‘Combatting terrorism’ A comparative analysis of the counter-terrorism strategies of Australia and the UK.
Nina Pilmeyer ANR 239032
Bachelor’s Thesis Liberal Arts and Sciences Major Law in Europe
Faculty of Humanities and Digital Sciences Tilburg University, Tilburg
Supervisor: mr. E. Filius Second Reader: S.R.B. Walther June 2019 Acknowledgments Throughout writing my bachelor thesis, I have received a lot of support and assistance. First of all, I would like to thank my supervisor mr. E. Filius, whose expertise and feedback were invaluable in the structuring of this thesis and who was always there for me to help me, answer my questions and give me feedback. Your guidance has been very valuable and you helped me in successfully completing my thesis.
Moreover, I would like to acknowledge Mr. Hurley, who was one of my professors when I was studying in Australia, for his help in formulating a research topic and for offering his help at all time. Your expertise and support have greatly helped me in writing this thesis.
In addition, I would like to thank my parents for giving their wise advice and supporting me. I can always count on you. Finally, there are my friends and family, who were of great support in giving me advice, encouraging me and providing happy distraction to the rest of my mind outside of my thesis.
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Abstract This bachelor thesis addresses the problem of terrorism and countering terrorism in the context of the siege that happened in Sydney in 2014. It is questioned and examined whether Australia can use the United Kingdom’s procedures and policies related to countering terrorism as a source of information and inspiration to improve and reinforce their counter-terrorism strategy. Terrorism is not uncommon in the world and goes back for a long time. After the terror attacks of 9/11, the fear among society increased, and countries all over the globe reinforced and intensified their counterterrorism measures. States adhere to different procedures and policies to counter terrorism. Although the changing nature of international terrorism is covered by a lot of academic literature, there is a lack of academic research and analysis on comparing different countries’ counter-terrorism strategies.1 Studies that do address this issue are often more interested in the strategy and policies of America than with other international counterterrorism strategies. Therefore, this thesis will examine the counter-terrorism strategy and procedures of a country which has been mostly ‘free’ from terrorism: Australia. The hypothesis is that Australia’s counterterrorism strategies and policies in practice do not function as effectively and smoothly as policymakers and the government intended when comprehending them. Close examination and analysis of Australia’s organisation, structure, policies, and intelligence agencies will disclose problematic issues in their counter-terrorism strategy. By means of analysing the United Kingdom’s approach, the counter-terrorism strategies of these two countries will be compared and analysed in a legal comparison and it will be researched whether Australia, in order to improve and reinforce their counterterrorism model, can use the United Kingdom’s procedures and policies related to countering terrorism as a source of information and inspiration.
1 Andrew O’Neil, ‘Degrading and Managing Risk: Assessing Australia’s Counter-Terrorist Strategy’ [2007] 42(3) Australian Journal of Political Science 471.
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List of Abbreviations AFP: Australian Federal Police
AIC: Australian Intelligence Community
ANZCTC: Australia-New Zealand Counter-Terrorism Committee
ASIO: Australian Security Intelligence Organisation
CT&STC: Counter Terrorism and Special Tactics Command
ECHR: European Convention on Human Rights
ECtHR: European Court of Human Rights
EU: European Union
GCHQ: Government Communications Headquarters
IGA: Intergovernmental Agreement on Australia’s National Counter-Terrorism Arrangements
IGIS: Inspector-General of Intelligence and Security
ISA 1994: Intelligence Services Act 1994
ISC: Intelligence and Security Committee
JAG: Joint Analysis Group
JCTT: Joint Counter-Terrorism Team
JIG: Joint Intelligence Group
JTAC: Joint Terrorism Analysis Centre
MI5: Military Intelligence Section 5
NATP: National Anti-Terrorist Plan
NCTP: National Counter Terrorism Committee
NSH: National Security Hotline
NSW: New South Wales
NSWPF: New South Wales Police Force
OSCT: Office for Security and Counter-Terrorism
RIPA 2000: Regulation of Investigatory Powers Act 2000.
SAC-PAV: Standing Advisory Committee on Commonwealth/State Cooperation for Protection against Violence
SBs: Special Branches
SIS: Secret Intelligence Service
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SOP: Standard Operating Procedures
SSA 1989: Security Services Act 1989
TFEU: Treaty on the Functioning of the European Union
UK: United Kingdom
UNOCT: United Nations Office of Counter-Terrorism
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Table of Contents Acknowledgments ...... 1 Abstract ...... 2 List of Abbreviations ...... 3 1. Introduction ...... 7 1.1 Problem introduction ...... 7 1.2 Introduction to concepts ...... 8 1.2.1 Definition Terrorism ...... 8 1.2.2 Counterterrorism...... 10 1.2.3 Counter-terrorist strategy Australia ...... 10 1.2.4 Counterterrorism in the United Kingdom ...... 12 1.3 Research aim and questions ...... 14 1.4 Methodology ...... 15 1.5 Reading guide ...... 17 2. Australia ...... 18 2.1. Introduction to terrorism and counterterrorism policies and arrangements in Australia and New South Wales ...... 18 2.2 National bodies and arrangements ...... 20 2.3 Domestic legislation ...... 24 2.4 Intelligence and intelligence agencies ...... 26 2.5 Counter-terrorist initiatives in New South Wales ...... 30 2.6 Conclusion ...... 33 3. The United Kingdom ...... 35 3.1 Introduction to terrorism and counterterrorism policies and arrangement in the United Kingdom ..... 35 3.2 National bodies and arrangements ...... 38 3.2.1 PURSUE ...... 39 3.2.2 PREVENT ...... 43 3.2.3 PROTECT ...... 44 3.2.4 PREPARE ...... 44 3.3 Domestic legislation ...... 45 3.4 Intelligence and intelligence agencies ...... 48 3.5 Conclusion ...... 56 4. Legal assessment ...... 59 4.1 Similarities and differences in the counter-terrorism strategies of Australia and the UK...... 59 4.2 Explaining the existing similarities and differences ...... 65 4.2.1 Legal basis ...... 65 4.2.2 Institutional structure ...... 67
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4.2.3 International institutions ...... 69 4.3 Comprehending the similarities and differences ...... 72 5. Conclusion ...... Fout! Bladwijzer niet gedefinieerd. 6. Bibliography ...... 79 6.1 Legislation ...... 79 6.2 Table of Cases ...... 80 6.3 Secondary Sources ...... 80
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1. Introduction 1.1 Problem introduction Hostage situations, as well as terrorism, are not uncommon in the world and go back for a long time. Hostage taking is ‘the act of abducting and/or imprisoning a person for political or monetary gain’2. Terrorism, on the other hand, is not as easily definable as hostage taking, but in the broad sense, terrorism entails ‘the unlawful use of intentional violence to achieve a political or religious aim’3. For the last few decades, terrorists have used hostage taking as a tactic to achieve their objectives, such as receiving media attention. In December 2014, Australia was confronted with a hostage situation conducted by Man Monis, a religious activist.4 He took eight staff members and ten customers hostage in the Lindt Café in Martin Place, Sydney. The hostage situation lasted for 16.5 hours and was not resolved peacefully by the authorities: it resulted in three casualties. When Man Monis took the eighteen people hostage, he claimed allegiance to the Islamic State, which resulted in the authorities treating this case as a terrorist act. In the past, Australia did experience some previous incidents related to politically motivated violence, including attacks conducted by Muslim extremists.5 However, until now, the country has never really experienced a significant terrorist attack and has been mostly free of terrorism.
After the siege, which was not resolved peacefully, questions arose concerning the organisation, responsibilities, and effectiveness of institutions and intelligence agencies involved in preventing and countering terrorism in Australia. A review of the siege, conducted by the state coroner of New South Wales, revealed that the Australian Federal Police (AFP) and the Australian Intelligence Organisation (ASIO) did not share all relevant information with the New South Wales Police Force (NSWPF), and that ambiguity existed concerning the responsibilities and accountabilities of agencies.6 The review of the Lindt Café Siege thus disclosed problems concerning the relationship between and organisation of counter-terrorism actors in Australia, and it became apparent after the siege, that a culture of poor information sharing and underdeveloped relationships exist among the actors in the counter-terrorism field of Australia. Due to the fact that Australia is a federation, and its counter-terrorism model is structured to reflect its federal system of government, a lot of different agencies have acquired specific but limited functions and powers on different levels in Australia. This may be the root cause of the problems existing in Australia’s counter-terrorism strategy, which was revealed after the Lindt Café Siege. The different powers and functions of these agencies may enhance the existing ambiguity and chaos regarding responsibilities and accountabilities, may contribute to the existing problems concerning poor information dissemination between the various agencies, and may also contribute to the institutions and agencies in Australia having underdeveloped relationships and functioning more next to each other instead of among and with each other.
2 Harvey Kushner, Encyclopedia of Terrorism, (1st edition, SAGE Publications, 2003). 3 Britannica Academic ( 15th edn, 2010). 4 Michael Barnes, ‘Inquest into the deaths arising from the Lindt Café siege: findings and recommendations’ (New South Wales Government, 24 May 2017)
Due to the fact that terrorism is so widespread and prevailing in the world we live in today, it is essential for countries to have competent counterterrorism measures and policies in place. Therefore, the questions regarding Australia’s counter-terrorism procedures and policies that arose after the Lindt Café Siege needed more thorough investigation because also for Australia, it is of importance to have a competent counterterrorist-strategy in place to be able to protect their nation. It is not desirable for Australia to have an underdeveloped counter-terrorism strategy, even though they are not confronted with terrorist threats and acts as much as other countries are, such as the United Kingdom (UK). This is the case because it has been proven that no country is immune to terrorism: on 15 March 2019, during two consecutive terrorist attacks at mosques in Christchurch, New Zealand, 51 people were killed, and 49 others were injured.7
1.2 Introduction to concepts 1.2.1 Definition Terrorism International terrorism is an outstanding global challenge facing the world today.8 A Dutch terrorism- expert, Beatrice de Graaf, explains in a Dutch TV show ‘De Wereld Draait Door University’ why it is so difficult to define terrorism. According to her, ‘terrorism is a phenomenon of continuity. However, how it is committed and the techniques that are used by terrorists keep on changing.’9 For example, terrorist attacks nowadays are designed to destruct society and kill large sections of the population.10 This constant changing nature of terrorism over the years has made it very troublesome to come up with an all-embracing definition of terrorism. It is necessary to investigate the different kinds of terrorism and draw distinctions, because terrorist acts are very prevalent nowadays and can have a considerable impact on a country. Moreover, it is of importance to the manner in which a country tackles terrorism. Throughout history, hundreds of definitions of terrorism have been offered; however, they were never accepted by those studying terrorism.11 Nevertheless, terrorist experts generally agreed upon one characteristic of terrorism: terrorism as a phenomenon always involving violence or the threat of violence.12 This characteristic has also been identified by Hoffman13 when he tried to define terrorism in his book. According to Hoffman, ‘terrorism is generally recognised as meaning violence or threats of violence.’14 Even though terrorism is difficult to define and only one characteristic is fully agreed upon by terrorist experts, some common elements of terrorism can be identified which will contribute to the definition of terrorism adhered to in this thesis:
7 ‘Death Toll in New Zealand Mosque Shootings Rises to 51’ ( The New York Times, 2 May 2019)
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- The use of violence: this includes physical destruction (of properties and human lives) as well as functional disruption (i.e., threats that endanger the capacity of a given society to function).15 In this way, more types of terrorism, such as environmental terrorism, can be included as well. Terrorist actions include both an element of destruction and an element of threat aimed at coercing, intimidating, or deterring a third party.16 For example, the attacks of 9/11 contained both an aspect of physical and functional destruction – the World Trade Center was destroyed, there were a lot of casualties, and society, in general, was upset and disrupted - and an element of threat – the attacks led to a high level of fear for terrorism among society. - Political goal and/or effect: terrorism has some connection with the political sphere.17 Often, this is a political purpose, for instance, opposing a given regime. - Indirect approach: by definition, terrorism has an indirect approach, whereas ‘normal’ criminal acts mostly have a direct one.18 The ultimate purpose of terrorist organisations, although this has changed over the years, often is ‘not to have a lot of people dead, but to have a lot of people watching’19 according to Brian Jenkins, an American expert on terrorism. Thus, through an indirect approach, for instance, killing a lot of people using a bomb, the secondary goal is to gain attention through these mass killings. - Patent breach of accepted rules: terrorist acts are regarded as immoral and/or illegal.20 By committing terrorism, some norm has been infringed. For example, it is illegal to kill people; however, during terrorist acts, a lot of people are often killed by terrorists.
Even with these common elements, aspects of uncertainty remain, and therefore there is still not yet one decisive global definition of terrorism, and this makes terrorism challenging to combat as has been proven by the Lindt Café Siege. Although Australia has its own definition of terrorism, I will adhere to a different definition in this thesis, because this definition is compact, feasible and practical to work with. The definition of terrorism will comprise: ‘the unlawful use of violence or threats of violence in pursuit of political change.’ This is the case because the underlying aim of the violence used by a terrorist is ‘influencing domestic or international politics, expressing a political grievance, or drawing attention to a cause’21 whereas a ‘normal’ criminal is not ordinarily concerned with shaping public opinion and therefore there has been chosen for this definition of terrorism.22
15 Raul Caruso and Andrea Locatelli, Understanding Terrorism: A Socio-Economic Perspective, (1st edition, Emerald Publishing Limited, 2014), p. 8. 16 Ibid. 17 Ibid. 18 Ibid, p. 9. 19 Paul Davis and Brian Jenkins, Deterrence & Influence in counterterrorism: a component in the war on al Qaeda, (1st edition, RAND Corporation 2002). 20 Ibid. 21 Brian, ‘Learning from Lindt Cafe Siege’ (Climateplus, 31 May 2017)
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1.2.2 Counterterrorism The increased prevalence of terrorism and its significant impact on national security and public safety has resulted in an increased effort to counter terrorism all over the world. Counterterrorism encompasses certain techniques and strategies of governments and law to combat the use of terror.23 Governments trying to prevent terrorism and terrorist acts from happening mainly centre their attention to intelligence and law enforcement. Intelligence is commonly concerned with the gathering, assessing, and acting on information about individuals or organisations important to a country’s security.24 Whereas intelligence mainly has a preventive nature, law enforcement has a reactive nature. Through law enforcement, those who break the law can be identified, apprehended, and punished.25 Generally, law enforcement does not act until after something has happened. To disclose terrorism-related information, in many countries, extraordinary powers, such as question and detain powers, are given to the intelligence agencies and the police through the passing of new legislation.26 To be able to respond adequately to terrorism threats, the nature, extent, values and means to thwart or minimise the treat need to be assessed.27
1.2.3 Counter-terrorist strategy Australia For some countries, dealing with and countering terrorism is not new. These countries, such as the United Kingdom, already have law enforcement and intelligence agencies in place primarily designed to prevent and respond to terror attacks.28 However, in other countries, one of them being Australia, counterterrorism is a rather recent objective of the intelligence agencies and law enforcement.29 This has resulted in a big difference between states and their counterterrorism strategy and policies, including the division and organisation of institutions and intelligence, and this may contribute to contrasting outcomes. After the attacks of 9/11, Australia and its states implemented various counterterrorism measures on a national and regional level to combat terrorism. Australia is a federation – a union of partially self- governing states or regions under a federal government - and this federal system of government is reflected in the national counter-terrorism arrangements.30 This has led to the states and territories acquiring the primary responsibility of countering terrorism in Australia. As Australia’s counter- terrorism strategy reflects their federal system of government, there are different intelligence agencies established, which are acting on different levels, both federal (national) and state (regional) level.31 These agencies, moreover, have acquired specific but limited powers and functions on these
23 Britannica Academic ( 15th edn, 2010). 24 Brian Jackson and others, Considering the creation of a domestic intelligence agency in the United States: lessons from the experiences of Australia, Canada, France, Germany, and the United Kingdom, (1st edition Santa Monica: RAND Corporation 2009), p.4. 25 Ibid, p.1. 26 Jessica Wolfendale, ‘Terrorism, Security, and the Threat of Counterterrorism’ [2007] 30(1) Studies in Conflict & Terrorism 75, p. 75 27 Ibid, p. 77. 28 A. Duyan, Defence Against Terrorism: Different Dimensions and Trends of an Emerging Threat, (IOS Press, 2012). 29 Brian Jackson and others, Considering the creation of a domestic intelligence agency in the United States: lessons from the experiences of Australia, Canada, France, Germany, and the United Kingdom, (1st edition Santa Monica: RAND Corporation 2009). 30 Aalt Willem Heringa, Constitutions Compared, (4th edition, Intersentia Ltd, 2016). 31 Michael Barnes, ‘Inquest into the deaths arising from the Lindt Café siege: findings and recommendations’ (New South Wales Government, 24 May 2017)
10 different levels. For instance, where the Australian Security Intelligence Organisation (ASIO) does not have the power to arrest because it is not a policing body, the police do not have as many powers as ASIO regarding information gathering and surveillance to prevent terrorist acts.32 In first instance, all the initiatives to counter and combat terrorism seem beneficial and worthwhile because one may conclude that every measure taken to counter terrorism contributes to less risk of terrorist acts. However, after the Lindt Café Siege, it became apparent that Australia’s counter-terrorism strategy may not be very adequate because first of all, the authorities were not able to prevent the attack, and secondly, ending the attack resulted in three deaths. The emerging problems in Australia’s counter-terrorism strategy may be linked to an organisational issue that lies within the core: Australia’s counter-terrorism strategy being structured to reflect their federal system of government. A lot of different agencies acquire specific but limited powers and functions on different levels. This can lead to the emergence of specific crucial and critical points in the approach to countering terrorism in Australia, such as the problems of poor information dissemination and the underdeveloped cooperation and collaboration between the various counterterrorism agencies.33 The way the counter-terrorist strategy of Australia is structured and organised implies the observation that the institutions and agencies in Australia possibly function more next to each other instead of among and with each other. This is problematic because it can lead to poor information dissemination between the various agencies. Moreover, the different powers and functions of the agencies may enhance ambiguity and chaos regarding responsibilities and accountability. This ambiguity and confusion can, in turn, contribute to a lower level of efficiency and effectiveness of the counterterrorism policies.34 The agencies all have their specific functions and duties, and there is not one overarching department or organisation responsible for the overall objective and coordination of countering terrorism.
In the past, security intelligence agencies, especially ASIO, had the responsibility for the identification of terrorism threats in Australia. However, after the attacks of 9/11, the Criminal Code was adjusted to include terrorism offences, and terrorism started to be approached as a species of crime by law enforcement agencies, meaning that terrorism, like for example robbery, became a type of crime.35 Aside from considerable legal amendments, Australia and its states have also taken other practical measures to counter terrorism. The core of these on the national level are the establishment of the National Counter-Terrorism Plan and Strategy and the Australia- New Zealand Counter-Terrorism Committee. Also, Australia established an intelligence community on both the national and regional level. The primary intelligence agency on national level is ASIO, and the Joint Counter Terrorism Teams (JCTTs) are the central intelligence agencies on a regional level. The most important source for these intelligence agencies is the National Security Hotline. Not only the national level of Australia
Thus, maybe, the issues arising in Australia’s counter-terrorism strategy are caused by a more significant overall problem: the organisation of the machinery of government itself may be problematic. The primary responsibility for countering terrorism is acquired by the states and territories; however, the national level has also put in place certain measures and supports the states and territories where necessary. Moreover, various agencies have obtained specific but limited powers and functions on different levels. The responsibility for countering terrorism is thus divided between the national and regional level, and between the various agencies acting in the counter- terrorism field of Australia. This fragmented responsibility may not be favourable when dealing with terrorism. Due to the raised issues regarding the functioning of counterterrorism policies in Australia, it may be beneficial to look at the counterterrorism measures and arrangements of another country that potentially has more excellent procedures in place and make a comparison. This comparison could serve as a source of inspiration and guidance for Australia and ultimately may lead to possible initiatives regarding the improvement of counterterrorism policies in Australia.
1.2.4 Counterterrorism in the United Kingdom The organisational and technical tools that other countries have in place to counter terrorism can serve as a source of information and inspiration. In modern day, many nations’ international and domestic security policies are considerably shaped by the threat of terrorism.37 Governments all over the world seek to prevent potential large-scale terrorism incidents. A country, that after the attacks of 9/11 made significant changes which have proven to be far profound is the UK.38 There exists uniformity in the UK system, which seems to work as, over the last few years, several terrorist attacks have been prevented because the police could arrest suspects before an attack was committed.39 The most recent terrorist attack committed on the UK soil, which greatly affected society and resulted in a lot of casualties, was 14 years ago: the 7 July 2005 London bombings.40 As is the threat of terrorism, the UK counter-terrorism policies and response are complex and dynamic. UK’s organisations and structures are independent yet interrelated.41 This is very beneficial because it contributes to a good working relationship among the agencies and greatly reduces the chance of poor information dissemination.
36 Terrorism (Police Powers) Act 2002. 37 Brian Jackson and others, Considering the creation of a domestic intelligence agency in the United States: lessons from the experiences of Australia, Canada, France, Germany, and the United Kingdom, (1st edition Santa Monica: RAND Corporation 2009), p.1. 38 Ibid, p.115 39 Ibid. 40 ‘7 July London bombings: What happened that day?’ (BBC News, 3 July 2015)
As said before, to be able to prevent and respond to terrorist attacks, law enforcement and intelligence agencies are of great importance. These are established in and rely on legislation, and it is exactly this what makes the UK an appropriate country for comparison: Australian and English law are tightly related to one another. The foundation of the Australian legal system is the common law system of the UK.42 This is the case because Australia has been a former colony of the UK, which resulted in the English colonizers introducing the common law system to Australia.43 Common law originated in the English courts and is based on incorporated reports of judicial decisions developed by judges in these courts.44 Common law is customary law, and case law is very important for the development of common law. Thus, because of the colonial history and the fact that both the UK and Australia adhere to the common law system, the UK makes an excellent country for comparison.
Changes made in the UK approach to terrorism include changes across the board involving the restructuring of the machinery of government and are thus not only concentrated on UK’s intelligence agencies such as the Military Intelligence Section 5 (MI5) or the police. MI5 is the intelligence agency of the UK concerned with domestic security and intelligence. With the changes, the UK’s machinery of government was addressed and focused upon.45 One significant change was the restructuring of the Home Office in 2007 which consequently has led to the Home Office being more focused upon its core responsibilities including the gathering of intelligence, counterterrorism, and the prevention and controlling of crime. The Office for Security and Counter-Terrorism (OSCT), a newly created department, oversees these functions. The Home Office obtained its position as lead government department on counterterrorism in the UK. As lead government department, they ensure coordination, cooperation, and collaboration between the various agencies established in the counter-terrorism field of the UK. This has resulted in independent yet interrelated organisations in the UK: the lead government department contributes to a good working relationship among the agencies and greatly reduces the chance of poor information dissemination. This is a big difference between the UK and Australia: Australia does not have a lead government department, and this may contribute to the identified problems arising in Australia’s counter-terrorism strategy. Simultaneously, the strategy and structure of counterterrorism policies and agencies in the UK have been altered as well.46 For instance, the focus has shifted to understanding the reasons behind terrorism.
