[165] This defendant’s efforts to rehabilitate, as well as the efforts of the chaplain and college, may have been undermined by an increase in his punishment. If young men who plead guilty and demonstrate changed attitudes following counselling and education are not helped to rehabilitate further, the longer-term threat of terrorism from those individuals is likely to continue. This does not remove the need for appropriate punishment, but greater flexibility in sentencing — towards individualised justice and away from the current rhetoric of being tough on terrorism — may assist the longer-term CVE agenda.

4 Constitutional Challenges

There was one significant constitutional challenge in the second decade. In Minister for Home Affairs v Benbrika,[166] the High Court upheld the continuing detention order regime as constitutionally valid.[167] Benbrika had been sentenced to 15 years’ imprisonment for directing the activities of a terrorist organisation and being a member of that organisation.[168] Before the sentence expired in late 2020, the Minister for Home Affairs applied to the Victorian Supreme Court to have Benbrika’s detention extended for three years.[169] Benbrika argued that the power was unconstitutional because it authorised detention for a punitive purpose without the adjudication of criminal guilt, and so could not be conferred on a ch III court.[170] By a majority of five judges to two, the regime was found to be valid.[171] Chief Justice Kiefel, Bell, Keane and Steward JJ held that it fell within a recognised exception that non-punitive imprisonment can be ordered by a ch III court to protect the community from harm.[172] Justice Edelman held that the power was exclusively judicial and could be exercised without a criminal trial.[173] In dissent, Gageler J and Gordon J differed in approach but held that the test for issuing a continuing detention order — an ‘unacceptable risk’[174] of committing any terrorism offence — was overly broad.[175]

D Review of Counterterrorism Laws

Rigorous review of Australia’s counterterrorism laws continues, principally by the Parliamentary Joint Committee on Intelligence and Security (‘PJCIS’) and the INSLM. The PJCIS has authority under the Intelligence Services Act to review the administration and expenditure of Australia’s intelligence agencies.[176] It routinely examines counterterrorism laws passing through the federal Parliament, and is increasingly conducting inquiries into wider, related issues, such as press freedom and threats of extremism. The INSLM completes annual and ad hoc reports, and has conducted recent inquiries into encryption laws, citizenship loss provisions, and the sentencing of children for terrorism offences.[177] Reviews by the PJCIS and INSLM are rigorous, detailed, and informed by expert evidence.

The impact of these reviews depends on the willingness of government to accept and implement their findings.[178] Early in the second decade, two significant reviews of Australia’s counterterrorism laws demonstrated how significant recommendations can be ignored amidst evolving threats and a perceived need to strengthen the laws. The Council of Australian Governments Review of Counter-Terrorism Legislation (‘COAG Review’), chaired by the Hon Anthony Whealy QC,[179] and a review by Bret Walker SC,[180] the first INSLM, concluded that aspects of Australia’s counterterrorism laws were unnecessary and lacked appropriate safeguards.[181] Both recommended the repeal of preventative detention orders,[182] with the COAG Review likening them to something reminiscent of ‘discredited totalitarian regimes’.[183] Walker believed they should ‘simply be abolished’.[184] Walker also recommended the repeal of ASIO’s detention power and control orders,[185] describing the latter as ‘not effective, not appropriate and not necessary’.[186]

These findings were not merely principled arguments; they were informed by access to classified information and submissions from the police and security services.[187] In discussing preventative detention orders, for example, the COAG Review cited multiple submissions from state and federal police explaining that the powers had not been used, and were not likely to be used, because the application process was too complex and detainees could not

be questioned.[188]

These findings stripped away any pretence that Australia had the most effective counterterrorism laws in place. However, the Commonwealth government did not give them due weight. Both reports were released to the public on the same day as the 2013 federal budget, thereby burying their important findings amongst other news.[189] The following year, with the rise of IS, the threat level was raised to ‘probable’[190] and Australia’s counterterrorism laws began rapidly expanding once more. As a result, there was even less political appetite for key powers to be amended or repealed, or for these reports to be taken seriously. Instead, more problematic powers, including for metadata retention and citizenship stripping, were added.[191] Control orders were extended to children as young as 14 and the grounds for seeking them expanded.[192] Other problematic powers subject to sunset clauses, including preventative detention orders, have since been routinely renewed.[193]

There are examples of the federal government winding back counterterrorism laws in response to independent findings, but these are minor and few. Changes to s 35P of the ASIO Act, explained further below, were a welcome but limited change. The only example of a significant power being repealed is ASIO’s power to detain people for coercive questioning.[194] This was done ostensibly in response to a PJCIS report,[195] though the INSLM had previously recommended it,[196] and the power had been widely criticised since its conception in 2002.[197] It took 17 years on the statute books for this highly controversial, rights-infringing power to be revoked.[198] Even then, at the same time as the detention power was repealed, ASIO’s coercive questioning power was extended to children aged 14 or older.[199]

The INSLM and PJCIS face ongoing limitations in their resourcing and statutory frameworks. The INSLM is a part-time office with a significant workload.[200] A previous INSLM described his review program as ‘formidable’.[201] If his reviews were to be completed ‘in an acceptable timeframe’, he commented, this would ‘require more support than is presently available’.[202]

Compounding these pressures, there is no guarantee of a government response. The current INSLM has repeated calls for a statutory provision which would require the government to respond to the published reports within 12 months.[203] The government has not supported this change, claiming the reports raise complex questions which may require a longer time frame to respond.[204] For an independent office to conduct this crucial review work part-time and without a guaranteed response from the federal government remains wholly inadequate.

The PJCIS faces a significant review program and short reporting time frames.[205] These are especially problematic when caused by political pressure to rush counterterrorism laws through Parliament. The Committee’s initial inquiry into the encryption laws, for example, was wound up following a request by then Minister for Home Affairs, Peter Dutton, to have the laws enacted by Christmas.[206] It resumed the inquiry in late 2018,[207] commenting that the ‘expedited consideration ... precluded the Committee from incorporating a detailed presentation of the evidence’.[208] This meant that highly problematic powers were enacted without adequate prior consideration by the parliamentary body responsible for scrutinising them.[209]

The PJCIS lacks the stronger powers given to parliamentary oversight bodies in the UK and United States.[210] In those countries, specialised parliamentary committees can examine not only the legal powers of intelligence agencies but also their operations.[211] In Canada, a specialist review body comprising independent national security experts has recently been established.[212] There have been calls to expand the role of the PJCIS in similar ways.[213] An expanded PJCIS could play a crucial role in ensuring that Australia’s counterterrorism laws remain adequately scrutinised, especially given the significant number added in the last 10 years.

IV THE SECOND DECADE: KEY THEMES

Lessons from the first 10 years of counterterrorism lawmaking remain apposite: Australia needs preventive counterterrorism laws,[214] but this does not justify the significant number and scope of laws enacted over two decades. Many of the laws received inadequate scrutiny in Parliament[215] and their problematic scope has been possible due to the lack of enforceable human rights protection at the national level.[216] Efforts to disrupt and punish terrorism through the criminal law have far outweighed investments in community-based approaches to CVE needed to address its long-term causes.[217]

Below, we set out four additional themes that best characterise the second decade of lawmaking. Collectively, they raise significant concerns for democracy, politics, privacy, and the effectiveness of counterterrorism laws in preventing acts of terrorism.

A Whistleblowers and Public Interest Journalism

More so than in the first decade, Australia’s counterterrorism laws have undermined free speech and freedom of the press. Offences for disclosing information are not strictly new features,[218] but the second decade was characterised by enhanced secrecy and a crackdown on intelligence whistleblowing. Australia’s counterterrorism laws now create significant ongoing risks to whistleblowers and journalists who act in the public interest.[219]

These risks became clear in the Abbott government’s first legal responses to IS. The dominant threat came from homegrown terrorism and Australians travelling to Syria and Iraq,[220] but the government chose instead in its first tranche of laws to significantly expand existing secrecy offences for intelligence officers.[221] That legislation also introduced SIOs and s 35P of the ASIO Act.[222] In its original form, s 35P made it a crime to disclose any information relating to an SIO, regardless of whether the person intended to cause harm.[223] Journalists who reported anything about one of these operations, even if they did not know of that connection, faced five years in prison.[224]

Following significant backlash from media organisations,[225] Prime Minister Tony Abbott requested that the INSLM conduct an independent inquiry into

s 35P.[226] In line with the INSLM’s recommendations,[227] the offence now distinguishes between intelligence ‘insiders’ and ‘outsiders’, including journalists.[228] However, journalists and others still face five years in prison for disclosing any information about an SIO if they are reckless as to whether the disclosure will endanger health or safety or prejudice an operation.[229] There is no defence available to journalists who report information responsibly in the public interest.[230] There are also no whistleblower protections available if an intelligence insider discloses information to reveal serious misconduct or

illegal behaviour.[231]

These risks were compounded by the metadata laws. Given that metadata can reveal the time, location and recipients of all phone calls, emails and messages, a journalist’s confidential source can be identified by ASIO to gather intelligence or by the police to enforce the criminal law.[232] Following backlash from media organisations over this possibility,[233] a ‘journalist information warrant’ scheme was introduced.[234] An issuing authority must now approve access to a journalist’s metadata after weighing up the public interest in gathering the intelligence or pursuing the criminal investigation against the public interest in protecting the source’s identity.[235] However, journalists cannot contest these warrants, and indeed need never know that one has been issued.[236]

Incursions into media freedom continued through the encryption laws and espionage offences. Under the encryption laws, police and intelligence agencies could request or require assistance from a technology company to identify a journalist’s confidential source, even if the journalist had used an encrypted message application.[237] No judicial warrant is required to use these powers,[238] nor are there any specific exemptions for journalists. In addition, it is an offence to disclose any information about the use of the regime,[239] which prevents whistleblowers and journalists from speaking out or reporting on any abuses

of power.

Under the espionage laws, journalists and whistleblowers can be prosecuted for receiving or possessing ‘national security information’, which includes anything about Australia’s political, economic or military relations with other countries.[240] The offences apply if the information would be ‘made available’ to a foreign government or company (including, for example, a foreign news organisation such as the Cable News Network or the British Broadcasting Corporation).[241] This means a journalist could be imprisoned for receiving economic or political information from a government source, even if the information is not classified, and even if they would have decided not to publish it.

