Comparative Review: Terrorism Legislations in UK and Australia

London – After his six-year tenure, Mr David Anderson QC, the outgoing Independent Reviewer of Terrorism Legislation, will step down from the position of Independent Reviewer of Terrorism Legislation in the UK by the end of February 2017.

Researcher Dr. Jessie Blackbourn, argues that there is quite a difference between Anderson’s position, as an independent reviewer in the UK, and its counterpart position of Independent National Security Legislation Monitor in Australia.

The writer claims, in her retrospective paper, that Anderson’s upcoming retirement offers an opportunity to look back at both offices in the UK and Australia with a comparative eye.

Here is a brief summary of what the writer found out through the prism of her comparative study. Generally, the points of comparison can be pivoted on three main points as follows:

Existential crises

One aspect of independent review which the Australian regime appears to have got right, and which has not been replicated in the UK, is the enactment of a single law establishing and regulating the office of Independent Monitor.

On one hand, The Australian Independent National Security Legislation Monitor Act 2010 sets out, in express statutory language, the Independent Monitor’s terms of reference and duties.

The UK’s Independent Reviewer has no single source of statutory authority; it is spread out in a number of different anti-terrorism laws.

Furthermore, whilst the Australian office has a remit to review all of Australia’s national security and counter-terrorism laws, as well as any laws which relate to those laws, the UK Independent Reviewer is more limited; there is no general power to review the UK’s anti-terrorism laws, only those laws which Parliament has decided should be reviewed.

The Australian regime is also better at prescribing the powers available to the Independent Monitor. The Independent National Security Legislation Monitor Act 2010 lays out the various powers vested in the office. The powers to access information are unparalleled in the UK system. They include the power to hold a hearing and summon a person to attend as well as to require a witness at a hearing to take an oath or affirmation.

The Independent Monitor may also issue a notice requesting a person to provide the office with any information, documents or things. Penalties, including up to six months’ imprisonment, apply for failing to produce a document or thing or for failing to provide the information requested.

Despite the other significant changes to the office of the Independent Reviewer made by the Counter-Terrorism and Security Act 2015, these recommendations have not been implemented.

Challenges of workload and resourcing

It is of little use for the Australian office of Independent Monitor to have a single legislative remit to review all of Australia’s national security and counter-terrorism laws, and strong coercive information-gathering powers to conduct that review, if it is left to sit vacant for lengthy periods of time.

The UK’s office has shown greater stability and resilience to political maneuverings in this regard. Parliament has also incorporated future reviews by the Independent Monitor into a number of new laws, including the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016, which was enacted while the office lay vacant.

At current standing, as well as providing this year’s annual report on the operation, effectiveness and implications of Australia’s counter-terrorism and national security laws to the Prime Minister, by 7 September 2017 the Independent Monitor is also required to conduct reviews of the control order regime, preventative detention orders, ASIO’s questioning and detention warrant powers, the declared area procedure and offences, and the police’s powers of stop, search and seizure. This is a lot of work to complete in seven months. For an office that currently lies vacant, it may be impossible to achieve.

The increase in the Independent Monitor’s workload is matched by a similar experience in the UK; in the past few years, the Independent Reviewer there has been tasked to provide a range of reports outside of the normal reporting requirements of the office, including on mass surveillance, citizenship stripping powers, and the policy of deportation with assurances.

Both offices have faced resource burdens because of this increased workload. In his report on the Terrorism Acts in 2013, Anderson stated that he was ‘currently operating at the limit of his capacity’, and requested additional support. The ill-fated Privacy and Civil Liberties Board was the government’s response to Anderson’s request, though he has now been allowed to appoint three special advisors instead.

In Australia, the office of Independent Monitor was, under Gyles, beset by staffing issues. His first report, on section 35P, was delayed for months when his only advisor left the office for personal reasons part way through the inquiry. But by February 2016, those staffing issues had been resolved; the Independent Monitor’s office employed the equivalent of four full-time members of staff. However, the quality of reporting appears to have suffered from the Independent Monitor’s heavy workload and staffing shortages.

Compared to the UK’s Independent Reviewer, who averaged three major reports a year over the past six years of a consistently high quality, or to the inaugural Independent Monitor, Walker, who produced four rigorous and highly detailed annual reports, Gyles’ tenure in the office of Independent Monitor oversaw a deterioration in the quality of post-enactment review of Australia’s national security and counter-terrorism laws. That this coincided with a period of hyper-legislating against terrorism is troubling. That there is currently no Independent Monitor in office to review the newly enacted laws is of even greater concern.

Future Prospects

2017  will be an important year for the future of post-enactment review, both in Australia and the UK.

In the UK, Anderson leaves the office of Independent Reviewer in a stronger position than he entered it, and the next Independent Reviewer has big shoes to fill.

In Australia, on the other hand, the next Independent Monitor enters an office that has been vacant since 1 November 2016 and which has been weakened, both by the inadequacies of the most recent reviews and by the total absence of any real government support or enthusiasm for the role.

If the office of the Independent Monitor is to survive as an effective oversight mechanism in 2017 and beyond, the next Independent Monitor must be appointed with enough time to conduct the required reviews by 7 September in a rigorous and meaningful manner. Anything less will fail the core functions of the office: evaluating the operation, effectiveness and implications of Australia’s counter-terrorism and national security laws.