These and other developments have been very significant and essential to the counterterrorism model of the United Kingdom. Even though every agency obtains its specific functions and responsibilities, the Home Office, as lead government department, ensures coordination and cooperation between the various agencies, which has resulted in good working relationships and independent yet interrelated organisations. These well-structured changes in the counterterrorism policies of the UK, such as the restructuring across the board and the focus on understanding the reasons behind terrorism, may be a good source of inspiration and information for Australia. This is the case because the emerging problems in Australia’s counter-terrorism strategy, such as the poor
42 Alex Castles. ‘The Reception and Status of English law in Australia’ [1963] 2 Adelaide Law Review 1. 43 Britannica Academic ( 15th edn, 2010). 44 Ibid. 45 Brian Jackson and others, Considering the creation of a domestic intelligence agency in the United States: lessons from the experiences of Australia, Canada, France, Germany, and the United Kingdom, (1st edition Santa Monica: RAND Corporation 2009), p. 115. 46 Ibid, p. 116. 13 information dissemination between agencies, can be linked to existing structural and organisational issues in Australia.
1.3 Research aim and questions Australia has not (yet) been confronted with the level of terrorism threats experienced by countries such as the United Kingdom. However, in the light of international alliances and developments and the occurrence of international events in Australia such as the 2000 Olympic Games in Sydney, the country’s government increased and heightened their attention regarding terrorism and counterterrorism policies and measures.47 Even though terrorism is a phenomenon not occuring much in Australia, in 2014, the country was confronted with a hostage situation executed by the religious activist Man Monis, which resulted in three casualties. After this siege, questions arose concerning the organisation, responsibilities, and effectiveness of institutions and intelligence agencies involved in preventing and countering terrorism in Australia. To examine whether Australia can make changes to improve their policies regarding countering terrorism, a comparison with the UK’s policies related to terrorism and counter-terrorism will be made. I have chosen this country for comparison because the substantive law of Australia, both at federal and state level, is primarily derived from the common law system of English law mainly because Australia was a colony of Britain until the passing of the Australia Act 1986.48 Moreover, the improvements made by the UK over the last few years, including the changes to the core, may serve as a good source of inspiration and information for Australia. For example, appointing a lead government department is a measure that may be very beneficial for Australia to achieve better cooperation and coordination between the various agencies. The changes made in the UK have led to independent yet interrelated agencies, something which seems to be lacking in Australia. Whereas intelligence agencies in Australia mainly work next to each other, organisations in the UK primarily work among each other and oversee one another, which leads to a working relationship. Thus, the restructured model of the UK may be an excellent source of improvement for the Australian counterterrorism model. Making adjustments in the core of Australia as well could be beneficial for development. As a result, this leads to the following research question:
Can Australia use the United Kingdom’s procedures and policies related to countering terrorism, such as the restructuring of the machinery of government and the appointment of one overarching organisation or government department, as a source of information and inspiration to improve and reinforce their counter-terrorism strategy?
This research question will be split up in a couple of sub-questions, which are as follows:
- How is Australia’s counter-terrorism strategy structured and what counter-terrorism policies and procedures are in place? - What counter-terrorism policies and procedures did the United Kingdom put in place and how is its counter-terrorism strategy structured?
47 Ibid, p. 13. 48 Britannica Academic ( 15th edn, 2010). 14
- What are the similarities and differences between Australia’s strategy and policies and the policies and strategy of the UK and how are these explained and comprehended to one another?
1.4 Methodology In this thesis, I will make a legal comparison, based on legal-dogmatic research, between the counter- terrorism strategy of Australia and the UK. Legal-dogmatic research aims at systematically exposing certain rules, principles, or concepts in a specific legal institution or area, and analysing these to solve unclarities and gaps.49 For this, literature and jurisprudence are used. Moreover, one of the aims of legal-dogmatic research is to find suitable practical solutions to the existing system.50 This thesis’ legal-dogmatic research aims at exposing and analysing the counter-terrorism strategies of Australia and the UK, by using literature and jurisprudence, to find practical solutions and solve the existing problems in Australia’s counter-terrorism strategy.
I will make this legal comparison based on the literature of Reitz51 and Zweigert & Kötz52. The literature of Reitz describes five essential aspects of legal comparison. First of all, the comparative method involves explicitly comparing the elements of two or more legal systems.53 Secondly, the legal systems being compared have similarities and differences and these need to be identified.54 Moreover, a comparison needs to have a common point of departure, for instance, a real-life problem.55 This is called the ‘tertium comparationis’. Thirdly, a comparative study casts light on commonalities and distinctive and peculiar natures in the legal systems.56 Fourthly, comparative analysis is beneficial because broader constructs need to be developed by the comparatist and functional similarities need to be sought.57 Lastly, the important similarities and differences are described, analysed and explained in a comparison.58 The literature of Zweigert & Kötz develops the essence, aim, and functions of comparative law.59 According to Zweigert & Kötz, ‘comparative law is the comparison of the different legal systems of the world.’60 This comparison can be made on a large scale -macro comparison - or a smaller scale – micro comparison. Whereas macro comparison focusses on comparing the essence, approach, style of thought and procedures of different legal systems, micro comparison, on the contrary, aims at researching specific legal institutions or problems.61 Zweigert & Kötz recognise the aim and several
49 Jan Smits, ‘What is Legal Doctrine? On the Aims and Methods of Legal-Dogmatic Research’ (Maastricht University Faculty of Law, 2015), p. 5. 50 Ibid, p. 10. 51 John C. Reitz, ‘How to do comparative law’ [1998] 46(4) The American Journal of Comparative Law 617. 52 Konrad Zweigert, Hein Kötz, Tony Weir, Introduction to Comparative Law, (3rd edition, Clarendon Press 1998). 53 John C. Reitz, ‘How to do comparative law’ [1998] 46(4) The American Journal of Comparative Law 617, p. 618. 54 Ibid, p. 620. 55 Ibid, p. 622. 56 Ibid, p. 624. 57 Ibid, p. 625. 58 Ibid, p. 626. 59 Konrad Zweigert, Hein Kötz, Tony Weir, Introduction to Comparative Law, (3rd edition, Clarendon Press 1998), p. 2. 60 Ibid. 61 Ibid, p. 5. 15 significant functions of comparative law. The primary objective of comparative law is knowledge: the different systems existing in the world can offer a greater variety of solutions.62 Furthermore, Zweigert & Kötz introduce the existing legal systems in the world that are comparable. One of these is the common law system which can be found all around the world. This is the case because Great Britain, where common law originated, was once the greatest colonial power in the world.63 They implemented common law in their colonies, and to this day, the whole law of these countries is still greatly influenced by common law ideas.64
My legal comparison will thus be based on legal-dogmatic research and the literature of Reitz and Zweigert & Kötz. The starting point of this research is the Lindt Café Siege in Sydney, which resulted in three casualties. Due to the specific problem, this legal comparison will be a micro comparison. Chapter Two will outline the counter-terrorism strategy of Australia, which is structured according to its federal system of government, and therefore, this chapter will apprehend this structure. I have chosen to outline both the actions taken on the national level, as well as including the initiatives on the state/territory level. However, because Australia exists out of six states and two territories, I have decided to only include the initiatives of one state, namely the ones of New South Wales (NSW). I have chosen for this state because the Lindt Café Siege, the reason and basis of this research, happened in that state. Chapter Two will begin by generally outlining the terrorism and counterterrorism policies and arrangements in Australia and NSW. Next, the national bodies and arrangements, the domestic legislation and the intelligence agencies that have been established to counter terrorism will be illustrated. The chapter will end by discussing the counter-terrorism initiatives in New South Wales. Chapter Three will outline the counter-terrorism strategy of the United Kingdom. The chapter will again start with generally outlining the terrorism and counterterrorism policies and arrangements in the UK. Thereafter, the national bodies and arrangements, the domestic legislation and the established intelligence agencies will be discussed. The UK is not a federation, and therefore, this chapter will only include the measures taken on the national level. The aim of Chapter Two and Three is outlining the specific agencies and their responsibilities and scope of powers. After that, similarities and differences in these two strategies will be identified, and reasons for these similarities and differences will be sought in Chapter Four. Chapter Four will begin by comparing the counter-terrorism strategies of Australia and the UK. Similarities and differences between the two approaches will be addressed. Subsequently, these similarities and differences will be explained and comprehended to one another, and this will eventually lead to answering the research question. Chapter Five will conclude this thesis by summarising the answers to the three sub-questions to ultimately give a conclusive answer to the research question. Ultimately, the aim of this legal comparison is knowledge: by comparing two different legal systems, the objective is to find out, by looking at the UK, if Australia could improve and reinforce their policies and procedures regarding preventing, resolving, and countering terrorism. The reason for choosing the UK as comparative legal system is the fact that Australia has been a colony of the UK in the past and therefore, both countries adhere to the common law system.
62 Ibid, p. 15. 63 Ibid, p. 219. 64 Ibid, p. 220. 16
1.5 Reading guide This thesis is composed of five themed chapters. Chapter One has been the introduction chapter in which the problem and related concepts have been introduced, and the research aim and question have been outlined. Chapter Two and Three will, respectively, outline Australia’s and the UK’s counter-terrorism strategies. Chapter Four will identify similarities and differences between these two strategies and these similarities and differences will be explained and comprehended to one another, with the ultimate aim of answering the research question. Chapter Five will conclude this thesis.
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2. Australia The attacks of 9/11 were a turning point in the world. After the attacks, a lot of countries strengthened and intensified their policies and law enforcement regarding terrorism and counterterrorism.65 They put in place specific structures, policies and agencies to collect, assess, and disseminate information regarding terrorism and possible terrorist acts. One of those countries that intensified and strengthened their policies and law enforcement after the attacks of 9/11 is Australia.66 The core of Australia’s counterterrorism approach is the establishment of what is called ‘Australia’s Counter-Terrorism Strategy’ which outlines the structure of Australia’s counterterrorism measures and policies.67 Aside from the establishment of a counter-terrorist strategy, Australia has also formulated the National Counter-Terrorism Plan (NCTP). This Strategy and Plan focus much attention upon the importance of intelligence in countering terrorism. The biggest domestic intelligence agency in Australia is the Australian Security and Intelligence Organisation (ASIO). Besides this developed intelligence agency on the national level, the states and territories have set up procedures and agencies as well with the primary aim to counter-terrorism and uncover possible terrorist plots. This chapter aims at outlining Australia’s counter-terrorism strategy. This involves outlining relevant procedures, policies and agencies in place to counter terrorism in Australia. In this way, underlying factors or problems related to the structures, policies, and procedures may be unveiled.
2.1. Introduction to terrorism and counterterrorism policies and arrangements in Australia and New South Wales To safeguard their nation, Australia has developed policies, procedures and agencies to uncover and counter terrorism over the years. Essential factors in countering terrorism are operational, organisational and legal measures as well as the institutional structure of a country. Australia is a federation. A federation is composed of a national and regional level. The regional level consists of territorial sub-units, which can, for instance, be states or provinces, and these territorial sub-units maintain its integrity because they form constituent governments.68 In a federation, power is divided between two levels of government: the federal and the constituent governments.69 In Australia, the national level is the Commonwealth, and the territorial sub-units consist of six states, New South Wales, Queensland, Western Australia, Southern Australia, Victoria, and Tasmania, and two internal territories, the Australian Capital Territory and the Northern Territory.70 These sub-units maintain its integrity because they have their own state government and are assigned powers and responsibilities. This is distinctive for a federation: as a federation, a country unites for common purposes through a national government, yet remains separate to preserve their respective
65 Doron Zimmermann, ‘The European Union and Post-9/11 Counterterrorism: A Reappraisal’ [2006] 29(2) Studies in Conflict & Terrorism 123, p. 123. 66 Christopher Michaelson, ‘Australia and the Threat of Terrorism in the Decade after 9/11’ [2010] 18 (3) Asian Journal of Political Science 248, p. 249. 67 Justin Healey, Countering Terrorism and Violent Extremism, (1st edition, The Spinney Press, 2016), p. 16. 68 Aalt Willem Heringa, Constitutions Compared, (4th edition, Intersentia Ltd, 2016) p. 32. 69 Daniel Elazar, Exploring Federalism, (1st edition, University of Alabama Press, 1987), p. 34. 70 Britannica Academic (15th edition, 2010). 18 integrities through own state governments.71 According to the Australian Constitution, the common purposes and thus the responsibilities of the federal government (the Commonwealth) include foreign relations, trade, defence and immigration72, and the constituent governments of the states and territories are responsible for all other matters, not including foreign relations, trade, defence and immigration.73 One of these responsibilities of the states and territories, established in the Australian constitution, is countering terrorism.
Australia’s counter-terrorism strategy is structured in accordance with its federal system of government. This means that there are counterterrorism arrangements and procedures in place on two levels, namely on Commonwealth or national level and on state/territory or regional level. States and territories have, in their jurisdiction, the primary responsibility for the investigation of and the operational response to terrorism.74 This means that, in first instance, the states and territories are responsible for countering terrorism. However, it is recognised in Australia’s National Counter- Terrorism Plan that countering terrorism, although this is the primary responsibility of the states and territories, is a responsibility shared between all levels of government.75 Therefore, the Commonwealth supports, where necessary, the states and territories. For instance, as established in the National Counter-Terrorism Plan, the Commonwealth financially supports the states and territories, for example during the recovery of an attack.76 Moreover, although each state and territory has established its own agencies for intelligence gathering, the Commonwealth has also established a national intelligence gathering agency ASIO. If ASIO receives important intelligence concerning a threat to the security of a state or territory, the idea is that this information is shared with the relevant state or territory, and in this way, the Commonwealth supports the states and territories. As a consequence of the shared responsibility, the national level of Australia has also established some operational and organisational measures and policies to counter terrorism. These are established in Australia’s national counter-terrorism Strategy and Plan, and will be thoroughly outlined in the next paragraph. Thus, countering terrorism, despite the fact that this is the primary responsibility of the states and territories, is a responsibility shared among all the levels of government in Australia. States and territories carry out the primary responsibility for countering terrorism with the support of the federal government. The consequence of this federal structure of Australia’s counter-terrorism strategy is that the responsibility for countering terrorism in Australia is fragmented. On the one hand, the states and territories have acquired the primary responsibility for countering terrorism, and thus have established various agencies and policies to counter terrorism. On the other hand, the national level is also responsible since countering terrorism is recognised as a shared responsibility between all levels of government. The national level supports the states and territories where
71 Daniel Elazar, Exploring Federalism, (1st edition, University of Alabama Press, 1987), p. 33. 72 Commonwealth of Australia Constitution Act 1900, s. 51 and s. 52. 73 Justin Healey, Australia’s political system, (1st edition, The Spinney Press, 2015), p. 1. 74 Michael Barnes, ‘Inquest into the deaths arising from the Lindt Café siege: findings and recommendations’ (New South Wales Government, 24 May 2017)
19 necessary and has established some operational and organisational measures to counter terrorism. The responsibility for countering terrorism in Australia is thus divided between the national and regional level. This division, however, can cause ambiguity and confusion regarding the accountability, responsibility and duties of the agencies established on different levels.
Australia has also made some legal amendments since the rise of terrorist threats. In the Criminal Code Act of 1995, a terrorist act has been defined as ‘an action or threat of action that causes serious harm, death or property damage, carried out with the intent of advancing a political, religious or ideological cause, and coercing or influencing the government or intimidating the public or a section of the public.’77 Thus, in the Criminal Code of Australia, a terrorist act is defined as violence or threats of violence causing serious harm with the aim to introduce a political or religious cause in pursuit of political change. Furthermore, after the attacks of 9/11, the Criminal Code was adjusted to include terrorism offences, and terrorism started to be approached as a species of crime by law enforcement agencies.78 Paragraph 2.3 will elaborate on these legislative changes because legislation forms the basis of a country’s counter-terrorism strategy: it legislates the strategy as well as the techniques and activities used and performed by the intelligence agencies.
Both the Commonwealth and the states and territories have developed several policies, procedures and arrangements on the national and regional level aimed at countering terrorism. First, the established national strategy and arrangements to counter terrorism will be outlined. Thereafter, the domestic legislation and the established national intelligence agencies will be discussed. Lastly, the policies, procedures and agencies in place in New South Wales will be outlined. This will all involve describing the structure, organisation, functions, and powers of these bodies and arrangements.
2.2 National bodies and arrangements On the national level, certain mechanisms, policies and agencies have been established in order to better prevent, respond to, and counter terrorism. These are the establishment of a national body/committee named the ‘Australia-New Zealand Counter-Terrorism Committee’ and the formulation of Australia’s Counter-Terrorism Strategy and National Counter-Terrorism Plan.
Australia-New Zealand Counter-Terrorism Committee
The Standing Advisory Committee on Commonwealth/State Cooperation for Protection against Violence (SAC-PAV) was established in 1978 after the Hilton Hotel bombing whereby three people were killed after a bomb exploded in Sydney.79 The Committee included the national, Commonwealth, government and the state and territory governments and agencies, and the main desire was to establish a range of agreements and arrangements on the national level to counter
77 Criminal Code Act 1995, s. 100.1 and s. 100.2. 78 Michael Barnes, ‘Inquest into the deaths arising from the Lindt Café siege: findings and recommendations’ (New South Wales Government, 24 May 2017)
80 ‘What Australia is doing’ (Australian Government)
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- Upholding and preserving the National Counter-Terrorism Plan (NCTP); - Present to the heads of government expert strategic and police advice; - Making sure that the arrangements concerning information and intelligence sharing between relevant agencies and jurisdictions are abided to.
What should be kept in mind though, is the fact that the ANZCTC is a shared national committee between Australia and New Zealand and is not a national security department of Australia itself. Whereas the ANZCTC mainly coordinates information and intelligence of various agencies between Australia and New Zealand, a national lead government department of Australia itself would focus on the coordination and sharing of information and intelligence between agencies in Australia itself. The fact that there is no existing lead government department in Australia itself may be problematic because coordination is precisely what is needed in Australia since there are various agencies established on both federal and state level.
National Counter-Terrorism Plan
As mentioned in the objectives, the ANZCTC maintains the National Counter-Terrorism Plan (NCTP), which is a significant component of the counter-terrorism strategy of Australia. The NCTP includes the national policies and arrangements to counter terrorism, and to prevent and deal with terrorism acts, it outlines the strategic approach of Australia.89 It is an important source outlining ‘governmental, jurisdictional, and operational arrangements and responsibilities for preventing, preparing, responding to and recovering from domestic terrorist attacks.’90 The prepare, prevent, respond and recover (PPRR) model is central to the Plan. This entails the focus on preparedness in the legal framework by reinforcing and strengthening Australia’s counter-terrorism laws; prevention which involves intelligence, protecting society, consciousness and carefulness, and countering violent extremism; response to terrorist acts; and recovery from potential terrorist acts.91 Moreover, it is recognised in the Plan that countering terrorism, although this is the primary responsibility of the states and territory, is a shared responsibility between the national and regional level of government, society, and the private sector.92 Thus, to help the regional level with their responsibility to counter terrorism, assistance is provided by the Commonwealth, the private sector and the community by, for example, providing local information. The Plan has adopted three main approaches to counter terrorism: 1) an intelligence-led approach by the national and regional governments and agencies covered by the Intelligence Services Act 2001, 2)
22 a cooperative national approach adhered to by all state and territory jurisdictions established in the IGA and, 3) the general prioritization of disruption of planned attacks over waiting for evidence for a successful prosecution by the police and intelligence agencies developed in the Anti-Terrorism Bills of 2004. As mentioned before, the Plan is maintained by ANZCTC. The NCTP is located a level below and is complemented by the Strategy.
Australia’s Counter-Terrorism Strategy
Australia’s Counter-Terrorism Strategy outlines the structure of Australia’s counter-terrorism arrangements.93 In article 3.2(b) of the IGA, the national level has been authorized to maintain and establish national procedures, arrangements, and laws to counter terrorism.94 The Strategy determines the current threat of terrorism and describes the manner in which Australia is countering it. Australia’s counter-terrorist Strategy is founded on three main principles, namely95:
- The absolute priority is protecting lives; - Challenges of terrorism must be faced together by governments and the community; and - The acts of terrorism are crimes dealt with through the criminal justice system.
As Australia has identified community resilience as essential in countering terrorism, the Strategy is based upon partnerships between the national and regional governments (federal and state level), the private sector and communities to ensure transparency and community support through these partnerships. Next to three main principles, the Strategy also involves five core elements focused on preventing terrorism96:
1. Challenging violent extremist ideologies: according to this element, limiting the influence and spread of violent extremist ideologies will constrain the terrorist threat; 2. Stopping people from becoming terrorists: preventing people from becoming terrorists in the first place is the most effective defence; 3. Shaping the global environment: to counter terrorism in Australia, coordinated international action to make the global environment less conducive to terrorism is essential; 4. Disrupting terrorist activity within Australia: through law enforcement and intelligence agencies, terrorist activity should be interrupted; and 5. Effective response and recovery: robust arrangements to deal with and come back from an act of terrorism when such an attack does occur.
93 ‘Australia’s Counter-Terrorism Strategy’ (Australian Government, 2015)
All the principles and elements of the Strategy evolve around three essential pillars: domestic legislation, intelligence, and regional assistance and engagement.97 The ANZCTC, Australia’s Counter- Terrorism Strategy and the National Counter-Terrorism Plan support these pillars. The following paragraphs, paragraph 2.3 and 2.4, will outline the first two pillars of this Strategy, namely domestic legislation and intelligence. Instead of describing regional assistance and engagement, I have chosen to outline the initiatives taken by New South Wales. I have chosen for this approach because the pillar regional assistance is not relevant for this research. Regional assistance focuses on providing counterterrorism assistance to regions outside of Australia and therefore, is not connected to this research. Instead, New South Wales’ counterterrorism measures will be discussed because the cause of this research originated from the siege that happened in this state. Moreover, it will provide a more understandable and competent picture of how Australia’s counter-terrorism model is structured to reflect its federal system of government. The following paragraphs will first outline the changes made in domestic legislation and legislation on the national level, and subsequently, counterterrorism arrangements and agencies installed on regional (New South Wales) level will be outlined.
