Enhanced safeguards needed for control order regime, including ‘special advocate’ regime
The Law Council of Australia has told the Independent National Security Legislation Monitor at a public hearing today that the control order regime needs enhanced safeguards, particularly if proposed counter-terrorism legislation measures are enacted.
Speaking after an appearance before the hearing, Law Council of Australia President Duncan McConnel noted that a system of ‘Special Advocates’ could be introduced to participate in control order proceedings.
The system could allow each State and Territory to have a panel of security-cleared barristers and solicitors who may participate in closed material procedures whenever necessary including, but not limited to, any proposed confirmation of a control order.
“Control orders can involve significant restrictions of a person’s liberty without following the normal process of arrest, charge, prosecution and determination of guilt beyond a reasonable doubt,” Mr McConnel said.
“Recent counter-terrorism legislation would give expanded powers to law enforcement agencies to monitor compliance with a control order. Secret evidence would also be permitted in control order proceedings without the affected person or their legal representative knowing its content.
“A special advocate regime would improve – although not necessarily remedy – any potential unfairness to a person the subject of a control order. It would assist a court in scrutinising national security information prior to any possible admission into evidence.
“If a special advocate regime were to be introduced, fundamental minimum safeguards would have to be met. The appointment of the special advocate should be subject to the full and free discretion of the court. It should also be a last resort where no other alternative will adequately meet the interests of justice.
“The level of interaction between the advocate, the person the subject of the control order and their legal representative would require careful consideration.”
In addition, the Law Council argued there the control order regime should require that an issuing court have specific regard to the ordinary entitlement to use of a phone and internet and to require the court to be satisfied that a proposed restriction on such access is necessary in any given case.
“The Criminal Code should impose a presumption that a person should not be deprived of basic mobile phone or landline access – and access to at least one internet computer – without being satisfied of necessity,” Mr McConnel said.
“This approach is desirable given the pervasiveness of modern technology as a necessity for many places of education and employment. However, this presumption of communication technology access could be rebutted by the court if it was deemed necessary for achieving one of the prescribed purposes of the control order regime.”