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In what was described as a ‘fairly major breakdown’ in border security, a convicted terrorist named Khaled Sharrouf recently left Australia ^[2] without authorities noticing. He’s suspected to be in Syria ^[3], where several ^[4] Australians ^[5] have joined al-Qaeda affiliates as fighters.

This incident demonstrates a broader problem with national security lawmaking in Australia: the failure to take independent reviews of counter-terrorism legislation seriously. The ‘breakdown’ might not have happened if successive federal governments hadn’t ignored a recommendation made by the Independent National Security Legislation Monitor (INSLM) in late 2012 to create a control order regime for convicted terrorists.

Khaled Sharrouf was arrested in November 2005 as part of Operation Pendennis ^[6] , a joint ASIO, Federal Police and state police effort that led to the arrests of 13 men in Melbourne and nine in Sydney. They were accused of forming two distinct, but linked ^[7], terrorist cells preparing for an attack.

All nine of the Sydney men were convicted, and they’d amassed firearms, ammunition, timers, detonators, chemicals, laboratory equipment, and bomb-making instructions. During sentencing, the judge stated ^[8] that ‘absent the intervention of the authorities, the plan might well have come to fruition in early 2006 or thereabouts. The materials were to hand and recipes for the construction of explosives were available.’

Khaled Sharrouf pleaded guilty ^[9] to a role in the plot (procuring the timers) as part of an arrangement ^[8] under which he wouldn’t face prosecution for a more serious charge. He was released from prison in 2009, and continued to attract the attention of police ^[10] and ^[11] security ^[12] agencies. Most recently, he was charged and convicted ^[13] for possession of an unlicensed firearm.

He had also had his passport confiscated ^[3] to prevent him from travelling overseas. However, on 6 December, Sharrouf used his brother’s passport to fly out of Australia ^[2], reportedly for Syria. Neither the Federal Police nor Customs managed to stop him, and weren’t aware for several days, which has prompted an internal review ^[14].

This security lapse might have been avoided if a recommendation made by the INSLM had been acted on. The INSLM ^[15], a position currently held by Bret Walker SC ^[16], was created in 2010 to help ensure Australia’s counter-terrorism laws are effective and appropriate. On 20 December 2012, Walker presented the government with his second report ^[17] [PDF], which contained 21 recommendations for law reform.

One of those was to create a specialised control order regime for convicted terrorists. Under his proposal, obtaining a control order for a released terrorist, when there’s sufficient evidence they continue to pose a danger, would be made much easier than it currently is. The proposal drew on analogies with sex offender registries and overseas counter-terrorism legislation. None of the Gillard, Rudd nor Abbott Governments responded to this recommendation.

Walker’s third report ^[18] [PDF], presented on 7 November 2013, noted the lack of any response to his earlier report and specifically drew attention to his specialised control order recommendation. He added that ‘when the recommendation was made, there were about ten terrorist convicts already released, and about thirteen still imprisoned, of whom about three are quite likely to be released in the next five years’.

Whether Walker’s proposed program would have prevented the security bungle with Sharrouf is unknown; it’s only a counter-factual. But Sharrouf was a convicted terrorist whom authorities continued to believe ^[12] was dangerous, and such a scheme could have provided them with an option they don’t currently have. Walker wasn’t alone in his recommendation: in June 2013 the Federal Police Deputy Commissioner National Security Peter Drennan also suggested the need for ^[19] such a system for released terrorists.

This recommendation is just one example of various flaws in Australia’s counter-terrorism legislation. Walker’s third report stated, in a surprisingly direct tone, that ‘there has been no apparent response to any of the twenty-one recommendations made on 20th December 2012 by the INSLM (nor indeed to any of the forty-seven recommendations made by the COAG Review of Counter-Terrorism Legislation ^[20] delivered on 1st March 2013)’.

Some of the laws leave dangerous gaps, some infringe on human rights ^[21], and others are simply too complicated ^[22] and poorly-worded to be workable. Many of these problems are a legacy of the counter-terrorism laws being rushed through ^[23] [PDF] Parliament after 9/11 without the usual checks and balances.

There’s an opportunity to fix these flaws: 2013 possibly saw the most extensive ^[24] independent scrutiny of national security legislation in Australia’s history, with four reviews being tabled. In addition to the last two INSLM reports and the COAG report, there was also the ‘Inquiry into potential reforms of National Security Legislation ^[25]’ by the Parliamentary Joint Committee on Intelligence and Security ^[26].

The government isn’t obliged to act on all the recommendations, but it could at least provide detailed responses, given that the recommendations have detailed justifications. Independent review becomes meaningless if both major parties feel they can simply ignore it.

Sharrouf’s disappearance, and the possibility it could have been avoided, shows the need to take such reviews seriously and to address the shortcomings they identify.

Andrew Zammit is a research fellow at Monash University’s Global Terrorism Research Centre and blogs at The Murphy Raid ^[27]. Image courtesy of Flickr user Richard Wasserman ^[28].