BILLS DIGEST NO. 71, 2020–21    17 June 2021

Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020

Cat Barker
Foreign Affairs, Defence and Security Section

Karen Elphick
Law and Bills Digest Section

Date introduced: 3 September 2020

House: House of Representatives

Portfolio: Attorney-General

Commencement: Sections 1-3 on Royal Assent; Schedule 1 on the day after Royal Assent; Schedule 2 the later of the day after Royal Assent or on commencement of Part 1 of Schedule 1 to the Telecommunications Legislation Amendment (International Production Orders) Act 2020, whichever is later. However, Schedule 2 will not commence if the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 is not enacted.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at June 2021.

1  

2 Glossary

Abbreviation

Definition

ADJR Act

Administrative Decisions (Judicial Review) Act 1977

AFP

The Australian Federal Police

AGD

The Attorney-General’s Department

ASIO

The Australian Security Intelligence Organisation. Frequently referred to as ‘the Organisation’ in legislation.

ASIO Act

Australian Security Intelligence Organisation Act 1979

CDO

continuing detention order

CO

A control order made under Division 104 of the Criminal Code

ESO

An extended supervision order proposed in Schedule 1 to the Bill

ICO

An interim control order made under Division 104 of the Criminal Code

INSLM

Independent National Security Legislation Monitor

IPO Bill

Telecommunications Legislation Amendment (International Production Orders) Bill 2020

ISO

An interim supervision order proposed in Schedule 1 to the Bill

NSI Act

National Security Information (Criminal and Civil Proceedings) Act 2004

SD Act

Surveillance Devices Act 2004

TIA Act

Telecommunications (Interception and Access) Act 1979

3 The Bills Digest at a glance

The purpose of the Bill is to amend the Criminal Code Act 1995 (the Criminal Code) to introduce extended supervision orders (ESOs), which may be imposed on terrorist offenders released into the community if a court is satisfied that the individual poses an unacceptable risk of committing certain serious terrorism offences. It also expands monitoring and surveillance powers.

The Criminal Code already contains a framework for the control or detention of high risk terrorist offenders (HRTOs). Division 104 of the Criminal Code concerns control orders (COs) and interim control orders (ICOs). Division 105 concerns preventative detention orders (PDOs). Division 105A concerns continuing detention orders (CDOs). The Independent National Security Legislation Monitor (INSLM) recommended the introduction of ESOs to provide a less restrictive option to CDOs. The Bill is largely consistent with the INSLM’s recommendations however it departs from them by:

•  providing for more extensive conditions to be imposed under an ESO than under a control order

•  setting a lower threshold for imposition of an ESO than a CDO in relation to satisfaction of unacceptable risk and

•  not requiring the Minister to refrain from consenting to a request for an interim control order while proceedings are underway for a CDO or ESO.

Committee and public comment on the Bill

The Parliamentary Joint Committee on Human Rights (PJCHR) considered that the proposed ESO scheme ‘engages a significant number of human rights, some of which are not identified in the statement of compatibility’. The Senate Standing Committee for the Scrutiny of Bills expressed concerns in relation to the potential for the trespass on personal rights and liberties in respect of the standard of proof for an ESO, the procedure for the hearing, and the expansion of monitoring and surveillance powers.

Several major interest groups made lengthy submissions to the inquiry into the Bill by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) recommending amendments. Several recommended that the Bill not be passed in its current form. Some of the principal concerns expressed were:

•  the Bill proposes a lower standard of proof to obtain an ESO (satisfaction on the balance of probabilities) than is currently required to obtain a CDO (satisfaction to a high degree of probability)

•  the conditions that may be imposed pursuant to an ESO extend beyond the conditions that may be imposed pursuant to a control order

•  ESO proceedings should take place in open court, the person who is the subject of those proceedings should be present in court, and the person should have adequate access to legal representation.

The Law Council also noted that the Bill contained measures unrelated to ESOs or that applied beyond ESOs, including a proposal to significantly expand control order conditions, which it recommended be withdrawn and considered separately.

Some recommendations of the recently tabled Comprehensive Review of the Legal Framework of the National Intelligence Community (the Richardson Review) are relevant to the Bill, including that oversight bodies be consulted on amendments to intelligence legislation.

4 Purpose of the Bill

The purpose of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 (the Bill) is to amend the Criminal Code Act 1995 (the Criminal Code) to introduce extended supervision orders (ESOs). An ESO may be imposed on a terrorist offender released into the community if a court is satisfied that the individual poses an unacceptable risk of committing certain serious terrorism offences.¹

An ESO will impose conditions on an offender that a court is satisfied are reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from that unacceptable risk. Contravening those conditions will be an offence.

The Bill will also make consequential amendments to several other Acts.

5 Structure of the Bill

Schedule 1 of the Bill contains three parts:

• Part 1 contains the main amendments to the Criminal Code to introduce ESOs, and related amendments to provisions concerning control orders and preventative detention orders. It also includes amendments to provisions concerning control orders to update arrangements relating to electronic monitoring.

• Part 2 contains the key consequential amendments to the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), Australian Security Intelligence Organisation Act 1979, Crimes Act 1914, National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act), Surveillance Devices Act 2004 (SD Act), and the Telecommunications (Interception and Access) Act 1979 (TIA Act).

• Part 3 contains minor consequential amendments to the Crimes Act and the TIA Act.

Schedule 2 of the Bill contains amendments contingent on the passage of the Telecommunications Legislation Amendment (International Production Orders) Bill 2020.

6 Background

The Criminal Code contains a framework in Part 5.3—Terrorism for the control or detention of high risk terrorist offenders (HRTOs). Division 104 of the Criminal Code concerns control orders (COs) and interim control orders (ICOs). Division 105 concerns preventative detention orders (PDOs). Division 105A concerns continuing detention orders (CDOs).

In 2017, the Independent National Security Legislation Monitor (INSLM) conducted his scheduled statutory review of the Criminal Code CO and PDO frameworks.² The INSLM recommended the introduction of an extended supervision order (ESO) to the Criminal Code framework to provide a less restrictive option to CDOs.³

Existing control order and preventative detention order frameworks

The Executive Summary of the INSLM’s report contains a useful overview of the existing types of order and is reproduced in the coloured text box below. All of the orders are civil rather than criminal because they are protective rather than punitive.

Extract from Executive Summary of Report No. 3 of the INSLM, September 2017, pp. x–xi.

Control orders (division 104)

A control order is an order made by a federal court on the application of the AFP. Control orders impose potentially far-reaching obligations, prohibitions and restrictions on a controlee, but these ‘controls’ fall short of detention. The objects of a control order are variously to:

• protect the public from a terrorist act

• prevent the provision of support for, or the facilitation of, either:

- a terrorist act, or

- the engagement in a hostile activity in a foreign country.