The scope of these laws is astonishing — especially in a democracy that values free speech and freedom of the press. As a result, journalists and whistleblowers in Australia face an ongoing threat of surveillance, investigation and prosecution. In June 2019, in response to a story that revealed possible war crimes by Australian soldiers in Afghanistan, AFP officers raided the Sydney headquarters of the Australian Broadcasting Corporation (‘ABC’).[242] The raid attracted international condemnation, with The New York Times asking if Australia had become ‘the [w]orld’s [m]ost [s]ecretive [d]emocracy’.[243] In the lead-up to the raid, federal police had accessed journalists’ metadata 58 times.[244] AFP officers also raided the home of Annika Smethurst, a News Corporation journalist, following a story that the Australian Signals Directorate could be granted powers to spy on all Australians.[245]

High-profile prosecutions of whistleblowers continue in the Australian courts. David McBride, the whistleblower who passed on documents revealing possible war crimes to the ABC, faces up to 50 years in prison — even though the story had significant public interest value and the Inspector-General of the Australian Defence Force found ‘credible information’ suggesting war crimes were taking place.[246] Bernard Collaery, former Attorney-General of the Australian Capital Territory and lawyer to intelligence whistleblower Witness K, also faced significant jail time for acting in the public interest.[247] Collaery and Witness K revealed that officers of the Australian Secret Intelligence Service bugged offices of the Timor-Leste government to gain the Australian government the upper hand in trade negotiations over gas and oil reserves in the Timor Sea.[248] Despite public uproar at the bugging operation,[249] Collaery and Witness K — not those who approved the operation — were investigated and prosecuted for their actions.[250] Much of Collaery’s trial was conducted in secret under the terms of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (‘NSI Act’), which was enacted in 2004 to aid the prosecution of terrorists.[251] According to the Hon Anthony Whealy, who presided over several of Australia’s terrorism trials,[252] Collaery’s was ‘one of the most secretive trials in Australian history’.[253]

These laws, investigations and trials undermine the health of Australia’s democracy. Free speech and freedom of the press are core ingredients of a healthy democracy that respects the rule of law. This is recognised by the United Nations, which considers a free and independent media to be ‘a cornerstone of democratic societies’.[254] If Australia is to act consistently with its expressed adherence to freedom of speech and of the press, its counterterrorism laws must include stronger protections for whistleblowers and journalists who act in the best interests of the Australian people. This can be achieved by reforming federal whistleblower laws,[255] and creating exemptions from criminal liability for journalists who report information in the public interest.[256]

B Politics and Bipartisanship

Political manoeuvring and bipartisanship, as politicians seek to position themselves as being tough on terrorism, has featured in counterterrorism lawmaking across both decades, but the second decade cemented these trends and confirmed their risks. The encryption laws provide a clear example of these political dynamics.[257] Amidst significant opposition from the technology industry, both locally and globally,[258] Shadow Attorney-General Mark Dreyfus first said that the powers had ‘very very serious problems’ and were ‘not fit to pass the parliament’.[259] He confirmed that Labor would not agree to pass the laws before the end of 2018.[260] However, on the final sitting day of Parliament, Labor backed down, withdrew a list of substantive amendments it had proposed in the Senate, and allowed the Bill to pass.[261]

Labor’s backdown followed unsubstantiated claims that the powers were urgently needed before Christmas.[262] As mentioned above, the initial PJCIS inquiry was wound up early following a request from Peter Dutton, then Minister for Home Affairs, to enact the laws before the end of the year.[263] In the Committee’s report, the Labor members added a dissenting comment, explaining that they would support the Bill on that time frame, despite its many problems, because the Committee’s list of recommendations went some way to addressing their concerns.[264] Labor members also pointed to the fact that the inquiry would continue in early 2019 and that the laws would later be reviewed by the INSLM.[265]

On the final day of Parliament, political manoeuvring from both major parties meant that the laws passed without adequate scrutiny.[266] In the Senate, Labor and the crossbench sought to pass ‘medevac’ legislation that would allow refugees detained on Nauru and Manus Island to receive medical treatment on the mainland.[267] If those amendments were approved in time, the Morrison government faced the embarrassing prospect of losing a substantive vote in the House of Representatives — the first time this would have happened to an incumbent government in nearly 90 years.[268] Coalition and other conservative Senators filibustered in the Senate to prevent this from happening, which reduced the time available to debate the encryption laws and Labor’s proposed amendments.[269] The government and opposition accused each other of endangering national security to score political points.[270] At the eleventh hour, Labor withdrew its amendments and backed down, allowing the encryption laws to be available before the holiday period.[271] Then Opposition Leader Bill Shorten told the public: ‘Let’s just make Australians safer over Christmas.’[272]

This was a clear, though by no means unique,[273] example of how counterterrorism lawmaking can be more about politics than about the substance of legal powers. It shows, in addition, how an opposition party can be pressured into supporting national security legislation even if they strongly oppose it. A party that fails to support new national security measures can be accused of being ‘soft’ on terrorism — a label no politician would want to stick.[274] In this case, when Labor initially did not support the encryption laws, the Minister for Energy accused the opposition of ‘running a protection racket for terrorist networks’.[275] Such accusations undermine the ability of opposition parties, independents and civil society to speak out against problematic laws for fear of being seen to undermine national security.

There are some benefits to bipartisanship on matters of counterterrorism. It projects an image of common resolve in countering serious threats to the nation. But bipartisanship can ultimately be counterproductive if the pressure to reach agreement on an urgent timeline means that Australia does not end up having the best laws in place. More broadly, agreement to pass laws that are known to be problematic, on a promise they will be reviewed later, undermines the health of Australia’s democratic system. If opposition parties are pressured to support measures they do not believe in, or do not have the courage to stand their ground, governments in power — from either side of politics — will not be sufficiently accountable to the Australian people. This pattern is particularly concerning given the tendency for counterterrorism laws to remain on the statute books once enacted, and to seep into other areas of the criminal law.[276] Overhasty, politicised lawmaking is the antithesis of a healthy democracy.

C Laws That Apply beyond Terrorism

During the first decade, Australia’s counterterrorism laws focused on preventing terrorist acts.[277] The foundations of the framework — including offences for terrorist training, support, and preparation; the proscription regime; control orders; and preventative detention orders — are all designed to disrupt terrorist plots. In 2005, for example, then Attorney-General Philip Ruddock explained that the new control order and preventative detention powers were designed ‘to stop terrorists carrying out their intended acts’.[278]

By contrast, many laws from the second decade have a much wider purpose and operation. This is clear not only from the scope of recent laws, but also the rhetoric used to introduce them in Parliament.[279] In 2015, the metadata laws were introduced in direct response to IS — a similar type of threat to that from al-Qaeda in the first decade. However, rather than focusing on preventing terrorist acts, the government introduced the laws by citing crimes including sexual assaults and drug trafficking:

Access to metadata plays a central role in almost every counterterrorism, counterespionage, cybersecurity and organised crime investigation. It is also used in almost all serious criminal investigations, including investigations into murder, serious sexual assaults, drug trafficking and kidnapping.[280]

This is a significant shift in political rhetoric, with the consequence that the laws have much greater capacity to impact on all Australians. This is clear from the wider scope of the metadata laws,[281] as well as their use beyond counterterrorism.[282] The purposes for accessing metadata are not limited to preventing terrorist acts; police and other enforcement agencies can request it, without a warrant, on the grounds of enforcing the criminal law, protecting the public revenue, or finding missing persons.[283] Under this scheme, more than 60 agencies have applied to access Australians’ metadata, including the Australian Tax Office, the Department of Health, the Department of the Environment, gambling authorities, building commissions, consumer affairs bodies, occupational health and safety regulators, and local councils.[284] While most Australians will never be placed under a control order, there is a significant possibility that our metadata will be accessed by government agencies without our knowledge.

Similarly, the encryption laws were introduced in direct response to terrorist groups using encrypted messaging applications,[285] but their scope is again far wider. When he introduced the law in Parliament, Attorney-General Christian Porter explained that encryption is ‘being employed by terrorists, by paedophiles, by drug smugglers and by human traffickers to conceal their illicit activities’.[286] This mimicked the justification for metadata retention, even though both laws were enacted directly in response to the threat from terrorist organisations. As enacted, the encryption laws allow intelligence agencies to request or require modifications to be made to any technology product or service made by any company anywhere in the world.[287] Multinational technology companies, including Apple, Google and Facebook, strongly opposed the laws on the grounds that the security and privacy of all their customers could be affected.[288] As with metadata, the encryption laws create significant risks to the privacy of every Australian technology user, not just those suspected of terrorism.

D Unnecessary and Ineffective Laws

Between 2014 and 2020, 18 potential or imminent terrorist attacks were disrupted through major counterterrorism operations.[289] Over the same period, 110 people were charged following 51 operations.[290] These figures suggest that Australia’s counterterrorism laws have had an important impact in preventing acts of violence against the Australian public.

However, there is strong evidence that not all of Australia’s counterterrorism laws are fit for purpose because they go further than what is needed and are ineffective. As we explained above, before IS became a threat to global security, the INSLM and Council of Australian Governments (‘COAG’) reviews found several deficiencies.[291] These were based on submissions not only from law reform and human rights organisations but also from police and intelligence agencies.[292] The INSLM and COAG reviews both recommended that preventative detention orders be repealed.[293] The INSLM reported that ASIO’s detention power and control orders should also be repealed.[294] At that time, preventative detention orders and ASIO’s questioning and detention powers had not been used, and only two control orders had been issued.[295] Yet, in response to IS, the federal government chose to expand the grounds for seeking control orders and to extend the expiry dates on control orders, preventative detention orders and ASIO’s warrants.[296] It is not clear why these were seen as necessary and urgent responses to IS when the powers were not proven to be effective or necessary in more than a decade of responding to al-Qaeda.[297] ASIO’s detention power remained unused until its recent repeal.[298] The AFP did not seek a preventative detention order under Commonwealth laws in the 20 year period and only four were issued under state laws between 2014 and 2015.[299]

The AFP and ASIO have also expressed doubts about the citizenship loss provisions, suggesting they can make prosecution difficult and even contribute to the risk of terrorism.[300] According to the AFP, a lack of Australian citizenship ‘can create a challenge for law enforcement’ as it limits the number of offences for which a person can be prosecuted.[301] The powers may have a deterrent effect,[302] the AFP believes, though ‘[i]t is not possible to quantify the effectiveness’ of the laws, and they may in fact contribute to radicalisation.[303] ASIO has expressed similar doubts, as stripping a person’s citizenship does not eliminate the threat they pose.[304] The powers may also have unintended consequences, ‘reducing one manifestation of the terrorist threat while exacerbating another’.[305] These are damning reviews of a power described by government as a ‘necessary’ change to Australia’s counterterrorism laws.[306] They demonstrate that counterterrorism laws can have more to do with changes wanted by the government, and the message government desires to send to the community, rather than with what enforcement and intelligence agencies require to prevent terrorist acts.

More broadly, multiple studies are clear on the problems that disproportionate counterterrorism measures can cause. Problematic counterterrorism powers, including enhanced surveillance, expansive detention powers and other measures that undermine human rights, can make communities feel targeted by authorities, thereby lowering their trust in government and making them less likely to cooperate with police and intelligence agencies.[307] This reduces crucial flows of community intelligence which can help to prevent further attacks.[308] It also undermines the benefits of community-based CVE programs, which aim to prevent radicalisation by improving social cohesion.[309] In this way, governments that see value in being ‘tough on terrorism’ through the enactment of problematic and over-broad laws may undermine security over the long term.

V CONCLUSION

In the two decades after September 11, Australia built a framework of 92 counterterrorism laws.[310] These include laws providing for broad preparatory offences, enhanced surveillance powers, preventative detention, warrantless access to metadata, enforceable decryption, citizenship stripping, continuing detention and many more. The framework has expanded steadily over time, with flurries of lawmaking in response to terrorist attacks and evolving threats. The laws have often been pushed through Parliament on tight timelines, with little time for scrutiny and debate. Once the laws are on the statute books, they are very rarely amended or removed. The story of these laws is one of state power continually expanding, and rarely, if ever, contracting.

In the second decade, the main catalyst for new laws was the threat from IS and foreign fighters. However, legal responses to that threat went much further. Intelligence disclosure offences signalled a crackdown on whistleblowers, a trend confirmed by police raids on journalists and media outlets, and multiple investigations into government insiders and their lawyers. The metadata and encryption laws have a much wider scope again in affecting every Australian who uses a smartphone or the internet. Extensive lawmaking has continued since in response to threats of espionage, foreign interference, and right-wing extremism, and shows no sign of abating. Since this article’s submission, a further four counterterrorism laws have been enacted by the federal Parliament, bringing the total at the time of writing to 96.[311] The number of Australian counterterrorism laws will no doubt soon exceed 100.

The number and scope of Australia’s counterterrorism laws has been heavily influenced by the politics of being ‘tough on terrorism’. Even where laws have clear and recognised problems, the pressure for bipartisanship means that they can pass through Parliament with minimal scrutiny. Opposition to such laws can be limited as positioning political parties in the minds of voters takes precedence. Too often, the result is the passage of laws through Parliament with overwhelming support despite the presence of obvious flaws. This undermines the health of Australia’s democracy. It means that the nation is frequently left with counterterrorism measures that are unnecessary, ineffective, and incompatible with human rights.

