That we are now happily contemplating expanding our (flawed) control order laws and locking up 14-year-olds on suspicion (not proof) of what they may do is a fascinating reflection of how far we've come, writes Michael Bradley.

It's timely to recall that one of the key justifications put up by the Federal Government for introducing its data retention law was that it was necessary to prevent another Lindt Café.

The inconvenient facts, that Man Haron Monis had been under close surveillance, which the police had dropped, and that they could already have obtained his data under existing laws but didn't, were discarded in the legislative rush.

Here we are again - new Prime Minister and less strident language notwithstanding - being played for fools.

Farhad Jabar's awful crime in Parramatta, or more specifically that he happened to be 15 years old, is being used to justify the next wave of draconian laws designed to protect or terrify us, depending on your perspective.

Malcolm Turnbull has announced that the minimum age for control orders will be reduced from 16 to 14, and the control order regime will be beefed up further by allowing monitoring of the person and introducing provisions that will prevent them from having access to some of the evidence being relied on to support the order. NSW Premier Mike Baird also wants the current maximum detention period to be extended from eight to 28 days.

Control orders explained It can stop someone from visiting certain places, communicating with certain people, leaving Australia and owning or using certain things, including technology

It can stop someone from visiting certain places, communicating with certain people, leaving Australia and owning or using certain things, including technology It can also require them to wear a tracking device, not leave a certain place for a specified time and report to someone at a certain time and place

It can also require them to wear a tracking device, not leave a certain place for a specified time and report to someone at a certain time and place Attorney General George Brandis says the Government's proposal to reduce the age of people who can be issued with control orders from 16 to 14 will include extra safeguards for people under 18

Attorney General George Brandis says the Government's proposal to reduce the age of people who can be issued with control orders from 16 to 14 will include extra safeguards for people under 18 It can be issued to someone who has not been charged with an offence as long as the AFP gets the permission of a court and the federal Attorney-General

It can be issued to someone who has not been charged with an offence as long as the AFP gets the permission of a court and the federal Attorney-General The Attorney-General's Department website says a person can be subject to a control order "if it substantially helps prevent a terrorist attack", if they have been convicted of a terrorism offence, or if they have trained with a listed terrorist organisation

The Attorney-General's Department website says a person can be subject to a control order "if it substantially helps prevent a terrorist attack", if they have been convicted of a terrorism offence, or if they have trained with a listed terrorist organisation Under the current laws a control order can only be issued to someone under 18 for a maximum of three months

Two things are absent here: any properly argued justification for these new measures (Farhad was unknown to authorities, so his case does nothing to advance the argument); and disclosure of the fact that the existing control order regime has been criticised repeatedly in recent years by some of the strongest legal minds in the country, including some acting on the Government's behalf.

We're not arguing blind; these laws have been trawled over exhaustively by lawyers much smarter and well-informed than me.

Way back in 2012, the then Independent National Security Legislation Monitor, Bret Walker SC, recommended in his annual report to the Government that the control order regime in the Criminal Code should be repealed. This wasn't a whimsy - he spent 38 closely reasoned pages demolishing the case for the existence of control orders at all. Like all of Walker's recommendations, it made perfect sense and was completely ignored.

The INSLM role was created specifically in recognition that the swathe of post-9/11 anti-terror laws was severely restrictive of civil rights and would need to be closely monitored to ensure that they were achieving their stated purpose. To the extent they were found in practice to be unnecessary or excessive, they should be amended or repealed.

In the same vein, in 2006 the Council of Australian Governments appointed a committee to independently review the anti-terror laws. The review committee was chaired by retired NSW Court of Appeal judge Anthony Whealy QC and included serving senior police officers, the deputy director of the Commonwealth DPP and the South Australian Ombudsman. Left-leaning softies, these were not.

The COAG Review Committee delivered its enormous report in 2013 with a total of 47 recommendations, 13 of which related to control orders. While concluding that the control order regime should be maintained, the Committee said that it needed substantial change to provide greater safeguards against abuse and to ensure fairness. These included requiring that, in all circumstances, the subject of a control order must be given adequate information about the allegations against them, and a system of "special advocates", who would be security-cleared lawyers available to represent people in closed hearings where sensitive material was being disclosed.

The ball then went back into the politicians' court and the Parliamentary Joint Committee on Intelligence and Security. There's an interesting side note in its report of November 2014, stating that, based on submissions from the Federal Police:

While community protection has been the purpose of the control order regime in the past, under the amended regime control orders can be used as a prevention and disruption tool.

That's called mission creep, by the way.

The JCIS flicked the COAG Committee's recommendations on to the next INSLM, Roger Gyles QC. Earlier this year, the prime minister referred the whole control orders issue to him for inquiry and report. He is in the middle of that inquiry right now. Probably not much point his continuing, given this week's events.

What does all this prove, other than the Government's continuing willingness to spend money on expert inquiries and recommendations that it will ignore?

Well, for one thing, it proves that politics trump process every time. All that careful and intricate consideration of what everyone agrees is an extraordinarily harsh instrument of law (we are talking, after all, about the forcible detention of people who have not been charged with any crime) has been casually tossed out the window in the excitement of optimising the opportunity to bite down just a little harder on our freedom of movement, association and expression. That we are now happily contemplating locking up 14-year-olds on suspicion (not proof) of what they may otherwise do is just a fascinating reflection of how far we've come.

For another, sadly, it establishes that Turnbull is apparently every bit as willing to play politics with national security as his predecessor. The death cult is gone, but he is equally unprepared to make out his case using actual facts. As Bret Walker commented this week:

There's simply no experience from which one could sensibly say, "This is going to make us safer".

Prior to 2015, control orders had been obtained on two occasions: against Jack Thomas in 2006, and David Hicks in 2007.

Walker as INSLM concluded that there was no evidence Australia was made appreciably safer by either control order, and it followed that neither was reasonably necessary for our protection from a terrorist act. Both Thomas and Hicks had been convicted of terrorism offences that were overturned on appeal.

As Walker noted, they provided:

...a worrying real life example of how control orders can provide an alternative means to restrict a person's liberty where a prosecution fails but the authorities continue to believe the acquitted (or not convicted) defendant poses a threat to national security.

I do not trust the Australian Federal Police to be better judges of who should be locked up than our criminal courts. That is the definition of a police state.

Michael Bradley is the managing partner of Marque Lawyers, a Sydney law firm, and writes a weekly column for The Drum. Follow him on Twitter @marquelawyers.