Although recommendations have been made for repeal of div 104, including by the first INSLM, that has not occurred. Instead, Parliament has amended div 104 to:

• broaden the basis for obtaining a control order

• strengthen the capacity of authorities to monitor compliance by a controlee

• improve the rights of the controlee by introducing a regime of special advocates who can access classified material that is otherwise denied to the controlee.

While only six control orders have ever been obtained, the AFP (supported by ASIO and AGD) argues that control orders should be retained, even if they are rarely used, because there will always be a gap between the generally desirable aim of criminally prosecuting a terrorist suspect, and the situation where a prosecution cannot be achieved but the public still needs the protection from the individual. The AFP contends that control orders are a remedy always considered in a counter-terrorist operation.

The retention of control orders either in their current form or in a modified form is contested.

Continuing detention orders (division 105A)

Division 105A of the Criminal Code was enacted pursuant to the [Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016] and commenced on 7 June 2017. The object of the division is ‘to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious [part] 5.3 offences if released into the community’ (s 105A.1). Division 105A is largely based upon state and territory serious sex offenders legislation, the prototype for which was found to be constitutionally valid by the High Court in Fardon v Attorney-General (Qld).

CDOs can only be made in relation to persons who have already been found guilty by a jury of serious terrorist offences and who are detained in custody serving a sentence of imprisonment (or are committed to detention under an existing CDO).

A CDO is made by a state or territory supreme court on the application of the Commonwealth Attorney-General. CDOs provide for the detention to continue for up to three years at a time. The supreme court makes the order on the basis of evidence, including expert evidence, to continue to detain or to release.

There is obvious overlap with control orders which are a less restrictive measure that may address the risk the offender poses. There is scope to reduce this overlap.

Preventative detention orders (division 105)

PDOs are different from control orders and CDOs. Division 105 allows the AFP to apply to a current or former judge, acting, for constitutional reasons, persona designata, to order a person to be detained, effectively incommunicado, for up to 48 hours, to prevent a terrorist act which is capable of occurring within that period or to preserve evidence of, or relating to, a recent terrorist act. Questioning of the detainee is forbidden.

PDOs remain controversial, even while unused. The first INSLM recommended repeal, the COAG Review Committee by majority did so, but the government and the PJCIS have not accepted that PDOs should be abolished.

The states and territories have similar legislation, authorising detention for longer periods and at least in some cases permitting the detainee to be questioned. Some states have invoked those provisions. The AFP has never applied for a PDO under div 105. [citations removed]

A helpful table titled ‘Comparison between the HRTO regime (ESOs and CDOs) and control orders’ can be found at Attachment D to the combined submission of the Attorney-General’s Department and the Department of Home Affairs (AGD and DHA) to the Parliamentary Joint Committee on Intelligence and Security (PJCIS).⁴

Policy background

The CDO scheme was enacted to address concerns about reoffending among terrorist offenders who remain radicalised at the conclusion of their prison sentence, and provided a mechanism to keep such offenders imprisoned for a further period under a court order.⁵ The CDO scheme is similar to those that have existed for some time in the states and territories and some overseas jurisdictions for post-sentence preventative detention of high risk sex and/or violent offenders.⁶

As with the existing scheme for CDOs enacted in 2016 and other counter-terrorism laws enacted since 2014, the stated purpose of the ESO scheme is to protect the community from terrorist threats.⁷

A specific impetus for the CDO scheme and the proposed ESO regime is the number of terrorist offenders recently released or due for release in the near future, including some who are serving long sentences and about whom authorities have concerns about a lack of contrition or rehabilitation.⁸ As at 3 September 2020, 86 individuals had been convicted of terrorism related offences in Australia since 2001, 12 of these were scheduled for release by the end of 2025.⁹

Findings about the rate of terrorist recidivism or re-engagement in other countries have been somewhat mixed, and figures do not appear to be available for Australia.¹⁰ In his second reading speech, the Attorney-General pointed to attacks in the UK in 2019 and 2020 perpetrated by individuals released after serving sentences for terrorist offences as highlighting the ‘very real threat’ that such offenders can pose.¹¹

Australian examples of re-engagement in terrorist activities include Khaled Sharrouf, Ezzit Raad and Amer Haddara, each of whom reportedly travelled overseas to fight with or support terrorist organisations after having served sentences for their involvement in a failed terrorist plot.¹² Majed Raad, who was acquitted of charges in relation to the same plot, was later captured by Kurdish forces in Syria and reported to be a member of the Islamic State group.¹³ Yacqub Khayre, acquitted of charges in relation to a separate plot, was shot and killed by police during a siege in Melbourne that was claimed to be an Islamic State operation.¹⁴

Even if terrorist reoffending is rare, as suggested by a recent study that examined the literature on the issue,¹⁵ Parliament has previously found it appropriate to have mechanisms in place to manage offenders assessed as posing an unacceptably high risk.

COs have been imposed on several recently released terrorist offenders.¹⁶ The Australian reported on 1 May 2021 that seven people have been charged with breaching their COs.¹⁷ The first CDO was issued on 24 December 2020 in respect of Abdul Nacer Benbrika. Reporting prior to that suggested that authorities have found it difficult to meet the high threshold for imposition of a CDO.¹⁸

Benbrika was convicted by the Supreme Court of Victoria of being a member of a terrorist organisation and directing the activities of a terrorist organisation. He was sentenced to 15 years imprisonment with a non-parole period of 12 years. His sentence expired on 5 November 2020. On 4 September 2020, the Minister commenced proceedings in the Supreme Court of Victoria, seeking a CDO in respect of Benbrika. On 24 December 2020, it was ordered that Benbrika be subject to a CDO to be in force for a period of three years. A challenge to the constitutional validity of the CDO scheme by Benbrika was rejected by the majority of the High Court.¹⁹ That decision is discussed below under the heading ‘High Court affirms constitutional validity of CDO made under section 105A.7’.

In addition to the existing Criminal Code options for dealing with HRTOs, there are several national security-related grounds under which a dual citizen may lose their Australian citizenship.²⁰ One such circumstance is where:

• an individual has been convicted of a listed offence/s (including a terrorism offence) and sentenced to at least three years imprisonment

• the Minister considers that the individual’s conduct demonstrates that they have repudiated their allegiance to Australia and

• having regard to certain factors, the Minister considers that it is not in the public interest for that person to remain an Australian citizen.²¹

The Home Affairs Minister used this conviction-based citizenship cessation power for the first time on 20 November 2020 to cancel the citizenship of Benbrika.²² The Minister advised:

[Benbrika is] the first individual to have lost his citizenship onshore under the terrorism related provisions of the Australian Citizenship Act of 2007 and given Benbrika no longer holds Australian citizenship, he’s granted an ex-citizen visa by operation of law, under the Migration Act.