2.3 Domestic legislation The aim of this thesis is not to outline all the passed legislative bills and amendments because these have already been researched thoroughly, including their consequences. However, as acknowledged in paragraph 2.1, legislation forms the basis of a country’s counter-terrorism strategy because it legislates the strategy as well as the techniques and activities used and performed by the intelligence agencies. Therefore, this paragraph will elaborate on Australia’s terrorism and counter-terrorism legislation which form the basis of Australia’s counter-terrorism laws and counter-terrorism strategy and thus, subsequently, is relevant to this research. Moreover, Australia’s counter-terrorism strategy revolves around three essential pillars, including domestic legislation, and therefore, to maintain a comprehensive picture of Australia’s counter-terrorism model, this paragraph will shortly elaborate on Australia’s passed and amended legislation. The legal basis of the counter-terrorism strategy of Australia has been established in one primary Act, and through case law, the law has been interpreted, and exceptions and additions have been added in legal Acts. The Criminal Code Act 1995, part 5.3, forms the basis of Australia’s laws against terrorism.98 First of all, Section 100 establishes terrorism definitions. For example, according to Section 100.1 of the Criminal Code Act 1995, a terrorist act is ‘an act or threat of committing an act that aims at advancing a political, religious, or ideological cause.’99 Thereafter, Section 101 of the Criminal Code Act 1995 criminalises terrorism and terrorism activities which have been defined in Section 100. For instance, Section 101.1 criminalises terrorist acts: ‘A person commits an offence if the person engages in a terrorist act.’100 Section 102 defines terrorist organizations and related offences. For example, Section 102.3 makes it an offence to ‘intentionally be a member of a terrorist organisation’101 and Section 102.7 criminalises ‘intentionally providing support to a terrorist
97 Andrew O’Neil, ‘Degrading and Managing Risk: Assessing Australia’s Counter-Terrorist Strategy’ [2007] 42(3) Australian Journal of Political Science 471, p. 476. 98 Criminal Code Act 1995. 99 Criminal Code Act 1995, s. 100. 100 Ibid, s. 101. 101 Ibid, s. 102.3 24 organisation.’102 Furthermore, Section 103 criminalises the financing of terrorism. For instance, a person commits an offence under Section 103.1 when ‘he or she provides or collects funds to facilitate or engage in a terrorist act.’103 Thus, Sections 100-103 define and criminalise terrorism or terrorism related activities. The Criminal Code Act 1995 also establishes two powers for those concerned with countering terrorism. Section 104 authorizes the use of control orders, which need to be authorized by the AFP Minister according to Section 104.2.104 Control orders are restrictive in nature, they can, for instance, stop a person from leaving Australia or communicating with certain people.105 Moreover, a control order can require certain things from a person, for instance, to wear a tracking device and report themselves at a certain time and place to someone.106 Thus, officers have the power to restrict those suspected terrorism. Moreover, Section 105 authorizes preventative detention orders, which need to be authorised by an issuing authority appointed by the Attorney- General, according to Section 105.2.107 When there exists an imminent terrorist attack threat, or immediately after the occurrence of a terrorist attack, the police is authorized to arrest people with preventative detention orders.108 A person can be preventatively detained for a maximum of 14 days. Thus, police officers are given the power to detain people on a preventative basis. The Criminal Code Act 1995 has been interpreted in, for instance, the Regina v Lodhi109 case. In this case, Lodhi was charged with the ‘preparation of a terrorist act’ offence110, under Section 101 of the Criminal Code Act 1995.111 Lodhi had been collecting documents in preparation of a terrorist act, and the court interpreted the Criminal Code Act 1995 and decided that Lodhi was guilty of the offence ‘preparation of a terrorist act’, even though he had no particular plan to carry out a terrorist act.112 Lodhi was sentenced to 20 years jail.
The Criminal Code Act 1995 only established a basis for Australia’s laws against terrorism, and did not include specific terrorism-related legislation. There was no specific legislative basis yet for the use of certain powers, procedures and techniques used by the police and intelligence agencies, beyond those related to ordinary crime, which would help uncover terrorism. Since the attacks of 9/11 in 2001, this changed. Australia’s anti-terrorist legislation rapidly developed through case law with numerous bills being passed by the Commonwealth Parliament and amendments being made to existing Acts.113 First of all, state and territory governments agreed in 2002, after the Bali bombing, to
102 Ibid, s. 102.7. 103 Ibid, s. 103.1 104 Ibid, s. 104.2. 105 ‘Australia’s counter-terrorism laws’ (Australian Government)
Thus, the Criminal Code Act 1995 forms the basis of Australia’s counter-terrorism laws. It establishes terrorism offences and authorizes two specific powers for officers. However, this Act did not include specific terrorism-related legislation. Therefore, Australia passed and amended specific terrorism- related legislation to be better able to prevent and uncover terrorism plots. This specific legislation included the Terrorism (Commonwealth Powers) Act 2003 and the two Anti-Terrorism Bills of 2004.
2.4 Intelligence and intelligence agencies Besides the establishment of national bodies and policies, as well as changes to domestic legislation, Australia has also developed intelligence and intelligence agencies. The responsibilities and duties of the intelligence agencies are legislated in the Intelligence Services Act 2001.118 This Act of Australia’s Parliament made significant changes to the intelligence community of Australia, such as increasing the powers of the Australian Security Intelligence Organisation (ASIO). This paragraph will outline Australia’s primary intelligence agency on the national level – ASIO- and it’s most significant source of
114 Ibid, p. 477. 115 Terrorism (Commonwealth Powers) Act 2003, s. 4(1). 116 Anti-Terrorism Bill 2004, schedule 1. 117 Anti-Terrorism Bill (No 2) 2004, schedule 2. 118 Intelligence Services Act 2001. 26 information – the National Security Hotline- as well as the principal intelligence agency on state/territory level – the Joint Counter Terrorism Teams. In this way, the federal structure of Australia’s counter-terrorism strategy will become evident as well.
The Australian Security Intelligence Organisation (ASIO)
The Australian Security Intelligence Organisation (ASIO) has a central role in Australia’s counter- terrorism efforts. ASIO is Australia’s principal national counterterrorism intelligence agency.119 This intelligence agency was established in 1949, and its powers are entrenched in the ASIO Act 1979.120 In the specific statutory mandate of ASIO, it is determined that the purpose of ASIO is ‘to investigate threats to national security both within and outside Australia.’121 In this manner, the scope of powers of ASIO is broad. Its functions include collecting, comparing, judging and passing on intelligence relevant to Australia’s ‘security’ which is defined as ‘including the protection of the Commonwealth, states and territories and their residents from politically motivated violence.’122 Thus, ASIO’s function is to recognize and analyse possible security threats to Australia and Australians, including terrorist threats. For example, if someone gets on the radar of ASIO for whatever reason, it is the responsibility of ASIO to assess whether this person is or will become a danger to national security.
ASIO acquires a wide range of powers to undertake surveillance and information-gathering so to be able to achieve their aims. These special investigative powers are established in the ASIO Act 1979 and are available to ASIO officers under a warrant signed by the Attorney-General. A couple of examples of these special investigate powers are: the power to search premises under Article 25 of the ASIO Act 1979123, the power to use tracking devices under Article 26124, and the power to inspect postal articles under Article 27125. These powers thus support ASIO officers in achieving their aims. However, the limits of these powers are clearly set as well. For instance, in Article 34(H) of the ASIO Act 1979, it is established that ‘a suspect should be taken into custody by a police officer.’126 Thus, ASIO has no powers of arrest because it is not a policing body. When ASIO acquires information predicting a risk to the national security, it is required to disclose that information to a body - law enforcement or judiciary- that is authorized with powers to take action, such as the police having the ability to arrest suspects.127 Thus, ASIO officers only acquire a wide range of investigative powers, they do not obtain powers to act upon intelligence.
A lot of ASIO’s information is derived from human sources, and thus, ASIO relies much on community-based information. Moreover, to advance investigations into persons of security interest and possible terrorist suspects, ASIO also relies heavily on cooperative relationships with law enforcement at federal, state, and local level.128 At federal, state, and local level, law enforcement
119 Peter Chalk and William Rosenau, Confronting ‘the Enemy Within’: Security Intelligence, the Police and Counterterrorism in Four Democracies, (1st edition, RAND Corporation, 2004), p. 35. 120 Australian Security Intelligence Organisation Act 1979. 121 Ibid, s. 17. 122 Ibid, s. 4 and s. 17. 123 Ibid, s. 25. 124 Ibid, s. 26. 125 Ibid, s. 27. 126 Ibid, s. 34(H). 127 Ibid. 128 Peter Chalk and William Rosenau, Confronting ‘the Enemy Within’: Security Intelligence, the Police and Counterterrorism in Four Democracies, (1st edition, RAND Corporation, 2004), p. 38.
27 conducts investigations into potential dangers to security. The scope of the federal level is much broader since they protect national interests. State and local level, on the other hand, only protect their state or region. If, for instance, ASIO receives intelligence regarding a potentially dangerous person living in Sydney, New South Wales, law enforcement is contacted. Law enforcement on all three levels may have information beneficial to the investigation into this person by ASIO since all three levels conduct investigations themselves. Thus, it is crucial that ASIO maintains a good relationship with law enforcement on federal, state, and local level. The most coordinated relationship is with the Australian Federal Police (AFP) which expresses the Australian perspective of policing.
ASIO operates by adhering to various accountability and safeguard arrangements. Principal structures and mechanisms of oversight, both internally as externally, have been established to ensure transparency.129 This is important because independent scrutiny, such as reviews of operational activities and the effective and efficient implementation of resources and programs, show the significance of gathering intelligence to both politicians and the public and provide a transparent medium.130 Internally, reviews on the activity of ASIO are conducted by the Inspector- General of Intelligence and Security (IGIS), and each year, the results of these investigations are composed in an annual public report. The IGIS is an independent statutory office holder.131 This means that the IGIS office holder is specifically assigned to perform duties and functions (as opposed to people carrying out functions and duties assigned to a body, such as a government).132 Externally, the Parliamentary Joint Committee (PJC) performs oversight. The PJC has powers of intelligence oversight and investigations into all aspects of the administration and finance of ASIO to ensure accountability of ASIO’s administration and expenses.133 According to Article 28 of the Intelligence Services Act 2001134, the PJC must undertake a review at least once a year.
ASIO is Australia’s principal national counterterrorism intelligence agency. However, as mentioned before, the states and territories have the primary responsibility for countering terrorism, and therefore, they have established intelligence agencies on the regional level as well in the form of Joint Counter-Terrorism Teams. Moreover, on the national level, ASIO is supported by the National Security Hotline. These two agencies will be outlined now.
National Security Hotline
In late December 2002, in the wake of the terrorist bombings in Bali in which 88 Australians were killed, the National Security Hotline (NSH) was established.135 The NSH is always operating, every day every hour. Reports of possible signs of terrorism are received via telephone, email, and so on. Moreover, it provides callers with information regarding a wide range of national security matters.
129 Ibid, p. 39. 130 Peter Chalk and William Rosenau, Confronting ‘the Enemy Within’: Security Intelligence, the Police and Counterterrorism in Four Democracies, (1st edition, RAND Corporation, 2004), p. 45. 131 ‘About IGIS’ (igis.gov.au) < https://www.igis.gov.au/ > accessed 30 January 2019. 132 ‘Portfolio Bodies and Statutory Office Holders’ (Australian Government) < https://www.dss.gov.au/about- the-department/portfolio-bodies-and-statutory-office-holders > accessed 29 May 2019. 133 Peter Chalk and William Rosenau, Confronting ‘the Enemy Within’: Security Intelligence, the Police and Counterterrorism in Four Democracies, (1st edition, RAND Corporation, 2004), p. 41. 134 Intelligence Services Act 2001, s. 29. 135 Peter Chalk and William Rosenau, Confronting ‘the Enemy Within’: Security Intelligence, the Police and Counterterrorism in Four Democracies, (1st edition, RAND Corporation, 2004), p. 106. 28
The collected information by the NSH is passed on to intelligence agencies and law enforcement such as ASIO and the police who will further analyse and investigate the specific matter.136 It is purely a matter for the organisation who receives the information to what extent those matters are investigated and whether it is necessary to take any action. The NSH is thus mainly an agency which receives information from the public and passes this information on to other instances. In other words, the NSH does not obtain specific criminal functions or powers. It is, however, a vital component of the counter-terrorism efforts of Australia.
Joint Counter-Terrorism Team
In accordance with the National Counter-Terrorism Plan, a Joint Counter-Terrorism Team (JCTT) has been created in every state and territory to ‘maintain general intelligence collection and analysis capabilities, as well as to conduct specific investigations in terrorism-related matters.’137 Each JCTT consists of national and regional law enforcement officers as well as officers from ASIO. The JCTTs are part of the Australian Federal Police (AFP), and therefore, the law enforcement officers in the JCTTs operate under the Australian Federal Police Act 1979.138 The ASIO officers, on the other hand, operate under the ASIO Act 1979 and the Intelligence Services Act 2001.139 Since this agency consists of both police and ASIO officers, the scope of powers of this agency are complemented. ASIO officers acquire investigative powers and therefore, are concerned with the investigation process in a JCTT. Police officers, on the other hand, obtain law enforcement powers, such as the power of arrest, and therefore, are involved in acting upon intelligence derived from investigations in a JCTT. In this way, the scope of powers of a JCTT complement each other. Moreover, the multi-agency nature of the JCTT – law enforcement officers as well as ASIO officers - enables each state and territory to determine and decide on prevention strategies and operational responses.140 The JCTTs facilitate regulation and cooperation between the two parties and ensures that the two parties agree on strategies and responses. Thus, two perspectives are merged into one and strategies and responses are decided upon. Ultimately, an integrated, coherent and coordinated approach to counter terrorism is provided through an interagency initiative, aimed at ‘greater coordination, greater collaboration and the ability to form needed relationships.’141
Besides all the established national counterterrorism measures which are outlined above, states and territories in Australia acquire the primary responsibility for investigating terrorism. Therefore, the next paragraph will describe the counterterrorism measures taken by New South Wales.
136 Ibid, p. 107. 137 Ibid. 138 Australian Federal Police Act 1979. 139 Intelligence Services Act 2001. 140 ‘National Counter-Terrorism Plan’ (Australian Government, 2017) < https://www.nationalsecurity.gov.au/Media-and-publications/Publications/Documents/ANZCTC-National- Counter-Terrorism-Plan.PDF> accessed 15 January 2019, p. 3. 141 Sam Mullens, ‘Terrorism in Australia: practitioner perspectives’ [2016] 11(1) Journal of Policing, Intelligence and Counter Terrorism 93, p. 100.
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2.5 Counter-terrorist initiatives in New South Wales The NSW government has the primary responsibility within New South Wales to prevent, prepare, and respond to terrorism acts. Not only the Commonwealth government adjusted and reinforced the national counter-terrorism strategy after 9/11, states and territories itself also strengthened their policies and measures. NSW made two considerable changes, namely the establishment of the Counter Terrorism and Special Tactics Command (CT&STC) and the government passed the Terrorism (Police Powers) Act 2002.142
Counter Terrorism and Special Tactics Command (CT&STC)
In 2003, the NSW government funded the establishment of a counterterrorism coordination command within the New South Wales Police Force (NSWPF).143 Several existing units were brought together in this command and was named the Counter Terrorism and Special Tactics Command (CT&STC). All these units are drawn from within the NSWPF, and therefore, the scope of powers of the CT&STC is restricted to the powers of the NSWPF. The functions of the NSWPF are legislated in Article 6 of the Police Act 1990144 ‘the NSW Police Force is to work with the community to reduce violence, crime and fear’145 and the powers of the NSWPF are legislated in the Law Enforcement (Powers and Responsibilities) Act 2002146. For instance, section 9(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 lays down that ‘a police officer may enter a premises in case of an emergency, such as a breach of peace’147, which is the case when a terrorist act is about to be or is committed, and section 99(1) establishes that ‘a police officer is allowed to arrest a person without a warrant when this person is committing or has committed a terrorist offence under the Criminal Code Act 1995.’148 The Command is responsible for the NSWPF’s preparedness for, prevention of, and response to terrorism threats in New South Wales. The CT&STC encompasses five interrelated entities: the Coordinated Response Group, the Operations Group, the Anti Terrorism and Security Group, the State Protection Group, and the Business Support Unit, and they all have their focus and responsibilities.149 The agency that mainly focuses on the development, coordination, and implementation of counter-terrorism policies and strategies is the Coordinated Response Group. The Operations Group is responsible for research, training and society engagement regarding terrorism and counter-terrorism.150 The Anti Terrorism and Security Group focusses on the investigation, intelligence, dignitary, and witness protection. Furthermore, the State Protection Group is focused
142 Michael Barnes, ‘Inquest into the deaths arising from the Lindt Café siege: findings and recommendations’ (New South Wales Government, 24 May 2017)
Terrorism (Police Powers) Act 2002
The NSW government passed the Terrorism (Police Powers) Act 2002. This Act legislates the use of special powers by the NSWPF to avert or investigate acts of terrorism.152 Thus, police officers acquired special powers with this Bill. Under Article 17,18, and 19 of the Terrorism (Police Powers) Act 2002, police officers have the power to stop and search people and vehicles and enter and search premises.153 However, these special powers are only conferred to police officers when there is reasonable suspicion of a terrorist act. A terrorist act has been defined in the Criminal Code 1995 as ‘an action or threat of action that causes serious harm, death or property damage, carried out with the intent of advancing a political, religious or ideological cause, and coercing or influencing the government or intimidating the public or a section of the public.’154 Only when this definition is applicable to the situation, the criteria of reasonable suspicion is met. To ensure that powers are only conferred when there is reasonable suspicion, powers need to be authorised by both the Commissioner of the Police who oversees a police department and the Police Minister who conducts and regulates the police in NSW.155 This is the case because the conferred powers on the police have a wide range and could be in conflict with human rights.156 For instance, under Article 17 of the Terrorism (Police Powers) Act 2002, police officers may ‘stop and search a person without a warrant if an officer suspects the person is a target person.’157 This power, if misused, conflicts with the human right to privacy. The right to privacy involves an individual’s control over his body, his identity and information about himself.158 This right is thus surpassed when a police officer stops and search a person without a warrant. The Bill is divided into five parts. Part 1 outlines the preliminary in four clauses; part 2 consists of provision 5-14 and describes the authorisation process to exercise extraordinary powers. These special powers are authorised only when there is reasonable suspicion of a terrorist act. The special powers itself are outlined in clause 15-23 of part 3. These powers include the power to obtain discloser of identity, the power to search persons, vehicles and premises, the power to seize and detain things and the power to use force.159 Part 4 consists of clause 24 and 25 and sets out the recognised law enforcement officers, and the last part, part 5, outlines miscellaneous. Thus, in short, this passed Bill in New South Wales legislates the expansion of police powers to prevent or investigate a terrorist threat or act.
151 Ibid. 152 Terrorism (Police Powers) Act 2002. 153 Ibid, s 17, s 18 and s 19. 154 Criminal Code Act 1995, s. 100.1 and s. 100.2. 155 Terrorism (Police Powers) Act 2002. 156 ‘Review of Terrorism (Police Powers) Act 2002 NSW’ (Australian Human Rights Commission, 2005)
Aside from these two specific changes in the policies and procedures of NSW since 9/11, New South Wales already had a JCTT in place for intelligence collection, as outlined above, and already developed a procedure outlining the response to acts of terrorism. This procedure will shortly be outlined below.
Task Force Pioneer
To be able to respond to acts of terrorism within New South Wales, the NSWPF established the Task Force Pioneer (Pioneer) in 1990.160 During a response to an incident, Pioneer outlines the processes of authority and activation, using a command and control model. This entails that, at the incident site, the police will establish a Police Forward Command Post under the command of a police commander.161 Moreover, as developed in Section 135 of the NSW State Emergency Management Plan (EMPLAN)162, the command and control model provides for a senior police officer, because these are highest in police rank in Australia and have a lot of experience and expertise, to attend the site and take control of the supporting emergency services and agencies when the police require support from other agencies. Furthermore, during terrorist incidents, a State Operations Centre is established by NSW, which is a merger of the State Emergency Operations Centre and the Police Operations Centre.163 This State Operations Centre is designed to control both crisis and consequence management operations effectively. The NSW emergency management strategic overview has been established in the NSW EMPLAN. The agencies in NSW responsible for and functioning in disaster response and recovery had given input when the EMPLAN was created.164 The EMPLAN has been issued by the Minister for Emergency Services who is pursuant to the State Emergency and Rescue Management Act 1989165. In this Act, the state emergency management and state rescue management are outlined. For example, section 20(2) of the State Emergency and Rescue Management Act 1989 establishes that ‘a state emergency operation centre is to have communication facilities for independent control and coordination of districts; discrete communication facilities with heads of emergency services organisations and functional areas; independent communications with the public broadcasting media network; and independent media information facilities.’166
During the Siege, however, it became apparent that among intelligence agencies on different levels in Australia, the analysis and dissemination of information and intelligence is problematic. A lot of information is not shared among the various agencies, and communication and collaboration between the agencies is underdeveloped. During the siege, this weak relationship resulted in information not always being made available or disseminated among the agencies. This has the
160 Ibid, p. 108. 161 ‘What will happen if there’s an incident? (Secure NSW) < https://www.secure.nsw.gov.au/ > accessed 16 February 2019. 162 ‘New South Wales State Emergency Management Plan’ (NSW government, December 2018)
2.6 Conclusion Australia’s counter-terrorism model is structured to reflect its federal system of government. This means that there are counterterrorism arrangements and procedures in place on two levels, namely on Commonwealth or national level and on state/territory or regional level. The Commonwealth government has transferred the primary responsibility of countering terrorism to the states and territories. However, as recognised in the National Counter-Terrorism Plan, countering terrorism is a shared responsibility of all levels of governments, and therefore, the Commonwealth has established some operational and organisational measures and policies to counter terrorism, and supports the states and territories where necessary. The result of structuring and organising countering terrorism in this way is that multiple agencies collect information regarding terrorism and terrorist acts on different levels.
On the national level, certain arrangements and policies have been put in place to be able to counter terrorism better. First of all, together with New Zealand, Australia has established the ANZCTC. The main aim of this committee is preventing and countering terrorism by means of coordinating information and intelligence of various agencies between Australia and New Zealand. Furthermore, Australia has formulated Australia’s Counter-Terrorism Strategy and a National Counter-Terrorism Plan. The Strategy outlines the structure of the counter-terrorism arrangements of Australia.169 It determines the current threat of terrorism and describes how Australia is countering it. The Plan is a vital source outlining governmental, jurisdictional, and operational arrangements and responsibilities for countering terrorism and thus outlines the strategic approach of Australia to prevent and deal
167 Michael Barnes, ‘Inquest into the deaths arising from the Lindt Café siege: findings and recommendations’ (New South Wales Government, 24 May 2017)
33 with acts of terrorism. Next to arrangements and policies, the national level has also passed and amended domestic legislation to be better able to counter terrorism. The Criminal Code Act 1995 forms the legal basis for Australia’s counter-terrorism laws. It establishes terrorism offences and authorises two specific powers for officers: the control order and the preventative detention power. However, this Act did not include specific terrorism-related legislation. Therefore, Australia passed and amended specific terrorism-related legislation to be better able to prevent and uncover terrorism plots. This specific legislation included the Terrorism (Commonwealth Powers) Act 2003, which aimed at ensuring jurisdictional uniformity, and the two Anti-Terrorism Bills of 2004, which aimed at strengthening Australia’s counter-terrorism laws through expanding the powers of the police and intelligence agencies in Australia during the investigation period.
