Special legal advocates should be available in control order cases to challenge government attempts to put forward secret evidence not available to defendants, says the government’s national security monitor, Roger Gyles QC.
On Friday the attorney general, George Brandis, released a report from Gyles into his examination of control order safeguards.
Control orders are controversial anti-terrorism powers that allow police to apply for an order placing severe restrictions on the movements and associations of a person, without the high standards of proof in criminal matters.
Gyles’s report is only partial and includes his recommendations on the use of special advocates for control orders. This is because separate legislation set to lower the age of control order applicants to 14 is before the parliamentary joint committee on intelligence and security.
The legislation would also allow the government to put on secret evidence that individuals who have control orders placed on them may not be able to see.
Gyles found that special advocates, which could be a legal professional who had sufficient security clearance, should be appointed to challenge these orders to make evidence secret.
He wrote: “I do not doubt the utility of the role of special advocate in control order proceedings, even if access to the respondent party is limited.
“A special advocate should be available without charge to the party wherever evidence is proposed to be withheld from a party on national security grounds. That facility would assist in satisfying the constitutional requirement for procedural fairness and in complying with international obligations.”
He said the government should not pass the amendments to the rules around evidence in control order proceedings until a system of special advocacy had been implemented.
The government’s legislation would also enhance the surveillance on an individual once a control order has been placed on them.
Gyles expressed some unease at this point, writing: “Monitoring compliance seems a reasonable concept, but reading these schedules brings home forcibly the extent of intrusion into life and liberty by the making of a control order.
“The details of the potential monitoring blur, if not eliminate, the line between monitoring and investigation. The case for control orders is weakened if control orders are of little utility without such far reaching surveillance. It is difficult to imagine such provisions being applied to an accused on bail.”
The former security monitor, Bret Walker QC, said the control order regime should be abolished. Gyles said his report was confined to the issues around safeguards, and did not examine whether they should be abolished entirely.
He did say that separate powers he had to review control orders could examine whether they should be abolished entirely.
Three control order applications have been finalised in the past 12 months. The fourth, relating to Harun Causevic, is set to go to trial in Melbourne in February.