Benbrika has been notified of his citizenship loss and he’ll remain in prison whilst an interim detention order is enforced, pending the courts consideration of the application for a continuing detention order… I can confirm today, also, that 20 dual-nationals cease to hold Australian citizenship as a result of their engagement in terrorist conduct, but [Benbrika] is the first onshore.²³

INSLM and PJCIS recommendations

The INSLM noted that similar state and territory schemes provided for two types of orders—continuing detention or conditional release—and that some of those schemes required, as a condition of making an order for continued detention, that the court be satisfied that an extended supervision order would not be adequate to address the identified risk.²⁴ He noted that while the Commonwealth CDO scheme similarly requires that the court be satisfied that no less restrictive measure would be effective, ‘no such measure is available or otherwise addressed in div 105A beyond a statutory note that a control order (by definition only available from a federal court) may be a less restrictive measure’.²⁵

The INSLM considered that it is unclear exactly how the control order and CDO regimes are intended to interact, and that the existing position creates difficulties in relation to how the threshold for a CDO may be met and could lead to duplicative and oppressive proceedings for CDOs and control orders.²⁶

The INSLM recommended that the CDO regime in Division 105A be amended to provide for two types of orders—CDOs and ESOs—and that CDOs should only be able to be made if the court is satisfied that an ESO would not be effective in preventing the identified risk.²⁷ He further recommended that:

• the ESO scheme allow for the imposition of the same obligations, prohibitions and restrictions as control orders under ESOs

• the Attorney-General be the applicant for ESOs, with no additional pre-conditions for commencing proceedings under Division 105A

• applications for an ESO may be made where an individual is already the subject of a CDO or ESO

• the regime that exists to monitor compliance with control orders also be applied for ESOs

• the Government should consider making the special advocates regime that exists for control order proceedings available for applications under Division 105A and

• to clarify the interaction of Division 105A with the control order regime:

a.        the Attorney-General be unable to give consent [to a request for a control order] under s 104.2 while div 105A proceedings are pending

b.        in requesting an interim control order in relation to a person, the senior AFP member be required to give the issuing court a copy of any div 105A application made in relation to that person, and any order (including reasons) of the relevant court in respect of that application

c.        no control order may be in force in relation to a person while a CDO or ESO is in force in relation to that person.²⁸

The PJCIS endorsed the INSLM’s recommendation to introduce ESOs and the INSLM’s recommended model in its 2018 report on a review of various counter-terrorism powers.²⁹

The Government supported the INSLM and PJCIS recommendations in a response tabled in May 2018,³⁰ and the Bill is largely consistent with the INSLM’s recommendations. The main ways in which the Bill departs from or goes beyond the INSLM’s recommendations are by:

• providing for more extensive conditions to be imposed under an ESO than under a control order

• setting a lower threshold for imposition of an ESO than a CDO in relation to satisfaction of unacceptable risk and

• not requiring the Minister to refrain from consenting to a request for an interim control order while proceedings are underway for a CDO or ESO.

Comprehensive Review of the Legal Framework of the National Intelligence Community

On 4 December 2020 the Attorney-General released the unclassified Comprehensive Review of the Legal Framework of the National Intelligence Community³¹ (the Richardson Review) and the Government Response.³² The four volumes of the Richardson Review were tabled in Parliament on 7 December 2020:

•  Volume 1: Recommendations and Executive Summary; Foundations and Principles; Control, Coordination and Cooperation³³

•  Volume 2: Authorisations, Immunities and Electronic Surveillance³⁴

•  Volume 3: Information, Technology, Powers and Oversight³⁵

•  Volume 4: Accountability and Transparency; Annexes.³⁶

The Richardson Review’s comprehensive examination of the legislative framework underpinning the NIC is the first since the Hope Royal Commissions considered the AIC in the 1970s and 1980s.³⁷ The Executive Summary can be found at pages 32–59 of Volume 1. Its 203 recommendations are consolidated in a table in Chapter 4 of Volume 1 at pages 60–85.

Several general comments from the Executive Summary are worth noting, including the suggestion that a certain level of scepticism is appropriate when considering legislative proposals that affect NIC agency powers:

Complex laws also undermine public trust and confidence. It should be clear to the Australian public what intrusive powers are available to NIC agencies, the circumstances in which they may be used, and the limits, controls, safeguards and accountability mechanisms that apply…

Our laws are not constraints or barriers to operational effectiveness as they are sometimes perceived. Rather, they are the guardians of valuable principles and enablers assisting agencies to perform their functions…

Too often during the Review, proposals to ‘clarify’ or ‘streamline’ legislation amounted to no more than a bid to extend powers or functions. Government should be sceptical of calls for legislative clarity—very often such claims do not withstand even modest inquiry.³⁸

A centrepiece of the Richardson Review is the recommendation that the TIA Act, the SD Act and parts of the ASIO Act be consolidated into a new electronic surveillance Act, however Richardson noted that the process of replacing the legislation might take five years.³⁹

Consultation with the IGIS and the Ombudsman on proposed legislation

The Richardson Review recommended early consultation with oversight bodies:

The IGIS and Ombudsman should be consulted as a matter of course in relation to all proposed amendments to intelligence legislation affecting matters within their jurisdiction to ensure that oversight issues can be addressed upfront. This requirement should be included in the Legislation Handbook.⁴⁰

The Commonwealth Ombudsman made a submission to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) inquiry into the Bill.⁴¹ It is not clear whether either officer was consulted on the Bill.

High Court affirms constitutional validity of CDO made under section 105A.7

In Minister for Home Affairs v Benbrika (Benbrika),⁴² the High Court was asked:

Is all or any part of Division 105A of the Criminal Code (Cth) and, if so, which part, invalid because the power to make a continuing detention order under section 105A.7 of the Code is not within the judicial power of the Commonwealth and has been conferred, inter alia, on the Supreme Court of Victoria contrary to Chapter III of the Commonwealth Constitution?