On both national and regional level, intelligence agencies have been established to counter terrorism. On the national level, the primary intelligence agency is ASIO, and on the regional level, the central intelligence agency is the Joint Counter Terrorism Team. ASIO gathers and analyses information regarding threats to the national safety of Australia and to be able to do this, its functions and powers are entrenched in the ASIO Act 1979 and the Intelligence Services Act 2001. The most significant source of information for ASIO is the National Security Hotline. On the regional level, a JCTT is established in each state and territory to collect and analyse intelligence and to perform investigations into matters related to terrorism. It is a multi-agency since it comprises law enforcement officers as well as ASIO officers. Due to this multi-agency nature, the powers and functions of the law enforcement officers of the JCTTs are entrenched in the Australian Federal Police Act 1979, and the powers and responsibilities of the ASIO officers are established in the ASIO Act 1979 and the Intelligence Services Act 2001. Australia has established internal and external oversight for ASIO. Internally, the IGIS reviews the activity of ASIO, and externally, the PJC evaluates all aspects of the administration and finance of ASIO.
States and territories have not only established intelligence agencies on the regional level; they have also put in place certain policies, procedures and legislation themselves as they have the primary responsibility for countering terrorism. In this thesis, I have chosen to outline only New South Wales’ policies and procedures. NSW has created the Counter Terrorism and Special Tactics Command (CT&STC), the Task Force Pioneer and the government has passed the Terrorism (Police Powers) Act 2002. The CT&STC is a counterterrorism coordination command within the NSWPF. Several existing units of the NSWPF were brought together in this command, and these units are responsible for the NSWPF’s preparedness for, prevention of, and response to the threat of terrorism in NSW. During an incident, the Task Force Pioneer outlines authority and activation processes, using a command and control model. Under the Terrorism (Police Powers) Act 2002, the NSW police is granted powers to prevent or investigate a terrorist act.
Thus, Australia has chosen to structure its counter-terrorism strategy to reflect its federal system of government: counterterrorism policies and procedures have been established on both the national and regional level. This has led to a lot of different agencies acquiring specific but limited functions and powers on different levels in Australia.
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3. The United Kingdom Another country that intensified and strengthened its policies and law enforcement regarding terrorism and counter-terrorism after the attacks of 9/11 is the United Kingdom (UK). The core of the UK’s counterterrorism approach is the establishment of their counter-terrorism strategy named CONTEST, which is divided into four distinct work-streams: Prevent, Pursue, Protect, and Prepare. The aim of CONTEST is ’to reduce the risk to the UK and its interest overseas from international terrorism.’170 The strategy has also resulted in changes in the domestic legislation of the UK. From 2000 onwards, the UK has put in place various Acts related to terrorism and countering terrorism. Moreover, the UK has established three national intelligence and security agencies.171 These are the Secret Intelligence Service (SIS or MI6), the Government Communication Headquarters (GCHQ) and the Security Service (MI5).172 Collectively, they are known as the ‘Agencies’. This chapter aims at outlining the UK’s counter-terrorism strategy. Relevant procedures, policies and agencies in place to counter terrorism in the UK will be outlined.
3.1 Introduction to terrorism and counterterrorism policies and arrangement in the United Kingdom The UK is an island consisting of England, Scotland, Wales and Northern Ireland.173 This island setting characterises the politics of the UK: the UK is often referred to as an ‘island nation’ meaning that it is characterised as independent, forthright, and passionate in their defence of sovereignty.174 Even though the UK is an island, it has proven to be very powerful over the past. For example, during the colonisation period, the UK conquered and reigned colonies in South Africa, Australia, New Zealand and North America.175 The UK is a constitutional monarchy with a reigning queen as head of state and the prime minister as head of government.176 Moreover, the UK is a unitary state with parliamentary sovereignty.177 This means that the Parliament of the UK is the only source of power and is the supreme law-making body. The Parliament can allocate powers, such as education and health, to other institutions, for instance to the regional assemblies in Scotland, Wales, and Northern Ireland178; however, these
170 Alan Johnson, ‘Pursue Prevent Protect Prepare: The United Kingdom’s Strategy for Countering International Terrorism’, (Gov.UK, March 2010)
The UK does not have a codified constitution because the country adheres to the common law system. Common law is customary law and is based upon judicial decisions.182 The common law courts administer cases and reports of these decided cases are embodied in jurisprudence. The primary sources of the UK’s legislation are decisions by courts of law, parliamentary and European Union (EU) legislation, and the European Convention on Human Rights (ECHR).183 For matters for which there does not exist formal law in the UK, precedents are followed, which are open to development or modification.
Since 1973, the legal system of the UK has integrated into the system of European Union (EU) law because, in 1973, the UK became a member of the European Union: ‘an international organisation consisting of 28 European countries which govern common social, economic, and security policies.’184 Member States of the EU must implement EU directives and regulations in their national system, and in this way, the EU influences the domestic legislation of its member states and thus the legislation of the UK as well.185 This legislative power of the EU is established in the Treaty on the Functioning in the European Union (TFEU).186 In Article 82, the European Parliament and the Council are given regulatory powers, such as the power to adopt rules and procedures, to ensure mutual recognition throughout the Union.187 Article 83 of the TFEU provides for the harmonisation of substantive criminal law in specific areas, including terrorism: ‘the European Parliament and Council may, by means of directives, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.’188 Thus, based on Article 82 and 83 of the TFEU, the EU is allowed to create measures and adopt rules ensuring mutual recognition throughout the Union, and they are authorised, in specific areas including terrorism, to develop directives establishing minimum rules. These directives of the EU influence a country’s national system, because they are binding on the member states of the EU and need to be implemented in the national law.189 Directives need to be
179 Alistair Jones, Britain and the European Union, (1st edition, Edinburgh University Press 2007), p.82. 180 Britannica Academic (15th edn, 2010) 181 ‘Home Office About Us’ (Gov.UK) < https://www.gov.uk/government/organisations/home-office/about > accessed 15 March 2019. 182 Britannica Academic (15th edn, 2010). 183 Duncan Watts, British Government and Politics: A Comparative Guide, (2nd edition, Edinburgh University Press 2012), p. 33 184 Paul Craig and Gráinne de Búrca, EU law: text, cases, and materials, (6th edition, Oxford University Press 2015). 185 Alistair Jones, Britain and the European Union, (1st edition, Edinburgh University Press 2007), p.83. 186 Treaty on the Functioning of the European Union. 187 Ibid, s. 82 188 Ibid, s. 83. 189 Catherine Barnard and Steve Peers, European Union Law, (1st edition, Oxford University Press 2017). 36 enforced in the national law of a country, whereby the national law of that country is binding in turn. Even though the outcomes of these directives are binding, the implementation is left to the national authorities of the member states itself.190 Thus, member states can choose the forms and means to interpret directives themselves. They can, for instance, implement the legislation of a directive in criminal or administrative law. After the attacks of 9/11, the EU directed more resources to combating terrorism.191 The European Council adopted the EU Action Plan, which identified a series of measures to counter terrorism. For instance, this Action Plan establishes that Member States exchange information about terrorism.192 Moreover, to meet the threats of terrorism, the EU has developed judicial cooperation in criminal matters.193 This judicial cooperation encompasses the creation of minimum standards in criminal legislation. For example, the EU Member States agreed to improve legal harmonisation of Member States’ legislation under the Council Framework Decision on Terrorism.194 Moreover, in 2017, the EU formulated the 2017 Directive on combating terrorism.195 This Directive criminalises ‘travelling for the purpose of terrorism’ in Article 16196 and criminalises different forms of support for terrorist activities such as trade transactions in Article 15197. Thus, normally, a country needs to implement the legislation covered in the above-mentioned examples in their national system because of its binding nature. However, after the Lisbon Treaty, which expanded the framework of EU law with EU criminal and policing law, the UK raised concerns that these changes might impinge too much on its sovereignty in this field.198 This concern resulted in the possibility for the UK to opt-in or opt-out of judicial cooperation measures taken by the EU.199 Thus, the UK is allowed to opt-out of EU post-Lisbon criminal law directives and frameworks, which has resulted in the UK being highly selective about which EU law it applies.200 This, in turn, has resulted in the decision of the UK to opt-out of EU frameworks and directives covering terrorism.201 Therefore, the two above mentioned examples, the Council Framework Decision on Terrorism and
190 Ibid. 191 Daniel Keohane, ‘The EU and counter-terrorism’ (Centre for European Reform, May 2005)
Nevertheless, the UK is influenced by the ‘European view’ on abolishing multiculturalism. Throughout Europe, there is a widespread shared view that abolishing multiculturalism- the recognition of diverse ethnic and religious identities in society to ensure equality for all- is the best way to fight terrorism.202 This has resulted in the government of the UK re-orienting their counter-terrorism policies to tackling radicalisation. Radicalisation is the process whereby ‘an individual or a group increasingly adopts extreme political, social, or religious ideals.’203 The government of the UK emphasises the ideological dimension of radicalisation, especially those of Al-Qaeda and the Islamic State, in their counter-terrorism strategy.204
Thus, countering terrorism in the UK is the primary responsibility of the central government in Westminster, carried out by the Home Office. Even though the UK is part of the EU, the influence of the EU on the UK’s counter-terrorism strategy is very limited, because of the opt-out option available to the UK. Nevertheless, the ‘European view’ on abolishing multiculturalism has influenced the UK to re-orient their counter-terrorism policies to tackling radicalisation. The next paragraph will outline the UK’s national bodies and arrangements, which are all established in the national counter- terrorism strategy. Thereafter, the domestic legislation and the three established intelligence agencies, including the mechanisms of oversight in the UK, will be thoroughly outlined.
3.2 National bodies and arrangements The UK’s updated strategy for combating and countering terrorism was issued in June 2018.205 It was approved by the Home Office- the UK’s lead government department for national security- and was named the CONTEST strategy.206 The legal basis of the CONTEST strategy is created in the Terrorism Act 2000.207 The act establishes terrorist offences and it authorises competences and powers for the actors in the counter-terrorism field of the UK.208 This Act will be more thoroughly discussed in paragraph 3.3 when outlining the domestic legislation of the UK. Next to the Terrorism Act 2000, new legislation was essential for the revised CONTEST strategy of 2018, because new terrorist offences needed to be established in the UK’s legislation to conform with the strategy. This new legislation has
202 Jef Huysmans, ‘The European Union and the Securitization of Migration’ [2000] 38(5) Journal of Common Market Studies 751, p. 766 203 Charlotte Heath-Kelly, ‘Counter-Terrorism and the Counterfactual: Producing the Radicalisation’ Discourse and the UK Prevent Strategy’ [2013] 15 The British Journal of Politics and International Relations 394, p. 394. 204 Francesco Ragazzi, ‘Countering terrorism and radicalisation: securitising social policy?’ [2017] 37(2) Critical Social Policy 163, p. 166. 205 ‘Counter-Terrorism and Border Security Bill given Royal Assent’ (Gov.UK)
CONTEST’s aim is ’to reduce the risk to the UK and its interest overseas from international terrorism.’212 It is divided into four distinct work-streams213:
- Prevent: preventing terrorism by getting grip on the underlying causes; - Pursue: focused on going after terrorists and the people/organisations sponsoring them; - Protect: protection of the public interest; and - Prepare: preparation for the consequences of terrorism.
Whereas Prevent and Pursue aim at reducing the terrorist threat, Protect and Prepare are focused on reducing the vulnerability of the UK to terrorist attacks.214 These four work-streams will be outlined below.
3.2.1 PURSUE Pursue aims to stop terrorists from conducting attacks. The objectives of Pursue are to (1) detect and understand terrorist activity, (2) investigate terrorist activity, and (3) disrupt terrorist activity.215 The legal basis for achieving these objectives is established in the Investigatory Powers Act 2016.216 This Act ensures the powers to detect, investigate and disrupt crime (including terrorist attacks) needed by law enforcement and intelligence agencies.217 Article 15 establishes the kind of warrants that can be issued by law enforcement and intelligence agencies, including interception warrants and examination warrants.218 These warrants give law enforcement and intelligence agencies
209 Counter-Terrorism and Border Security Act 2019. 210 Ibid, s. 1. 211 Ibid, s. 2. 212 Alan Johnson, ‘Pursue Prevent Protect Prepare: The United Kingdom’s Strategy for Countering International Terrorism’ (Gov.UK, March 2010)
Covert Detection & Investigation
First of all, one of the priorities of Pursue is to increase the ability to perform covert detection and investigation.220 Covert detection and investigation aim at detecting and investigating terrorist activity on, for example, the Internet, to uncover and disrupt terrorists from planning attacks. In this way, covert detection and investigation contribute to the aim of Pursue to stop terrorists from conducting attacks. The Regulation of Investigatory Powers Act 2000 (RIPA) covers the regulation and use of governance of covert surveillance. Three covert detection methods are covered in this act: Article 28 authorizes the power to use directed surveillance, Article 29 allows the use of a covert human intelligence source, and Article 32 grants the power to use intrusive surveillance.221 These powers, however, are limited to ‘circumstances when it is necessary in the interest of national security; for the purpose of preventing or detecting crime or of preventing disorder; or when it is in the interest of public safety.’222 This restriction is put in place because covert detection curtails civil liberties. The use of these directed and intrusive surveillance powers has been a widely discussed topic in the media. The discussion revolves around the trade-off between safeguarding national safety and curtailing civil liberties.223 On the one hand, covert detection attempts at stopping terrorists from conducting attacks and, in this way, aims at safeguarding national security. However, on the other hand, it results in restrictions on civil liberties because covert detection intrudes into the private lives of citizens.224 Throughout the world, the UK is one of the countries where its citizens enjoy some of the strongest civil and political rights.225 However, because states, and thus also the UK, increasingly have to deal with emergencies such as terrorism, these rights and freedoms are increasingly disregarded. When faced with terror-related challenges, the UK government resorts to emergency powers which disregard individual rights and freedoms.
219 Ibid. 220 Paul Burke, ‘Fit to Fight or Unfit for Purpose? A Review of the Effectiveness of the Intelligence Cycle in UK Counter-Terrorism, 2003-2013’ [2013] London Metropolitan University, p. 116. 221 Regulation of Investigatory Powers Act 2000, s. 28 and s. 29. 222 Ibid. 223 Darren Davis and Brian Silver, ‘Civil Liberties vs. Security: Public Opinion in the Context of the Terrorist Attacks on America’ [2003] 48(1) American Journal of Political Science 28, p. 29. 224 Ibid. 225 Laura Slater, ‘Emergency Powers: 9/11, 7/7, and the continuity of counterterrorism in the United Kingdom’ (Thesis, University of North Carolina 2016), p. 10.
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Effective prosecution
Secondly, a Pursue priority is to advance the prosecution process in the UK.226 This revolves around maintaining a balance between completing a comprehensive picture by going on with the collection of intelligence (and thus a higher chance of success in the prosecution process) and ensuring public safety. For instance, if a terrorist cell is disrupted too early, it can result in an unsuccessful prosecution due to lack of evidence. But when, in order to gather further intelligence, a terrorist cell is allowed to continue to operate, a risk of a successful attack exists which can harm public safety. The UK has established a range of legal tools for terrorist prosecution. Terrorism offences are legislated in the Terrorism and Counter-terrorism Acts of 2000, 2006, 2008, and 2015.227 The domestic legislation put in place by the UK government for effective prosecution will be outlined more thoroughly in paragraph 3.3 when the domestic legislation will be discussed.
Non-prosecution Actions
Unfortunately, there are cases in which someone is suspected of terrorist activity, but he or she cannot be prosecuted. Therefore, the third priority of Pursue is increasing the establishment and development of effective non-prosecution actions.228 There can be several reasons for prosecution not being possible. For instance, in cross-border cases involving nationals of other countries, the UK does not always have jurisdiction, and therefore, prosecution is not possible.229 In those cases, the development of non-prosecution actions is necessary to maintain national security. An example of a non-prosecution action is proscribing organisations deemed to be concerned in terrorism.230 This means that the existence of specific, designated groups within the UK is made illegal and therefore, these groups are not allowed to operate on the UK soil. The criminalisation of these organisations aims at disrupting terrorist activity and taking down groups concerned in terrorism.231 Moreover, if these proscribed groups do operate, the government can take legal action against them because they are considered illegal in the UK’s legislation. In this way, national security is safeguarded.
Disruption of Terrorist Activities Overseas
Priority four of Pursue aims at improving the capabilities of the government to disrupt terrorists’ movements and activities abroad.232 Countering threats of terrorism overseas contributes to the UK’s national security, because when terrorists are disrupted abroad, they cannot perform a terrorist act on British soil anymore, and therefore, do no longer pose a risk to the UK’s security. However,
226 Paul Burke, ‘Fit to Fight or Unfit for Purpose? A Review of the Effectiveness of the Intelligence Cycle in UK Counter-Terrorism, 2003-2013’ [2013] London Metropolitan University, p. 125. 227 ‘Counter-terrorism strategy (CONTEST) 2018’ (Gov.UK, June 2018)
Capacity building
Not only by sending Special Forces overseas does the UK government aim to disrupt terrorist activity abroad, the fifth priority of Pursue aims at ‘strengthening the coherence between counter- insurgency work conducted overseas and counter-terrorism work of the UK.’238 By means of devoting effort and financially supporting capacity-building programmes aimed at raising effectiveness, capabilities, and standards of other countries in countering terrorism, the UK aims at disrupting terrorist activity overseas. For instance, programmes that are aimed at improving intelligence collection and use are supported by the UK. Two sides, the soft and hard sides, are enhanced by these capacity-building programmes.239 The soft side focusses on advancing the gathering, collection and use of intelligence, whereas the hard side is concentrated upon direct action when actionable intelligence has been generated. The powers of this priority are twofold. First of all, they are based on the Terrorism Act 2000, the UK’s legal basis for terrorism and counter-terrorism measures. Secondly, the powers are based on the UN strategy and arrangements which requires assistance from states to maintain international peace. Moreover, the government of the UK also provides direct funding to countries regarded important partners in countering terrorism.240
233 Charter of the United Nations 1945. 234 ‘UN global Counter-Terrorism Strategy’ (United Nations)
Inter-Agency Coordination
Finally, the sixth priority revolves around improving inter-agency coordination.241 Cooperation and coordination between intelligence agencies are vital in countering terrorism. During the Cold War, there existed communication problems and rivalry between the intelligence agencies in the UK.242 In the last decades, cooperation and communication between the intelligence agencies have been improved and enhanced by creating inter-agency coordination through the Joint Terrorism Analysis Centre (JTAC). This centre has created an inter-agency working environment, something that will be further outlined in paragraph 3.4.
3.2.2 PREVENT The second strand of the UK’s counter-terrorism strategy, the Prevent strand, aims at stopping people from becoming violent extremists or terrorists in the first place.243 It focuses on the root causes of radicalisation to prevent people from radicalising.244 Prevention is an essential feature of countering terrorism. The Home Office of the UK has defined radicalisation as: ’the process by which people come to support terrorism and violent extremism and, in some cases, then join terrorist groups.’245 Various outreach programs have been established in the UK which aim at countering radical, extremist and/or violent ideologies because, through these ideologies, individuals are recruited to groups supporting these beliefs. PREVENT encompasses three central policy components246, namely the:
(1) the ideological challenge of terrorism: interdicting in the spread of ideological messages; (2) the prevention of individuals getting recruited: preventing individuals from being attracted to terrorism and providing appropriate advice and support to those who are at risk; and (3) addressing radicalisation: working with those institutions and sectors whereby a risk of radicalisation exists, such as health institutions.
Thus, the prevent strand aims at reducing the risk of someone radicalising in the first place. This strand is established by the UK government in the CHANNEL programme247, which creates partnerships between local authorities, local communities, and the police to identify persons at risk of radicalisation and supports these people.248 Articles 36(7) and 38(6) of the Counter-Terrorism and
241 Paul Burke, ‘Fit to Fight or Unfit for Purpose? A Review of the Effectiveness of the Intelligence Cycle in UK Counter-Terrorism, 2003-2013’ [2013] London Metropolitan University p. 138. 242 Adam Svendsen, ‘The Globalization of Intelligence Since 9/11: The Optimization of Intelligence Liaison Arrangements’ [2008] 21(4) International Journal of Intelligence and Counter-Intelligence 661, p. 670. 243 Raffaello Pantucci, ‘A contest to democracy? How the UK has responded to the current terrorist threat’ [2010] 17(2) Democratization 251. 244 ‘Counter-terrorism strategy (CONTEST) 2018’ (Gov.UK, June 2018)
Security Act 2015 set out the duty and power on local authorities and partners to ‘provide support to people vulnerable to terrorism by means of creating a support plan.’249 Through these articles, local authorities obtain the function and power to assess individuals vulnerable to terrorism, and to make a support plan consisting of arrangements for support to be provided to those individuals.
3.2.3 PROTECT By means of the Protect strand, the UK’s counter-terrorism strategy aims at decreasing its vulnerability to terrorist attacks.250 Critical facilities - facilities where there exists a high risk of terrorist attacks taking place- such as crowded places like a football stadium, are designated because the threat to these places has increased significantly.251 This is the case because attacks on crowded places inflict mass casualties and media coverage. The difficulty in securing and protecting places vulnerable to terrorist attacks is the constantly changing nature of the attacks. Tactics, ideas, and information are being shared between terrorist groups which advance attacks to be successful. Security upgrades have been put in place in critical facilities, such as heavy-duty, anti-ram barriers.252 Moreover, when a new building is being built, architects and designers incorporate security measures from the building-process onwards. Not only buildings are being targeted, but the public transportation sector and sport events have increasingly been targeted by terrorists as well. For instance in 2005, when, during rush hour, bombs were detonated in three crowded London subways and one bus.253 These bombings killed 56 people and injured hundreds more.
This strand is managed by the MI5 and the police working together.254 The legal basis for this strand is the Security Services Act 1989 (ISA 1994) which legislates the activities conducted by the Security Service and the Terrorism Act 2000, which covers the powers of the police. The scope and powers under these two Acts will be elaborated on when outlining the domestic legislation in paragraph 3.3 and the intelligence agencies in paragraph 3.4.
