Law in Order: Making Sense of Australian Counter-terrorism Legislation

1. Law in Order: Making Sense of Australian Counter-terrorism Legislation Janet Ransley and Susan Donkin School of Criminology & Criminal Justice, Griffith University ARC Centre of Excellence in Policing and Security

2. A work in progress Background What do we know about CT legal and policy frameworks? Developing a conceptual framework for analysis Next steps Overview

3. Australian terrorism pre 9/11? 1868 attempt to assassinate Duke of Edinburgh 1915 attack by 2 Afghans on Broken Hill train 1970-80s Serb/Croat bombings & training camps 1979 Hilton Hotel bombing & 1980s Family Court bombings GTD – 80 incidents recorded for Aust from 1970-1997 But no national terrorism laws or offences Legal responses – mainstream criminal law & processes Executive responses Investigative – police & CJ agencies to gather evidence – AFP formed 1979 Security – ASIO & other agencies to gather intelligence Immigration – to keep out/expel alien trouble-makers Policy responses – ad hoc & responsive National Anti-Terrorism Plan 1980, National Security Committee formed 1996 Background

4. Post 9/11 legislative hyperactivity rush to provide solutions to address public fears transnationalism of terrorism leading to new anti-terrorism paradigm 44 federal anti-terror statutes 2001-2006 States & territories referred powers, and passed corresponding and additional laws Also mandated third party policing of terrorism by local govts, private security, airports, ports, banks, etc Increased use of executive power Proscribing organisations Control orders Co-opting immigration powers Waves of reactive responses to external events leading to fragmentation, overlap, inconsistencies & gaps Little independent input, evaluation or scrutiny Counter-terrorism legislation

5. Dynamic, complex & unpredictable policy environment since 2001 Latest iteration – PM’s National Security Statement Legislative, regulatory and administrative measures provide framework for CT Terrorism now part of a broader spectrum of transnational security risks (eg regional instability, climate change, border security, transnational and organised crime) (ASPI 2008) Broader policy environment

6. Focus on human rights critique balancing security & liberty shifting focus – from reactive to preventative, pre-emptive and precautionary derogation from CJ procedural protections shift from CJ process focused on guilt to civil powers and orders And law-making process piecemeal and reactive – lacking in coordination legitimacy deficit – lacking in transparency dominated by executive reliant on imperfect information & made in environment of heightened public fear And individual cases/ legislative provisions Existing assessments of CT law?

7. Fiscal Opportunity Impact on CJ norms Proportionality Procedural protections Unintended consequences From legal exceptionalism to new norms – ‘leakage’ of CT approaches into other crime problems Mixing of high and low policing functions Effectiveness in ‘safeguarding Australia’ Without evaluation, ineffective responses may proceed at the cost of effective ones What are the costs of CT legislation?

8. Need for in-depth study of legislation including its meaning and impacts (Lynch 2006) Big-picture analysis of the role, use and effectiveness of the overall CT framework Including underlying rationalities and assumptions Our objective – building a conceptual model of CT law Why? To help improve legal framework & responses to terrorism Assessment of effectiveness of CT legal frameworks What works, how, why and at what cost? Our objective – building an evaluation framework for CT law Why? To help re-focus efforts on what works at least cost What’s missing?

9. Building a typology of objectives, approaches, mechanisms, powers & targets Assessing departures from conventional criminal law: Reversing onus of proof; detention without charge, trial or conviction; including motive as an element; extension of inchoate offences to preparatory acts Assessing departures from conventional CJ: New categories of police powers, & extensions to non-police Preventive rather than reactive focus Intelligence rather than evidence gathering Risk-based methods, e.g. actuarialism, profiling, surveillance Developing a conceptual model

10. A preliminary conceptual framework

11. CT enforcement outputs – individual offences

12. CT enforcement outputs – organisation offences

13. Methodological – measuring success in prevention & deterrence Limited outputs, e.g. arrest, prosecution & control order outcomes to date Lack of publicly available data Measuring a negative A possible solution - developing proxies from other forms of data? Custom seizures as proxy for airport security Weapons & chemicals market data Reviews of policing of non-terrorist public events Problems in measurement?

14. Developing the evaluation framework Cross-jurisdictional/ international comparisons Cross-border law enforcement & inconsistencies International best practice Impact of different legal systems and cultures Exploring the role of third parties in the policing of terrorism Exploring the impact on policing Next steps

15. Contact Janet Ransley j.ransley@griffith.edu.au Susan Donkin s.donkin@griffith.edu.au

16. Programs of Research