The Reshaping of Control Orders in the United Kingdom: Time for a Fairer Go, Australia!

Abstract

The Australian version of control orders under div 104 of the Criminal Code Act 1995 (Cth) sch was very much hewn in the image of the United Kingdom’s Prevention of Terrorism Act 2005 (UK). These orders allow severe restrictions on personal freedoms to be imposed on terrorist suspects without proof of any criminal offence. Disquiet about the legitimacy of control orders in the United Kingdom has now resulted in a reform process, the outcome of which is the Terrorism Prevention and Investigation Measures Act 2011 (UK). A critical assessment in an Australian context of these British reforms is timely because of the recently released Council of Australian Governments Review of Counter-Terrorism Legislation as well as the second annual review by the Independent National Security Legislation Monitor. The paper will advocate that, despite misgivings, some variant of control should be retained in Australia and that the revisions embodied in the Terrorism Prevention and Investigation Measures Act 2011 (UK) (and some beyond) are worthy of emulation.

Keywords: Terrorism, Constitutionalism, Human Rights, Executive Orders, Judicial Review

JEL Classification: K10, K33, K19, K42, N40