3.2.4 PREPARE The last strand of the CONTEST strategy is the Prepare strand which focusses on resiliency and mitigation during and after an attack.255 Prepare aims to assist and help the authorities to safely and quickly as possible end the attack by means of emergency response procedures.256 These emergency response procedures, established by the government, enhance resilience and are a guideline for the authorities and actors during an incident. They have been created to set out and implement the duties of these authorities and actors under the Civil Contingencies Act 2004. The Civil Contingencies Act 2004 has developed a framework for the UK’s civil protection: it defines the obligations of certain organisations, such as local authorities and emergency services, to prepare for various types of
249 Counter-Terrorism and Security Act 2015, s. 36(7) and s. 38(6). 250 Paul Burke, ‘Fit to Fight or Unfit for Purpose? A Review of the Effectiveness of the Intelligence Cycle in UK Counter-Terrorism, 2003-2013’ [2013] London Metropolitan University p. 156. 251 ‘National Security Threats’ (CPNI) < https://www.cpni.gov.uk/national-security-threats > accessed 1 June 2018. 252 Oversight and Assessment of Blast-Effects and Related Research Committee, Protecting People and Buildings from Terrorism: Technology Transfer for Blast-Effects Mitigation, (1st edition, National Academies Press 2001). 253 ‘7 July London bombings: What happened that day?’ (BBC News, 3 July 2015)
Thus, this paragraph has outlined the UK’s national approach to terrorism, established in the CONTEST strategy. The CONTEST strategy consists of 4 strands. By means of reducing the risk of radicalisation, the goal of the Prevent strand is to negate the probability of an attack taking place and the Protect strand aims at decreasing the vulnerability of the UK to acts of terrorism. The Pursue strand aims at stopping terrorists from conducting attacks but, when an attack takes place anyway, the Prepare strand assures the rapid formation and maintenance of useful command, control and communication processes. All these strands ensure a collaborative multi-agency approach to terrorist threats and/or attacks. The inter-agency collaboration ensures collation and guarantees that all relevant and available intelligence is received from the agencies collecting data.263 The CONTEST strategy is based upon domestic legislation and is intelligence-led. Therefore, the next paragraph will elaborate on the established domestic legislation and thereafter, the intelligence agencies will be outlined.
3.3 Domestic legislation A widespread response to terrorism is making new counterterrorism laws.264 This has been the case in the UK as well. This paragraph will focus on outlining the basis of the UK’s counter-terrorism laws. The legal basis of the counter-terrorism strategy of the UK has been established in one primary Act, and through case law, the law has been developed and exceptions and additions have been added to
257 Civil Contingencies Act 2004. 258 Ibid, s. 2. 259 ‘Emergency response and recovery’ (Gov.UK, 2013) < https://www.gov.uk/guidance/emergency-response- and-recovery > accessed 1 June 2019. 260 Paul Burke, ‘Fit to Fight or Unfit for Purpose? A Review of the Effectiveness of the Intelligence Cycle in UK Counter-Terrorism, 2003-2013’ [2013] London Metropolitan University, p. 180. 261 ‘Emergency response and recovery’ (Gov.UK, 2013) < https://www.gov.uk/guidance/emergency-response- and-recovery > accessed 1 June 2019 262 Paul Murphy, ‘Report into the London Terrorist Attacks on 7 July 2005’ (Gov.UK, May 2006)
45 legal Acts. The Terrorism Act 2000 is the UK’s primary anti-terrorism legislation and forms the basis of the UK’s laws against terrorism.265 In Part I, Article 1, a broad definition of terrorism was given for the first time: ‘Terrorism means the use or threat of action where the use or threat is designed to influence the government or to intimidate the public or a section of the public and the use or threat is made for the purpose of advancing a political, religious, or ideological cause.’266 Thus, terrorism was defined as influencing the government or intimidating the public with the purpose and aim of advancing a political, religious or ideological cause. Part II of the Terrorism Act 2000 is composed of articles 11-13 which define terrorist offences related to proscribed organisations.267 For instance, Article 11 makes it an offence to ‘belong to a proscribed organisation.’268 In Part III, articles 15-22 establish and define terrorist offences related to terrorist property.269 For example, Article 15 makes it an offence to ‘invite another to provide money when this money intends to be used for the purposes of terrorism.’270 Part IV, existing of Articles 32-39, defines terrorist investigation and establishes powers for the police during an investigation.271 These powers include the power to order a person in a cordoned area to leave it immediately, the power to arrange for the removal of a vehicle from a cordoned area, and the power to prohibit or restrict access to a cordoned area by pedestrians or vehicles.272 Lastly, part V establishes counter-terrorist powers in Articles 40-53.273 These powers include the power of the police ‘to detain terrorist suspects for questioning for up to 7 days’ under Article 41, and ‘stop and search powers in designated areas without the need to suspect that person’ under Article 44.274 In the following years, the government legislated more legal Acts through case law to expand the scope and powers of authorities dealing with terrorism. The Terrorism Act 2006 aimed at assisting the police in tackling terrorism by creating a range of new criminal offences. For instance, Article 5 of the Terrorism Act 2006 makes it an offence ‘when a person, with the intention of committing acts of terrorism, engages in any conduct in preparation for giving effect to his intention.’275 This assists the police in tackling terrorism, because all the preparation activities for a terrorist act are rendered illegal, and in this way, the police can already interfere in the preparation phase and can thus tackle terrorism sooner. Moreover, in 2008, the British Parliament passed the Counter-Terrorism Act 2008, which increased the powers of the police with regard to two aspects. Articles 47 and 48 imposes requirements on those convicted of terrorist offences to let authorities know about their whereabouts and possible changes to these276 and under Article 82, the pre-charge detention of terrorist suspect is extended from 28 days to 42 days277. The underlying meaning of these increased powers under the Counter-Terrorism Act 2008 is, 1) giving the police more time to investigate and find evidence against a terrorist suspect and, in this way, make a prosecution more likely, and 2)
265 Jytte Klausen, ‘British Counter-Terrorism After 7/7: Adapting Community Policing to the Fight Against Domestic Terrorism’ [2009] 35(3) Journal of Ethnic and Migration Studies 403, p. 404. 266 Terrorism Act 2000, s. 1. 267 Ibid, ss. 11-13. 268 Ibid, s. 11. 269 Ibid, ss. 15-22. 270 Ibid, s. 15. 271 Ibid, ss. 32-39. 272 Ibid, s. 36. 273 Ibid, ss. 40-53. 274 Ibid, s. 41 and s. 44. 275 Terrorism Act 2006, s. 5. 276 Counter-Terrorism Act 2008, s. 47 and s. 48. 277 Ibid, s. 82. 46 limiting the freedoms of those convicted of terrorist offences and increasing authorities’ insight concerning the whereabouts of those convicted of terrorist offences. Lastly, in 2015, the Counter- Terrorism and Security Act 2015 was passed, which again developed two new powers.278 Article 1 enables ‘the seizure and retention of the passport of a person suspected of leaving the UK for the purpose of a terrorism-related activity outside the UK’ , and Articles 2-5 and 9-10 enable ‘the temporary exclusion (for up to two years) of individuals from the UK if they are believed to be involved in terrorism-related activity outside the UK.’279
Moreover, one Act that has not been mentioned yet but is worth mentioning because of the amendments made to it over the years through case law which resulted in two consecutive Acts and the strengthening of the Counter-Terrorism Act 2008 is the Anti-Terrorism, Crime and Security Act 2001. After the 9/11 attacks, the UK government passed the Anti-Terrorism, Crime and Security Act 2001.280 Article 23 of this Act enabled the police to detain foreigners suspected of terrorist offences indefinitely.281 However, in A v. Secretary of State for the Home Department282, the Law Lords ruled against this law after nine imprisoned suspected terrorists brought a case before the court. The House of Lords ruled that Article 23 of the Anti-Terrorism, Crime and Security Act 2001 was ‘incompatible with the articles of the European Convention on Human Rights.’283 The indefinite detention powers were replaced with control orders in the Prevention of Terrorism Act 2005.284 In this Act, it is allowed for the Home Secretary to impose control orders, such as restricting one’s travel possibilities, on those suspected of terrorist involvement. However, these control orders were repealed and replaced by a notice system in the Terrorism Prevention and Investigation Measures Act 2011. Article 1 of the Terrorism Prevention and Investigation Measures Act 2011 abolishes control orders and instead establishes a notice system in Article 2.285 These notices can include restrictions on movement, financial activity and communication, and in this way, strengthen the requirements on those convicted of terrorist offences under Article 47 and 48 of the Counter-Terrorism Act 2008.
Thus, the basis of the UK’s counter-terrorism laws is formed by the Terrorism Act 2000. It defined terrorism and established terrorist offences and powers for the police to counter terrorism. In the following years, the government legislated more legal Acts to expand the scope and powers of authorities dealing with terrorism. These were the Terrorism Act 2006, the Counter-Terrorism Act 2008, and the Counter-Terrorism and Security Act 2015. Moreover, the Anti-Terrorism, Crime, and Security Act 2001 resulted in the strengthening of the Counter-Terrorism Act 2008. Besides competent domestic legislation, establishing intelligence agencies is essential as well to be able to counter terrorism. The next paragraph will outline the established intelligence agencies in the UK.
278 Counter-Terrorism and Security Act 2015. 279 Ibid, s. 1, ss. 2-5 and ss. 9-10. 280Andrew W. Neal, ‘Terrorism, Lawmaking, and Democratic Politics: Legislators as Security Actors’ [2012] 24(3) Terrorism and Political Violence 357, p. 360. 281 Anti-Terrorism, Crime and Security Act 2001, s. 23. 282 A v. Secretary of State for the Home Department (2004) UKHL 56 283 Ibid. 284 Prevention of Terrorism Act 2005. 285 Terrorism Prevention and Investigation Measures Act 2011, s. 2. 47
3.4 Intelligence and intelligence agencies In the two previous paragraphs, the UK’s counter-terrorism strategy and the domestic legislation have been outlined. To be able to counter terrorism, the establishment of an intelligence community is also essential. The UK has established three national intelligence and security services.286 These are the Secret Intelligence Service (SIS, or MI6), the Government Communication Headquarters (GCHQ) and the Security Service (MI5).287 Collectively, they are known as the ‘Agencies’. They have the primary responsibility for the collection of secret intelligence. The Chairman of the Joint Intelligence Committee (JIC) tasks these intelligence agencies.288 The leaders of the intelligence gathering agencies were brought together in 1936 in the JIC.289 The role of the JIC is ‘to provide the prime minister, cabinet ministers and other senior government officials with co-ordinated inter- departmental intelligence assessments on a range of issues of immediate and long-term importance to national interest, primarily in the fields of security, defence and foreign affairs.’290 This machinery has been created to ensure that between intelligence agencies, there exists coordination and cooperation, and material and information is shared among the intelligence agencies. In this way, problems that can arise concerning poor information dissemination between intelligence agencies because of rivalry is countered. For the overall supervision of the output of JIC, the Chairman of the JIC reports directly to the prime minister.291 The three primary intelligence agencies which are tasked by the JIC will be discussed next.
The Secret Intelligence Service (SIS, or MI6)
The Secret Intelligence Service (SIS, or MI6) is the external intelligence agency of the UK founded in 1909.292 It produces secret intelligence by using human and technical sources, as well as liaisons with intelligence agencies abroad.293 The powers of the SIS are legislated through various legal frameworks. First of all, the UK established the Security Service Act 1989 (SSA 1989)294, followed by the Intelligence Services Act 1994 (ISA 1994)295.These Acts form the legal basis of the UK’s intelligence agencies: they outline the functions and legislate the activities conducted by SIS and the other intelligence agencies.296 According to Article 1(1) of ISA 1994, the functions of the Secret Intelligence Service are: ‘(a) to obtain and provide
286 Peter Chalk and William Rosenau, Confronting ‘the Enemy Within’: Security Intelligence, the Police and Counterterrorism in Four Democracies, (1st edition, RAND Corporation, 2004), p. 8 287 Ibid. 288 Paul Burke, ‘Fit to Fight or Unfit for Purpose? A Review of the Effectiveness of the Intelligence Cycle in UK Counter-Terrorism, 2003-2013’ [2013] London Metropolitan University, p. 30. 289 Ibid. 290 ‘Joint Intelligence Committee’ (GCHQ, March 2019)
48 information relating to the actions or intentions of persons outside the British Islands; and (b) to perform other tasks relating to the actions or intentions of such persons.’297 Thus, Article 1 of ISA outlines the functions of SIS as acquiring and producing intelligence regarding the actions and intentions of persons outside the UK who possibly form a risk to the UK’s national security. To be able to conduct intelligence activities overseas, SIS officers are, with the authorisation of the secretary of state, granted the power ‘to enter on or interfere with property or wireless telegraphy’ in Article 5.298 However, the ISA 1994 also limits the exercise of the above-mentioned functions to situations which are necessary: ‘(a) in the interest of national security, with particular reference to the defence and foreign policies of Her Majesty’s Government in the United Kingdom; (b) in the interest of the economic well-being of the United Kingdom; or (c) in support of the prevention or detection of serious crime.’299 These constraint on the powers of SIS officers are created to ensure that the officers only carry out actions necessary to national security, and only use powers prescribed by ISA 1994, because the powers ‘to enter on or interfere with property or wireless telegraphy property’ conferred on SIS officers, conflict with Article 8 of the European Convention on Human rights (ECHR) to which the UK is a party.300 Article 8 of the ECHR establishes the right ‘to respect for private and family life’ and this right can only be restricted when ‘it is prescribed in the law and is necessary in the interests of national security.’301 Therefore, the powers of intelligence agencies in the UK are constrained and restricted in order not to conflict with the ECHR.
Moreover, certain cases have been influential in terms of developing a legal framework for the intelligence agencies in the UK, including SIS, because these cases addressed existing gaps herein and resulted in improvement of the legal frameworks.302 Since this research is not focused upon addressing and discussing all these cases, but because these cases did influence the legal framework of the intelligence agencies in the UK, I have chosen to discuss one particular case, which resulted in the passing of a legal Act covering the use of covert surveillance by intelligence agencies in the UK. In this way, the influence of cases in the legal framework of the UK’s intelligence agencies is illustrated. In the Malone v UK case303, the problem of there not existing a legal framework governing interception of communications was addressed. The Malone v UK case resulted in the passing of the Interception of Communications Act 1985304 by Parliament. In this Act, the offence of unlawfully intercepting communications send by post or by a public telecommunications system was created under Article 1, and Article 3 established a legal framework for legalising telephone tapping and mail- opening with a warrant for all the intelligence agencies in the UK.305 This Act, however, has been repealed by the Regulation of Investigatory Powers Act 2000 (RIPA)306, because technological changes required a new Act covering the growth of, for example, the Internet. These technological changes are included in RIPA, which covers the use of covert surveillance by public bodies including
297 Intelligence Services Act 1994, s 1(1). 298 Ibid, s. 5. 299 Intelligence Services Act 1994, s 1(2). 300 Andrea Hopkins, Human Rights in the Investigation and Prosecution of Crime, (1st edition, Oxford University Press 2009), p. 36. 301 European Convention on Human Rights, s. 8. 302 Alice Mcdonald, ‘The oversight of the UK Intelligence and Security Services in relation to their alleged complicity in Extraordinary Rendition’ (Durham theses, Durham University 2012), p. 14. 303 Malone v United Kingdom (1984) 7 EHRR 14. 304 The Interception of Communications Act 1985. 305 Ibid, s.1 and s. 3. 306 Regulation of Investigatory Powers Act 2000. 49 the police and intelligence agencies.307 Article 26 of RIPA establishes the power for intelligence agencies and the police to use three kinds of covert surveillance: directed surveillance, intrusive surveillance, and covert human intelligence sources.308 These surveillance techniques do not only apply to intercepting postal, telephone or mail communications, but do also include intercepting Internet activities. These powers need to be authorized by the secretary of state, as established in Articles 29 and 32.309 However, the use and authorization of these covert surveillance techniques are limited in Article 22 to situations ‘where it is necessary in the interest of national security or economic well-being of the UK; for preventing or detecting crime; or in the interest of public safety.’310 This restriction on the powers to use covert surveillance by intelligence agencies is, as explained, established in order not to conflict with the ECHR. The scope of the powers of RIPA include active surveillance – actions related to interfering with one’s privacy – but does not cover other privacy technologies such as databases.311 Thus, SIS is the UK’s intelligence agency concerned with collecting and analysing intelligence overseas. The legal basis for SIS is formed by ISA 1994. Next to this basis, cases have influenced the legal framework of SIS and the other intelligence as well, and this has been illustrated with the Malone v UK case.
The Government Communication Headquarters (GCHQ)
The Government Communication Headquarters (GCHQ) is the intelligence agency of the UK that ‘intercepts and decodes communications and other signals which are used to create signals intelligence, or SIGINT.’312 To be able to decode these signals, the GCHQ performs cryptanalysis – studying information systems to gain access to the contents of encrypted messages - and uses IT and computer systems.313 GCHQ thus gathers intelligence based on intercepted encrypted communications. This has become increasingly important because the technological changes over the years have contributed to the Internet becoming a popular and essential feature of global telecommunications.314 The Internet is a complex and continually changing worldwide network and therefore, having a specific expert communication agency which is able to gather intelligence based on intercepted encrypted communications on, for example, the Internet, is very beneficial and valuable in countering terrorism these days. Moreover, the GCHQ advises the private industry, government departments, and the armed forces on communication security.315 Due to these two separate functions, the GCHQ consists of two components, namely the Composite Signals
307 ‘Regulation of Investigatory Powers Act 2000’ (Justice.org.uk) < https://justice.org.uk/regulation- investigatory-powers-act-2000/ > accessed 15 May 2019. 308 Regulation of Investigatory Powers Act 2000, s. 26. 309 Ibid, s. 29 and s. 32. 310 Ibid, s. 22. 311 ‘Regulation of Investigatory Powers Act 2000’ (Justice.org.uk) < https://justice.org.uk/regulation- investigatory-powers-act-2000/ > accessed 15 May 2019. 312 Peter Chalk and William Rosenau, Confronting ‘the Enemy Within’: Security Intelligence, the Police and Counterterrorism in Four Democracies, (1st edition, RAND Corporation, 2004), p. 8. 313 Martin Rudner, ‘Britain Betwixt and Between: UK SIGINT Alliance Strategy’s Transatlantic and European Connections’ [2004] 19(4) Intelligence & National Security 571. 314 David Pepper, ‘The Business of Sigint: The role of Modern Management in the Transformation of GCHQ’ [2010] 25(1) Public Policy and Administration 85, p. 87. 315 Peter Chalk and William Rosenau, Confronting ‘the Enemy Within’: Security Intelligence, the Police and Counterterrorism in Four Democracies, (1st edition, RAND Corporation, 2004), p. 8.
50
Organisation (CSO)- responsible for intercepting and decoding communications- and the National Cyber Security Centre (NCSC) which manages the communications security.
The functions and powers of the GCHQ are established in the Intelligence Services Act 1994 (ISA 1994)316 and the Investigatory Powers Act 2016317. Article 3(1) of ISA 1994 outlines the functions of the GCHQ: ‘(a) to monitor or interfere with electromagnetic, acoustic and other emissions and any equipment producing such emissions and to obtain and provide information derived from or related to such emissions or equipment and from encrypted material; and (b) to provide advice and assistance about languages and cryptography.’318 Thus, the functions of GCHQ include communication security and advice. The functions of GCHQ are restricted in Article 3(2) ISA 1994: ‘the functions of GCHQ shall be exercisable only (a) in the interest of national security; (b) in the interest of the economic well-being of the United Kingdom in relation to the actions or intentions of persons outside the British Island; or (c) in support of the prevention or detection of serious crime.’319 Thus, only when the functions are necessary to ensure national security, it is allowed. The powers of the GCHQ are established in the Investigatory Powers Act 2016.320 Article 15 of this act authorises the use of three kinds of interception warrants by the GCHQ namely, ‘targeted interception warrants, targeted examination warrants, and mutual assistance warrants.’321 These interception warrants need to be approved by the secretary of state, as established in Article 19322 and are restricted under Article 20 to situations ‘where it is necessary in the interest of national security and economic well-being of the UK, and for the purpose of preventing or detecting serious crime.’323 There have been put in place restrictions on both the functions and powers of the GCHQ to situations where it is necessary to ensure national security, because, as explained, the functions and powers of the intelligence agencies, including the GCHQ, conflict with Article 8 of the ECHR.
Thus, the GCHQ monitors, interferes and decodes various electronic emissions and signals and provides advice and assistance. Their functions and powers are legislated through the Intelligence Services Act 1994 and the Investigatory Powers Act 2016.
The Security Service
Often referred to as MI5, the Security Service is the country’s national internal intelligence agency and is responsible for ‘protecting the UK against threats to national security from espionage, terrorism and sabotage, from the activities of agents of foreign powers, and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means.’324 It thus gathers and assesses information regarding organised (domestic) threats to national security. To be able to perform this responsibility, a broad range of techniques is employed by MI5, such as wiretapping, electronic surveillance, and human intelligence.325
316 Intelligence Services Act 1994. 317 Investigatory Powers Act 2016. 318 Intelligence Services Act 1994, s 3(1). 319 Intelligence Services Act 1994, s 3(2). 320 Investigatory Powers Act 2016. 321 Ibid, s. 15. 322 Ibid, s. 19. 323 Ibid, s. 20. 324 Security Service Act 1989. 325 ‘Gathering Intelligence’ (Security Service MI5) < https://www.mi5.gov.uk/gathering-intelligence > accessed 16 May 2019. 51
The Security Services Act 1989 (SSA 1989) legislates the agency, and the use of certain techniques, such as direct and intrusive surveillance, which have been mentioned in the Pursue strand are subject to the provisions of the Regulation of Investigatory Powers Act 2000 (RIPA).326 Article 1(2) of SSA 1989 outlines the roles and responsibilities of MI5: ‘The function of the Service shall be the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means. It shall also be the function of the Service to safeguard the economic well-being of the UK against threats posed by the actions or intentions of persons outside the UK.’327 Thus, the function of MI5 is to protect the national security and the economic well-being of the UK. These functions are performed under the authority of the secretary of state, as established in Article 1(1) of SSA 1989.328 The SSA 1989 does not establish any restrictions on the functions of MI5, but the MI5is restricted in RIPA. Like, SIS the use of certain techniques needed by the MI5 to perform their responsibilities, are legislated through RIPA. Article 26 establishes the power to use three kinds of covert surveillance, namely ‘directed surveillance, intrusive surveillance, and covert human intelligence sources.’329 Thus, MI5 has the powers to use directed surveillance, intrusive surveillance, and covert human intelligence sources. These powers need to be authorised by the secretary of state, as established in Articles 29 and 32.330 However, the use and authorisation of these powers are restricted in Article 22 to ‘situations where it is necessary in the interest of national security or economic well-being of the UK; for preventing or detecting crime; or in the interest of public safety.’331 This, again, to ensure that the MI5 does only use powers and perform actions necessary to ensure national security and in this way, does not conflict with Article 8 of the ECHR.
Of the three intelligence agencies, the MI5 works most closely and frequently with the police of the UK than other agencies do.332 The MI5 officers do not have executive powers, do not obtain powers of arrest because they do not obtain law enforcement powers, and cannot issue warrant cards. Therefore, it is essential for the MI5 to maintain a good relationship with the police forces on the national and regional level since they do have these executive and law enforcement powers. The MI5 is dependent on these powers to safeguard national security: without an arrest, people suspected of terrorist offences still present a threat to national security because they can keep on going with their activities. Special Branches (SBs), consisting of police officers, have been created in the UK to establish a good working relationship between the police forces and MI5. These SBs work closely with the MI5, and this close working relationship aims at uncovering and disrupting terrorist activity as early and as adequate as possible by combining two powers and competences: the investigative powers and competences of MI5 to ensure national security, and the law enforcement powers and local knowledge of the police. It forms ‘a vital link between high-level demands of national security
326 Brian Jackson and others, Considering the creation of a domestic intelligence agency in the United States: lessons from the experiences of Australia, Canada, France, Germany, and the United Kingdom, (1st edition Santa Monica: RAND Corporation 2009), p. 123. 327 Security Service Act 1989, s. 1(2). 328 Ibid, s. 1(1). 329 Regulation of Investigatory Powers Act 2000, s. 26. 330 Ibid, s. 29 and s. 32. 331 Ibid, s. 22. 332 Paul Burke, ‘Fit to Fight or Unfit for Purpose? A Review of the Effectiveness of the Intelligence Cycle in UK Counter-Terrorism, 2003-2013’ [2013] London Metropolitan University. p. 27.
