National security and counter-terrorism laws

Monica Biddington, Law and Bills Digest

Key Issue
Domestic responses to terrorism are increasingly focused on enhancing jurisdictional cooperation between law enforcement agencies and building resilience and social cohesion in the community.
The Government has flagged further legislation to develop and maintain a rigorous national security program with a number of legislative initiatives and review of existing regimes.

Key events in the 44th Parliament

Significant changes were enacted to national security and counter-terrorism laws during the last parliament, including:

establishment of a data retention regime
the introduction of a Special Intelligence Operation regime for Australian Security Intelligence Organisation (ASIO) officers, which allows immunity from prosecution if a crime is committed during the course of the operation. The regime also introduced a prohibition on the publication of information about special intelligence operations (the oft-called ‘journalist’s offence’)
increases to the powers of ASIO and the Australian Security Intelligence Service
the expansion of both the purposes of the control order regime and the grounds on which orders may be made and
the introduction of an offence of entering a declared area in which a terrorist organisation is engaging in hostile activity.

The Government attempted to abolish the Office of the Independent National Security Legislation Monitor (INSLM). The repeal Bill was removed from debate following strong opposition. In December 2014, Roger Gyles AO QC was appointed to the Office.

Issues for the new Parliament

Australia’s national security legislation is subject to oversight by multiple independent and parliamentary scrutiny mechanisms. These include: the INSLM, the Parliamentary Joint Committee on Intelligence and Security (the PJCIS), the Senate Legal and Constitutional Affairs Committee, the Senate Foreign Affairs, Defence and Trade Committee, the Parliamentary Joint Standing Committee on Foreign Affairs and Trade and the Parliamentary Joint Standing Committee on Treaties.

While there is generally bipartisanship on matters relating to national security, there is a continued imperative for the detailed scrutiny, oversight and accountability of the Parliament’s response to national security.

As part of this, there are also a number of statutory reviews that will be considered during the life of the 45th Parliament.

The PJCIS must complete a review of the following counter‑terrorism and national security legislation by 7 March 2018: questioning and detention powers that arise under Part III of the Australian Security Intelligence Organisation Act 1979 (ASIO Act), Division 3A of Part 1AA of the Crimes Act 1914 (Crimes Act) (terrorism-related stop, search and seizure powers ), Divisions 104 and 105 of the Criminal Code Act 1995 (control orders and preventative detention orders) and other provisions of the Criminal Code including sections 119.2 and 119.3 (relating to foreign incursions and recruitment).

The Government accepted a recommendation from the PJCIS’s report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 that the INSLM also review the regime. The INSLM is required to review the same specified legislation by 7 September 2017. The INSLM is presently conducting a review of Division 3 of Part III of the ASIO Act (questioning and detention for terrorism matters), the powers of the Australian Federal Police under Part IC of the Crimes Act (relating to the investigation of Commonwealth offences), and the coercive powers of the Australian Criminal Intelligence Commission. The INSLM has also indicated that he will be conducting a review of the effectiveness of the legislative changes in connection with the terrorist threat posed by Australians who may travel to participate in conflicts abroad.

The PJCIS is required to commence a review of the data retention regime by 13 April 2019 and to complete a review into the operation, effectiveness and implications of the revocation of citizenship provisions in the Australian Citizenship Act 2007 by 1 December 2019.

Pre-charge detention

In December 2015, COAG agreed to prioritise work to implement nationally consistent legislation on pre-charge detention, consistent with recommendations of the Australia-New Zealand Counter-Terrorism Committee (ANZCTC).

In April 2016 COAG agreed, in principle, to the NSW model as the basis for a strengthened, nationally consistent, pre-charge detention scheme for terrorism suspects, with the ACT reserving its position. NSW will introduce the legislation and consult with other jurisdictions.

The Commonwealth has not stated its positon on this, nor whether it is considering changes to the detention provisions in Division 2 of Part 1C of the Crimes Act.

Post-sentence detention of convicted terrorists

In April 2016, at a COAG meeting, there was agreement to establish a regime that would ensure the continued detention of convicted terrorists past their sentence end date. Attorney-General George Brandis has said that these laws could be similar to those in some states which keep sex offenders in jail after they have served their sentence, if they still pose a serious risk to the community. On 5 August 2016, the Attorney-General announced that all Australian Attorneys- General had reached an in-principle agreement to the proposed scheme. He indicated that the Government intends to introduce legislation to enact the proposed scheme in the Commonwealth Criminal Code, and to refer this to the PJCIS for inquiry and report.

This legislation may raise constitutional issues, particularly with respect to its compatibility with the judicial power of the Commonwealth in Chapter III of the Constitution. In Fardon v Attorney-General (Qld) 2004 the High Court upheld the validity of state legislation authorising the post-sentence detention of dangerous sex offenders, but much will depend on an assessment of the provisions of the particular legislation.

The catalyst for this policy has been twofold. Firstly, the incarceration of terrorism offenders from more than 10 years ago is due to end and there may be evidence that could be presented to a court that demonstrates that there are continued and varied risks that a terrorism offender poses once released back into the community. Secondly, Prime Minister Malcolm Turnbull is advocating for changes and greater diligence in the wake of atrocities overseas in Orlando, United States and Nice, France.

If a regime is introduced to continue a convicted terrorist’s time in prison, there would need to be safeguards for the individual, including periodic review and evidence presented to a court that shows the person continues to pose an unacceptably high risk to the community. The proposal raises questions around how flexible that period of extended detention might be and whether penalties for terrorism offences should be increased in the first instance.

In contrast, the United Kingdom (UK) has a notification regime where a person who has been released after serving a sentence for terrorism offences is required to notify police of changes to personal detail and travel plans.

Lapsed legislation from the previous Parliament

The Government has confirmed it will be reintroducing national security legislation that lapsed at the prorogation of Parliament. This includes the Counter-terrorism Legislation Amendment Bill (No.1) 2015, which, among other things, would reduce the minimum age at which a control order may be imposed from 14 to 16 years of age. The Transport Security Amendment (Serious or Organised Crime) Bill 2016 also lapsed at prorogation and is likely to be reintroduced to enhance the preventive mechanisms in place to target those who engage in serious or organised crime through the use of aviation and maritime transport.

Recent developments

In the area of telecommunications security, the Government is further pursuing the information sharing and obligations between government and telecommunications carriers and carriage service provides to ‘ensure greater consistency, transparency and accountability for managing national security risks across all parts of the telecommunications sector’. The Government will continue to work to manage risks in this sector of espionage, sabotage and foreign interference and legislation is anticipated to be presented to the new Parliament.

The Australian Government may also consider prohibiting the publication of terrorist’s names and images. France is currently deliberating whether this would deny the terrorists the glorification that many of them may seek from their acts. Questions of censorship, balanced with the reporting of facts, would prompt a robust debate in the Australian Parliament.

See the separate article in this Briefing Book for further detail on countering terrorism and violent extremism.