In a judgment delivered on 10 February 2021, a majority of the High Court (Gageler and Gordon JJ dissenting) answered ‘No’; they found section 105A.7 of the Criminal Code was within the judicial power of the Commonwealth:

There is no principled reason for distinguishing the power of a Ch III court to order that a mentally ill person be detained in custody for the protection of the community from harm and the power to order that a terrorist offender be detained in custody for the same purpose. It is the protective purpose that qualifies a power as an exception to a principle that is recognised under our system of government as a safeguard on liberty. Demonstration that Div 105A is non-punitive is essential to a conclusion that the regime that it establishes can validly be conferred on a Ch III court, but that conclusion does not suffice. As a matter of substance, the power must have as its object the protection of the community from harm.⁴³ […]

Detention in prison is prima facie penal or punitive; however, that characterisation may be displaced by an evident non-punitive purpose. Division 105A has an evident non-punitive protective purpose.⁴⁴

This Court has consistently held, and most recently in Fardon, that detention that has as its purpose the protection of the community is not punishment.⁴⁵

7 Committee consideration

Parliamentary Joint Committee on Intelligence and Security

The Bill has been referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for inquiry and report. Details of the inquiry are at the inquiry homepage. Submissions to the PJCIS closed on 29 October 2020, but no reporting date has been set. A number of submissions were made to the Committee and some of the issues raised are discussed under the ‘Key issues and provisions’ heading of this Digest.

Senate Standing Committee for the Scrutiny of Bills

Trespass on personal rights and liberties—general comment

In its Scrutiny Digest 14 of 2020, the Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) commented generally on the potential for the Bill to trespass on personal rights and liberties.⁴⁶ The Scrutiny Committee noted:

If the continuing detention (or, as is proposed in this bill, the imposition of severe conditions) is triggered by past offending, then it can plausibly be characterised as retrospectively imposing additional punishment for that past offence. Even if the continuing detention (or imposition of severe conditions) is not conceptualised as imposing additional punishment and is instead rationalised on the basis of its protective purpose, the fact that the order is made on the basis of predicted future offending still inverts fundamental principles of the criminal justice system.⁴⁷

The Scrutiny Committee acknowledged that the proposed ESO scheme was less restrictive of liberty than the existing CDO scheme:

However, given the severity of conditions that may be imposed on a person subject to an extended supervision order, the committee considers that the extended supervision order scheme may still be characterised as fundamentally inverting basic assumptions of the criminal justice system, including that a person should only be punished for a crime which it has been proved beyond a reasonable doubt that they have committed, not the risk that they may in future commit a crime.⁴⁸

In his response to the Scrutiny Committee,⁴⁹ the Attorney-General explained that the decision of the court as to whether to impose an ESO is based on an assessment of future risk, rather than as punishment for past conduct:

Post-sentence orders are thus based on the risk posed by the offender as they are approaching completion of their custodial sentence, rather than at the time of conviction, consistent with their protective rather than punitive purpose. This is in line with similar state schemes which serve to protect the community from high risk violent and sexual offenders.⁵⁰

The Scrutiny Committee noted the Attorney-General's advice but retained its original scrutiny concerns quoted above and left the appropriateness of the proposed ESO scheme to the consideration of the Senate as a whole.⁵¹

The Scrutiny Committee requested further advice from the Attorney-General in relation to the standard of proof required in order to impose an ESO:

The committee therefore requests the Attorney-General's advice as to whether proposed paragraph 105A.7A(1)(b) can be amended to require the court be satisfied to a 'high degree of probability' (rather than on the 'balance of probabilities') that an offender poses an unacceptable risk of committing a serious Part 5.3 offence before the court may make an extended supervision order.⁵²

The Minister’s response was considered by the Committee in its report of 20 November 2020.⁵³ The Attorney-General’s comments and the response of the Scrutiny Committee are discussed below under the heading ‘The standard of proof for issue of an ESO’.

The Scrutiny Committee also drew the attention of senators to concerns relating to:

•  Procedural fairness—right to fair hearing.⁵⁴

The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of:

• proposed sections 105A.14B–105A.14D which provide that certain information (such as national security information) may be excluded from the copies of applications and materials provided to an offender and their legal representative; and

• the proposed amendments to the National Security Information (Criminal and Civil Proceedings) Act 2004 set out in items 189–210 of Schedule 1 which would allow the court to consider and rely on national security information which is not disclosed to the offender or their legal representative.

The committee considers that these provisions may negatively impact an offender's ability to effectively contest an application for an extended supervision order that is made against them.⁵⁵

The issue is discussed below under the heading ‘Right to a fair hearing’.

•  Trespass on personal rights and liberties—expansion of monitoring and surveillance powers.⁵⁶

The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of extending significant monitoring and surveillance powers under a number of Acts to persons subject to an extended supervision order, noting that these powers may trespass on a person's rights and liberties.⁵⁷

The issue is discussed under the ‘Expansion of monitoring and surveillance powers for individuals subject to ESOs’ heading below.

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights (PJCHR) considered that the proposed ESO scheme ‘engages a significant number of human rights, some of which are not identified in the statement of compatibility’, including the prohibition against retrospective criminal laws, the rights to privacy, freedom of movement, liberty, freedom of expression, assembly and participation, work, education, protection of the family, freedom of religion, and an adequate standard of living, and the rights of the child.⁵⁸

It stated that while most of those rights may be permissibly limited, it required further information from the Attorney-General to assess the compatibility of ESOs with multiple human rights, in particular:

(a)    whether the type of conditions that may be imposed under an extended supervision order may be so severe as to amount to a penalty;

(b)     why it is appropriate to apply the extended supervision order scheme to those who committed offences before this scheme (or the continued detention order scheme) was in operation;

(c)     what factors would a court consider in determining whether a person poses an 'unacceptable risk' in the context of a court assessing a person's level of future risk under the proposed supervision order scheme, and what threshold would a court apply in determining whether a risk is an acceptable or unacceptable one;

(d)     what evidence is there of a pressing and substantial concern to which the proposed extended and interim supervision order scheme is directed (including evidence of terrorism offenders in Australia who have been released from a custody sentence and subsequently engaged in terrorism related conduct);

(e)     how an expert assessment as to the risk of a person engaging in future terrorism related conduct would be effective to accurately assess such a risk, and consequently whether the imposition of an extended supervision order would be rationally connected with the objective of protecting the public from terrorist acts;

(f)     why, and in what respects, the power to release an offender on parole during the final quarter of their sentence (subject to conditions) would not be effective to protect the public from any potential risk sought to be addressed by these measures, including by supporting a person to rehabilitate and reduce their risk of recidivism;

(g)     whether a person could be released from prison and be subject to both parole conditions and conditions under an extended or interim supervision order, and if so, how would any conflict between the two be managed;

(h)     what percentage of persons who have been imprisoned for a terrorism offence under Part 5.3 of the Criminal Code have received parole in the past 10 years;

(i)     whether, how, and to what extent the current prison services available to manage terrorist offenders are not effective in reducing the risk of recidivism with respect to terrorism offences;

(j)     why it is appropriate that the civil standard of proof (balance of probabilities) should be required for the issue of an extended or interim supervision order, noting the potential significant impact on human rights by the imposition of a supervision order; and

(k)     whether, as a matter of statutory interpretation, a court could impose a condition that an offender remain at specified premises for more than 12 hours within any 24 hour period, nothing that the general conditions listed in proposed subsection 105A.7B(3) are expressly stated as being 'without limiting' a court's ability to impose any condition they were satisfied was necessary (under proposed subsection 105A.7B(1)).⁵⁹

The PJCHR also sought further information from the Attorney-General on the proposal to permit certain evidence to be withheld from individuals in relation to whom an ESO has been sought or made and their legal representatives, to determine the compatibility of the measure with the right to a fair hearing.⁶⁰

The PJCHR questioned the compatibility of the proposed powers to monitor individuals subject to an ESO with the right to privacy but did not request further information from the Attorney-General on that aspect of the Bill.⁶¹

The Attorney-General’s response to the PJCHR report has been published.⁶² Some aspects of that response are discussed below under the heading ‘Key issues and provisions’.

