3. Committee Comment
   1. In considering the proposed amendments of the Counter-Terrorism and Other Legislation Amendment Bill 2023 the Committee notes that it has a long-standing interest in reviewing the ongoing necessity and proportionality of these powers in protecting Australians from the threat of terrorism, and that the amendments in the Bill have arisen from the Committee’s previous review of these powers.
   2. The Committee notes that the threat of terrorism is constantly evolving and changing shape, even since the completion of the last review in 2021. The Committee recognises that these powers were adopted in the aftermath of terrorist events and in a heightened threat environment, and were intended to be temporary measures. However, the Committee supports the maintenance of a robust law enforcement framework to continue to protect Australians from the threat of terrorism.
   3. The Committee acknowledges that the current National Terrorism Threat Level reduced from ‘probable’ to ‘possible’ in November 2022. While this suggests that the threat of a terrorist attack on shore has lessened, the Committee notes the advice of the Director-General of Security in successive annual threat assessments that the potential for terrorism activity in Australia persists despite the reduction in threat level.
   4. The Committee also recognises the evidence of the AFP regarding the number of individuals that have been arrested for terrorism offences this year to date, as well as the moderation of religiously motivated violent extremism, and the ongoing rise of ideologically motivated violent extremism, where the type of terrorist activity likely to be undertaken has shifted from a large-scale event to an individual or small group attack that could occur with little or no warning.
   5. While the Committee acknowledges that some submitters to this inquiry hold the view that these extraordinary powers are no longer relevant and should be allowed to sunset in December 2023, the Committee considers on balance that these types of rarely used and properly constrained rapid response powers would continue to be required to disrupt terrorist activity and keep Australians safe.
   6. Therefore, the Committee supports the extension of the sunset provisions of these powers for a further three years noting that the Committee’s consideration of Division 105A of the Criminal Code will be completed in the meantime to allow fuller consideration of the interplay between extended supervision orders and control orders.
   7. In relation to the stop, search and seize powers contained in Division 3A of the Crimes Act 1914, the Committee notes the concerns of submitters in relation to the proportionality of the powers and their ongoing necessity given that the powers have not been used since they were first introduced. However, given the above, the current threat environment could give rise to precisely the type of event these powers would be used to prevent or disrupt.
   8. The Committee supports the amendments proposed by the Bill in relation to notification of a declaration for a ‘prescribed security zone’, informing a person subject to the exercise of these powers of their right to make a complaint, and the introduction of a list of matters the Minister must consider in making a declaration.
   9. The Committee also supports the introduction of a provision that clarifies that the Minister may make a declaration of a ‘prescribed security zone’ for a period of less than 28 days.
   10. The Committee notes the Government’s proposed amendments to establish a post-entry warrant regime, as recommended by this Committee in 2021 as part of the suite of reforms to the counter-terrorism powers. The Committee reiterates its 2021 recommendation for an ex post facto warrant framework and agrees that the Government’s proposed amendment would provide additional safeguards on the use of these powers.

3.11The Committee recommends that the Government introduce its proposed amendments to establish a post-entry warrant framework.

3.12The Committee acknowledges that submitters were concerned about the ongoing use of the control orders regime, and notes the views raised by the Committee in its 2021 review of AFP powers that the utility of the scheme should be reviewed following the implementation of the extended supervision orders regime.

3.13The Committee did not receive sufficient evidence to warrant recommending the cessation of the powers at this time. However, the Committee also notes that it is currently undertaking a review of post-sentence terrorism orders under Division 105A, following the completion of the review of the same by the Independent National Security Legislation Monitor. The Committee will consider the ongoing utility and nature of control orders will as part of this review, bearing in mind that the post-sentence counter-terrorism powers cannot be considered in isolation from the overall suite of orders in Divisions 104, 105 and 105A of the Criminal Code.

3.14The Committee acknowledges that submitters were concerned in relation to the amendments to conditions that can be applied as part of a control order, and that, in the view of Legal Aid NSW and the Law Council of Australia, this change could open the powers to misuse by the AFP when a post-sentence order would be more appropriately sought. The Committee also notes the repeated assurances by the AFP that the powers have been, and will continue to be, used appropriately. The Committee will return to this matter in its review of Division 105A of the Criminal Code Act 1995.

3.15The Committee supports the amendments in the Bill to the definition of ‘issuing court’, the consideration of totality of conditions on achieving the objectives of the Division, and the ability to vary control orders by consent.

3.16The Committee notes that the preventative detention order powers had not been used at the time of its report, and acknowledges that both the Australian Human Rights Commission and the Law Council of Australia reiterated their previous recommendations that the preventative detention orders provisions be allowed to sunset.

3.17However, the Committee weighed this against the evidence of the AFP and Attorney-General’s Department regarding the ongoing utility of the provisions, particularly that the current threat environment could give rise to a situation where preventative detention may be of significant assistance in preventing a terrorist act or preserving evidence following a terrorist act. The Committee considers that these powers are extraordinary, and their lack of use supports the AFP’s evidence that they would carefully consider the need to use the powers. Therefore, the Committee supports the extension of the powers for a further three years.

3.18The Committee also supports the amendment to issuing authorities as a further strengthening of the safeguards around the use of this provision.

3.19In relation to post-sentence orders, the Committee supports the amendment to annual reporting requirements to enhance the transparency and accountability of the operation of the regime while the Committee concludes its review into Division 105A.

3.20The Committee notes the concerns raised by the NSW Council of Civil Liberties in relation to the extension of the secrecy provisions in section 122.4 of the CriminalCode1995. However, The Committee supports the conclusion of the Australian Human Rights Commission and the Law Council of Australia in that the extension to the sunset of the secrecy offences would allow the Government to consider and implement its response to the review of secrecy provisions.

3.21The Committee supports the extension of the sunset provisions to the secrecy provisions in section 122.4 as provided by the Bill.

3.22The Committee recommends that, following the implementation of the recommendation in this report, the Bill be passed by Parliament.

Mr Peter KhalilMP

Chair