A Control Order is made in Australia when a person is thought to pose a risk of committing a terrorist offence in the future. Control Orders are civil orders that can be made by the Federal Court or Federal Circuit Court on application by the Australian Federal Police (AFP) with the consent of the Commonwealth Attorney-General. They are governed by the Commonwealth Crimes Act and place restrictions on a person’s movements, activities and associations for a period of up to 12 months.
When can they be made?
A Control Order can only be made if
- it would substantially assist in preventing a terrorist attack;
- the person has received, provided or participated in training with a listed terrorist organisation;
- the person has engaged in a hostile act in a foreign country;
- the person has been convicted of an offence relating to terrorism in Australia;
- the person has been convicted of an offence overseas that would amount to a terrorism offence in Australia.
Prior to making a Control Order, the court must consider the impact it would have on the person’s personal and financial circumstances.
What restrictions does a control order impose?
A Control Order can restrict a person from leaving Australia, having contact with certain individuals, accessing certain technology (for example, the internet) and possessing or using certain items.
A person subject to a Control Order may also be required to provide their fingerprints to police, allow themselves to be photographed and take part in education and counselling programs, to remain at specified premises for up to 12 hours a day and to wear a tracking device.
Process for making an order
When an application is made to a court, the court must first consider whether to make an interim Control Order. If an interim order is made, the court must summarise the grounds on which it is made. It must be served on the controlee by the AFP as soon as practicable after it is made. An interim Control Order only remains in force for 24 hours. If the APF wishes to proceed to seek the order, it must elect to go to a confirmation hearing. It must serve additional information on the controlee but is not obliged to ensure they understand the information.
A confirmation hearing proceeds like a full contested hearing. Both the AFP and the controlee can call evidence and the court then decides whether the relevant criteria have been fulfilled. However, the AFP may keep certain information secret from the Attorney-General, from the court and from the controlee if it is likely to prejudice national security.
Breaching a control order
It is a criminal offence to breach a Control Order. It is also an offence to interfere with a tracking device associated with such an order. These offences are punishable by up to five years imprisonment.
How long can a control order be in place?
An individual Control Order can only remain in force for a maximum of 12 months for an adult or three months for a young person aged 14 to 18. However, multiple consecutive orders can be made in respect of a person.
In 2007, the High Court found that interim Control Orders were constitutionally valid in the matter of Thomas v Mowbray. The challenge was brought by Joseph Thomas Mowbray, the first person to be found guilty of offences under anti-terrorism legislation in Australia. Mowbray was placed on an interim control order in 2006 and he sought to have struck out on constitutional grounds. The High Court decided, by a 5:2 majority, that the order was valid.
How often are control orders made?
The Law Council has reported that between 2005 and 2020, 16 control orders were made. The majority of these were made in respect of a person who had already been convicted of a terrorism-related offence. However, there is no publicly available register of orders that have been made or applied for.
Control Orders are a controversial feature of counter-terrorism law that has been much criticised by the legal and academic community. The Law Council, among others, maintains they are unnecessary to address the threat posed by terrorism. The practice of making control orders in respect of persons who have not been charged with or found guilty of any offence raises significant human rights issues especially where the orders involve significant curtailments of freedoms. There have been calls for the system to be repealed for this reason.
Opponents of control orders argue that individuals who pose a terrorism threat can be dealt with adequately through traditional criminal law avenues such as bail, remand and parole. Supporters of the current system argue that it is a necessary preventative measure in an area of global terror.
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