Given the persistent and serious threat of terrorism, national discussions about the direction of Australia’s counter-terrorism strategy should be encouraged.
However, such discussions require robust follow-up – not merely announcements about “getting tough” on terrorism – if they are to improve responses to terrorism in practice.
As might be expected, the key messages from Thursday’s special Council of Australian Governments (COAG) meeting were about co-operation and a nationally consistent approach to counter-terrorism. The COAG discussion also focused on facial recognition software, pre-charge detention, and new criminal offences for terrorism.
Interoperability means different government agencies should co-operate effectively, and be willing to share information openly and efficiently. It’s a political buzzword that’s difficult to say and even harder to achieve in practice.
In the case of a terrorist attack, this means police and security agencies need to share intelligence, evidence and administrative data in real time, as events unfold. The coronial inquest into the Sydney siege revealed the operational problems created when police and security agencies fail to share information on an offender quickly and openly.
The benefits of improving information-sharing may be obvious, but the success of any changes to law or policy will depend heavily on buy-in from the agencies.
Complex privacy law requirements can make agencies reluctant to share personal information about an offender. This is exacerbated if they remain culturally resistant to sharing their information.
COAG revealed there will be greater sharing of biometric data and facial recognition technology across state boundaries.
Agencies in all jurisdictions will have access to facial recognition software that can match CCTV footage with passports and other identity documents.
The full capability of this technology is not yet clear. However, it is already raising concerns about increased scrutiny of Australian travellers and the possibility of criminals hacking biometric databases.
Pre-charge detention is the amount of time police can detain a person following their arrest and before they must be charged and brought before a court. During that time, the arrested person may be questioned and the police may collect additional evidence.
Currently, the maximum limit of pre-charge detention for terrorism offences differs across Australia. Under federal law, the maximum is eight days (including so-called “dead time”, which can be excluded for administrative purposes). In New South Wales, it’s 14 days, while in other states it’s seven days or less.
The federal government is proposing to raise the limit in all jurisdictions to 14 days.
Consistency in pre-charge detention for terrorism is welcome. There is no reason why NSW Police should be able to detain a terrorist offender for more than twice as long as police in other states. However, the government has not made a strong case to justify why the longest period of pre-charge detention should be applied across the board.
Prime Minister Malcolm Turnbull offered the recent Sydney terror raids as an example of why the changes are needed. That case involved a more rushed police investigation following a tip-off from an overseas intelligence service, as well as complex physical evidence including explosives and chemicals.
Even in that complex case, it seems that nothing close to a 14-day limit was required. One man was released without charge after three days; two more were charged with terrorism offences within five days, and the fourth man was charged with a non-terrorism offence after eight days.
The appropriate upper limit on pre-charge detention is unclear, but the risks of lengthy pre-charge detention are evident. In 2007, Mohamed Haneef was detained for 12 days for an alleged connection to an attempted attack on Glasgow International Airport. He was released without charge and later received an undisclosed sum as compensation for the bungled investigation.
In response to the Haneef affair, the Rudd government placed a seven-day limit on the amount of dead time that could be claimed by police. This was done to prevent these kinds of mishaps from happening again.
Two new criminal offences have also been proposed: one for possessing terrorist instructional materials, and another to strengthen offences for “hoax” attacks.
It is not clear why an offence for possessing instructional materials is needed, as multiple similar offences have existed since 2002. Under the Commonwealth Criminal Code, it is a serious offence to collect or make documents likely to facilitate terrorism, to possess any “thing” connected with preparation for terrorism, or to train with a terrorist organisation.
Following the post-9/11 anthrax scares in the US, offences for “hoax” terror attacks were also introduced in Australia. These laws make it an offence to phone in a fake bomb threat or post a substance through the mail, where doing so would induce a false belief of terrorism.
And, by virtue of Australia’s broad statutory definition of terrorism, all terrorism offences apply to the “threat” of an attack.
These proposed changes have more to do with “getting tough” on terrorism than with filling gaps in the criminal law. After seeing Turnbull flanked by special forces soldiers and now tactical response police, one wonders whom he will pose with next.