The NSW Council for Civil Liberties (NSWCCL) congratulates the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (the Special Rapporteur) on his appointment and thanks him for the opportunity to make a submission on his mandate priorities for 2024-26, and in particular on which of the 'new issues' identified by him should be a priority.

The NSWCCL submits that the issues of, first, the proliferation of non-criminal, administrative measures in counter-terrorism, and, secondly, the participation of non-state actors in counter-terrorism activities should be prioritised by the Special Rapporteur, globally and particularly within Australia.[1] We submit that these issues should be prioritised for the following reasons:

1. NON-CRIMINAL ADMINISTRATIVE MEASURES

• The NSWCCL considers the administrative measures introduced in Australia have gone too far, and could lead to arbitrary detention of individuals. In particular, the NSWCCL considers the administrative measures in the Australian Criminal Code, the Terrorism (High Risk Offenders) Act 2017 (NSW) and the Criminal Law (High Risk Offenders) Act 2015 (SA)[2] to be highly problematic.
• The preventative detention orders (in Div 105 Criminal Code) and the post-sentence continuing detention regime (in Div 105A) are particularly harmful. The NSWCCL considers that Continuing Detention Orders (CDOs) should be abolished.
• Although a majority of the High Court does not consider post-sentence detention in the form of a CDO (based on a prospect of future offending) to be punishment, it is punishment. It amounts to deprivation of a person's liberty by means of incarceration for up to three years, renewable indefinitely. NSWCCL's view is that CDOs breach human rights, and Australia's international obligations, as they almost inevitably constitute arbitrary detention.
• The threshold for granting a CDO has been reduced to a very low bar and fails to provide any safeguard against unnecessary and punitive detention.
  • The assessment requires that there be an 'unacceptable risk' of committing a serious terrorism offence if released. However, the qualification that the risk must be a risk of committing a serious terrorism offence poses little constraint, as the plaintiff need not identify which serious terrorism offence they allege. This effectively means that there can be a risk of committing any kind of terrorism offence, directly or indirectly.
  • The test is not limited to Australia, it is sufficient for the making of an order that the Court be satisfied of a risk that may arise anywhere in the world at any point in time.
  • 'Unacceptable risk' has a significant impact given its application to any 'serious Part 5.3 offence', particularly where many of the serious terrorism offences are preparatory offences and do not concern the actual perpetration of a terrorist act. To prove the offences, a terrorist act does not need to have occurred. As the case of Lodhi[3] illustrates: 'it was the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct…'. Ultimately, the way that 'unacceptable risk' has been applied is to accept that the harm of any serious terrorism offence is catastrophic. Therefore, even a slight risk of the commission of such an offence, such as joining a terrorist organisation, even if they had not themselves proposed to engage in terrorist activities, may justify removing a person's liberty.
• We strongly believe that it is not acceptable to deprive persons of liberty for what they may do in the future, when there is no valid or reliable way of assessing the likelihood of future offending. Further, the statutory scheme cannot guarantee a fair assessment:
  • The standard of proof ('high degree of probability') has been reduced to a loose threshold that requires the Court to draw heavily on hypotheticals and imagination. This is in stark contrast with the criminal standard of proof 'beyond reasonable doubt'.
  • There are far fewer safeguards than in criminal proceedings (for instance, the requirement that the Minister for the AFP provide all material in its possession that may be exculpatory for the defendant is unenforceable, so is contingent on the goodwill of the Minister). The case of Benbrika[4] has shown the ways in which the intended safeguards can fail.
• Disproportionate and unjust measures fail to serve the desired objective of protecting individuals in a democratic and liberal society. They undermine the very society they seek to protect, and breach the right to a fair trial.
• The NSWCCL considers that Extended Supervision Orders (ESOs) in Div 105A of the Criminal Code are a more proportionate response to CDOs. However, both orders rely on the risk assessment tool VERA-2R, which, the Corner report[5] has found is not fit for purpose, and may lead to serious injustice.
• The Control Order regime in Div 104 of the Criminal Code, in our view, is also disproportionate and overreaches. It imposes wide-ranging restrictions which result in the controlee living in circumstances akin to house arrest. The regime does not contain the essential safeguards of criminal law, it functions somewhat outside of the right to due process (ex parte hearings, no reasons or evidence needs to be provided to the controlee when a decision is made, a lower standard of proof is required, and there are limited avenues of review), and it is problematic that there are no limitations on the amount of extensions available. The Control Order regime is also unnecessary in light of the ESO regime.

1. SOCIAL MEASURES TO PREVENT OR COUNTER VIOLENT EXTREMISM

• On the other hand, the NSWCCL considers that social measures are the best way forward in countering terrorism.
• It is important for the Special Rapporteur to promote:
  • prevention programs in the community and education services;
  • the building of social capital in affected communities, including those living in fear and with blame (which is counterproductive); and
  • a values-shift in society that promotes a human rights based approach to radicalisation and extremism, and deals with the offenders in question in an empathetic and supportive manner (focusing on the prevention of radicalisation and marginalisation in the first place).
• It is, further, important to recognise (and to counteract) the connection between human rights failures in Australian society (for instance, racism against Islamic communities, low socio-economic prospects and a lack of provision of mental health care to disadvantaged groups), and radicalisation within those communities.
• Globally and in the Australian context, adopting social measures which focus on prevention will avert the greatest human rights abuses, as terrorist acts and violent extremism will be prevented. There is no need for coercive interventions of quasi-criminal administrative law.
• As part of this values shift, NSWCCL considers that we need to recognise the democratic nature of our culture (which is also relevant to youth radicalisation). A highly relevant and worrying aspect of how Australia's democratic culture is progressing at the moment is the stifling of protest and free speech (for instance, in legislation such as s 144G Roads Act 1993 (NSW)). This weakens democracy and makes communities feel powerless. Governments should provide a legitimate means to dissent.
• PARTICIPATION OF NON-STATE ACTORS IN COUNTER-TERRORISM ACTIVITIES

The NSWCCL considers that the participation of non-state actors in counter-terrorism activities should be subject to strict regulation and oversight. In particular, the use of private policing, monitoring and prisons should be considered. The NSWCCL is also concerned by the co-opting of social media companies for surveillance. States have heightened responsibilities when engaging such actors in their counter-terrorism activities to ensure they act in accordance with the law.

[1] Given the remit of NSWCCL, we will focus on reasons within Australia, But appreciate that this is part of a global push towards greater use of administrative and public law measures in countering terrorism and violent extremism.

[2] As amended by the Statute Amendment (Terror Suspect Detention) Act 2017 (SA).

[3] Lodhi v R (2006) 199 FLR 303

[4] Minister for Home Affairs v Benbrika [2020] VSC 888

[5] Emily Corner and Helen Taylor, Testing the Reliability, Validity, and Equity of Terrorism Risk Assessment Instruments, July

1. (‘The Corner Report’)