8 Policy position of non-government parties/independents

Non-government parties and independents did not appear to have publicly stated their positions on the Bill as at the date of this Digest.

9 Position of major interest groups

Commonwealth Ombudsman

The Ombudsman noted the effect of the Bill on its oversight functions:

Like the control order and continuing detention order regimes, the Bill does not propose a direct oversight function for our Office in relation to the ESO scheme. However, alongside the proposed ESO scheme, the Bill would extend the AFP’s scope to use pre-existing covert and intrusive powers which the Office oversees under the TIA Act, the SD Act and the Crimes Act to include the following purposes:

• monitoring compliance with an ESO or interim supervision order (ISO) via a Part 5.3 warrant

• informing a decision about whether to apply for an ESO or continuing detention order.

The Bill would also extend the AFP’s obligations to notify the Office when it has used these powers and provide relevant material under:

• section 49A of the SD Act,

• section 59B of the TIA Act, and

• section 3ZZTE of the Crimes Act.

…

The Bill would also extend the Office’s role in the oversight framework proposed under the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 (IPO Bill) to include:

• overseeing relevant Part 5.3 IPO agency activity, and

• receiving notifications and relevant material relating to international production orders issued on the basis of Part 5.3 supervisory orders.⁶³

The Ombudsman welcomed the inclusion of independent oversight and assurance arrangements in the Bill. It expected the Bill would result in a marginal increase in the use of the AFP’s powers under the TIA Act, SD Act, and Crimes Act and, therefore, a marginal increase in its oversight activities.⁶⁴

Australian Lawyers Alliance

The Australian Lawyers Alliance (Lawyers Alliance) is a national association of lawyers, academics and other professionals dedicated to protecting and promoting justice, freedom and the rights of the individual. The Lawyers Alliance estimates that its 1,500 members represent up to 200,000 people each year in Australia. The Lawyers Alliance submitted that:

• the standard of proof required for making an ESO should not be lower than that for a continuing detention order (‘CDO’), namely ‘to a high degree of probability’

• ESO proceedings should take place in open court, that the person who is the subject of those proceedings should be present in court, and that the person should have a right to be legally represented by the advocate of their choice in court during those proceedings and

• there should be an option for judicial review under the Administrative Decisions (Judicial Review) Act 1977 of the decisions made by the Minister for Home Affairs under Division 105A of the Criminal Code.⁶⁵

Law Council of Australia

The Law Council of Australia (Law Council) made a lengthy submission to the PJCIS inquiry into the Bill.⁶⁶ The Law Council did not oppose an ESO regime as a less-restrictive alternative to CDOs. However, the Law Council made 21 recommendations for amendments to the Bill. A consolidated list of the Law Council recommendations forms Appendix A to this Digest.

In summary, the Law Council is concerned to ensure that the ESO regime:

is consistent with the recommendations of the third Independent National Security Legislation Monitor (INSLM), Dr James Renwick CSC SC about the core elements of the regime, especially the applicable standard of proof and conditions able to be imposed under an ESO; and

applies a fair, reasonable and proportionate process for the determination of ESO applications, including adequate access to legal assistance; and

effectively manages interactions between ESOs, the control order (CO) regime in Division 104 of the Criminal Code, and applicable State or Territory post-sentence regimes. In particular, the Law Council supports safeguards to ensure that a person is not exposed to oppression by being subjected to:

- multiple orders under different regimes, on the same or substantially similar grounds;

- proceedings seeking a particular type of order (for example, a CO) as an effective ‘repechage’ to a previous, failed application for a different type of order (for example, an ESO), irrespective of outcome; or

- conflicting conditions or obligations, or conditions or obligations whose combined effect is oppressive.⁶⁷

In particular, the Law Council considered that the ESO regime should only proceed if it implements the INSLM’s September 2017 recommendations, as a minimum standard for the legislative framework governing ESOs. In the alternative, state and territory Supreme Courts should be invested with jurisdiction to issue control orders.⁶⁸

The Law Council also noted that the Bill contained measures unrelated to ESOs or that applied beyond ESOs. In particular, the Bill includes a proposal to significantly expand control order conditions.⁶⁹

The Law Council had significant concerns about expansion of the control order conditions, and recommended that those proposals be withdrawn from the Bill and examined separately as part of the PJCIS’s current statutory review of the control order regime.⁷⁰ Some of the Law Council’s concerns are discussed in more detail below under the heading ‘Key issues and provisions’.

Australian Human Rights Commission

The Australian Human Rights Commission (AHRC) noted its previously expressed concerns about the very severe restrictions on liberty imposed by the CDO regime and noted that the Bill would leave in place the current CO regime.⁷¹ The AHRC argued it was important, given the increase in counter-terrorism laws over the last two decades, that the Bill not be assessed in isolation.

The Bill should be assessed by reference to its likely effect taking into account the other elements of Australia’s counter-terrorism regime, especially given that CDOs, control orders and the proposed ESO regime would all operate to address the same, or at least a similar, risk—namely, that an individual is likely to commit a terrorist offence in the future… the introduction of an ESO regime should be accompanied by the repeal of the existing control order regime.⁷²

The AHRC opposes the Bill in its current form; however, it supported the introduction of an ESO scheme, as a less restrictive and more proportionate way of effectively managing the risk to the community of terrorist recidivism than the CDO alone, subject to two key provisos:

• any federal ESO regime should be in the form recommended by the third INSLM in September 2017 and

• the regime proposed by the Bill is amended to ensure it remains consistent with Australia’s human rights obligations.⁷³

The AHRC is concerned about the following aspects of the Bill:

(a)    the Bill proposes a lower standard of proof to obtain an ESO (satisfaction on the balance of probabilities) than is currently required to obtain a CDO (satisfaction to a high degree of probability), contrary to the recommendation of the third INSLM and contrary to every other comparable regime in Australia

