Control Orders in Australia
The use of control orders attracts critics as well as proponents, with the critics citing how the control orders fail to consider human rights and the proponents advancing the argument that this is the only way to go if at all the country is to remain safe. This paper would explore the two sides of argument to understand the intricate balance between them better. The paper would also analyze the effectiveness of the control orders in the fight against terrorism. Also, this paper would compare how control orders have been applied elsewhere and what lessons Australia can learn to improve the process towards finding a balance between the benefits and the violations of human rights, and more specifically the comparison would take shape through interrogating the UK’s system from which Australia has borrowed heavily.
Further, the paper would explore possible alternatives that the government can explore to build on the best mechanisms to improve the employability of control orders. Problem statement. The Australian’s governments push to employ control orders in effort to counter terrorism attracts critics as well as proponents. The critics argue that the control order infiltrates human rights while the proponents cite the exceptionality and seriousness of the issue at hand. Therefore, this brief aims at advancing arguments for and against the control orders, their applicability and effectiveness. How control orders work The control orders impose obligations to persons to counteract terrorism. The court issues such an order when they are satisfied to a greater extent that the order would go a long way to assist in preventing a terrorist act from taking place.
People suspected to have taken part in terrorist training are subject to interim orders, or where the persons are alleged to have taken part in a hostile activity in a foreign country (Ananian-Welsh and Williams 363). The issuance of such orders takes effect where the courts are convinced there exist a reasonable ground to act towards protecting the public from terrorist attacks. The second type is the confirmed control order that should be issued at least 48 hours elapses after the issuance of the interim order. This type of order is issued to those found guilty of involvement in a terrorist act. The control orders should be enforced strictly within the terrorist context; hence when applied to other legal system areas it turns out as a violation of human rights.
All Australians have a right that gains traction through the values embedded in the constitution (Ananian-Welsh and Williams 369). Therefore, imposing control orders on persons without ascertaining whether they have transgressed the law amounts to a deprivation of their liberties. It is fashionable to argue that control orders operate without consideration of the concept of innocence or guilt. Also, the law enforcers can use counter orders on a person when they lack substantial evidence to prosecute. Mr. Haneef offered his sim card to his cousin who had been implicated in the Glasgow International Airport terrorist attack (Pickering and McCulloch 25). Even though Mr. Haneef was granted bail since the Queensland Magistrate found it plausible under the exceptional circumstances provided in the law, the minister for Immigration cancelled Haneef’s Visa under a questionable character ground.
It is evident in Mr Haneef’s case that, the liberty the judiciary granted him was short-lived ad n was sent back to “immigration detention” (Haneef v Minister for Immigration and Citizenship). It sounds quite a harsh idea to expose young teens at the age of 16 to restrictions. However, it serves as a circuit breaker, where the adolescents are inhibited from been radicalized. If the government fails to act early enough, the possibility of young adults becoming a threat to the public remain imminent. Control orders limit communication and movement of persons, and this works well towards keeping them away from the possibility of influencing or been influenced others in matters concerning terrorism. Terrorist take advantage of the naivety of the young and with the growing and changing terrorist approach, it is important for the law enforcers to be watchful, and the existence of control orders help to fill the gap between the previous version of the criminal law and the changing threat environment.
The persons have the opportunity to change their behavior and remain responsible citizens (Farrell). Therefore, the government would succeed in preventing future attacks; hence creating a safer Australia. The effectiveness of control orders in preventing terrorism The control orders have been instrumental in the fight against terrorism. It makes sense for the law enforcers to use preventive mechanisms in their efforts to protect the public against harm from terrorist activities. Terrorism acts lead to loss of life and property. In several occasions and as cited in the previous segments of this several brief individuals have been implicated for their involvement in terrorism-related activities, only for the court to acquit them due to lack of evidence. Many of the convictions have not been tied up to any plans of hatching a terrorist act, and as such, the convictions can only be taken as a rough guide to law enforcers towards revealing any possibility of involvement into a terrorist-related activity (McCulloch and Pickering 5).
The criminal justice system cannot claim success in preventing terrorist acts by the number of convictions made. The use of control orders has the possibility of socially excluding and alienating suspects, and this increased the chances of such individuals from getting involved in violence. Therefore, control orders can be said to motivate terrorism, making their application counterproductive. Community detention would also help in delinking the fight on terrorism to violation of human rights in the sense that, it would compensate for the aspect of denying suspects freedom of association and movement. Control orders come with substantial restrictions that have negative implications and long -lasting effect on the mental health of suspects. Community detention is a humane approach that would allow the suspects to engage in a purposeful existence as they await investigations to be complete.
Lessons learned from other jurisdictions The Australian control orders borrow heavily from the UK system. However, after the realization of the impact of control orders to individual liberties, the UK system has introduced new measures to foster an improvement in the way the county handles terrorism-related issues. Many of the anti-terror bills under which control orders fall are made as a reaction to terrorist acts taking place elsewhere across the globe and with considerations that some Australians were killed in the attacks. Such attacks include the Bali Bombings of 2002, the London’s 2005 attacks and the Jakarta bombing in 2003. The fact that the introduction of control orders has left communities with fear and grief due to the violation of their liberties. The communities are left with no option but to look up to politicians to defend them.
Such scenarios are a strong statement that disproportionate laws can pose a threat to the community support for anti-terror laws and social cohesion. The right to free trial, right to remain silent, the right to challenge a court decision. The lack of intersection between the different legal institution and the executive brings about a hybrid legal system that does not accommodate the interests of the accused. The government cannot afford to violate the interests of the same public it claims to protect. Therefore, the government should repeal some of the provisions under control orders to accommodate the best interest of the terrorism suspects. It is only then when the state would manage to wither away any possible counteractive activities that those implicated could stage to revenge mission against the State.
Control orders should be employed when the criminal justice system has evidence against suspects, as opposed to responding to mere suspicion. This would ensure individual rights are not taken away without substantial grounds that they were indeed a party to a terrorist act. Works Cited Ananian-Welsh, Rebecca and George Williams. "The New Terrorists: The Normalization and Spread of Anti-terror Laws in Australia. " The New Terrorists 38 (2014): 363-405. uk/wp-content/uploads/2013/04/control-orders-2011. pdf>. Barton, Greg. Anti-terror laws: If used properly, control orders could help prevent radicalisation. Web. No. FCA 1273. Federal Court of Australia. 21 August 2007. McCulloch, Jude and Sharon Pickering. Pickering, Sharon and Jude McCulloch. "The Haneef case and counter-terrorism policing in Australia. " An International Journal of Research and Policy 20. Walker, Clive. "The Reshaping of Control Orders in the United Kingdom: Time for a Fairer go, Australia!" Melbourne University Law Review 143 37.
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