Last week the Senate passed the final version of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016, which addresses many concerns raised earlier by the Law Council of Australia (LCA).
Central to the LCA’s concerns was ensuring that a system of ‘special advocates’ participate in control order proceedings, which can be now imposed on persons as young as 14 years of age.
The system of special advocates permits a panel of security-cleared barristers and solicitors to participate in closed material procedures where the subject of a control order has sensitive information withheld from them and their legal representative.
LCA president Stuart Clark AM welcomed key amendments, particularly the inclusion of special advocates, in the final version of the bill.
“It is vital that we get the balance right between protecting the community and ensuring that we do not jettison our fundamental rights and freedoms,” Mr Clark said.
“By addressing a number of the legal profession’s concerns, this bill goes some way to ensuring that this delicate balance is struck.”
Other concerns that have been addressed in the final legislation include clarifying that the best interests of the young person are to be a ‘primary’ consideration in determining the terms of the control order, and clarifying that the parents or guardian of a child are also to be notified of control order applications or variations.
The bill also expressly provides that a young person has the right to legal representation in control order proceedings, and requires a minimum standard of information to be disclosed to a control order subject to allowing effective instructions to be given in relation to allegations.
While pleased with these developments, Mr Clark emphasised that issues of concern still remain within the legislation.
Because of this, he said that the appointment of a new Independent National Security Legislation Monitor (INSLM) is vital, following the resignation of the former INSLM, Roger Gyles AO, QC, on 31 October 2016.
“This legislation, even with these amendments, tests the boundaries of fundamental rule of law principles, meaning a strong independent review presence is critical,” Mr Clark said.
“We are calling on the government to appoint a new INSLM without further delay. The INSLM ensures that reforms to national security legislation will undergo robust scrutiny and that the laws are necessary, proportionate and operationally effective.”
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