(b)    the conditions that may be imposed pursuant to an ESO extend far beyond the conditions that may be imposed pursuant to a control order and, for example, could require:

• a person to comply with directions given by a ‘specified authority,’ which is not limited to law enforcement authorities and in fact could be any other person in Australia

• the compulsory participation in de-radicalisation and other programs in a way that is counterproductive to efforts to counter violent extremism

• de facto home detention, rather than limited curfews

• a person to give consent to entry into their home by a ‘specified authority’ (which could be any person in Australia), in circumstances where that consent was not truly voluntary and where alternatives such as the use of warrants are readily available

(c)    the current safeguard in control order proceedings, requiring the personal circumstances of the respondent to be taken into account, would be removed for ESO proceedings

(d)    an offender in custody could be compelled to attend an assessment by an expert chosen by the AFP Minister, in addition to the existing requirement to be assessed by an independent expert chosen by the Court, and failure to participate in the assessment with the Minister’s expert could count against them in a post-sentence order proceeding (that is, a proceeding for either a CDO or ESO)

(e)    the current use immunity that applies to participation in an assessment by the Court’s independent expert would be watered down, and this lower level of protection would also be applied to participation in the compulsory assessment by the Minister’s expert

(f)    the Minister would be given the ability to apply to vary an interim supervision order (ISO) to add conditions, in a way that is not permitted under the control order regime.⁷⁴

The AHRC made 25 recommendations for amendments to the Bill.⁷⁵ A consolidated list of the AHRC recommendations forms Appendix B to this Digest. A table comparing the amendments recommended by the Law Council and the AHRC is at Appendix C.

Australian Federal Police

The Australian Federal Police (AFP) strongly supports the introduction of ESOs and, in particular, the proposal to improve flexibility for a state or territory Supreme Court to impose, tailor and adapt conditions attached to the ESO.⁷⁶

The AFP noted that the Bill will streamline the application process for post-sentence orders; an ESO can be issued by the same court hearing the application for a CDO.⁷⁷

The AFP advised the PJCIS that it anticipates making fewer CO applications once the ESO scheme has commenced. However, the AFP argues that the COs will retain an important place in the framework for managing HRTOs.

Control orders remain a key tool to address risks, and will continue to apply to a broader cohort of individuals, including those who are not eligible for consideration for an ESO, for example:

a) individuals who have not been charged with any offence

b) individuals who have been convicted of related offences, who are not eligible for consideration of an ESO or CDO under the HRTO framework… and

c) individuals who have been convicted of an offence at some point in the past.⁷⁸

The AFP does not support the proposal from interest groups to repeal the CO scheme once the ESO scheme is in place.⁷⁹

10 Financial implications

The costs of the ESO scheme have not yet been determined. The Explanatory Memorandum states that the Government is working with state and territory governments ‘to determine the cost implications of implementing the ESO scheme’ and that costs will be considered as part of implementation.⁸⁰

11 Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.⁸¹ However, as noted above, the PJCHR has sought additional information from the Attorney-General in order to determine whether the Bill is compatible with relevant rights and freedoms.

12 Key issues and provisions

Overview

The Bill proposes a new type of post-sentence order, an ESO, to manage the risk of future offending by a person who has completed a sentence of imprisonment for a terrorism or security offence. The ESO scheme will build on and complement the existing CDO scheme by providing a less restrictive alternative to continued detention for the management of HRTO. An ESO will enable a person to be released into the community subject to prohibitions and other conditions on their activities, associations, and movements.

A Supreme Court of a state or territory will be able to impose an ESO on a terrorist offender released into the community if satisfied that the individual poses an unacceptable risk of committing certain serious terrorism offences. This is consistent with section 71 of the Australian Constitution, which allows the Commonwealth to invest state or territory courts with federal jurisdiction.

Key features of the ESO scheme will include:

• ESOs may be made on application for an ESO, or as an alternative order where the court is not satisfied that a CDO is required

• ESOs may be imposed for periods of up to three years, and successive ESOs will be permitted

• interim supervision orders (ISOs) may be imposed for periods of up to 28 days (more than one may be made, but the total period of all interim orders must not generally exceed three months)

• an ESO or ISO will impose conditions on an offender that a court is satisfied are reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from an unacceptable risk of the offender committing a serious Part 5.3 offence

• contravention of the conditions of an ESO or ISO will be an offence carrying a maximum penalty of five years imprisonment

• entry, search and seizure, surveillance device, computer access and telecommunications interception powers will be available in relation to individuals subject to ESOs and ISOs for the purposes of monitoring compliance with the order and of protecting the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 offence

• surveillance device, computer access and telecommunications interception powers will also be available for the purposes of determining whether to apply for an ESO (or a CDO) in relation to a person detained in custody and

• a court will be permitted to make an order under the NSI Act that will allow evidence to be considered in a proceeding related to an ESO or ISO that is not disclosed to the offender or their legal representative; in such circumstances, a special advocate may be appointed to represent the interests of the offender in parts of a proceeding from which they and their legal representative are excluded.

Serious Part 5.3 offence means an offence against Part 5.3 of the Criminal Code, the maximum penalty for which is seven or more years of imprisonment.⁸²

Do the provisions punish a person for risk they may commit a future crime?

The Scrutiny Committee expressed concern that the ESO scheme could be characterised as permitting a person to be punished for the risk that they may commit a future crime, not for crime they have committed:

The committee acknowledges that the proposed extended supervision order scheme is less restrictive of liberty than the existing continuing detention order scheme. However, given the severity of conditions that may be imposed on a person subject to an extended supervision order, the committee considers that the extended supervision order scheme may still be characterised as fundamentally inverting basic assumptions of the criminal justice system, including that a person should only be punished for a crime which it has been proved beyond a reasonable doubt that they have committed, not the risk that they may in future commit a crime.⁸³

In his response to the Scrutiny Committee, the Attorney-General advised that an extended supervision order is not a penalty for a criminal offence:

The imposition of an ESO is not a penalty for criminal offending, as the purpose of an ESO is protective rather than punitive or retributive. While eligibility for a post-sentence order (ESO or CDO) depends on the person having been convicted of a specified terrorism offence, the decision of the court as to whether to impose an ESO is based on an assessment of future risk, rather than as punishment for past conduct. An order could only be made where the court is satisfied that the offender poses an unacceptable risk of committing a serious Part 5.3 offence once released in the community following their custodial sentence. Post-sentence orders are thus based on the risk posed by the offender as they are approaching completion of their custodial sentence, rather than at the time of conviction, consistent with their protective rather than punitive purpose. This is in line with similar state schemes which serve to protect the community from high risk violent and sexual offenders.⁸⁴

The Scrutiny Committee noted the Attorney-General's advice that an order can only be made where the court is satisfied that an offender poses an unacceptable risk of committing a serious Part 5.3 offence upon release. However, the Committee retained the scrutiny concerns quoted above and left the appropriateness of the proposed extended supervision order scheme to the consideration of the Senate as a whole ⁸⁵

13 SCHEDULE 1 PART 1: AMENDMENTS TO THE CRIMINAL CODE

14 Eligibility for an order

ESOs may be made in relation to offenders convicted of the same offences as for CDOs.