Without enforceable protection for human rights, there is little that courts can do to limit the scope or impact of these laws. Appeal judgments have confirmed that the laws are inherently pre-emptive, meaning that people can be punished for acts they are likely to commit in the future. Ultimately, this reflects a political choice to be tough on terrorism, and rightly to avert risks of serious harm before they fully materialise. This approach, culminating in prosecution and lengthy imprisonment, may be essential in serious cases where plans and conspiracies are likely to harm the Australian public. However, given that the global CVE agenda emphasises the need for diversionary interventions and rehabilitation,[312] the courts may have overemphasised deterrence and denunciation as the primary purposes of punishment. Where younger offenders show signs of improvement and a change in attitudes following education and counselling, courts should play a stronger role in ensuring those offenders do not become resentful of the authorities and ultimately become a longer-term risk to the community.

Review of Australia’s counterterrorism laws is rigorous, with the INSLM and PJCIS playing important ongoing roles. However, the influence of these reviews ultimately depends on whether the government is willing to accept their recommendations. To date, amendments to the framework have been minor and only one significant power has ever been revoked, despite ongoing concerns about the effectiveness of key powers. The workload of these review bodies is also very high, with little time and resources available relative to the significant volume of lawmaking. Over the last 10 years, the number of Australia’s counterterrorism laws has increased by two thirds, and more powers and offences will be added. The government must ensure that these bodies are given the resources, support, and expertise they need to continue reviewing Australia’s counterterrorism laws over the long term. Most importantly, there must be the political will to listen to the findings of these bodies and implement

their recommendations.

In addition to ongoing review, a comprehensive inquiry into Australia’s counterterrorism law framework is needed. With 92 laws amounting to more than 5,500 pages, key powers like control orders, preventative detention orders and citizenship stripping are only part of a bigger picture. Holistic reviews were undertaken by the INSLM in 2012 and the COAG in 2013, before IS became a global security threat, but their conclusions have not been properly reassessed since, nor have any similar inquiries followed.[313] A similar inquiry is needed again because local and global threat environments have changed, including a greater threat from right-wing extremism,[314] and because many laws from the second decade have a much wider scope. To a greater degree now, Australia’s counterterrorism laws also affect free speech, freedom of the press, and the privacy of all technology users.

Recurring holistic review is essential because the threat from terrorism shifts and changes over time. Terrorism will continue to be used as a tactic by groups who believe violence is justified as a means for achieving political or ideological ends. To date, Australia’s counterterrorism lawmaking has been highly reactive, with new, unproven measures introduced quickly in response to successful attacks and evolving threats. To interrupt this problematic cycle of lawmaking, a shift is well overdue towards greater respect for democratic rights and strategies that are more effective in preventing terrorism over the long term.

VI APPENDIX A: AUSTRALIA’S COUNTERTERRORISM LAWS, 11 SEPTEMBER 2001 – 10 SEPTEMBER 2021

1. Criminal Code Amendment (Anti-Hoax and Other Measures) Act 2002 (Cth)

2. Security Legislation Amendment (Terrorism) Act 2002 (Cth)

3. Suppression of the Financing of Terrorism Act 2002 (Cth)

4. Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 (Cth)

5. Border Security Legislation Amendment Act 2002 (Cth)

6. Telecommunications Interception Legislation Amendment Act 2002 (Cth)

7. Proceeds of Crime Act 2002 (Cth)

8. Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 (Cth)

9. Crimes Amendment Act 2002 (Cth)

10. Criminal Code Amendment (Terrorist Organisations) Act 2002 (Cth)

11. Criminal Code Amendment (Offences against Australians) Act 2002 (Cth)

12. Charter of the United Nations Amendment Act 2002 (Cth)

13. Australian Protective Service Amendment Act 2002 (Cth)

14. Australian Crime Commission Establishment Act 2002 (Cth)

15. Australian Protective Service Amendment Act 2003 (Cth)

16. Criminal Code Amendment (Terrorism) Act 2003 (Cth)

17. Criminal Code Amendment (Hizballah) Act 2003 (Cth)

18. Terrorism and Cyclone Insurance Act 2003 (Cth)

19. Criminal Code Amendment (Hamas and Lashkar-e-Tayyiba) Act 2003 (Cth)

20. Maritime Transport and Offshore Facilities Security Act 2003 (Cth)

21. Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth)

22. ASIO Legislation Amendment Act 2003 (Cth)

23. Australian Federal Police and Other Legislation Amendment Act 2004 (Cth)

24. Australian Security Intelligence Organisation Amendment Act 2004 (Cth)

25. Aviation Transport Security Act 2004 (Cth)

26. Aviation Transport Security (Consequential Amendments and Transitional Provisions) Act 2004 (Cth)

27. Criminal Code Amendment (Terrorist Organisations) Act 2004 (Cth)

28. Telecommunications (Interception) Amendment Act 2004 (Cth)

29. Surveillance Devices Act 2004 (Cth)

30. Anti-Terrorism Act 2004 (Cth)

31. Anti-Terrorism Act (No 2) 2004 (Cth)

32. Anti-Terrorism Act (No 3) 2004 (Cth)

33. National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth)

34. National Security Information (Criminal Proceedings) (Consequential Amendments) Act 2004 (Cth)

35. National Security Information (Criminal Proceedings) Amendment (Application) Act 2005 (Cth)

36. National Security Information Legislation Amendment Act 2005 (Cth)

37. Maritime Transport Security Amendment Act 2005 (Cth)

38. Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Act 2005 (Cth)

39. Anti-Terrorism Act 2005 (Cth)

40. Anti-Terrorism Act (No 2) 2005 (Cth)

41. ASIO Legislation Amendment Act 2006 (Cth)

42. Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)

43. Anti-Money Laundering and Counter-Terrorism Financing (Transitional Provisions and Consequential Amendments) Act 2006 (Cth)

44. Telecommunications (Interception) Amendment Act 2006 (Cth)

45. Law and Justice Legislation Amendment (Marking of Plastic Explosives) Act 2007 (Cth)

46. Aviation Transport Security Amendment (Additional Screening Measures) Act 2007 (Cth)

47. Anti-Money Laundering and Counter-Terrorism Financing Amendment Act 2007 (Cth)

48. Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007 (Cth)

49. Customs Amendment (Enhanced Border Controls and Other Measures) Act 2009 (Cth)

50. Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth)

51. Independent National Security Legislation Monitor Act 2010 (Cth)

52. National Security Legislation Amendment Act 2010 (Cth)

53. Telecommunications Interception and Intelligence Services Legislation Amendment Act 2011 (Cth)

54. Defence Legislation Amendment (Security of Defence Premises) Act 2011 (Cth)

55. Combating the Financing of People Smuggling and Other Measures Act 2011 (Cth)

56. Aviation Transport Security Amendment (Air Cargo) Act 2011 (Cth)

57. Nuclear Terrorism Legislation Amendment Act 2012 (Cth)

58. Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Act 2012 (Cth)

59. Aviation Transport Security Amendment (Screening) Act 2012 (Cth)

60. Customs Amendment (Military End-Use) Act 2012 (Cth)

61. Aviation Transport Security Amendment (Inbound Cargo Security Enhancement) Act 2013 (Cth)

62. National Security Legislation Amendment Act (No 1) 2014 (Cth)

63. Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth)

64. Counter-Terrorism Legislation Amendment Act (No 1) 2014 (Cth)

65. Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth)

66. Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth)

67. Counter-Terrorism Legislation Amendment Act (No 1) 2016 (Cth)

68. Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth)

69. Transport Security Legislation Amendment Act 2017 (Cth)

70. Anti-Money Laundering and Counter-Terrorism Financing Amendment Act 2017 (Cth)

71. Home Affairs and Integrity Agencies Legislation Amendment Act 2018 (Cth)

72. Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Act 2018 (Cth)

73. National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth)

74. Counter-Terrorism Legislation Amendment Act (No 1) 2018 (Cth)

75. Aviation Transport Security Amendment Act 2018 (Cth)

76. Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth)

77. Office of National Intelligence Act 2018 (Cth)

78. Office of National Intelligence (Consequential and Transitional Provisions) Act 2018 (Cth)

79. Defence Amendment (Call Out of the Australian Defence Force) Act 2018 (Cth)

80. Intelligence Services Amendment Act 2018 (Cth)

81. Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth)

82. Counter-Terrorism (Temporary Exclusion Orders) Act 2019 (Cth)

83. Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Act 2019 (Cth)

84. Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Act 2019 (Cth)

85. Crimes Legislation Amendment (Police Powers at Airports) Act 2019 (Cth)

86. Counter-Terrorism Legislation Amendment (2019 Measures No 1) Act 2019 (Cth)

87. Telecommunications (Interception and Access) Amendment (Assistance and Access Amendments Review) Act 2019 (Cth)

88. Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (Cth)

89. Anti-Money Laundering and Counter-Terrorism Financing and Other Legislation Amendment Act 2020 (Cth)

90. Australian Security Intelligence Organisation Amendment Act 2020 (Cth)

91. Foreign Intelligence Legislation Amendment Act 2021 (Cth)

92. Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (Cth)


Senior Lecturer, School of Criminology and Criminal Justice; Member, Griffith Criminology Institute, Griffith University.

[†] Deputy Vice-Chancellor, Anthony Mason Professor, Scientia Professor, University of New South Wales.

[1] See Tamara Tulich, ‘Prevention and Pre-Emption in Australia’s Domestic Anti-Terrorism Legislation’ (2012) 1(1) International Journal for Crime, Justice and Social Democracy 52, 52–7,

60–1; George Williams, ‘ASIO’s Extraordinary Powers’ (2013) 8(1) Journal of Policing, Intelligence and Counter Terrorism 66, 67–70; Gabrielle Appleby, ‘Protecting Procedural Fairness and Criminal Intelligence: Is There a Balance To Be Struck?’ in Greg Martin, Rebecca Scott Bray and Miiko Kumar (eds), Secrecy, Law, and Society (Routledge, 2015) 75, 80–2; Keiran Hardy and George Williams, ‘Special Intelligence Operations and Freedom of the Press’ (2016) 41(3) Alternative Law Journal 160, 161 (‘Special Intelligence Operations’).

[2] See Lisa Burton, Nicola McGarrity and George Williams, ‘The Extraordinary Questioning and Detention Powers of the Australian Security Intelligence Organisation’ [2012] MelbULawRw 11; (2012) 36(2) Melbourne University Law Review 415, 447–51, 469; Rebecca Ananian-Welsh, ‘Preventative Detention Orders and the Separation of Judicial Power’ [2015] UNSWLawJl 27; (2015) 38(2) University of New South Wales Law Journal 756, 756, 786–9; Keiran Hardy and George Williams, ‘Press Freedom in Australia’s Constitutional System’ (2021) 7(1) Canadian Journal of Comparative and Contemporary Law 222, 252–3 (‘Press Freedom’); Sangeetha Pillai and George Williams, ‘Twenty-First Century Banishment: Citizenship Stripping in Common Law Nations’ (2017) 66(3) International and Comparative Law Quarterly 521, 551.

[3] George Williams, ‘A Decade of Australian Anti-Terror Laws’ [2011] MelbULawRw 38; (2011) 35(3) Melbourne University Law Review 1136, 1144–5 (‘First Decade’).

[4] Ibid 1175. That article identified 54 counterterrorism laws from the first decade, but one more was passed by the federal Parliament after submission: Combating the Financing of People Smuggling and Other Measures Act 2011 (Cth). That statute was counted in the following article, giving a count of 61 by 2013: George Williams, ‘The Legal Legacy of the “War on Terror”’ [2013] MqLawJl 11; (2013) 12 Macquarie Law Journal 3, 6–7 (‘Legal Legacy’). The full list of counterterrorism laws from September 2001 – September 2021 is provided in Appendix A below.

[5] Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University Press, 2011) 309–10.

[6] Ibid.