52 and local knowledge and access’333, and are thus of significant help to the intelligence collection capability of the MI5. Local community knowledge and access are crucial for the MI5 to respond adequately to received intelligence. The Police and Criminal Evidence Act 1984334 establishes the powers of police officers in the UK, and thus also establishes the powers of the officers of the SBs. A couple of examples of these powers are: Article 1 establishes the power for the police ‘to stop and search persons and vehicles’335, Article 8 authorises search warrants336, Article 17 allows ‘the entry for purpose of arrest’337, Article 19 establishes the power of seizure338, and Article 24 authorises arrest without warrant339. All the powers of police officers are restricted to situations where an offence is or has been committed.340 Thus, the SBs obtain the powers established in the Police and Criminal Evidence Act 1984 and work in a very close cooperation with MI5 officers. Like MI5, counterterrorism is the most important mission of the SBs. The primary point of contact between the police and MI5 is formed by the Metropolitan Police Department’s Special Branch (MPSB). Through this SBs structure, intelligence that has been examined by MI5 can be translated into operational activity, since the SBs have executive and law enforcement powers under the Police and Criminal Evidence Act 1984.341 With the establishment of SBs, a productive working relationship based on a joint partnership between the MI5 and the police is established.
These three agencies do not operate without oversight. First of all, the intelligence agencies are overseen by the executive branch of the UK, which is the government.342 This is the case because the executive branch is most closely involved in directing the agencies with operations.343 Through Sections 1 of the SSA 1989 and ISA 1994, each agency’s relevant secretary of state obtains the responsibility for the intelligence and security services’ actions. A secretary of state is a Cabinet minister responsible for a government department in the UK344 and therefore, two secretaries of state, the ones responsible for internal and foreign affairs, have obtained the responsibility for the agencies’ actions. The MI5 is overseen by the home secretary whereas the MI6 and the GCHQ are accountable to the foreign secretary. There has been chosen for this divide because it reflects the operational focus and responsibilities of the agencies: the home secretary is responsible for internal affairs of the UK as is MI5 and the foreign secretary is responsible for foreign matters as are MI5 and GCHQ. The relevant secretary of state appoints the day-to-day heads of the agencies, which is in accordance with Articles 2 of SSA 1989 and ISA 1994.345 Ultimately, the prime minister bears the responsibility for the agencies, as he or she is the head of the executive. Moreover, besides this
333 Peter Chalk and William Rosenau, Confronting ‘the Enemy Within’: Security Intelligence, the Police and Counterterrorism in Four Democracies, (1st edition, RAND Corporation, 2004), p. 12. 334 Police and Criminal Evidence Act 1984 335 Ibid, s. 1. 336 Ibid, s. 8. 337 Ibid, s. 17. 338 Ibid, s. 19. 339 Ibid, s. 24. 340 Police and Criminal Evidence Act 1984. 341 Ibid. 342 Alice Mcdonald, ‘The oversight of the UK Intelligence and Security Services in relation to their alleged complicity in Extraordinary Rendition’ (Durham theses, Durham University 2012), p. 49. 343 Ibid. 344 Britannica Academic ( 15th edn, 2010). 345 Alice Mcdonald, ‘The oversight of the UK Intelligence and Security Services in relation to their alleged complicity in Extraordinary Rendition’ (Durham theses, Durham University 2012), p. 51. 53 executive oversight, in Article 10(1) of ISA 1994, parliamentary accountability for all three services has been established.346 This has been established in the form of the Intelligence and Security Committee (ISC). Moreover, a Joint Terrorism Analysis Centre (JTAC) has been created to establish a multi-agency for independent but interrelated working relationships. This committee and agency will be discussed more thoroughly below.
The Intelligence and Security Committee (ISC)
Scrutinisation of the three intelligence agencies is performed by the Intelligence and Security Committee (ISC). The ISC is a committee put in place to analyse ‘the expenditure, administration and policy of the three intelligence agencies.’347 It was first established by the Intelligence Services Act 1994348; however, the Justice and Security Act 2013 reformed the ISC.349 Article 1 of the Justice and Security Act 2013350 has amended the ISC to a Committee of Parliament.351 The committee, consisting of nine members of Parliament, report straight to the prime minister and are obligated to annually produce a report regarding the overall performance of the agencies.352 This report is placed before Parliament for debate. Moreover, on an ad hoc basis, the ISC conducts directed reviews and inspections of financial records. For the ISC to be able to function as a means of oversight, it rests upon being sufficiently informed by the three intelligence agencies regarding the events which it seeks to report.353 Due to the fact that the members of the ISC are given access to highly classified national security material, they are subject to article 1(1) of the Official Secrets Act 1989: they are guilty of an offence ‘when they, without lawful authority, disclose any information relating to security or intelligence.’354 Moreover, the committee needs to redact their reports when the included highly sensitive material could compromise the national security of the UK.355 When this is the case, a classified version is presented to the prime minister, and a redacted version is made public.
The Joint Terrorism Analysis Centre (JTAC)
In June 2003, the Joint Terrorism Analysis Centre (JTAC) has been established. The role of JTAC has been described as follows: ’JTAC analyses and assesses all intelligence relating to international terrorism, at home and overseas. It sets threat levels and issues warning of threats and other terrorist-related subjects for customers from a wide range of government departments and agencies,
346 Ibid, p. 20. 347 Peter Chalk and William Rosenau, Confronting ‘the Enemy Within’: Security Intelligence, the Police and Counterterrorism in Four Democracies, (1st edition, RAND Corporation, 2004), p. 14. 348 ‘Intelligence and Security committee’ (Gov.UK) < https://www.gov.uk/government/groups/intelligence-and- security-committee > accessed 15 May 2019. 349 ‘Intelligence and Security Committee of Parliament’ (Gov.UK) < http://isc.independent.gov.uk/ > accessed 15 May 2019. 350 Justice and Security Act 2013 351 Ibid, s. 1. 352 Peter Chalk and William Rosenau, Confronting ‘the Enemy Within’: Security Intelligence, the Police and Counterterrorism in Four Democracies, (1st edition, RAND Corporation, 2004), p. 15. 353 Alice Mcdonald, ‘The oversight of the UK Intelligence and Security Services in relation to their alleged complicity in Extraordinary Rendition’ (Durham theses, Durham University 2012), p. 20. 354 Official Secrets Act 1989, s. 1. 355 ‘U.K. Intelligence and Security Committee Annual Report’ (Lawfare, 2018)
Ultimately, the Home Office is responsible for the national security of the UK. As mentioned before, the Home Office is a ministerial department of the government of the UK. Initially, it was responsible for immigration, security, and law and order. However, in 2007, the responsibilities of the Home Office relating to criminal justice were removed and transferred to a new Ministry of Justice so that the Home Office could focus more upon tasks relating to and important to countering terrorism, such as intelligence gathering and preventing and controlling crime.362 This restructuring resulted in the Home Office obtaining the position of lead government department on counter-terrorism in the UK. In the Home Office single departmental plan, the goals of the Home Offices are outlined. Important for this research is goal number 4: reducing terrorism.363 To achieve this goal, the Home Office mainly focuses on preventing terrorism and improving counter-terrorism methods: arrangements in the
356 Security Service Act 1989. 357 ‘Joint Terrorism Analysis Centre’ (mi5.gov.uk) < https://www.mi5.gov.uk/joint-terrorism-analysis-centre > accessed 30 March 2019. 358 Paul Burke, ‘Fit to Fight or Unfit for Purpose? A Review of the Effectiveness of the Intelligence Cycle in UK Counter-Terrorism, 2003-2013’ [2013] London Metropolitan University, p. 29. 359 Intelligence Services Act 1994. 360 Ibid, s. 5. 361 Ibid, s. 1(2). 362 Brian Jackson and others, Considering the creation of a domestic intelligence agency in the United States: lessons from the experiences of Australia, Canada, France, Germany, and the United Kingdom, (1st edition Santa Monica: RAND Corporation 2009, p. 115.
363 The other goals are: ‘(1) cut crime and the harm it causes, including cyber-crime and serious and organised crime, (2) manage civil emergencies within the remit of the Home Office, (3) protect vulnerable people and communities, (5) control migration, (6) provide world-class public services and contribute to prosperity, and (7) maximise the benefits of the United Kingdom leaving the European Union.’ 55 counter-terrorism strategy are implemented and new legislation is being passed.364 For instance, in 2016, the Investigatory Powers Act 2016 was passed, which provided a new framework to govern the use of investigatory powers by intelligence agencies and law enforcement.365 New investigatory powers, such as the power to perform targeted interception, were introduced to be better able to prevent and counter terrorism. Moreover, as established in the counter-terrorism strategy of the UK, the Home Office, as lead government department on counter-terrorism, ensures coordination between and maintains a close relationship with the various agencies in UK’s counter-terrorism field.366 To be able to do this effectively, the Home Office has created the Office for Security and Counter-Terrorism (OSCT) which is responsible for overseeing the work on counter-terrorism in the UK, working closely with the security agencies and the police. The Home Office maintains a close relationship with various agencies and organisations, for instance, with the MI5, to ensure that all information collected by the various agencies is obtained, collected, and known. In this way, the Home Office enhances coordination and collaboration and tries to prevent poor information sharing between the various agencies. Thus, the Home Office is UK’s lead government department responsible for counter-terrorism in the UK, and as lead government department, they most importantly ensure coordination between and maintain a close relationship with the various agencies in UK’s counter-terrorism field.
3.5 Conclusion Thus, over the years, the UK put in place certain policies and procedures to counter terrorism. The UK is a constitutional monarchy and does not have a codified constitution because the country adheres to the common law system. Moreover, the UK is a unitary state with parliamentary sovereignty. This means that the Parliament of the UK is the only source of power and is the supreme law-making body, which has resulted in the Parliament deciding that countering terrorism is the primary responsibility of the central government in Westminster. The Home Office is the lead government department responsible for national security, and therefore, carries out this primary responsibility for countering terrorism. Even though the UK is part of the EU, the influence of the EU on the UK’s counter-terrorism strategy is very limited, because of the opt-out option available to the UK. Nevertheless, the ‘European view’ on abolishing multiculturalism has influenced the UK to re- orient their counter-terrorism policies to tackling radicalisation.
In 2018, the Home Office approved the UK’s updated strategy for combating and countering terrorism named CONTEST. This national counter-terrorism strategy consists of four work-streams: Pursue, Prevent, Protect and Prepare. Whereas Prevent and Pursue aim at reducing the terrorist threat, Protect and Prepare are focused on reducing the vulnerability of the UK to terrorist attacks. Together, these four work-streams ensure a collaborative multi-agency approach to terrorist threats and/or attacks. The CONTEST strategy is based on domestic legislation and is intelligence-led.
364 ‘Home Office single departmental plan’ (Gov.UK, May 2018)
Over the years, the UK has amended and passed new domestic legislation regarding terrorism and counter-terrorism. The basis of UK’s counter-terrorism laws is formed by the Terrorism Act 2000. It defined terrorism, and established terrorist offences and powers for the police to counter terrorism. In the following years, the government legislated more legal Acts to expand the scope and powers of authorities dealing with terrorism. These were the Terrorism Act 2006, which increased the powers of the police to tackle terrorism; the Counter-Terrorism Act 2008, which increased the investigative powers of the police; and the Counter-Terrorism and Security Act 2015, which introduced the powers ‘to seizure and render a passport of a person suspected of leaving the UK for the purpose of a terrorism-related activity outside the UK’, and the power ‘to temporary exclude individuals suspected of involvement in terrorism-related activity outside the UK.’367 Moreover, the amendments made to the Anti-Terrorism, Crime, and Security Act 2001 over the years, resulted in the strengthening of the Counter-Terrorism Act 2008.
Next to domestic legislation, the UK has established three primary intelligence agencies, collectively known as the ‘Agencies’, which bear the primary responsibility for the collection of secret intelligence. The Secret Intelligence Service (SIS, or MI6) is the external intelligence agency of the UK; the Government Communications Headquarters (GCHQ) monitors, interferes and decodes various electronic emissions and signals and provides advice and assistance on communication security; and the Security Service (MI5) is the country’s national internal intelligence agency responsible for gathering and assessing information regarding organized (domestic) threats to national security. They are tasked by the Chairman of the JIC. The functions of MI6 and GCHQ are legislated through the Intelligence Services Act 1994, and the tasks of MI5 are legislated through the Security Service Act 1989. The powers and the scope of powers of all three agencies are established in the Regulation of Investigatory Powers Act 2000 and the Investigatory Powers Act 2016.
These three agencies do not operate without oversight. First of all, the intelligence agencies are overseen by the executive branch of the UK, which is the government. Through Articles 1 of the SSA 1989 and ISA 1994, each agency’s relevant secretary of state obtains the responsibility for the intelligence and security services’ actions. The MI5 is overseen by the home secretary whereas the MI6 and the GCHQ are accountable to the foreign secretary. Ultimately, the prime minister bears the responsibility for the agencies, as he or she is the head of the executive. Moreover, besides this executive oversight, in Article 10(1) of ISA 1994, parliamentary accountability for all three services has been established as well. This has been established in the form of the Intelligence and Security Committee (ISC). The ISC is a committee put in place to analyse the expenditure, administration and policy of the three intelligence agencies and produce a report regarding the overall performance of the agencies.
As is the threat of terrorism, UK’s counter-terrorism strategy and policies are complex and dynamic. However, with the establishment of certain institutions and structures in their counter-terrorism strategy, the UK has achieved independent but interrelated relationships between the various actors in the counter-terrorism field. Coordination and collaboration between the actors is enhanced in these relationships, which, in turn, results in information being shared. First of all, the UK established the JTAC: an additional organisation established for protecting national security through a multi- agency nature. It consists of eleven government departments, the police, and other intelligence- related organisations which work together to ensure national security by analysing and assessing
367 Counter-Terrorism and Security Act 2015. 57 intelligence. The JTAC creates a multi-agency for independent but interrelated working relationships. Moreover, the created SBs structure between the police and the security service produces a productive working relationship based on a joint partnership, and the JIC has been created to ensure that between intelligence agencies, there exists coordination and cooperation and material and information is being shared among the intelligence agencies. This cooperation and coordination between the intelligence agencies is further enhanced by the CONTEST strategy and the Home Office. The four strands of the CONTEST strategy ensure a collaborative multi-agency approach to terrorist threats and/or attacks. Inter-agency collaboration and collation is enhanced in the strategy and guarantees that all the relevant and available intelligence is retrieved from the various actors in the counter-terrorism field of the UK. The Home Office, as lead government department, ensures coordination and collaboration between the different actors in UK’s counter-terrorism field and maintains, with the help of the OSCT, a close relationship with the various agencies. Thus, although the UK’s strategy is complex, they have established collaboration and cooperation and independent yet interrelated relationships between the various actors in the counter-terrorism field of the UK. This ensures and reinforces an information sharing culture in the UK’s counter-terrorism strategy.
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4. Legal assessment Both the UK and Australia have put in place certain structures, procedures and measures to counter terrorism. It is relevant for both countries to have a competent counter-terrorist strategy in place since, over the last few decades, the threats and acts of terrorism have increased significantly. These terrorist threats and acts can harm the national security of a country. However, the strategy and procedures put in place by countries to counter terrorism can differ to a great extent. As mentioned in Chapter 1, it seems that the procedures and measures put in place in Australia are not functioning the way one wishes them they would be. The Lindt Café Siege, which resulted in three casualties, disclosed problems concerning the relationship between and organisation of counter-terrorism actors in Australia, and, after the siege, it became apparent that a culture of poor information sharing and underdeveloped relationships exists among the actors in the counter-terrorism field of Australia. On the contrary, the UK seems to have a more skilled and competent counter-terrorism strategy in place. The UK has put in place institutions and structures which enhance collaboration and cooperation between the various actors in the counter-terrorism field of the UK, and this ensures and reinforces an information sharing culture in the counter-terrorism strategy of the UK and independent yet interrelated relationships are achieved. In this chapter, a legal comparison will be made between the counter-terrorism strategy of Australia and the counter-terrorism strategy of the UK. Due to this specific problem, this legal comparison will be a micro comparison. Making a legal comparison includes the following steps: understanding, comparing, explaining and comprehending the counter-terrorism strategies.368 Chapter 2 and 3 have extensively outlined the counter-terrorism strategies and procedures put in place by Australia and the UK, including the legal basis and scope. Therefore, the first step, understanding the different counter-terrorism strategies, has been completed. In this chapter, the other three steps will be covered. First, a comparison will be made between the counter-terrorism strategy of Australia and the counter-terrorism strategy of the UK, whereby the similarities and differences in the counter-terrorism strategies of both countries are demonstrated. Thereafter, these similarities and differences will be explained. This will be done on the basis of the characteristics of both counter-terrorism strategies, using the similar legal basis, the contradicting institutional structures, and the difference in international institutions. The third paragraph will comprehend the similarities and differences and this comprehension will lead to answering my research question whether, and if so how, Australia can use the UK’s counter- terrorism strategy as a source of information and inspiration to improve and reinforce their counter- terrorism strategy.
4.1 Similarities and differences in the counter-terrorism strategies of Australia and the UK. After having outlined the counter-terrorism procedures and policies of both the UK and Australia, some similarities and differences in these two strategies become apparent. First of all, there is a difference in who bears the primary responsibility for countering terrorism in Australia and the UK. In Australia, the regional level, the states and territories, bear the primary responsibility for countering terrorism, whereas, in the UK, the national level, the central government in Westminster, bears this
368 Frits Gorlé and others, Rechtsvergelijking, (2nd edition, Kluwer 2007). 59 primary responsibility. Moreover, whereas the UK does have a lead government department responsible for countering terrorism, Australia does not have one. The lead government department responsible for countering terrorism in the UK is the Home Office, and as a lead government department, they ensure coordination between and maintain a close relationship with the various agencies in UK’s counter- terrorism field. This enhances a culture of information-sharing. Australia, on the other hand, does not have a national lead government department. Multiple agencies collect information regarding terrorism and terrorist acts on different levels (federal and state level), but there is no coordination by an overarching lead government department. They do have established the ANZCTC for coordination between Australia and New Zealand; however, this Committee does not coordinate information and intelligence between the actors in the counter-terrorism field of Australia itself. Nevertheless, the counter-terrorism strategies of Australia and the UK adhere to similar counter- terrorist models. Australia’s counter-terrorism strategy is based on the prepare, prevent, respond and recover (PPRR) model whereas UK’s counter-terrorism strategy ‘CONTEST’ entails four distinct work streams: prevent, pursue, protect, and prepare. Both strategies thus focus upon four work- streams. However, the counter-terrorist models do differ concerning their focus since they signify different aims and goals. Australia’s PPRR model focuses on preparedness in the legal framework, prevention by means of intelligence, countering violent extremism, the protection of the community, and awareness and vigilance, response to terrorist incidents and recovery from terrorist incidents. The ‘CONTEST’ strategy of the UK, on the other hand, is focused on preventing terrorism by tackling the underlying causes, pursuing terrorists and their sponsors, protecting the public interest, and preparing for the consequences of terrorism. Thus, the UK’s counter-terrorist model is mainly focused upon reducing the risk of terrorism by understanding the reasons behind terrorism, radicalisation and the processes of radicalisation, whereas the PPRR model of Australia is more focused upon emergency management- what if a terrorist incident takes place. There also exist a difference in the approach to terrorism between the two countries. Over the last few years, the UK has shifted its attention to radicalisation and its corresponding processes. This has been evident in the changes made in their counter-terrorist strategy, which for a significant part rest on preventing, understanding, and discovering radicalisation. On the contrary, Australia does not focus much attention upon radicalisation in its counter-terrorism strategy. Although one of the five elements of Australia’s national counter-terrorist strategy is ‘challenging violent extremist ideologies’, this element is not linked to radicalisation as much as it is in the UK. The prevention stage in Australia focusses much on limiting the influence and spread of violent extremist ideologies; however, it does not aim at disclosing or understanding radicalisation and its corresponding processes. This is something the UK does aim at understanding.
Moreover, to be able to counter terrorism properly, both the UK and Australia have established intelligence agencies which collect, assess, and disseminate information regarding domestic terrorist threats and/or acts. For the UK, this, for example, includes the Security Service (MI5), and for Australia, this, for instance, involves the Australian Security Intelligence Organisation (ASIO). These established intelligence agencies have some similarities. First of all, they are both primarily concerned with proactive threat mitigation, and both agencies do not have functional law enforcement powers, such as the power to arrest suspects of terrorism.369 Because the MI5 and ASIO
369 Peter Chalk and William Rosenau, Confronting ‘the Enemy Within’: Security Intelligence, the Police and Counterterrorism in Four Democracies, (1st edition, RAND Corporation, 2004), p. 43.
60 do not have the powers to act upon their received or collected intelligence, they are both forced to work closely with their national police forces.370 They need the police force since the police do have functional law enforcement powers to, for instance, arrest or detain terrorist suspects. Moreover, both services make extensive use of local community information gathering.371 Communities are regarded as an important resource for tackling terrorism in both the UK and Australia.372 This information gathering on a communal level greatly contributes to national surveillance efforts because local knowledge can fill information gaps.373 Furthermore, both countries’ intelligence agencies make considerable use of human intelligence by, for example, recruiting and sourcing terrorist insiders.374 This collection of human intelligence underlines the work of the intelligence agencies to a great extent because human intelligence reveals detailed information about terrorist organizations and uncovers their plans.375 This source of information regarding the intentions, capabilities and resources of extremists advance terrorist investigations and contribute to preventing attacks because the plans of terrorists can be uncovered before they are executed.376 There also exist two differences in the intelligence community of Australia and the UK. However, in these differences, similarities are present as well. First of all, whereas the UK’s intelligence community is only established on a national level, Australia’s intelligence community is established on the national and regional level. The intelligence community concerned with countering terrorism in the UK consists of three primary national intelligence agencies: the MI6, the external intelligence agency; the MI5, the internal intelligence agency responsible for national security; and the GCHQ, focused on intercepting and decoding electronic communications and signals on a national level. Australia’s intelligence community, on the other hand, is divided between a national and a regional level. On a national level, ASIO is responsible for investigating national security threats both within and outside Australia. On a regional level, a JCTT has been established in each state and territory to maintain, collect and investigate intelligence collected by various agencies – depending on the state. Thus, whereas the UK’s intelligence community is fully established with three intelligence agencies at one level, namely on the national level, Australia’s intelligence community is established on the national level, like the UK, and on a regional level, unlike the UK. Secondly, there is a difference in the created checks and balances in the intelligence community infrastructure of Australia and the UK.377 These checks and balances put in place for oversight are of the utmost importance because independent scrutiny, such as reviews of operational activities and the effective and efficient implementation of resources and programs, show the significance of gathering intelligence to both politicians and the public.378 The checks and balances provide a transparent medium because the reviews are made public. The UK has established both parliamentary and executive oversight.