[7] Keiran Hardy and George Williams, ‘Australian Legal Responses to Foreign Fighters’ (2016) 40(4) Criminal Law Journal 196, 205–6 (‘Foreign Fighters’). See also Andrew Lynch, ‘Legislating with Urgency: The Enactment of the Anti-Terrorism Act [No 1] 2005[2006] MelbULawRw 24; (2006) 30(3) Melbourne University Law Review 747, 749.

[8] In August 2021, two significant surveillance laws — the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (Cth) and the Foreign Intelligence Legislation Amendment Act 2021 (Cth) (‘FIL Amendment Act’) — passed the Parliament with one day

of debate in each House of Parliament: ‘Surveillance Legislation Amendment

(Identify and Disrupt) Bill 2021’, Parliament of Australia (Web Page) <https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr6623%22>, archived at <https://perma.cc/LZA8-RXKC>; ‘Foreign Intelligence Legislation Amendment Bill 2021’, Parliament of Australia (Web Page) <https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr6748%22>, archived at <https://perma.cc/PW48-SZ2J>.

[9] See generally Williams, ‘First Decade’ (n 3).

[10] Australian Citizenship Act 2007 (Cth) s 33AA (‘Australian Citizenship Act’), as inserted by Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) sch 1 item 3 (‘Australian Citizenship Amendment (Allegiance to Australia) Act’); Australian Citizenship Act (n 10)

s 35, as inserted by Australian Citizenship Amendment (Allegiance to Australia) Act (n 10)

sch 1 item 4; Australian Citizenship Act (n 10) s 35A, as inserted by Australian Citizenship Amendment (Allegiance to Australia) Act (n 10) sch 1 item 5; Criminal Code Act 1995 (Cth)

sch 1 div 105A (‘Criminal Code’), as inserted by Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth) sch 1 item 1 (‘Criminal Code Amendment (High Risk Terrorist

Offenders) Act’).

[11] See Williams, ‘First Decade’ (n 3) 1137.

[12] See ibid 1141.

[13] See, eg, Counter-Terrorism Legislation Amendment Act (No 1) 2018 (Cth) sch 1 item 17

(‘CTL Amendment Act 2018’), amending Crimes Act 1914 (Cth) ss 3UK(1)–(3) (‘Crimes Act’); Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Act 2019 (Cth) sch 1 item 1 (‘ASIO Amendment (Sunsetting) Act’), amending Australian Security Intelligence Organisation Act 1979 (Cth) s 34ZZ (‘ASIO Act’). See also Nicola McGarrity, Rishi Gulati and George Williams, ‘Sunset Clauses in Australian Anti-Terror Laws’ (2012) 33(2) Adelaide Law Review 307, 325.

[14] See Hardy and Williams, ‘Foreign Fighters’ (n 7) 204–5.

[15] See above n 4 and accompanying text.

[16] This category captures the main criminal offences, surveillance powers, and other substantive responses to terrorism since September 11. See, eg, Security Legislation Amendment (Terrorism) Act 2002 (Cth) sch 1 item 4 (‘Security Legislation Amendment Act’), inserting Criminal Code (n 10) divs 101–2. An example from the second decade is the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth) sch 1 item 47 (‘CTL Amendment (Foreign Fighters) Act’), inserting Crimes Act (n 13) s 3WA. In many cases, these laws are amending legislation, but they have been included in Category 1 (not Category 3) as they introduced substantive new powers and offences. Category 3 involves amendments to the laws first introduced through Categories 1 and 2.

[17] See, eg, National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) pt 3 (‘NSI Act’), which created new evidence procedures to assist in prosecutions for terrorism offences. An example from the second decade is the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Act 2018 (Cth) sch 4 item 4, inserting Foreign Evidence Act 1994 (Cth) s 27AA.

[18] This category captures additional amending legislation, provided that the later amendments were themselves directed towards threats of terrorism. See, eg, Aviation Transport Security Amendment (Additional Screening Measures) Act 2007 (Cth) sch 1 item 5, inserting Aviation Transport Security Act 2004 (Cth) s 95C (‘ATS Act’). An example from the second decade is the Transport Security Legislation Amendment Act 2017 (Cth) sch 1 item 2, amending ATS Act

(n 18) s 41(1).

[19] This captures a small number of transitional and consequential amendment Acts needed to implement some of these laws. See, eg, Anti-Money Laundering and Counter-Terrorism Financing (Transitional Provisions and Consequential Amendments) Act 2006 (Cth), which was enacted alongside the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (‘AML/CTF Act 2006’). An example from the second decade is the Office of National Intelligence (Consequential and Transitional Provisions) Act 2018 (Cth), which was enacted alongside the Office of National Intelligence Act 2018 (Cth).

[20] Statutes amended by Australia’s counterterrorism laws include the Criminal Code (n 10), Customs Act 1901 (Cth) (‘Customs Act’) and ASIO Act (n 13).

[21] This rule was applied strictly even if legislation on these related topics amended counterterrorism laws already included in the list. Examples of laws excluded from the count of Australia’s counterterrorism laws include the Telecommunications (Interception) Amendment (Stored Communications) Act 2004 (Cth), Aviation Transport Security Amendment Act 2006 (Cth), Customs Legislation Amendment (Border Compliance and Other Measures) Act 2007 (Cth) and Non-Proliferation Legislation Amendment Act 2007 (Cth). An example from the second decade is the Telecommunications and Other Legislation Amendment Act 2017 (Cth).

[22] An example from the first decade is the Terrorism (Police Powers) Act 2002 (NSW). An example from the second decade is the Terrorism (High Risk Offenders) Act 2017 (NSW).

[23] Williams, ‘First Decade’ (n 3) 1144–5. See also Keiran Hardy and George Williams, ‘Strategies for Countering Terrorism: An Australian Perspective’ in Genevieve Lennon, Colin King and Carole McCartney (eds), Counter-Terrorism, Constitutionalism and Miscarriages of Justice: A Festschrift for Professor Clive Walker (Hart Publishing, 2018) 63, 67.

[24] See generally Roach (n 5) ch 6.

[25] Independent National Security Legislation Monitor Act 2010 (Cth) ss 56 (‘INSLM Act’). See also Dennis Richardson, Comprehensive Review of the Legal Framework of the National Intelligence Community (Report, December 2019) vol 1, 91 [5.19].

[26] INSLM Act (n 25) s 6(1)(b). The office is based on the United Kingdom’s Independent Reviewer of Terrorism Legislation: see Jessie Blackbourn, ‘Independent Reviewers as Alternative: An Empirical Study from Australia and the United Kingdom’ in Fergal F Davis and Fiona de Londras (eds), Critical Debates on Counter-Terrorism Judicial Review (Cambridge University Press, 2014) 161, 167 (‘Independent Reviewers as Alternative’). Other developments by Labor governments include the placing of a seven day limit on the amount of ‘dead time’ that can be excluded from pre-charge detention: Crimes Act (n 13) s 23DB(11), as inserted by National Security Legislation Amendment Act 2010 (Cth) sch 3 item 16 (‘NSL Amendment Act 2010’). See also Commonwealth, Parliamentary Debates, House of Representatives, 30 September 2010, 274 (Robert McClelland, Attorney-General).

[27] Criminal Code (n 10) s 100.1(1) (definition of ‘terrorist act’).

[28] Ibid s 100.1(2).

[29] Ibid s 100.1(3).

[30] Williams, ‘First Decade’ (n 3) 1170. See also below Figure 1.

[31] See, eg, Terrorism Act 2000 (UK) s 1; Prevention of Terrorism Act 2005 (UK) s 1; Terrorism Act 2006 (UK) s 36. See also Roach (n 5) 309, 318–20, 322; Williams, ‘First Decade’ (n 3) 1171–2; Jessie Blackbourn, ‘The Independent National Security Legislation Monitor’s First Term: An Appraisal’ [2016] UNSWLawJl 35; (2016) 39(3) University of New South Wales Law Journal 975, 979, 997.

[32] See Williams, ‘First Decade’ (n 3) 1171–2.

[33] ASIO Act (n 13) s 34F, as inserted by Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth) sch 1 item 24 (‘ASIO Amendment (Terrorism) Act’).

[34] Criminal Code (n 10) div 105.

[35] Ibid s 101.1.

[36] Ibid ss 101.2–101.6.

[37] Ibid ss 102.2–102.8.

[38] ASIO Act (n 13) pt 3 div 3 sub-div B, as inserted by ASIO Amendment (Terrorism) Act (n 33) sch 1 item 24. ASIO’s detention power has since been repealed, but its questioning powers remain: ASIO Act (n 13) pt 3 div 3, as amended by Australian Security Intelligence Organisation Amendment Act 2020 (Cth) sch 1 item 10 (‘ASIO Amendment Act 2020’).

[39] ASIO Act (n 13) s 34C(3)(a), as inserted by ASIO Amendment (Terrorism) Act (n 33) sch 1

item 24.

[40] Criminal Code (n 10) div 104.

[41] Ibid div 105. See, eg, Terrorism (Police Powers) Act 2002 (NSW) s 26K(2).

[42] NSI Act (n 17) ss 26, 29.

[43] Crimes Act (n 13) ss 23DB(5), (11), 23DF(7), as inserted by Anti-Terrorism Act 2004 (Cth)

sch 1 items 5–6, and later amended by NSL Amendment Act 2010 (n 26) sch 3 item 15.

[44] Crimes Act (n 13) ss 15AA(1)–(2).

[45] Telecommunications (Interception and Access) Act 1979 (Cth) s 46(1)(d)(ii) (‘Telecommunications Act 1979’). See also David Hume and George Williams, ‘Who’s Listening? Intercepting the Telephone Calls, Emails and SMS’s of Innocent People’ [2006] AltLawJl 50; (2006) 31(4) Alternative Law Journal 211, 212–13.

[46] Crimes Act (n 13) s 3UEA(1)(a).

[47] Criminal Code (n 10) ss 80.2–80.2B.

[48] See, eg, Customs Act (n 20) s 193, as amended by Border Security Legislation Amendment Act 2002 (Cth) sch 3 item 1 (‘BSL Amendment Act’); Maritime Transport and Offshore Facilities Security Act 2003 (Cth) pt 8; ATS Act (n 18); AML/CTF Act 2006 (n 19) pt 13 div 3.

[49] See above nn 1–2 and accompanying text.

[50] ASIO Amendment Act 2020 (n 38) sch 1 item 10, repealing ASIO Act (n 13) pt III div 3.

[51] ASIO Act (n 13) s 34BB(1)(a), as inserted by ASIO Amendment Act 2020 (n 38) sch 1 item 10.

[52] Williams, ‘First Decade’ (n 3) 1160–75.

[53] Ibid 1161–3.

[54] SC Res 1373, UN Doc S/RES/1373 (28 September 2001) 2–3. See also ibid 1162.

[55] Williams, ‘First Decade’ (n 3) 1163–9.

[56] Commonwealth, Parliamentary Debates, House of Representatives, 13 March 2002, 1193, 1208–9. The pieces of legislation passed were the BSL Amendment Act (n 48); Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 (Cth); Security Legislation Amendment Act (n 16); Suppression of the Financing of Terrorism Act 2002 (Cth); Telecommunications Interception Legislation Amendment Act 2002 (Cth).

[57] Williams, ‘First Decade’ (n 3) 1169–72.

[58] Ibid.

[59] Ibid 1172–5.

[60] Keiran Hardy, Rebecca Ananian-Welsh and Nicola McGarrity, Open Democracy Dossier: Secrecy and Power in Australia’s National Security State (Report, September 2021) 33 (‘Open Democracy Dossier’).

[61] Roach (n 5) 310.

[62] For example, restrictions on adducing foreign evidence in terrorism-related proceedings may have hampered the prosecution of foreign fighters: Hardy and Williams, ‘Foreign Fighters’

(n 7) 200.

[63] See, eg, Australian Citizenship Act (n 10) s 33AA, as inserted by Australian Citizenship Amendment (Allegiance to Australia) Act (n 10) sch 1 item 3; Telecommunications Act 1979 (n 45)

s 187C(1).

[64] See, eg, Explanatory Memorandum, Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth) 2 [1]–[2]; Explanatory Memorandum, Counter-Terrorism Legislation Amendment Bill (No 1) 2014 (Cth) 1 [2]–[3], [5]; Explanatory Memorandum, Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth) 1.

[65] Hardy and Williams, ‘Foreign Fighters’ (n 7) 204–5.

[66] See, eg, National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) sch 1 item 17 (‘NSL Amendment (Espionage and Foreign Interference) Act’), inserting Criminal Code (n 10) divs 91–2; Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth) sch 1 item 1 (‘Criminal Code Amendment (Abhorrent Material) Act’), inserting Criminal Code (n 10) div 474 sub-div H; FIL Amendment Act (n 8) sch 2 items 1–2, amending ASIO Act (n 13) s 27A.

[67] For a complete list of these laws, see below Appendix A.

[68] See ‘The Rise and Fall of the Islamic State Group: The Long and Short Story’, BBC News (online, 23 March 2019) <https://www.bbc.com/news/world-middle-east-47210891>, archived at <https://perma.cc/M78E-KZE2>.

[69] See Hardy and Williams, ‘Foreign Fighters’ (n 7) 205.

[70] This figure has been calculated by adding together the number of pages contained in the PDF documents of every counterterrorism law listed in Appendix A below.

[71] These figures have been calculated based on the following method. Using the Parliament of Australia website, a Bill homepage was identified for every counterterrorism law

listed in Appendix A below: ‘Bills and Legislation’, Parliament of Australia

(Web Page) <https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation>, archived at <https://perma.cc/YN6S-F4A7>. The total number of days each Bill spent in each

House of Parliament was calculated by adding the number of days between the

first, second and third readings. The date of royal assent was not counted. For

example, the Telecommunications (Interception and Access) Amendment

(Data Retention) Bill 2015 (Cth) was introduced into the House of Representatives on 30 October 2014. It had its second and third readings across 17, 18 and 19 March 2015, giving four days total in the House of Representatives: ‘Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015’, Parliament of Australia (Web Page) <https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5375>, archived at <https://perma.cc/Y5R8-4CTV>. It progressed through the Senate on 24, 25 and 26 March, giving three days in the Senate. This process was continued for all 92 laws so that the mean number of days could be determined for each House of Parliament.

[72] See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 10 December 2020, 11267–84; Commonwealth, Parliamentary Debates, Senate, 10 December 2020, 7441–56.

[73] See, eg, Hardy and Williams, ‘Foreign Fighters’ (n 7) 200–11; Keiran Hardy, ‘Australia’s Encryption Laws: Practical Need or Political Strategy?’ (2020) 9(3) Internet Policy Review 1–16, 3–5 (‘Encryption Laws’); Nicola McGarrity and Keiran Hardy, ‘Digital Surveillance and Access to Encrypted Communications in Australia’ (2020) 49(3– 4) Common Law World Review 160, 163–71 (‘Digital Surveillance’); Sarah Kendall, ‘Australia’s New Espionage Laws: Another Case of Hyper-Legislation and Over-Criminalisation’ [2019] UQLawJl 6; (2019) 38(1) University of Queensland Law Journal 125, 142–56 (‘Australia’s New Espionage Laws’).

[74] ASIO Act (n 13) s 4 (definition of ‘special intelligence operation’), as inserted by National Security Legislation Amendment Act (No 1) 2014 (Cth) sch 3 item 1 (‘NSL Amendment Act 2014’); ASIO Act (n 13) pt 3 div 4, as inserted by NSL Amendment Act 2014 (n 74) sch 3 item 3.

[75] ASIO Act (n 13) s 35K. See also Hardy and Williams, ‘Press Freedom’ (n 2) 233–4.

[76] ASIO Act (n 13) s 35K(1)(e).

[77] Ibid s 35P(1).

[78] Ibid s 35P(1B).

[79] Ibid ss 35P(2)–(2A).

[80] Intelligence Services Act 2001 (Cth) s 39(1) (‘Intelligence Services Act’), as amended by NSL Amendment Act 2014 (n 74) sch 6 item 10; Intelligence Services Act (n 80) s 39A(1), as amended by NSL Amendment Act 2014 (n 74) sch 6 item 13; Intelligence Services Act (n 80) s 40(1), as amended by NSL Amendment Act 2014 (n 74) sch 6 item 16; Intelligence Services Act (n 80)

ss 40A–40M, as inserted by NSL Amendment Act 2014 (n 74) sch 6 item 18; Intelligence Services Act (n 80) s 41(1), as amended by NSL Amendment Act 2014 (n 74) sch 6 item 19A.

[81] Intelligence Services Act (n 80) ss 39–40B.

[82] Ibid ss 40C–40M.

[83] Criminal Code (n 10) pt 5.5, as inserted by CTL Amendment (Foreign Fighters) Act (n 16) sch 1 item 110; CTL Amendment (Foreign Fighters) Act (n 16) sch 1 item 144, repealing Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth).

[84] Criminal Code (n 10) ss 119.1, 119.4.

[85] See generally Law Council of Australia, Submission No 2 to Parliamentary Joint Committee on Intelligence and Security, Review of Declared Area Provisions (25 August 2020).

[86] Criminal Code (n 10) ss 119.2(1)–(5), 119.3(1)–(2A).

[87] Ibid ss 119.2(3)(a), (f)–(g).

[88] Ibid s 80.2C.

[89] Ibid s 80.2C(3) (definition of ‘advocates’).

[90] Ibid ss 102.1(1A)–(2).

[91] Ibid s 104.1(1)(c)(i), as inserted by Anti-Terrorism Act (No 2) 2005 (Cth) sch 4 item 24 (‘Anti-Terrorism Act (No 2) 2005’). The same grounds allow a senior Australian Federal Police (‘AFP’) member to apply for the order after seeking the Attorney-General’s consent: Criminal Code

(n 10) s 104.2.

[92] Criminal Code (n 10) ss 104.4(1)(c)(ii)–(v), as inserted by CTL Amendment (Foreign Fighters) Act (n 16) sch 1 item 73; Criminal Code (n 10) ss 104.4(1)(c)(vi)–(vii), as inserted by Counter-Terrorism Legislation Amendment Act (No 1) 2014 (Cth) sch 1 item 11 (‘CTL

Amendment Act 2014’).

[93] Criminal Code (n 10) s 104.4(1)(d). The three purposes of the regime are protecting the public from a terrorist act, preventing the support or facilitation of terrorism, or preventing the support or facilitation of hostile activity overseas: ss 104.4(1)(d)(i)–(iii).

[94] Ibid s 104.28(1), as amended by Counter-Terrorism Legislation Amendment Act (No 1)

2016 (Cth) sch 2 items 29–30 (‘CTL Amendment Act 2016’).

[95] See, eg, Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 3(1).

[96] Criminal Code (n 10) s 104.4(2)(b).

[97] Ibid s 104.4(2)(a), referring to s 104.1.

[98] Telecommunications Act 1979 (n 45) ss 187A–187C, as inserted by Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth) sch 1 item 1 (‘Telecommunications Amendment (Data Retention) Act’).

[99] Telecommunications Act 1979 (n 45) s 187AA(1), as inserted by Telecommunications Amendment (Data Retention) Act (n 98) sch 1 item 1.

[100] Telecommunications Act 1979 (n 45) ss 174–80.

[101] Ibid ss 178–80.

[102] Australian Citizenship Act (n 10) s 33AA, as inserted by Australian Citizenship Amendment (Allegiance to Australia) Act (n 10) sch 1 item 3; Australian Citizenship Act (n 10) s 35, as inserted by Australian Citizenship Amendment (Allegiance to Australia) Act (n 10) sch 1 item 4; Australian Citizenship Act (n 10) s 35A, as inserted by Australian Citizenship Amendment (Allegiance to Australia) Act (n 10) sch 1 item 5.

[103] See, eg, Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (Cth) sch 1

items 7–8 (‘Australian Citizenship Amendment (Cessation) Act’), repealing Australian Citizenship Act (n 10) ss 33AA, 35–35B; Australian Citizenship Amendment (Cessation) Act (n 103) sch 1 item 9, inserting Australian Citizenship Act (n 10) pt 2 div 3 sub-div C.

[104] Australian Citizenship Act (n 10) s 36B. Recognising the significant impact of the citizenship loss provisions, in Alexander v Minister for Home Affairs [2022] HCA 19; (2022) 401 ALR 438, a majority of the High Court held that s 36B was invalid on the basis that it gave the Minister exclusively judicial power that could be characterised as punitive: at 460–1 [96]–[97] (Kiefel CJ, Keane and Gleeson JJ, Gageler J agreeing at 461 [98]), 480–1 [173]–[175] (Gordon J), 500 [247], 502 [253]–[254] (Edelman J).

[105] Australian Citizenship Act (n 10) s 36D.

[106] Ibid ss 36B(1)(b)–(c), 36D(1)(c)–(d).

[107] Criminal Code (n 10) div 105A, as inserted by Criminal Code Amendment (High Risk Terrorist Offenders) Act (n 10) sch 1 item 1.

[108] Criminal Code (n 10) ss 105A.5(1)(a), 105A.7(1).

[109] Ibid s 105A.7(5).

[110] Ibid s 105A.7(1)(b).

[111] Ibid s 105A.7(1)(c).

[112] Ibid s 105A.7(6).

[113] Telecommunications Act 1997 (Cth) pt 15 (‘Telecommunications Act 1997’), as inserted by Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth)

sch 1 item 7 (‘Telecommunications Amendment (Assistance and Access) Act’). See Explanatory Memorandum, Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (Cth) 2–3 [3]–[7]; Rachel Olding, ‘Telegram: The Secret “App of

Choice” for Terrorists’, The Sydney Morning Herald (online, 5 June 2017) <https://www.smh.com.au/technology/telegram-the-secret-app-of-choice-for-terrorists-20170605-gwkjl3.html>, archived at <https://perma.cc/44MZ-URNL>; Hardy, ‘Encryption Laws’ (n 73) 2, citing Ariel Bogle, ‘“Outlandish” Encryption Laws Leave Australian

Tech Industry Angry and Confused’, ABC News (online, 7 December 2018) <https://www.abc.net.au/news/science/2018-12-07/encryption-bill-australian-technology-industry-fuming-mad/10589962>, archived at <https://perma.cc/5LFF-2P4B>.

[114] See Telecommunications Act 1997 (n 113) s 317C.

[115] Ibid s 317G.

[116] Ibid s 317L.

[117] See ibid s 317T.

[118] Ibid ss 317E(1)(a), (h)–(i).

[119] Ibid s 317ZG(1)(a).

[120] Ibid ss 317ZA317ZC.

[121] Ibid s 317ZF(1).

[122] Criminal Code (n 10) 90.1(1), as inserted by NSL Amendment (Espionage and Foreign Interference) Act (n 66) sch 1 items 10, 12; Criminal Code (n 10) ss 90.2–90.6, as inserted by NSL Amendment (Espionage and Foreign Interference) Act (n 66) sch 1 item 16; Criminal Code

(n 10) divs 91–92A, as inserted by NSL Amendment (Espionage and Foreign Interference) Act (n 66) sch 1 item 17. See also Kendall, ‘Australia’s New Espionage Laws’ (n 73) 126.

[123] Criminal Code (n 10) ss 90.1(1) (definition of ‘foreign principal’), 90.2, 91.1.

[124] Ibid s 90.1(1) (definition of ‘deal’ paras (a), (c)–(e)).

[125] Ibid ss 90.1(1) (definition of ‘national security’), 90.4(1)(e).

[126] Ibid s 91.1(2).

[127] Ibid s 91.12(1).

[128] Counter-Terrorism (Temporary Exclusion Orders) Act 2019 (Cth) ss 10(1)–(2).

[129] Ibid ss 10(1)(b)–(c).