370 Ibid, p. 47. 371 Ibid, p. 44. 372 Basia Spalek and Alia Imtoual, ‘Muslim Communities and Counter-Terror Responses: ‘Hard’ Approaches to Community Engagement in the UK and Australia’ [2007] 27(2) Journal of Muslim Minority Affairs 185, p. 188. 373 John Deukmedjian and Willem de Lint, ‘Community into Intelligence: Resolving Information uptake in the RCMP’ [2007] 17(3) Policing and Society 239, p. 250. 374 Peter Chalk and William Rosenau, Confronting ‘the Enemy Within’: Security Intelligence, the Police and Counterterrorism in Four Democracies, (1st edition, RAND Corporation, 2004), p. 44. 375 A. Duyan, Defence Against Terrorism: Different Dimensions and Trends of an Emerging Threat, (IOS Press, 2012). 376 Peter Chalk and William Rosenau, Confronting ‘the Enemy Within’: Security Intelligence, the Police and Counterterrorism in Four Democracies, (1st edition, RAND Corporation, 2004), p. 45. 377 Ibid, p. 45. 378 Ibid. 61
Through the secretaries of state, the government, the executive branch in the UK, oversees the intelligence agencies. Parliamentary oversight, on the other hand, is conducted by the ISC which analyses the expenditure, administration and policy of the intelligence agencies in the UK. In Australia, oversight is established differently. They refer to internal and external oversight, instead of parliamentary and executive oversight. Internally, the IGIS reviews the activity of ASIO, and externally, the PJC performs supervision. This PJC is established on parliamentary level and evaluates all aspects of the administration and finance of ASIO and thus can be compared to the parliamentary oversight in the UK. However, the reviews conducted by IGIS cannot be compared to the executive oversight established in the UK because the reviews of IGIS are conducted by an independent statutory office holder who is specifically assigned to a position whereas the secretaries of state in the UK are Cabinet ministers who carry out duties and functions assigned to a body (the UK government). These secretaries of states are thus directly linked to the executive branch (the government) of the UK, whereas the statutory office holders in Australia are not directly linked to the executive branch.
Furthermore, the rise in terrorist threat has resulted in both countries making legal changes and amendments. In Australia, the Criminal Code Act 1995 forms the basis of Australia’s counter- terrorism laws. It establishes terrorism offences and authorises two specific powers for officers: the control order and preventative detention power. However, this Act did not include specific terrorism- related legislation. Therefore, Australia passed and amended specific terrorism-related legislation to be better able to prevent and uncover terrorist plots. This specific legislation included the Terrorism (Commonwealth Powers) Act 2003 and the two Anti-Terrorism Bills of 2004. In the Terrorism (Commonwealth Powers) Act 2003, states and territories voluntarily agreed to legislative devolution regarding anti-terrorism laws. The two Anti-Terrorism Bills of 2004 aimed at strengthening Australia’s counter-terrorism laws by extending the powers of the police and intelligence agencies in Australia during the investigation period. The legislative basis for the responsibilities and duties of the intelligence agencies in Australia were clarified with the Intelligence Services Act 2001. In the UK, the Terrorism Act 2000 forms the basis of the UK’s counter-terrorism laws. This Act defined terrorism and established terrorist offences and powers for the police to counter terrorism. In the following years, the government legislated more legal Acts to expand the scope and powers of authorities dealing with terrorism. These were the Terrorism Act 2006, the Counter-Terrorism Act 2008, and the Counter-Terrorism and Security Act 2015. The Terrorism Act 2006 created a series of new criminal offences to assist the police in tackling terrorism, the Counter-Terrorism Act 2008 introduced two new powers for the police, and the Counter-Terrorism and Security Act 2015 enabled the seizure and retention of a passport and the temporary exclusion of individuals from the UK. Moreover, the changes in Anti-Terrorism, Crime, and Security Act 2001 resulted in the strengthening of the Counter-Terrorism Act 2008. The passing of the Security Service Act 1989 (SSA 1989) and the Intelligence Services Act 1994 (ISA 1994) resulted in the legislation of the functions of the intelligence agencies in the UK. Thus, both the UK and Australia have initiated a range of new anti-terror legislation with the same aim: strengthening and intensifying their counter-terrorism laws.379 In both countries, the Acts aimed at defining terrorism, criminalising terrorist acts, giving intelligence and law enforcement bodies
379 Basia Spalek and Alia Imtoual, ‘Muslim Communities and Counter-Terror Responses: ‘Hard’ Approaches to Community Engagement in the UK and Australia’ [2007] 27(2) Journal of Muslim Minority Affairs 185, p. 191. 62 extended powers, and at authorising surveillance techniques.380 Even though these definitions differ in their extent, scope and implementation, they all refer to ‘religious, political or ideologically- motivated violence which is intended to coerce a government or civilian population or to instil fear in society’ in their core.381 Moreover, the legislation gives the government in both the countries the power to proscribe terrorist organisations and the membership to these.382 In Australia, this is established in the Criminal Code Act 1995, and in the UK, this is enacted in the Terrorism Act 2000. However, there also exist differences in the legislative Acts passed by the UK and Australia. First of all, whereas in the UK only the Parliament on a national level has passed legislation because they are the only source of power and the supreme law-making body in the UK, in Australia, anti-terrorism legislation has been passed on a national level by the Commonwealth and on a regional level by the states. Furthermore, as mentioned above, there are differences in the range, scope and application of definitions in the UK and Australia. For example, in Australia, the offence ‘membership of a terrorist organisation’ is defined in Article 102(3) of the Criminal Code 1995 as ‘a person intentionally being a member of a terrorist organisation.’383 In the UK, the offence of membership is defined in Article 11 of the Terrorism Act 2000 as ‘a person belonging or professing to belong to a proscribed organisation.’384 Thus, whereas the definition of Australia involves ‘intentionally’ and ‘terrorist organisation’, the definition of the UK includes ‘professing’ and ‘proscribed organisation’. Lastly, the legislation of the UK and Australia differ with regard to when authorities are allowed to use the powers prescribed in their terrorism legislation. In Australia, authorities are only allowed to use powers, such as the control order power, in cases where someone is suspected of terrorist offences defined in the Criminal Code Act 1995. In the UK, on the contrary, the authorities are allowed to use the powers legislated in their terrorist Acts in the interest of national security and economic well- being of the UK and to prevent or detect serious crime. Thus, the authorities in Australia are far more limited in their legislation to use powers than the authorities in the UK.
Additionally, as both countries have various agencies receiving, collecting, and assessing intelligence and a close relationship with the police forces is necessary because these agencies do not have functional law enforcement powers, both countries have put in place an overarching multi-agency. These multi-agencies, although having a different aim, bring together various actors in the field of countering terrorism. In Australia, this multi-agency is the Joint Counter-Terrorism Team (JCTT), which has been established in each state and territory to maintain general intelligence collection of all actors involved in countering terrorism and aims at better cooperation and coordination between states and territories. The JCTTs have an interagency nature: ‘greater coordination, greater collaboration and the ability to form needed relationships is achieved.’385 In the UK, the Joint Terrorism Analysis Centre (JTAC) has been created. The JTAC is somewhat different from the JCTTs in Australia. The JCTTs are mainly created because every state and territory in Australia collects intelligence itself and therefore, the JCTTs are designed for better cooperation and coordination
380 Ben Golder and George Williams, ‘Balancing national security and human rights: Assessing the legal response of common law nations to the threat of terrorism’ [2006] 8(1) Journal of Comparative Policy Analysis 43, p. 44. 381 Ibid, p. 46. 382 Ibid. 383 Criminal Code Act 1995, s. 102(3). 384 Terrorism Act 2000, s. 11. 385 Sam Mullens, ‘Terrorism in Australia: practitioner perspectives’ [2016] 11(1) Journal of Policing, Intelligence and Counter Terrorism 93, p. 100.
63 between the various states and territories. The JTAC in the UK, on the other hand, is not created for greater cooperation and coordination between states and territories, as the UK is not a federation. In the UK, the JTAC has been created as an additional organisation focused on protecting national security through a multi-agency nature. The UK has put in place a multi-agency because it would enhance better cooperation and coordination between various actors in the counter-terrorism field and therefore would improve their counter-terrorism strategy. The JTAC consists of eleven government departments, next to the police forces and intelligence agencies. Whereas a JCTT exists in every state or territory in Australia, there is only one JTAC in the UK.
To conclude, four similarities in the counter-terrorism strategies of the UK and Australia can be identified. The similarities are as follows:
1. Both the UK and Australia adhere to similar counter-terrorist models. 2. There exist similarities in the established intelligence agencies of both countries including the intelligence agencies in both countries being primarily concerned with proactive threat mitigation and both agencies not having functional law enforcement powers which forces both the MI5 and ASIO to work closely with their national police forces. Moreover, both services make extensive use of local community information gathering and human intelligence. 3. Both countries have amended and passed domestic legislation over the last couple of years with the same aim to strengthen and intensify their counter-terrorism laws; with the same core: they all refer to religious, political or ideologically-motivated violence which is intended to coerce a government or civilian population or to instil fear in society; and it gave the government in both the countries the power to proscribe terrorist organisations and the membership to these. 4. Both the UK and Australia have put in place an overarching multi-agency which brings together various actors in the field of countering terrorism. For Australia, these are the JCTTs and for the UK, this is the JTCA.
The differences in the counter-terrorism strategies of the UK and Australia are as follows:
1. In the UK, the national level bears the primary responsibility for countering terrorism. In Australia, the regional level bears the primary responsibility for countering terrorism. 2. The UK has established a lead government department responsible for coordination. Australia does not have a lead government department. 3. The counter-terrorist model and approach to terrorism in the UK includes understanding the reasons behind terrorism, radicalisation and the processes of radicalisation. Australia’s counter- terrorist model and approach to terrorism do not include understanding the reasons behind terrorism, radicalisation and the processes of radicalisation. 4. UK’s intelligence community is fully established on the national level and is overseen by executive and parliamentary oversight. Australia’s intelligence community is established on the national and regional level and is overseen by internal and external oversight. 5. Legislation in the UK is only passed on a national level, and authorities are allowed to use the powers legislated in their terrorist Acts in the interest of national security and economic well-being of the UK and to prevent or detect serious crime. Legislation in Australia has been passed on the national and regional level, and the authorities are only allowed to use powers in cases where someone is suspected of terrorist offences defined in the Criminal Code Act 1995. Moreover, in the legislation passed by the UK and Australia, there are differences in the range, scope and application of definitions.
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6. The multi-agency JCAT in the UK has been created as an additional organisation focused on protecting national security through a multi-agency nature. The multi-agency JCCTs in Australia are created for better cooperation and coordination between the various states and territories.
4.2 Explaining the existing similarities and differences What has become apparent in the two previous paragraphs is that there exist both similarities and differences in the counter-terrorism strategies of the UK and Australia. In this paragraph, I will explain these similarities and differences. Explaining is to be understood as examining why these similarities and differences exist and whether we can learn anything from this. The similarities and differences can be subdivided into three main themes and therefore, will be discussed and explained based on these three themes. The first theme concerns the legal basis and the interpretation hereof through case law. The second theme involves the institutional structure and the existing difference herein. The third theme concerns international institutions and their influence.
4.2.1 Legal basis The basis of each counter-terrorist strategy is competent law because this legislates the strategy as well as the techniques and activities used and performed. A similar legal basis can explain the existing similarities in the counter-terrorism strategy of the UK and Australia. To answer several distinct questions in comparative law, legal systems have been divided into a five legal families.386 These are: the Civil Law family, the Common Law family, the Customary Law family, the Religious Law family, and mixed systems.387 This division is made on the basis of styles adhered to in legal systems. This style is based on factors including ‘(1) its historical background and development, (2) its predominant and characteristic mode of thought in legal matters, (3) especially distinctive institutions, (4) the kind of legal sources it acknowledges and the way it handles them, and (5) its ideology.’388 Both the legal systems of the UK and Australia adhere to the Common Law style, and therefore, both countries are part of the legal family ‘Common Law’. Common Law finds its origin in English law and developed itself between the thirteenth and seventeenth centuries through case law in the royal courts.389 Throughout history, the Common Law system has gradually developed from decision to decision. Distinctive for Common Law is that with regard to the hierarchy of sources of law, court law is at the top. The law is primarily based on what is determined by the court, also called case law.390 Thus, case law comes from the courts; judges make the law.391 The interpretation of the law is mainly determined by case law, whereby rulings of higher courts need to be taken over by lower courts.392 This is called precedent effect. Judicial precedents are binding, (stare decisis), which
386 Konrad Zweigert, Hein Kötz, Tony Weir, Introduction to Comparative Law, (3rd edition, Clarendon Press 1998), p. 63. 387 ‘The world’s legal systems’ (guides.law) < https://guides.law.sc.edu/c.php?g=315476&p=2108388 > accessed 4 June 2019. 388 Konrad Zweigert, Hein Kötz, Tony Weir, Introduction to Comparative Law, (3rd edition, Clarendon Press 1998, p. 68. 389 John Gilissen and Frits Gorlé, Historische inleiding tot het recht. 1: Ontstaan en evolutie van de belangrijkste rechtsstelsels, (1st edition, Kluwer 1991), p. 101. 390 Ibid. 391 Konrad Zweigert, Hein Kötz, Tony Weir, Introduction to Comparative Law, (3rd edition, Clarendon Press 1998), p. 69. 392 William Tetley, ‘Mixed jurisdictions: common law vs civil law (codified and uncodified) (Part II) [1999] 4(4) Uniform Law Review 877, p. 702. 65 means that lower judges are bound to the judgments of higher judges in similar cases, but, the judge cannot dismiss the law an go against it.393 However, higher courts regularly leave room for the lower courts to decide on a specific term or exception to be further specified. Thus, case law plays an important role in the law of countries belonging to the Common Law family and forms the starting point. The precedent rule ensures unity and completeness of legal rules, which has resulted in other sources of law, like legislation and doctrine, only fulfilling an additional role.394
Australia being part of the Common Law family like the UK is the result of the past. The UK has been one of the greatest colonial powers in the world.395 Overseas territories came under the control of the British Crown, and one of these territories was Australia. During this colonial expansion, the English introduced the Common Law to their colonies and thus also to Australia.396 Common Law was applied to all colonies.397 Even though Australia is independent now, the legal system of Australia still adheres to the Common Law style, and therefore, is still part of the legal family Common Law, like the UK.
The legal basis of the counter-terrorism strategies of Australia and the UK has been established in one primary Act, and through case law, the law is interpreted, and exceptions and additions are added. In Australia, the Criminal Code Act 1995 forms the primary Act, establishing terrorist offences and powers. Through case law, the law is interpreted, exceptions and additions have been added, and the scope of powers have been extended. These changes have been established in specific terrorism-related legislation, including the Terrorism (Commonwealth Powers) Act 2003, which aimed at ensuring jurisdictional uniformity, and the two Anti-Terrorism Bills of 2004, which aimed at strengthening Australia’s counter-terrorism laws through expanding the powers of the police and intelligence agencies in Australia during the investigation period. For example, because of the Haneef v Minister for Immigration and Citizenship398 case, the National Security Legislation Amendment Act 2010399 revised the dead time provisions in the Crimes Act 1914. Under the dead time provision, Mr Haneef was arrested and interrogated without charge for 12 days.400 An inquiry into the Haneef case resulted in the revision of the dead time provisions in the Crimes Act 1914 and resulted in a seven day limit in the National Security Legislation Amendment Act 2010. In the UK, the Terrorism Act 2000 forms the primary act. It defined terrorism and established terrorist offences and powers for the police and intelligence agencies to counter terrorism. Through case law, the law is interpreted, exceptions and additions have been added, and the scope of powers have been extended. These have been established in specific terrorism Acts, including the Terrorism Act 2006 which assisted the police in tackling terrorism by creating a range of new criminal offences, and the Counter-Terrorism Act 2008 and Counter-Terrorism and Security Act 2015 which strengthened the
393 Ibid. 394 T.D. Lyon and J.A. Dente, ‘Child witnesses and the confrontation clause’ [2012] 120(4) The journal of criminal law & criminology 1181. 395 Konrad Zweigert, Hein Kötz, Tony Weir, Introduction to Comparative Law, (3rd edition, Clarendon Press 1998, p. 219. 396 Ibid. 397 Leslie Zines, ‘The common law in Australia: its nature and constitutional significance’, [2004] 32(3) Federal Law Review 337, p. 341 398 Haneef v Minister for Immigration and Citizenship (2007) FCA 1273. 399 National Security Legislation Amendment Act 2010. 400 George Williams, ‘A Decade of Australian Anti-Terror Laws’ [2011] 35(3) Melbourne University Law Review 1136. 66 powers of the police. For example, in the Malone v UK case401, the problem of there not existing a legal framework governing interception of communications was addressed. The Malone v UK case resulted in the passing of the Interception of Communications Act 1985402. In this Act, the offence of unlawfully intercepting communications send by post or by a public telecommunications system was created under Article 1, and Article 3 established a legal framework for legalising telephone tapping and mail-opening with a warrant for all the intelligence agencies in the UK.403
Thus, both the UK and Australia are part of the Common Law family. This similar legal family and basis explains the recognised similarities existing in the counter-terrorism strategies of Australia and the UK. The similarities are established in the law, which forms the basis of the counter-terrorism strategies of both countries, and this law is developed through the same legal basis, because both countries adhere to the same legal style, and this, in turn, results in similarities. The recognised similarities include:
- Similar counter-terrorist models; - Similarities in the intelligence agencies; - Both countries amending and passing domestic legislation with the same aim, the same core, and similar powers of the government to proscribe terrorist organisations and the membership to these; and - Putting in place a multi-agency.
For example, the similarities in the intelligence agencies of Australia and the UK are founded and established in the law and the multi-agencies are created through a similar legal basis. These similarities are thus established in the law which is developed similarly because of the similar legal basis.
4.2.2 Institutional structure Some of the existing differences in the counter-terrorism strategies of Australia and the UK can be explained by the difference in institutional structure between the two countries. The UK is a constitutional monarchy with parliamentary sovereignty, whereas Australia is a federation. A federation is composed of a national level and a regional level. The regional level consists of territorial sub-units, which can, for instance, be states or provinces, and these territorial sub-units maintain its integrity because they form constituent governments.404 In a federation, power is divided between a federal government and constituent regional governments.405 In Australia, the national level is the Commonwealth, and the territorial sub-units consist of six states, New South Wales, Queensland, Western Australia, Southern Australia, Victoria, and Tasmania, and two internal territories, the Australian Capital Territory and the Northern Territory.406 These sub-units maintain their integrity because they have their own state government and are assigned powers and responsibilities. This is distinctive for a federation: as a federation, a country unites for common purposes through a national government, yet remains separate to preserve their respective
401 Malone v United Kingdom (1984) 7 EHRR 14. 402 The Interception of Communications Act 1985. 403 Ibid, s.1 and s. 3. 404 Aalt Willem Heringa, Constitutions Compared, (4th edition, Intersentia Ltd, 2016) p. 32. 405 Daniel Elazar, Exploring Federalism, (1st edition, University of Alabama Press, 1987), p. 34. 406 Britannica Academic (15th edition, 2010). 67 integrities through own state governments.407 According to the Australian Constitution, the common purposes and thus the responsibilities of the federal government (the Commonwealth) include foreign relations, trade, defence and immigration408, and the constituent governments of the states and territories are responsible for all other matters, not including foreign relations, trade, defence and immigration.409 One of these responsibilities of the states and territories, established in the Australian constitution, is countering terrorism. The UK, consisting of England and the national assemblies in Scotland, Wales, and Northern Ireland, is a constitutional monarchy with parliamentary sovereignty.410 This means that the Parliament of the UK is the only source of power and is the supreme law-making body. The Parliament can allocate powers, such as education and health, to other institutions, for instance to the regional assemblies in Scotland, Wales, and Northern Ireland411; however, these powers can also be taken back by the Parliament.412 This is in contrast with federal systems, where powers are dissipated away from the centre and cannot be taken back. Due to the fact that the Parliament is the only source of power and is the supreme law-making body, the Parliament of the UK has decided that countering terrorism is the primary responsibility of the central government in Westminster and thus is not one of the powers allocated to the regional assemblies.413
This difference in institutional structure explains some of the existing differences in the counter- terrorism strategies of Australia and the UK. First of all, it explains the difference in who bears the primary responsibility for countering terrorism in both countries. Due to the federal structure in Australia, powers are dissipated away from the centre to the states and territories, including the primary responsibility for counterterrorism. The UK, on the other hand, is a constitutional monarchy with parliamentary sovereignty, and because of this institutional structure, the Parliament is the only source of power, which has resulted in the decision that countering terrorism is the primary responsibility of the central government in Westminster. Moreover, the difference in institutional structure is an explanation for why the UK does have a lead government department while Australia does not have one. In the UK, countering terrorism is organised only on the national level, whereas in Australia, countering terrorism is organised on the national and regional level. This is in line with their institutional structure. Due to the fact that the primary responsibility for countering terrorism in the UK is on the national level, the national government is significantly involved and responsible for countering terrorism, and this can have contributed to the establishment of a lead government department. In Australia, on the other hand, the primary responsibility for countering terrorism is on a regional level and therefore, the national government of Australia is not as involved as the national government in the UK. The national level has put in place some operational and organisational measures to counter terrorism and supports the states, for instance, financially, where necessary. However, because of Australia’s federal structure, the powers are dissipated away from the centre to the states and territories, and therefore, the national level of Australia does not bear the primary responsibility for countering
407 Daniel Elazar, Exploring Federalism, (1st edition, University of Alabama Press, 1987), p. 33. 408 Commonwealth of Australia Constitution Act 1900, s. 51 and s. 52. 409 Justin Healey, Australia’s political system, (1st edition, The Spinney Press, 2015), p. 1. 410 Alistair Jones, Britain and the European Union, (1st edition, Edinburgh University Press 2007), p.82. 411 ‘Devolved Parliaments and Assemblies’ (Parliament.uk)
4.2.3 International institutions The other two differences in the counter-terrorism strategies of Australia and the UK, the difference in approach to terrorism and the difference in the focus of the counter-terrorist models, can be explained by the fact that the UK and Australia belong to different international institutions. Over the years, various types of international institutions, such as international organizations and international treaties, have developed.414 International institutions can be defined as ‘behavioural regularities associated with a set of rules, norms and routines.’415 The underlying concept of international institutions is global governance, which can be defined as ‘governing international relations without a sovereign authority.’416 Due to the fact that local or domestic problems have internationalised, the need for global governance emerged, and over the years, the interdependencies and interconnections between states developed.417 Global governance covers ‘the promotion of cooperation, consensus and common conflict resolution; international functions such as information creation and exchange; a regulatory and normative function with the formulation and
414 John Duffield, ‘What are International Institutions?’ [2007] 9(1) International Studies Review 1, p. 1. 415 J.P. Allagret and P. Dulbecco, ‘Why International Institutions Need Governance? The case of the IMF’ (Researchgate, 2004)
The UN is an international organisation established in 1945 with the intention to ‘guarantee and maintain international peace and security.’419 Currently, it is made up of 193 Member States, and its purposes and principles are contained in the UN Charter.420 The main bodies of the UN are the ‘Security Council, the General Assembly, the Economic and Social Council, the Trusteeship Council, the International Court of Justice and the UN Secretariat.’421 The aim of the UN is addressing difficulties presented to humanity such as the curtailment of human rights and threats to peace and security. One of the main issues the UN is addressing at this moment is terrorism. The UN has established the UN Global Counter-Terrorism Strategy in 2006, a worldwide instrument which enhances ‘regional, national, and international efforts to counter terrorism.’422 The Global Counter- Terrorism Strategy consists of four pillars423:
1. Tackling the spread of terrorism; 2. Preventative and combative measures to terrorism; 3. Capacity building of the states to prevent and counter terrorism and strengthening the UN’s part in that regard; 4. Measures enhancing and ensuring the fundamental basis to combat terrorism: respect for the rule of law and human rights.