[130] Ibid s 8.

[131] Ibid ss 10(6)(d), (7).

[132] Criminal Code (n 10) ss 474.30 (definitions of ‘abhorrent violent conduct’ and ‘abhorrent violent material’), 474.31(1), 474.32(1).

[133] Ibid ss 474.33(1)–(2), 474.34(1)–(2), (5)–(6).

[134] Hardy and Williams, ‘Foreign Fighters’ (n 7) 196, quoting Latika Bourke and Lisa Cox,

‘Terror Risk High: Tony Abbott Announces Increase in National Terrorism Public

Alert System’, The Sydney Morning Herald (online, 12 September 2014) <https://www.smh.com.au/politics/federal/terror-risk-high-tony-abbott-announces-increase-in-national-terrorism-public-alert-system-20140912-10g1mz.html>, archived at <https://perma.cc/UBP9-69X7>. The threat level was changed to ‘probable’ following an update to the National Terrorism Threat Advisory System on 26 November 2015 which introduced a five-tier system: George Brandis and Michael Keenan, ‘New National Terrorism Threat Advisory System’ (Press Release, 26 November 2015).

[135] Australian Federal Police, Submission No 2 to Parliamentary Joint Committee on Intelligence and Security, Inquiry into AFP Powers (August 2020) 3 [6] (‘Submission No 2’).

[136] R v Khan [No 11] [2019] NSWSC 594, [117] (Bellew J); R v Shoma [2019] VSC 367, [109] (Taylor J).

[137] R v Alou [No 4] [2018] NSWSC 221; (2018) 330 FLR 402, 403 [1], [4] (Johnson J); R v Atai [No 2] [2018] NSWSC 1797, [1]–[2], [220], [227] (Johnson J). See also R v Alameddine [No 3] (2018) 333 FLR 81, 82–3 [1]–[2], [5] (Johnson J). One other man associated with that attack, Mustafa Dirani, pleaded not guilty and was convicted of conspiracy to prepare a terrorist act, receiving a sentence of 28 years’ imprisonment: R v Dirani [No 34] [2019] NSWSC 1005, [2], [290] (Johnson J). In August 2021, his conviction was quashed on appeal and a retrial ordered: Josh Bavas, ‘Man Jailed for 28 Years over Curtis Cheng Shooting Has Conviction Quashed’, ABC News (online, 27 August 2021) <https://www.abc.net.au/news/2021-08-27/mustafa-dirani-wins-appeal-over-curtis-cheng-death-conviction/100413692>, archived at <https://perma.cc/4ZPX-TWLD>.

[138] See, eg, R v Benbrika [2009] VSC 21; (2009) 222 FLR 433, 434 [3] (Bongiorno J); R v Elomar [2010] NSWSC 10; (2010) 264 ALR 759, 760 [1] (Whealy J) (‘Elomar (Sentencing)’).

[139] [2017] VSCA 157; (2017) 52 VR 272 (‘DPP v M H K’).

[140] Ibid 286 [48] (Warren CJ, Weinberg and Kaye JJA).

[141] (2006) 199 FLR 364, 373 [51] (Whealy J) (‘R v Lodhi’).

[142] Elomar (Sentencing) (n 138) 779 [79] (Whealy J). See also DPP (Cth) v Fattal [2013] VSCA 276, [165] (Buchanan AP, Nettle and Tate JJA), quoting ibid 374 [52].

[143] See Lucia Zedner, ‘Preventive Justice or Pre-Punishment? The Case of Control Orders’ (2007) 60(1) Current Legal Problems 174, 187–92; Jude McCulloch and Sharon Pickering, ‘Pre-Crime and Counter-Terrorism: Imagining Future Crime in the “War on Terror”’ (2009) 49(5) British Journal of Criminology 628, 639–40.

[144] See, eg, DPP v M H K (n 139) 273 [1] (Warren CJ, Weinberg and Kaye JJA); Elomar (Sentencing) (n 138) 760 [1] (Whealy J).

[145] See, eg, R v Lodhi (n 141) 372–3 [46]–[49] (Whealy J); Elomar (Sentencing) (n 138) 773–4 [56], 774–5 [60], 776 [65] (Whealy J).

[146] See, eg, Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303, 318 [65] (Spigelman CJ, McClellan CJ at CL agreeing at 324 [96], Sully J agreeing at 327 [111]); Elomar (Sentencing) (n 138) 774 [58] (Whealy J).

[147] [2019] VSC 775, [1], [3], [5] (Beale J).

[148] R v Abbas [2019] VSC 855, [17], [19] (Beale J) (‘Abbas (Rulings)’).

[149] Ibid [30].

[150] Ibid [35], [37].

[151] [2014] NSWCCA 303; (2014) 316 ALR 206.

[152] [2010] VSCA 281; (2010) 29 VR 593.

[153] Abbas (Rulings) (n 148) [62] (Beale J).

[154] Ibid.

[155] [2018] NSWSC 891, [78] (Johnson J).

[156] DPP v M H K (n 139) 273–4 [2] (Warren CJ, Weinberg and Kaye JJA).

[157] Ibid 277–8 [16]–[20].

[158] Ibid 277 [16].

[159] Ibid 273 [1].

[160] Ibid 277 [17], 278 [20].

[161] Ibid 294 [75].

[162] Ibid 294 [73]. See also R v Lodhi (n 141) 376 [66], 380–1 [91]–[92] (Whealy J); Elomar (Sentencing) (n 138) 779 [77] (Whealy J).

[163] DPP v M H K (n 139) 292 [67] (Warren CJ, Weinberg and Kaye JJA).

[164] Ibid 288 [55].

[165] See, eg, Sam Mullins, ‘Rehabilitation of Islamist Terrorists: Lessons from Criminology’ (2010) 3(3) Dynamics of Asymmetric Conflict 162, 162–3; Bart Schuurman and Edwin Bakker, ‘Reintegrating Jihadist Extremists: Evaluating a Dutch Initiative, 2013–2014’ (2016) 8(1) Behavioral Sciences of Terrorism and Political Aggression 66, 67; Adrian Cherney, ‘The Release and Community Supervision of Radicalised Offenders: Issues and Challenges That Can Influence Reintegration’ (2021) 33(1) Terrorism and Political Violence 119, 126, 133–4.

[166] [2021] HCA 4; (2021) 388 ALR 1 (‘Benbrika (HCA)’).

[167] Ibid 20 [53] (Kiefel CJ, Bell, Keane and Steward JJ), 74 [239] (Edelman J). The continuing detention order regime is contained in div 105A of the Criminal Code (n 10).

[168] Benbrika (HCA) (n 166) 3–4 [3]–[4] (Kiefel CJ, Bell, Keane and Steward JJ).

[169] Minister for Home Affairs v Benbrika [2020] VSC 888, [1], [478]–[480] (Tinney J). See also

ibid 4 [4].

[170] Benbrika (HCA) (n 166) 8–9 [15] (Kiefel CJ, Bell, Keane and Steward JJ).

[171] For the majority decisions, see ibid 20 [53] (Kiefel CJ, Bell, Keane and Steward JJ), 74 [239] (Edelman J). For the minority, see at 32 [102] (Gageler J), 33 [109] (Gordon J).

[172] Ibid 14 [36], 15 [39].

[173] Ibid 53 [182], 72 [234].

[174] Criminal Code (n 10) s 105A.3A.

[175] Benbrika (HCA) (n 166) 30 [92]–[93] (Gageler J), 50 [168]–[169] (Gordon J).

[176] Intelligence Services Act (n 80) s 29(1)(a).

[177] See ‘Reviews and Reports’, Australian Government Independent National Security

Legislation Monitor (Web Page) <https://www.inslm.gov.au/reviews-reports>, archived at <https://perma.cc/A3WY-Y34H>.

[178] For more detail on the effectiveness of counterterrorism review bodies, see generally Jessie Blackbourn, ‘The Independent National Security Legislation Monitor’s First Term: An Appraisal’ [2016] UNSWLawJl 35; (2016) 39(3) University of New South Wales Law Journal 975; Jessie Blackbourn, Fiona de Londras and Lydia Morgan, Accountability and Review in the Counter-Terrorist State (Bristol University Press, 2020).

[179] Council of Australian Governments, Council of Australian Governments Review of Counter-Terrorism Legislation (Final Report, 1 March 2013) viii (‘COAG Review’).

[180] Bret Walker, Declassified Annual Report (Report, 20 December 2012) (‘INSLM 2012’).

[181] Ibid 4–5. See also COAG Review (n 179) 28 [108], 54 [215].

[182] INSLM 2012 (n 180) 67; COAG Review (n 179) 68.

[183] COAG Review (n 179) 68.

[184] INSLM 2012 (n 180) 4.

[185] Ibid 44, 106.

[186] Ibid 4.

[187] See ibid 2, 105, 131.

[188] COAG Review (n 179) 68–70 [266], [269]–[273]; INSLM 2012 (n 180) 56–7.

[189] Williams, ‘Legal Legacy’ (n 4) 14–15.

[190] Bourke and Cox (n 134); Brandis and Keenan (n 134).

[191] See, eg, Telecommunications Act 1979 (n 45) s 187C(1); Australian Citizenship Act (n 10)

s 33AA, as inserted by Australian Citizenship Amendment (Allegience to Australia) Act (n 10) sch 1 item 3.

[192] Criminal Code (n 10) ss 104.2(2)(c)–(d), as inserted by CTL Amendment Act 2014 (n 92) sch 1 item 7; Criminal Code (n 10) s 104.28(1), as amended by CTL Amendment Act 2016 (n 94)

sch 1 item 7.

[193] See, eg, Criminal Code (n 10) ss 105.53(1)–(2), as amended by CTL Amendment Act 2018

(n 13) sch 1 item 11; ASIO Act (n 13) s 34ZZ, as amended by CTL Amendment (Foreign Fighters) Act (n 16) sch 1 item 33, and later amended by ASIO Amendment (Sunsetting) Act (n 13) sch 1 item 1.

[194] ASIO Amendment Act 2020 (n 38) sch 1 item 10, repealing ASIO Act (n 13) pt III div 3.

[195] Explanatory Memorandum, Australian Security Intelligence Organisation Amendment Bill 2020 (Cth) 5 [11]; Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, ASIO’s Questioning and Detention Powers: Review of the Operation, Effectiveness and Implications of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (Parliamentary Paper No 148, March 2018) 41 [2.68] (‘PJCIS Review of ASIO’s Questioning and Detention Powers’).

[196] INSLM 2012 (n 180) 106.

[197] See, eg, Parliamentary Joint Committee on ASIO, ASIS and DSD, Parliament of Australia, An Advisory Report on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Parliamentary Paper No 290, May 2002) 35 [3.25], 44 [3.58], 51 [3.82]; Jenny Hocking, Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy

(UNSW Press, 2004) 229–30. See also Security Legislation Review Committee, Report of the Security Legislation Review Committee (Report, June 2006) 22 [1.13].

[198] ASIO Act (n 13) pt III div 3 sub-div B, as inserted by ASIO Amendment (Terrorism) Act (n 33) sch 1 item 24, and later repealed by ASIO Amendment Act 2020 (n 38) sch 1 item 10.

[199] ASIO Act (n 13) s 34BB(1)(a), as amended by ASIO Amendment Act 2020 (n 38) sch 1 item 10.

[200] See William A Stolz, ‘Improving National Security Governance: Options for Strengthening Cabinet Control and Parliamentary Oversight’ (Policy Options Paper No 22, Australian National University National Security College, September 2021) 3–4.

[201] Roger Gyles, INSLM Annual Report 2015–2016 (Report, 5 October 2016) 14.

[202] Ibid.

[203] Grant Donaldson, Annual Report 2020–2021 (Report, 7 December 2021) 23–4 [90]

(‘INSLM Annual Report 2020–21’); Grant Donaldson, Annual Report 2019–2020 (Report, Australian Government, 21 October 2020) 23 [89]. Calls for a statutory provision requiring the government to respond to published reports were previously made by the third INSLM: James Renwick, Annual Report 2018–2019 (Report, 23 December 2019) x–xi; James Renwick, Annual Report 2017–2018 (Report, 18 December 2018) 12 [1.25].

[204] INSLM Annual Report 2020–21 (n 203) 24 [91].

[205] See Stolz (n 200) 3; Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Advisory Report on the Counter-Terrorism Legislation Amendment Bill (No 1) 2014 (Parliamentary Paper No 341, November 2014) 3 [1.11].

[206] Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Parliamentary Paper No 103, April 2019) 1–2 [1.4] (‘Encryption Laws Review 2019’); Peter Dutton, Submission No 89 to Parliamentary Joint Committee on Intelligence and Security, Review of the Telecommunications and Other Legislation Amendment (Assistance and Access)

Bill 2018 (22 November 2018) 2.

[207] Encryption Laws Review 2019 (n 206) 2 [1.8].

[208] Ibid 2 [1.6].

[209] See Hardy, ‘Encryption Laws’ (n 73) 6–7.

[210] See ibid 5–6.

[211] Justice and Security Act 2013 (UK) s 2(1); ‘About the Committee’, US Senate Select Committee on Intelligence (Web Page) <https://www.intelligence.senate.gov/about>, archived at <https://perma.cc/VX3E-ABRU>.

[212] National Security and Intelligence Review Agency Act, SC 2019, c 13, ss 3–4. See also s 8(1).

[213] See Stolz (n 200) 3–4.

[214] See Williams, ‘First Decade’ (n 3) 1163.

[215] See, eg, Telecommunications Amendment (Assistance and Access) Act (n 113). See also ibid.

[216] See Hardy, ‘Encryption Laws’ (n 73) 10; Williams, ‘First Decade’ (n 3) 1169–72.

[217] See Williams, ‘First Decade’ (n 3) 1174.

[218] See, eg, Criminal Code (n 10) s 105.41, as inserted by Anti-Terrorism Act (No 2) 2005 (n 91)

sch 4 item 24; ASIO Act (n 13) ss 34GF(1)–(2). Before the enactment of the ASIO Amendment Act 2020 (n 38), substantially the same provision was contained in the ASIO Act (n 13)

ss 34ZS(1)–(2), as inserted by ASIO Legislation Amendment Act 2006 (Cth) sch 1 item 1, and later repealed by ASIO Amendment Act 2020 (n 38) sch 1 item 10.

[219] See generally Rebecca Ananian-Welsh, Sarah Kendall and Richard Murray, ‘Risk and Uncertainty in Public Interest Journalism: The Impact of Espionage Law on Press Freedom’ [2021] MelbULawRw 1; (2021) 44(3) Melbourne University Law Review 764.

[220] See Hardy and Williams, ‘Foreign Fighters’ (n 7) 196.

[221] See, eg, ASIO Act (n 13) s 18(2), as amended by NSL Amendment Act 2014 (n 74) sch 6 item 1; Intelligence Services Act (n 80) s 39(1), as amended by NSL Amendment Act 2014 (n 74) sch 6 item 10; Intelligence Services Act (n 80) s 39A(1), as amended by NSL Amendment Act 2014

(n 74) sch 6 item 13; Intelligence Services Act (n 80) s 40(1), as amended by NSL Amendment Act 2014 (n 74) sch 6 item 16; Intelligence Services Act (n 80) ss 40A–40M, as inserted by NSL Amendment Act 2014 (n 74) sch 6 item 18; Intelligence Services Act (n 80) s 41(1), as amended by NSL Amendment Act 2014 (n 74) sch 6 item 19A. See also ibid 201–2.

[222] ASIO Act (n 13) s 4 (definition of ‘special intelligence operation’), as inserted by NSL Amendment Act 2014 (n 74) sch 3 item 1; ASIO Act (n 13) pt III div 4, as inserted by NSL

Amendment Act 2014 (n 74) sch 3 item 3.

[223] ASIO Act (n 13) s 35P(1), as inserted by NSL Amendment Act 2014 (n 74) sch 3 item 3.

[224] See Roger Gyles, Report on the Impact on Journalists of Section 35P of the ASIO Act (Report, October 2015) 12–13 [17]–[18] (‘INSLM Report on Section 35P’). See Hardy and Williams, ‘Special Intelligence Operations’ (n 1) 161; Ananian-Welsh, Kendall and Murray

(n 219) 788–9.

[225] See Hardy and Williams, ‘Special Intelligence Operations’ (n 1) 160, 162, quoting Media, Entertainment and Arts Alliance, ‘MEAA Says National Security Law an Outrageous Attack on Press Freedom in Australia’ (Media Release, 26 September 2014) <https://www.abc.net.au/mediawatch/transcripts/1436_meaa.pdf>, archived at <https://perma.cc/VZ3A-PMWD>.

[226] INSLM Report on Section 35P (n 224) 5.

[227] Ibid 3.

[228] Section 35P of the ASIO Act (n 13) now distinguishes between disclosures made by ‘entrusted persons’ and ‘[o]ther disclosures’. ‘[E]ntrusted person’ is defined to include intelligence officers and contractors: s 4 (definition of ‘entrusted person’).

[229] Ibid s 35P(2).

[230] Hardy and Williams, ‘Special Intelligence Operations’ (n 1) 163.

[231] See Keiran Hardy and George Williams, ‘Terrorist, Traitor, or Whistleblower? Offences and Protections in Australia for Disclosing National Security Information’ [2014] UNSWLawJl 29; (2014) 37(2) University of New South Wales Law Journal 784, 814–15, 819 (‘Terrorist, Traitor, or Whistleblower?’).

[232] See Telecommunications Act 1979 (n 45) ss 174–80, 187AA(1).

[233] See Madeleine Wall, ‘Data Retention and Its Implications for Journalists and Their Sources: A Way Forward’ (2018) 22(3) Media and Arts Law Review 315, 324.

[234] Telecommunications Act 1979 (n 45) pt 4-1 div 4C, as inserted by Telecommunications Amendment (Data Retention) Act (n 98) sch 1 item 6L. See also Revised Explanatory Memorandum, Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015

(Cth) 4 [17].

[235] Telecommunications Act 1979 (n 45) ss 180L(2)(b), 180T(2)(b).

[236] See Hardy and Williams, ‘Press Freedom’ (n 2) 236–7. In fact, disclosing information about the application for or granting of a warrant is an offence: ibid s 182A. For ASIO warrants, only the Attorney-General can revoke the warrant: s 180N. For enforcement agency warrants, only the chief officer of the enforcement agency or their delegate may do so: s 180W. ‘Public Interest Advocates’ appointed under s 180X(1) may make submissions with respect to the warrant:

s 180X(2); but there is no mechanism by which journalists can challenge, or be notified of,

the warrant.

[237] Telecommunications Act 1997 (n 113) ss 317G, 317L, 317T.

[238] Voluntary requests and ‘technical assistance’ notices can be issued by the head of the relevant agency: ibid ss 317G(1)(a)(i)–(iv), 317L(1); whereas the Attorney-General must approve a ‘technical capability notice’: s 317T(1). See also Hardy, ‘Encryption Laws’ (n 73) 4.

[239] Telecommunications Act 1997 (n 113) s 317ZF(1).

[240] Criminal Code (n 10) s 90.4(1)(e).

[241] Ibid s 90.1 (definition of ‘make available’).

[242] Lorna Knowles, Elise Worthington and Clare Blumer, ‘ABC Raid: AFP Leave Ultimo Building with Files after Hours-Long Raid over Afghan Files Stories’, ABC News (online, 5 June 2019) <https://www.abc.net.au/news/2019-06-05/abc-raided-by-australian-federal-police-afghan-files-stories/11181162>, archived at <https://perma.cc/A9BL-ELHX>.

[243] Damien Cave, ‘Australia May Well Be the World’s Most Secretive

Democracy’, The New York Times (online, 5 June 2019)

<https://www.nytimes.com/2019/06/05/world/australia/journalist-raids.html>, archived at <https://perma.cc/49RA-EKHH>.

[244] Josh Taylor, ‘Australian Federal Police Accessed Journalists’ Metadata

58 Times in a Year’, The Guardian (online, 9 July 2019) <https://www.theguardian.com/world/2019/jul/09/australian-federal-police-accessed-journalists-metadata-58-times-in-a-year>, archived at <https://perma.cc/K87S-WRCC>.

[245] Jordan Hayne, ‘AFP Will Not Lay Charges against Annika Smethurst over Publishing

of Classified Intelligence Documents’, ABC News (online, 27 May 2020) <https://www.abc.net.au/news/2020-05-27/afp-will-not-lay-charges-annika-smethurst-raid/12291238>, archived at <https://perma.cc/4E65-WVHZ>; Annika Smethurst, ‘Spying Shock: Shades of Big Brother as Cyber-Security Vision Comes to Light’, The Daily Telegraph (online, 29 April 2018) <https://www.dailytelegraph.com.au/news/nsw/spying-shock-shades-of-big-brother-as-cybersecurity-vision-comes-to-light/news-story/bc02f35f23fa104b139160906f2ae709>, archived at <https://perma.cc/36VQ-7U9G>. The search warrant was ultimately found to be invalid by the High Court: Smethurst v Commissioner of Police [2020] HCA 14; (2020) 376 ALR 575, 601 [109] (Kiefel CJ, Bell and Keane JJ), 610 [140] (Gageler J), 617 [163] (Nettle J), 627 [199] (Gordon J), 633 [225] (Edelman J).

[246] Sarah Basford Canales, ‘David McBride’s Prosecution Shows “Insidious” Side of National Security Debate: Professor Peter Greste’, The Canberra Times (online, 14 September 2021) <https://www.canberratimes.com.au/story/7429821/govt-pursuit-of-brereton-whistleblower-insidious-greste/>, archived at <https://perma.cc/TER2-5FPX>; ‘David McBride: 50 Years in Jail for Whistleblowing on the ADF’, PEN Melbourne (Web Page, 22 October 2021) <https://penmelbourne.org/david-mcbride-50-years-in-jail-for-whistleblowing-on-the-adf/>, archived at <https://perma.cc/85M4-YWUH>; Inspector-General of the Australian Defence Force, Afghanistan Inquiry Report (Report, 10 November 2020) 28–9 [15].

[247] See Kieran Pender, ‘Inside Bernard Collaery’s Trial’, The Saturday Paper (online,

4 December 2021) <https://www.thesaturdaypaper.com.au/opinion/topic/2021/12/04/inside-bernard-collaerys-trial/163853640013016>, archived at <https://perma.cc/W9PW-HMF5>. Following the change in government, Collaery’s prosecution was dropped after a decision by Attorney-General Mark Dreyfus: Paul Karp, ‘Prosecution of Whistleblower Lawyer Bernard Collaery Dropped after Decision by Attorney General’, The Guardian (online, 7 July 2022) <https://www.theguardian.com/australia-news/2022/jul/07/prosecution-of-whistleblower-lawyer-bernard-collaery-dropped-after-decision-by-attorney-general>, archived at <https://perma.cc/6G92-Q2DF>.

[248] Christopher Knaus, ‘Witness K and the “Outrageous” Spy Scandal That Failed To Shame Australia’, The Guardian (online, 10 August 2019) <https://www.theguardian.com/australia-news/2019/aug/10/witness-k-and-the-outrageous-spy-scandal-that-failed-to-shame-australia>, archived at <https://perma.cc/MU4S-G3CY>. See generally Bernard Collaery, Oil under Troubled Water: Australia’s Timor Sea Intrigue (Melbourne University Press, 2020).

[249] See, eg, Knaus (n 248).