The Office of Counter-Terrorism (UNOCT) ensures the implementation of the Strategy.424 What stands out after having analysed the strategy is that it does not include a common approach to the prevention of violent extremism or the recognition and understanding of the underlying causes of radicalisation.425
The EU is an international organisation consisting of 28 countries primarily positioned in Europe. After the wars in the 20th century, a ‘European Idea’ developed: ‘the idea of a strong, independent, prosperous and peaceful Europe.’426 This resulted in the creation of a union, the European Union. The EU is established by the Treaty of the European Union and the Treaty on the Functioning of the European Union. The main institutions of the European Union are ‘the European Parliament, the European Council, the Council of the European Union, the European Commission, the Court of Justice
418 Ibid, p. 370 and 371. 419 ‘About the UN’ (United Nations)
- Prevent: addressing the causes of radicalisation and terrorist employment; - Protect: protecting society and decreasing the vulnerability to attacks; - Pursue: hindering terrorists in planning and organising attacks and prosecuting them; - Respond: preparing, managing and minimising the consequences of a terrorist attack.
Moreover, within the EU, there exists the ‘European view’ on abolishing multiculturalism. Throughout Europe, there is a widespread shared view that abolishing multiculturalism- the recognition of diverse ethnic and religious identities in society to ensure equality for all- is the best way to fight terrorism.431
The UK is located in Europe and is a member state of the EU and the UN. Even though the UK is part of the EU, the influence of the EU on the UK’s counter-terrorism strategy is very limited, because of the opt-out option available to the UK, explained in chapter 3 paragraph 3.1. Nevertheless, the ‘European view’ on abolishing multiculturalism has influenced the UK to re-orient their counter- terrorism policies to tackling and understanding radicalisation. Australia, on the other hand, is situated on the other side of the world and is not part of the EU. They are a member state of the United Nations. Thus, whereas Australia is only a member state to the UN, the UK is a member state to the EU and UN. This difference in membership to international institutions explains the difference in approach to terrorism and the difference in the focus of the counter-terrorist models existing in the counter-terrorism. In their approach to terrorism and focus of their counter-terrorist model, the EU focuses much attention upon understanding terrorism, radicalisation and its corresponding processes. Although the influence of the EU is limited on the UK, in line with the ‘European view’ of the EU, the UK has shifted their focus on understanding terrorism, radicalisation and its relevant processes as well and this shift of attention has been implemented in their approach to terrorism and the focus of their counter-terrorist model. On the contrary, Australia is not part of the EU and therefore, is not influenced by the EU and the view of the EU. They are a member state to the UN. However, the strategy of the UN does not include a common approach to the prevention of violent extremism or the recognition and understanding of the underlying causes of radicalisation. Thus, Australia is not influenced by a view enhancing understanding terrorism, radicalisation and its
427 ‘Institutions and bodies’ (European Union) < https://europa.eu/european-union/about-eu/institutions- bodies_en > accessed 6 June 2019. 428 The other goals are: ‘offer freedom, security and justice without internal borders; sustainable development based on balanced economic growth and price stability in a highly competitive market economy with full employment and social progress, and environmental protection; combat social exclusion and discrimination; promote scientific and technological progress; enhance economic, social and territorial cohesion and solidarity among EU countries; respect its rich cultural and linguistic diversity; and establish an economic and monetary union whose currency is the euro.’ 429 ‘EU counter-terrorism strategy’ (European Union)
4.3 Comprehending the similarities and differences The explanation for the similarities and differences in the counter-terrorism strategies of Australia and the UK have been found in a similar legal basis, both countries belong to the Common Law family; the difference in institutional structure, Australia is a federation and the UK is a constitutional monarchy; and the difference in international institutions and their influence, Australia is a member state of the UN and the UK is part of the EU and the UN. After the steps of understanding, comparing and explaining, this paragraph will comprehend the similarities and differences explained in the previous paragraph. This comprehension will lead to answering my research question:
Can Australia use the United Kingdom’s procedures and policies related to countering terrorism, such as the restructuring of the machinery of government and the appointment of one overarching organisation or government department, as a source of information and inspiration to improve and reinforce their counter-terrorism strategy?
Central to my thesis is the Lindt Café Siege in Australia, which resulted in three casualties, and disclosed problems concerning the relationship between and the organisation of counter-terrorism actors in Australia.
On the one hand, the legal systems of Australia and the UK are close to one another. Both countries are part of the Common Law family, and therefore, their legal basis is the same and their style is very similar. The law forms the basis of the counter-terrorism strategies of both countries, both countries have developed this through the same legal basis Common Law, and thus the basis of the counter- terrorism strategies is developed similarly. However, Australia and the UK do differ with regard to their institutional structure and their membership to international institutions. Australia is a federation which has resulted in the regional level acquiring the primary responsibility for countering terrorism. The UK, on the other hand, is a constitutional monarchy with Parliamentary sovereignty, which has resulted in the national level carrying out the primary responsibility for counter-terrorism. Moreover, the UK is part of the EU and the UN and specifically the ‘European view’ has resulted in the UK re-orienting their counter-terrorism strategy to understanding terrorism, radicalisation and its processes. Australia is only part of the UN, which does not enhance an approach to understanding terrorism, radicalisation, and its processes.
Can Australia use the United Kingdom’s procedures and policies related to countering terrorism, such as the restructuring of the machinery of government and the appointment of one overarching organisation or government department, as a source of information and inspiration to improve and reinforce their counter-terrorism strategy?
The differences and similarities can be comprehended from the same legal family and the difference in institutional structure and international institutions, and because of this difference in institutional structure, not all measures taken by the UK in their counter-terrorism strategy can be taken over one on one by Australia. However, I do believe that the UK can still serve as a source of information and inspiration to Australia to improve and reinforce their counter-terrorism strategy. The fact that both
72 countries are part of the legal family Common Law is of great advantage because it contributes to Australia being able to take over legal measures one on one. Moreover, the difference in international institutions is a difference one can get over because despite the fact that the UK is part of the EU, the influence of the EU on the UK is very limited because of the opt-out option available to the UK. Legal terrorism measures taken by the EU are not implemented by the UK and therefore, the EU does not influence the legal system and legal basis of the UK. However, the different institutional structures are of great disadvantage, because it contributes to Australia not being able to take over institutional measures of the UK one on one. The institutional measures cannot be taken over one on one because it can cause instability in the federal structure of Australia.432 Nevertheless, I think that the UK can still serve as an source of inspiration and information to Australia.
Due to the fact that Australia is a federation, and their counter-terrorism strategy reflecting their federal system of government, multiple agencies collect information regarding terrorism and terrorist acts on different levels. This, in my opinion, contributes to a great extent to the existing problems in Australia’s counter-terrorism strategy: the poor information sharing and underdeveloped cooperation and collaboration between the various agencies in the counter- terrorism field of Australia. To be able to respond to possible signs of terrorism, it is of vital importance that information is shared between authorities and agencies. Information dissemination is essential to act in a coordinated and effective way.433 Moreover, cooperation and collaboration between the various agencies are crucial in preventing terrorism incidents from happening, and during a terrorist event, cooperation and collaboration between agencies are important as well. This to avoid ambiguity among agencies and to be able to resolve a terrorist situation as quickest and as best as possible. Unfortunately, however, Australia is faced with significant challenges in encouraging and enhancing cooperation, communication and data/information sharing among the established agencies, which became apparent after the Lindt Café Siege. In the UK, the problem of poor information sharing and underdeveloped cooperation and collaboration between the various agencies is not so present, because the UK restructured their machinery of government which resulted in the establishment of a lead government department for counter-terrorism. This lead government department ensures cooperation, collaboration and information dissemination between the agencies in the counter-terrorism field of the UK and maintains a close relationship with them. Due to the different institutional structure, Australia won’t be able to restructure their machinery of government like the UK, and therefore, cannot take over this institutional measure of the UK one on one. Australia cannot take over the institutional measure one on one because establishing a lead government department similar to the one of the UK would mean that the national level of Australia would acquire the primary responsibility for countering terrorism. This reallocation of powers in a federation can cause instability and therefore, is not desired.434 However, I do believe that this lead government department in the UK can serve as a good source of inspiration and information to Australia. The regional level bears the primary responsibility for countering terrorism in Australia and the national level has put in place some operational and organisational measures to counter
432 Arthur Benz and César Colino, ‘Constitutional Change in Federations – A Framework for Analysis’ [2011] 21(4) Regional & Federal Studies 381, p. 385. 433 André Dantas and Erica Seville, ‘Organisational Issues in Implementing an Information Sharing Framework: Lessons from the Matata Flooding Events in New Zealand’ [2016] 14(1) Journal of Contingencies and Crisis Management 38, p. 38. 434 Arthur Benz and César Colino, ‘Constitutional Change in Federations – A Framework for Analysis’ [2011] 21(4) Regional & Federal Studies 381, p. 385. 73 terrorism and support the states as well, as explained in Chapter 2. Thus, the national level is involved as well because countering terrorism, although this is the primary responsibility of the states and territories, is a shared responsibility between all levels of government. Therefore, I am of the opinion that the national level can create, for example, a national organisation as a supportive national counter-terrorism measure. This national organisation would, like the lead government department in the UK, be responsible for enhancing and ensuring coordination and cooperation between and maintaining a close relationship with the various agencies in the counter-terrorism field. It would thus have the same function. However, it would not acquire the same powers as the lead government department in the UK. This to ensure that there is no reallocation of powers. The states and territories keep the primary responsibility for countering terrorism, and the national organisation would only be a national measure supportive to the states. This national measure would contribute to solving the existing problems in Australia’s counter- terrorism strategy. First of all, it ensures coordination, cooperation and information dissemination between the various agencies and thus would resolve the current issues related to the inadequate information sharing and cooperation and collaboration between the various agencies. It would also contribute to solving the problem of agencies in Australia functioning more next to each other instead of among and with each other because the measure would stimulate and ensure collaboration between the various agencies in Australia. Moreover, a national organisation responsible for coordination could solve the problems of ambiguity and chaos regarding responsibilities and accountability existing in Australia, because it would ensure coordination of these responsibilities and accountabilities and therefore would decrease the level of uncertainty and confusion. Furthermore, because Australia’s counter-terrorism strategy reflects their federal system of government, the responsibility for countering terrorism is fragmented between the states and territories, and between the national and regional level. A national organisation responsible for the coordination of counter-terrorism efforts could, to some extent, bring together this fragmented responsibility, because it would ensure that all information and intelligence regarding terrorist threats and/or acts collected in the states and territories through the JCTTs are brought together. In my opinion, establishing a national organisation ensuring coordination and cooperation between and maintaining a close relationship with the various agencies in the counter-terrorism would be possible because it would not disorganise the federal structure of counter-terrorism in Australia. This is the case because first of all, the national level already has put in place some operational and organisational measures to support the states in countering terrorism and this national measure will not be different: it would only support and help the states and territories because it would enhance and ensure cooperation and collaboration. Moreover, a restructuring of the machinery of government is not needed and therefore, it will not disorganise the institutional structure, because the national initiative would be a supportive measure to the counter-terrorism efforts of the states, the regional level keeps the primary responsibility.
Moreover, the UK’s counter-terrorism strategy can serve as a source of inspiration and information to Australia’s approach regarding their focus on understanding the reasons behind terrorism, radicalisation and the causes of radicalisation. Australia’s strategy is mainly focused on emergency management- what if a terrorist incident takes place – and not so much on understanding the underlying causes of terrorism. Although one of the five core elements of Australia’s counter- terrorism strategy is stopping people from becoming terrorists, this does not involve understanding terrorism and radicalisation and thus understanding the underlying causes of terrorism. They are
74 more focused on emergency management: putting in place measures and procedures for during and after a terrorist attack. UK’s counter-terrorism strategy, on the other hand, does include the focus on understanding the underlying causes of terrorism in the Prevent strand and is less focused on emergency management. UK’s focus on understanding the underlying causes of terrorism can serve as a source of inspiration and information to Australia and also can, without too much effort and problems, be taken over by Australia, because it does not involve big restructuring changes, such as institutional changes. It would mean a change in perspective and focus in Australia’s counter-terrorism strategy. Instead of focusing so much on emergency management, the focus needs to be reallocated to understanding the underlying reasons of terrorism. Comprehending the reasons behind terrorism, radicalisation and the processes of radicalisation could be of great advantage to Australia. If the causes and processes behind terrorism and someone getting radicalised are understood, Australia could be better able to prevent terrorism and radicalisation from happening in the first place. In this way, the root causes of terrorism are tackled. In my opinion, Australia reallocating their focus from emergency management to understanding the underlying reasons of terrorism would improve Australia’s counter-terrorism strategy because, in this way, Australia can prevent terrorism from happening in the first place. Moreover, reallocating their focus would not involve making too many or too difficult changes, because only the focus in the prevention strand is altered from emergency management to understanding the underlying causes of terrorism. Therefore, the focus of the UK on understanding the underlying causes of terrorism in their counter-terrorism strategy can serve as a source of inspiration and information to Australia and can, without too much effort, be implemented by Australia, and in this way, can improve and reinforce Australia’s counter-terrorism strategy.
After comprehending the differences and similarities between Australia and the UK, I have come to the conclusion that the answer to my research question will be positive. Australia can use the UK’s procedures and policies related to countering terrorism as a source of information and inspiration to improve and reinforce their counter-terrorism strategy, because the difference in institutional structure and international institution will not hinder Australia from being able to use the UK’s counter-terrorism strategy as a source of inspiration and information. One can get over the difference in international institution because the EU does not influence the legal system and legal basis of the UK, and even though Australia cannot take over the institutional measure of the UK one on one, Australia can still use it as a source of inspiration and information and adjust the measure in a way to let it conform to their federal structure.
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5.Conclusion All the four steps of a legal comparison – understanding, comparing, explaining and comprehending – have been completed so that in this conclusion, an answer can be formulated to the research question. The research question central to my thesis is as follows:
Can Australia use the United Kingdom’s procedures and policies related to countering terrorism, such as the restructuring of the machinery of government and the appointment of one overarching organisation or government department, as a source of information and inspiration to improve and reinforce their counter-terrorism strategy?
With the knowledge I gained from my legal comparison, I have come to the conclusion that Australia can use the UK’s procedures and policies related to countering terrorism as a source of information and inspiration to improve and reinforce their counter-terrorism strategy.
Australia’s counter-terrorism model is structured to reflect its federal system of government. Both Commonwealth and state/territory level have put in place counterterrorism arrangements and procedures. The regional level bears the primary responsibility for counterterrorism and the national level supports states and territories in this responsibility where necessary. The result of structuring and organising counterterrorism in this way is that multiple agencies collect information regarding terrorism and terrorist acts on different levels. On the national level, the ANZCTC has been created for better coordination of information and intelligence between Australia and New Zealand and the national level of Australia has formulated Australia’s Counter-Terrorism Strategy and the National Counter-Terrorism Plan. The Strategy outlines the structure for Australia’s counter-terrorism arrangements and the Plan describes the strategic approach of Australia to preventing and countering terrorism. Moreover, the national level has passed and amended domestic legislation, such as the Terrorism (Commonwealth Powers) Act 2003, to strengthen and intensify Australia’s counter-terrorism laws. On both national and regional level, intelligence agencies have been established for intelligence collection regarding potential terrorist threats. On the national level, ASIO gathers and analyses information regarding possible national security threats under the ASIO Act 1979 and the Intelligence Services Act 2001, and on the regional level, the JCTTs collect and analyse intelligence and perform investigations in matters related to terrorism under the ASIO Act 1979, the Intelligence Services Act 2001 and the Australian Federal Police Act 1979. The JCCT is a multi-agency since it comprises law enforcement officers as well as ASIO officers. Australia has established internal and external oversight for ASIO. Internally, the IGIS reviews the activity of ASIO, and externally, the PJC evaluates all aspects of the administration and finance of ASIO. The regional level has also put in place certain policies, procedures and legislation to counter terrorism since they have the primary responsibility for counterterrorism. In this thesis, I have chosen to outline only New South Wales’ policies and procedures. NSW has created the CT&STC, a counterterrorism coordination command within the NSWPF; the Task Force Pioneer, a control and command model setting out lines of authority and activation processes; and the government has passed the Terrorism (Police Powers) Act 2002, allowing the NSWPF to use special powers to prevent or investigate a terrorist act.
The UK, on the other hand, has structured its counter-terrorism strategy differently. The UK is a constitutional monarchy with parliamentary sovereignty. This has resulted in the national level acquiring the primary responsibility for countering terrorism. The Home Office is the lead
76 government department responsible for national security in the UK, and therefore, carries out this primary responsibility for countering terrorism. As a lead government department, the Home Office ensures coordination and collaboration between the different actors in UK’s counter-terrorism field and maintains, with the help of the OSCT, a close relationship with the various agencies. The UK’s strategy for combating and countering terrorism is named CONTEST and consists of four work- streams: Pursue, Prevent, Protect and Prepare. Together, through a collaborative multi-agency approach, these strands aim at reducing the terrorist threat and vulnerability of the UK to terrorist attacks. Inter-agency collaboration and collation is enhanced in the strategy and guarantees that all relevant and available intelligence is retrieved from the actors in the counter-terrorism field of the UK. The CONTEST strategy is based on domestic legislation and is intelligence-led. Over the years, the UK has amended and passed new domestic legislation regarding terrorism and counter-terrorism. For instance, the Terrorism Act 2006 aimed at creating a series of new criminal offences to assist the police in tackling terrorism. Next to domestic legislation, the UK has established three primary intelligence agencies, collectively known as the ‘Agencies’, which bear the primary responsibility for the collection of secret intelligence. The SIS is the external intelligence agency of the UK; the GCHQ monitors, interferes and decodes various electronic emissions and signals and provides advice and assistance on communication security; and the MI5 is the country’s national internal intelligence agency responsible for gathering and assessing information regarding organized (domestic) threats to national security. They are tasked by the Chairman of the JIC. The JIC has been created to ensure that between intelligence agencies, there exists coordination and cooperation and material and information is being shared among the intelligence agencies. Moreover, the police and the security service have created the SBs structure which produces a productive working relationship based on a joint partnership. The functions of MI6 and GCHQ are legislated through the Intelligence Services Act 1994, and the tasks of MI5 are legislated through the Security Service Act 1989. The powers and the scope of powers of all three agencies are established in the Regulation of Investigatory Powers Act 2000 and the Investigatory Powers Act 2016. These three agencies are overseen by the executive branch of the UK by means of a secretary of state and a system of parliamentary accountability has been established in the form of the ISC. Lastly, the UK has established the JTAC. This is an additional organisation established for protecting national security through a multi-agency nature: it consists of eleven government departments, the police, and other intelligence-related organisations which work together to ensure national security. UK’s counter-terrorism strategy and policies are complex and dynamic. However, with the establishment of certain institutions and structures in their counter- terrorism strategy, the UK has achieved independent but interrelated relationships between the various actors in the counter-terrorism field. Coordination and collaboration between the actors is enhanced in these relationships, which, in turn, results in information being shared between the agencies.
After having outlined the counter-terrorism strategies of Australia and the UK, similarities and differences between the two strategies have been identified, explained and comprehended in Chapter 4. The recognised similarities include:
- Similar counter-terrorist models; - Similarities in the intelligence agencies; - Both countries amending and passing domestic legislation with the same aim, the same core, and similar powers of the government to proscribe terrorist organisations and the membership to these; and
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- Putting in place a multi-agency.
The differences involve:
- A difference in who bears the primary responsibility for countering terrorism in the UK and Australia; - The UK having a lead government department whereas Australia does not have one; a difference in the focus of the counter-terrorist models and approach to terrorism; - The UK’s intelligence community and legislation being established on the national level whereas Australia’s intelligence community and legislation is established on the national and regional level; and - A difference in the aim of establishing the multi-agencies JCAT and JCTTs.
The explanation for the similarities and differences in the counter-terrorism strategies of Australia and the UK have been found in a similar legal basis, both countries belong to the Common Law family; the difference in institutional structure, Australia is a federation and the UK is a constitutional monarchy; and the difference in international institutions and their influence, Australia is a member state of the UN and the UK is part of the EU and the UN. After comprehending the differences and similarities between Australia and the UK, I have come to the conclusion that Australia can use the UK’s procedures and policies related to countering terrorism as a source of information and inspiration to improve and reinforce their counter-terrorism strategy, because the difference in institutional structure and international institution will not hinder Australia from being able to use the UK’s counter-terrorism strategy as a source of inspiration and information. One can get over the difference in international institution because the EU does not influence the legal system and legal basis of the UK, and even though Australia cannot take over the institutional measure of the UK one on one, Australia can still use it as a source of inspiration and information and adjust the measure in a way to let it conform to their federal structure. Using the lead government department of the UK as a source of inspiration and information contributes to increasing the chance of improving the problems related to poor information sharing and the underdeveloped cooperation, collaboration and coordination between the various agencies in Australia. Moreover, independent but interrelated working relationships between the agencies can be achieved. The focus of the UK on understanding the reasons behind terrorism, radicalisation and the processes of radicalisation can serve as a source of inspiration and information to Australia as well, and could reinforce and improve Australia’s counter-terrorism strategy. This is the case because knowledge regarding the root causes of terrorism can contribute to reducing the risk of terrorist threats and acts in the first place. Therefore, the answer to my research question is positive, Australia can use UK’s counter-terrorism strategy as a source of inspiration and information to reinforce and improve their counter-terrorism strategy.
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6.Bibliography 6.1 Legislation
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Anti-Terrorism Act 2005.
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Prevention of Terrorism Act 2005.
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6.2 Table of Cases
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6.3 Secondary Sources
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