[250] At the time of writing, Collaery’s trial continues in the Supreme Court of the Australian Capital Territory. Witness K had earlier pleaded guilty to the same charge of disclosing classified information under s 39(1) of the Intelligence Services Act (n 80): Elizabeth Byrne,

‘Former Australian Spy “Witness K” Pleads Guilty to Conspiring To Reveal

Classified Information’, ABC News (online, 17 June 2021) <https://www.abc.net.au/news/2021-06-17/witness-k-pleads-guilty-to-conspiring-to-reveal-classified-info/100223306>, archived at <https://perma.cc/NVE6-6WJU>.

[251] Hardy, Ananian-Welsh and McGarrity, Open Democracy Dossier (n 60) 19.

[252] See, eg, Elomar (Sentencing) (n 138); R v Lodhi (n 141).

[253] Steve Cannane, ‘Xanana Gusmao Offers To Give Evidence That Could Embarrass Australia in Witness K Trial’, ABC News (online, 26 August 2019) <https://www.abc.net.au/news/2019-08-26/xanana-gusmao-offers-to-give-evidence-in-witness-k-trial/11436286>, archived at <https://perma.cc/Q9DG-P9PL>.

[254] ‘Free Press “a Cornerstone” of Democratic Societies, UN Says’, UN News

(online, 3 May 2021) <https://news.un.org/en/story/2021/05/1091132>, archived

at <https://perma.cc/D76C-8PXU>.

[255] See Hardy and Williams, ‘Terrorist, Traitor, or Whistleblower?’ (n 231) 796, 801–2, 805–8.

[256] This could be achieved through a ‘Media Freedom Act’: see Alliance for Journalists’ Freedom, ‘Press Freedom in Australia’ (White Paper, May 2019) 7; Rebecca Ananian-Welsh, ‘Australia Needs a Media Freedom Act: Here’s How It Could Work’, The Conversation (online, 22 October 2019) <https://theconversation.com/australia-needs-a-media-freedom-act-heres-how-it-could-work-125315>, archived at <https://perma.cc/AE97-KZPB>.

[257] For further detail, see generally Hardy, ‘Encryption Laws’ (n 73).

[258] See ibid 2.

[259] Ry Crozier, ‘Govt Piles on Encryption Pressure in Final Week’, iTnews (online,

3 December 2018) <https://www.itnews.com.au/news/govt-piles-on-encryption-pressure-in-final-week-516411>, archived at <https://perma.cc/44Y7-475K>.

[260] Denham Sadler, ‘Labor Rejects Encryption Bill’, InnovationAus.com (online,

30 November 2018) <https://www.innovationaus.com/labor-rejects-encryption-bill/>, archived at <https://perma.cc/QJ9M-92QY>.

[261] Brett Worthington and Ariel Bogle, ‘Labor Backdown Allows Federal Government To Pass Controversial Encryption Laws’, ABC News (online, 6 December 2018) <https://www.abc.net.au/news/2018-12-06/labor-backdown-federal-government-to-pass-greater-surveillance/10591944>, archived at <https://perma.cc/75WX-6EZD>.

[262] See Encryption Laws Review 2019 (n 206) 1 [1.4]; Hardy, ‘Encryption Laws’ (n 73) 8; Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Advisory Report on the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (Parliamentary Paper No 604, December 2018) 1–2 [1.7] (‘Encryption Laws Advisory

Report 2018’).

[263] See above n 206 and accompanying text.

[264] Encryption Laws Advisory Report 2018 (n 262) 22.

[265] Ibid 22–3.

[266] See Hardy, Ananian-Welsh and McGarrity, Open Democracry Dossier (n 60) 39.

[267] See Paul Karp and Katharine Murphy, ‘Labor Passes Encryption Bill as Morrison Dodges Lower House Vote on Nauru’, The Guardian (online, 6 December 2018) <https://www.theguardian.com/australia-news/2018/dec/06/labor-passes-encryption-bill-as-morrison-dodges-lower-house-vote-on-nauru>, archived at <https://perma.cc/678T-S8G5>.

[268] Ibid.

[269] See ibid.

[270] See ibid.

[271] Worthington and Bogle (n 261).

[272] Chris Duckett, ‘Labor Says It Will Fix Encryption Laws It Voted for Last Year’, ZDNet (online, 2 December 2019) <https://www.zdnet.com/article/labor-says-it-will-fix-encryption-laws-it-voted-for-last-year/>, archived at <https://perma.cc/2K8K-JYQU>.

[273] See Lynch (n 7) 749–52, 768–9.

[274] See, eg, Hardy, ‘Encryption Laws’ (n 73) 7, 9.

[275] Crozier (n 259).

[276] See Rebecca Ananian-Welsh and George Williams, ‘The New Terrorists: The Normalisation and Spread of Anti-Terror Laws in Australia’ [2014] MelbULawRw 17; (2014) 38(2) Melbourne University Law Review 362, 376–80.

[277] Williams, ‘First Decade’ (n 3) 1153.

[278] Commonwealth, Parliamentary Debates, House of Representatives, 3 November 2005, 102 (Philip Ruddock).

[279] See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 30 October 2014, 12561 (Malcolm Turnbull, Minister for Communications) (‘Parliamentary Debates

(30 October 2014)’); Commonwealth, Parliamentary Debates, House of Representatives,

6 December 2018, 12801 (Christian Porter, Attorney-General) (‘Parliamentary Debates

(6 December 2018)’).

[280] Parliamentary Debates (30 October 2014) (n 279) 12561 (Malcolm Turnbull, Minister

for Communications).

[281] See above nn 98–103 and accompanying text.

[282] From July 2020 to June 2021, the majority of requests for metadata under s 178 of the Telecommunications Act 1979 (n 45) were for drug-related offences (68,511 requests), followed by fraud offences (28,964) and homicide offences (27,385): Department of Home Affairs (Cth), Telecommunications (Interception and Access) Act 1979: Annual Report 2020–21 (Report, 2021) 60. In comparison, 2,008 terrorism-related requests were granted during this period: at 61.

[283] Telecommunications Act 1979 (n 45) ss 177–80.

[284] Stephanie Anderson, ‘List of Agencies Applying for Metadata Access without Warrant Released by Government’, ABC News (online, 18 January 2016) <https://www.abc.net.au/news/2016-01-18/government-releases-list-of-agencies-applying-to-access-metadata/7095836>, archived at <https://perma.cc/K4LY-EPQZ>.

[285] Explanatory Memorandum, Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (Cth) 2–3 [3]–[7].

[286] Parliamentary Debates (6 December 2018) (n 279) 12801.

[287] See Telecommunications Act 1997 (n 113) ss 317C, 317G, 317L, 317T; Hardy, ‘Encryption Laws’ (n 73) 2–3.

[288] See, eg, Apple Inc, Submission No 53 to Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (2018) 3, 7; Digital Industry Group, Submission No 78 to Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (19 October 2018) 1–2, 4; Australian Information Industry Association, Submission No 39 to Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (3 October 2018) 1–2.

[289] Australian Federal Police, Submission No 2 (n 135) 3 [6].

[290] Ibid.

[291] See above nn 178203 and accompanying text.

[292] INSLM 2012 (n 180) 131–3; COAG Review (n 179) 97–8.

[293] INSLM 2012 (n 180) 67; COAG Review (n 179) 68.

[294] INSLM 2012 (n 180) 44, 106.

[295] Ibid 13, 45, 105.

[296] CTL Amendment Act 2014 (n 92) sch 1 item 7, inserting Criminal Code (n 10) ss 104.2(2)(c)–(d); CTL Amendment (Foreign Fighters) Act (n 16) sch 1 item 33, amending ASIO Act (n 13)

s 34ZZ; CTL Amendment (Foreign Fighters) Act (n 16) sch 1 items 86–7, amending

Criminal Code (n 10) ss 104.32(1)–(2); CTL Amendment (Foreign Fighters) Act (n 16) sch 1

items 107–8, amending Criminal Code (n 10) ss 105.53(1)–(2).

[297] See INSLM 2012 (n 180) 4–5.

[298] ASIO Amendment Act 2020 (n 38) sch 1 item 10, repealing ASIO Act (n 13) pt III div 3; PJCIS Review of ASIO’s Questioning and Detention Powers (n 195) 39 [2.58], 40 [2.62].

[299] Australian Federal Police, Submission No 2 (n 135) 9 [44].

[300] Australian Federal Police, Submission No 20 to Parliamentary Joint Committee on Intelligence and Security, Review of the Australian Citizenship Renunciation by Conduct and Cessation Provisions (August 2019) 5 (‘Submission No 20’); Paul Karp, ‘Dutton’s Citizenship-Stripping Laws May Increase Risk of Terrorism, ASIO Warns’, The Guardian (online, 16 September 2019) <https://www.theguardian.com/australia-news/2019/sep/16/duttons-citizenship-stripping-laws-may-increase-risk-of-terrorism-asio-warns>, archived at <https://perma.cc/S569-VG83>. See generally Sangeetha Pillai and George Williams, ‘The Utility of

Citizenship Stripping Laws in the UK, Canada and Australia’ (2017) 41(2)

Melbourne University Law Review 845.

[301] Australian Federal Police, Submission No 20 (n 300) 5.

[302] Ibid 5–6.

[303] Ibid 6.

[304] See Karp (n 300).

[305] Ibid.

[306] Commonwealth, Parliamentary Debates, House of Representatives, 24 June 2015, 7369

(Peter Dutton, Minister for Immigration and Border Protection).

[307] See Adrian Cherney and Kristina Murphy, ‘Being a “Suspect Community” in a Post 9/11 World: The Impact of the War on Terror on Muslim Communities in Australia’ (2016) 49(4) Australian and New Zealand Journal of Criminology 480, 491; Kristina Murphy, Adrian Cherney and Marcus Teston, ‘Promoting Muslims’ Willingness To Report Terror Threats to Police: Testing Competing Theories of Procedural Justice’ (2019) 36(4) Justice Quarterly 594, 595, 610–11; Adrian Cherney and Kristina Murphy, ‘Police and Community Cooperation in Counterterrorism: Evidence and Insights from Australia’ (2017) 40(12) Studies in Conflict and Terrorism 1023, 1025–8.

[308] See Clive Walker, ‘Militant Speech about Terrorism in a Smart Militant Democracy’ (2011) 80(4) Mississippi Law Journal 1395, 1443; Martin Innes, ‘Policing Uncertainty: Countering Terror through Community Intelligence and Democratic Policing’ (2006) 605(1) ANNALS of the American Academy of Political and Social Sciences 222, 230, 232–3, 236, 239; Basia Spalek, ‘Community Policing, Trust, and Muslim Communities in Relation to “New Terrorism”’ (2010) 38(4) Politics and Policy 789, 796.

[309] See Eric Rosand, Communities First: A Blueprint for Organizing and Sustaining a Global Movement against Violent Extremism (Report, December 2016) 1, 6–7; Sharon Pickering, Jude McCulloch and David Wright-Neville, ‘Counter-Terrorism Policing: Towards Social Cohesion’ (2008) 50(1– 2) Crime, Law and Social Change 91, 106–8; Anne Aly, Anne-Marie Balbi and Carmen Jacques, ‘Rethinking Countering Violent Extremism: Implementing the Role of Civil Society’ (2015) 10(1) Journal of Policing, Intelligence and Counter Terrorism 3, 5–6, 8–9.

[310] See below Appendix A.

[311] See generally Charter of the United Nations Amendment Act 2021 (Cth); Crimes Amendment (Remissions of Sentences) Act 2021 (Cth); Independent National Security Legislation Monitor Amendment Act 2021 (Cth); Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2021 (Cth).

[312] See above n 165.

[313] A holistic review was recently undertaken into the legislation governing Australia’s intelligence agencies, but this did not examine specific legal powers such as metadata retention or the encryption laws: see generally Richardson (n 25). Nor did it examine Australia’s main terrorism offences and powers.

[314] See McGarrity and Hardy, ‘Digital Surveillance’ (n 73) 161–2; Australian Federal Police, Submission No 2 (n 135) 4 [8].


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