A post-sentence order (a CDO under section 105A.7 or an ESO under proposed section 105A.7A⁸⁶) may be made in relation to a person (referred to as a terrorist offender) if:

• the person has been convicted of an offence listed in paragraph 105A.3(1)(a):

(i)        an offence against Subdivision A of Division 72 (international terrorist activities using explosive or lethal devices); or

(ii)    a serious Part 5.3 offence; or

(iii)    an offence against Part 5.5 (foreign incursions and recruitment), except an offence against subsection 119.7(2) or (3) (publishing recruitment advertisements); or

(iv)    an offence against the repealed Crimes (Foreign Incursions and Recruitment) Act 1978, except an offence against paragraph 9(1)(b) or (c) of that Act (publishing recruitment advertisements);

• one of the preconditions outlined in proposed section 105A.3A applies and

• the person will be at least 18 years old when the sentence for the conviction mentioned above ends.⁸⁷

Preconditions

Broadly, an ESO or a CDO may made if the person is:

• serving a custodial sentence for a specified offence

• currently subject to a CDO or an interim detention order (IDO)

• serving a custodial sentence for another offence, and has been continuously detained in custody since:

– being convicted of a specified offence or

– a CDO or IDO was in force in relation to the person

• serving a custodial sentence for breaching an ESO or interim supervision order (ISO), if the court is satisfied that as a result of that breach, the person poses an unacceptable risk of committing a serious Part 5.3 offence or

• the person previously served a custodial sentence for a specified offence and is serving a custodial sentence for breaching a control order or interim control order, if the court is satisfied that as a result of that breach, the person poses an unacceptable risk of committing a serious Part 5.3 offence.⁸⁸

An ISO or ESO may also be made if the person is:

• currently subject to an ISO or ESO

• serving a custodial sentence for another offence, and has been continuously detained in custody since being subject to an ISO or ESO or

• the person previously served a custodial sentence for a specified offence and before being released and before the commencement of the proposed provisions:

– an interim control order or the Minister’s consent to apply for an interim control order was sought and

– the interim control order, or a subsequent confirmed control order, is in force.⁸⁹

This last precondition has been included as a transitional measure to ensure that offenders released under control orders because they were not suitable for a CDO but ESOs were not yet available, may be considered for an ESO. The Explanatory Memorandum states:

All offenders who have been serving a sentence for a specified terrorism offence in paragraph 105A.3(1)(a) have been eligible for a CDO since Division 105A commenced on 7 June 2017. This measure provides that those released before ESOs commence may be eligible for an ESO, which is a less restrictive measure than the CDO for which they were already eligible. It is limited to the cohort that is already subject to some obligations, prohibitions and restrictions in the community under a control order. Offenders subject to a control order cannot be automatically transitioned to an ESO but will be subject to the usual court processes for making an ESO. A court asked to make an ESO in relation to an offender subject to a control order will need to be satisfied that the offender meets the relevant thresholds for an ESO (see section 105A.7A) before it can make the ESO.⁹⁰

15 Key thresholds for making an order

The amended thresholds for making a CDO and the proposed thresholds for making an ESO are set out in Table 1 below.⁹¹

Table 1: amended thresholds for making a CDO and the proposed thresholds for making an ESO

CDO

ESO

Satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence

Satisfied on the balance of probabilities, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence

Satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk

N/A

N/A

Satisfied on the balance of probabilities that each of the conditions to be imposed on the offender is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk

Source: Parliamentary Library

Unacceptable risk of committing a serious Part 5.3 offence

Judging and punishing criminal guilt is an exclusively judicial function. There are, therefore, constitutional limits to the capacity of the executive to order involuntary detention of a citizen to prevent the executive straying into the exercise of judicial functions. The ‘Lim principle’, developed by the High Court in Chu Kheng Lim v Minister for Immigration,⁹² expresses those limits.

… the central principle derived from Lim, as reflected in subsequent decisions of this Court, is that involuntary detention in custody by the State is inherently penal or punitive in character, and thus cannot be imposed other than as an incident of adjudging and punishing criminal guilt unless one of the recognised exceptions applies; "[it] exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt". As Lim recognised, there are some exceptional cases where detention other than as punishment for a breach of the law will be authorised, such as detention in cases of mental illness or infectious disease or to secure attendance at trial for an offence.⁹³

All of the High Court judges in Benbrika affirmed the Lim principle, though there were differences over whether Division 105A came within the exceptions.

Gordon J acknowledged that the stated purpose of Division 105A is non-punitive and protective.⁹⁴ However, in Division 105A that purpose is not expressed by directly requiring the court to find, as Divisions 104 and 105 require, that there is a high degree of probability of serious harm to persons or property. Instead, the risk of harm to the community is expressed in Division 105A as a risk that the offender will commit a serious Part 5.3 offence.⁹⁵

Gordon J noted that serious Part 5.3 offence was ‘not limited to a “terrorist act” or providing support for or facilitating a terrorist act’ but also included a wide range of preparatory conduct.⁹⁶ She found:

Merely describing certain offences as “serious Part 5.3 offences” does not, without more detailed inquiry, identify the kind or extent of harm to the community caused by the commission of those offences. Parliament cannot draft itself into power by using labels.⁹⁷

Gordon J therefore found that ‘the power of a Supreme Court to make a CDO under section 105A.7 is not sufficiently tailored to the stated purpose of Div 105A to be an exercise of Commonwealth judicial power’.⁹⁸

Gageler J noted:

Prevention of harm is a legitimate non-punitive objective, at least where the harm is grave and specific. Mere prevention of commission of a criminal offence is not.⁹⁹

[…]

By adapting the model of the legislation considered in Fardon, the Commonwealth Parliament has extrapolated from continuing detention to protect against a narrow category of inherently harmful criminal conduct to continuing detention to prevent criminal conduct remote from the terrorist acts against which protection is sought to be provided. The exceptional case of detention in custody otherwise than as punishment for a past offence has in the result become unexceptional in relation to offences having some (even very remote) connection to a potential terrorist act.¹⁰⁰

However, the majority of the court¹⁰¹ emphasised the exceptional nature of the threat posed to society by terrorism.¹⁰² They considered the nature of serious Part 5.3 offences¹⁰³ and concluded there was a sufficient link to protecting the community from harm:

As Spigelman CJ has observed of the Pt 5.3 regime:

"Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, e.g. well before an agreement has been reached for a conspiracy charge."¹⁰⁴

It is difficult to envisage any circumstances in which a continuing detention order would be made to prevent the risk of the commission of a serious Pt 5.3 offence where that offence is of a kind that could not be seen to pose a real threat of harm to the community. Even where the apprehended serious Pt 5.3 offence does not involve as an element the inflicting, or having as an immediate purpose the actual inflicting, of personal injury on a person or persons, the advancement of terrorist ideology can readily be seen to create a milieu which fosters the prospect that personal injury will be suffered by innocent members of the community. A law directed against the implementation of such an ideology (even by preparatory acts) does not lack the character of a law for the protection of the community from harm simply because the law does not include the immediate likelihood or purpose of inflicting personal injury as an element of the offence.¹⁰⁵

The ‘unacceptable risk’ threshold

The Law Council noted the ‘extraordinary and unusual nature’ of ESOs in that they involve making predictions about a person’s future risk, based on evidence of their past conduct, and further that, predicting a person’s future conduct is an inherently difficult task for which there is no settled and empirically validated risk assessment framework.¹⁰⁶

… in the absence of direct evidence of a person’s preparation or planning to engage in a terrorist act, the task of predicting a person’s future risk will generally rely upon the drawing of inferences based on their past conduct.¹⁰⁷

The Law Council submitted that the threshold of ‘unacceptable risk’ is ‘vague, fluid and subjective, especially when applied in the context of assessing a non-specific threat of re-offending at an unspecified point in the future, rather than a specific and imminent threat’. To counterbalance the risks of arbitrariness and error that arise from its vagueness and subjectivity, the Law Council argued that the criminal standard of proof and rules for drawing inferences should be adopted.¹⁰⁸

While Gordon J in Benbrika noted that ‘Div 105A does not identify the amount of risk of a terrorist offender committing a serious Part 5.3 offence that would be acceptable’;¹⁰⁹ the majority of the Court in Benbrika did not express concern that there would be a problem for a judge making the assessment in the context of a CDO.¹¹⁰ The comments of the majority suggest that risk might be unacceptable where:

•  there is a real threat of harm to the community

•  the advancement of terrorist ideology could create an environment which fosters the prospect that personal injury will be suffered by innocent members of the community.¹¹¹

The majority also noted that a court had power to address the risk of harm to the community by the making of an order less intrusive on personal liberty than a CDO.¹¹²

The standard of proof for issue of an ESO

The INSLM recommended that ‘high degree of probability’ be the standard applied for an ESO.¹¹³ The Explanatory Memorandum states that the lower standard proposed in the Bill ‘reflects the less restrictive nature of ESOs as an alternative to CDOs’, and is consistent with that which ordinarily applies in civil proceedings, including control order proceedings.¹¹⁴

The Scrutiny Committee noted that proposed paragraph 105A.7A(1)(b) (at item 87 of Schedule 1 to the Bill) provides that a court may make an ESO if the court is satisfied, on the balance of probabilities, that the offender poses an unacceptable risk of committing a serious Part 5.3 (terrorism) offence. By comparison a CDO can only be made if the court is satisfied the offender poses the same risk but at the higher standard of a high degree of probability.¹¹⁵

The Scrutiny Committee asked the Attorney-General to comment on whether the provision could be amended to require the higher standard of proof.¹¹⁶ The Attorney-General noted the INSLM’s recommendation and advised:

The civil standard of proof required for making of an ESO or interim supervision order (ISO) is appropriately set to the 'balance of probabilities' (which is the same standard of proof for making a control order) to reflect the fact that these orders impose restrictions on an individual's personal liberties that fall short of custody. As such, this standard of proof is lower than the current standard of proof required for making a continuing detention order (CDO), which is a high degree of probability. It is also consistent with the standard of proof that ordinarily applies in other civil proceedings…

Since the INSLM's 2017 Report the Government has further developed the ESO scheme based on experience with the control order and CDO schemes, and the experience of states which have post-sentence orders, including New South Wales' scheme under the Terrorism (High Risk Offenders) Act 2017 and Victoria's scheme under the Serious Offenders Act 2018. ¹¹⁷

The reason for preferring the lower standard of proof was not further explained.

AGD and DHA provided a table comparing the state and territory extended supervision order schemes in Attachment B to Submission 5 to the PJCIS Review.¹¹⁸ For the sake of comparison:¹¹⁹

• New South Wales ESO legislation requires a court to be ‘satisfied to a high degree of probability’ that an offender poses an unacceptable risk of committing another serious offence/a serious terrorism offence if not kept under supervision¹²⁰

• South Australian legislation requires a court to be ‘satisfied’ that the individual ‘poses an appreciable risk to the safety of the community if not supervised under the order’ and¹²¹

• Victorian legislation requires a court to be ‘satisfied’ that an offender ‘poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both’ if a supervision order is not made and the offender is in the community.¹²²

While the state laws impose somewhat different thresholds with respect to unacceptable risk, none of them apply a lower standard of satisfaction to that threshold for an ESO than for a CDO.¹²³ The state laws also each refer to the unacceptable risk being posed if the offender is not placed under a CDO or ESO, unlike the amended threshold for making a CDO and the proposed threshold for making an ESO under the Bill, which do not state the context in which the risk arises.

The Law Council argued that post sentence orders are closely connected with criminal process and impose grave consequences on an individual made subject to them. It therefore recommended that both ESOs and CDOs require the criminal standard of proof ‘beyond reasonable doubt’ and criminal procedure rules for the drawing of adverse inferences.¹²⁴

The Law Council recommended that the ESO regime be withdrawn if the standard of proof is not increased, as a bare minimum, to the same high degree of probability standard as CDOs.¹²⁵

The AHRC¹²⁶ and the Lawyers Alliance¹²⁷ made similar recommendations.

In response to the Attorney-General, the Scrutiny Committee noted the Attorney-General’s advice, but reiterated its scrutiny concerns in relation to proposed paragraph 105A.7A(1)(b).¹²⁸

The committee considers that the significant impact that an extended supervision order may have on an individual's rights and liberties makes this offence more appropriate for the standard of proof to be amended to a 'high degree of probability'. Although the Attorney-General advised that an extended supervision order falls short of custody, the committee's view is that such an order is sufficiently restrictive of an individual's rights and liberties that it warrants a higher standard of proof than the general civil standard, balance of probabilities. The committee's concerns in this regard are heightened by the fact that the assessment is made in relation to the risk of conduct occurring as opposed to evidence of past conduct.

In addition, the committee considers that the views of the INSLM remain relevant to extended supervision orders regardless of the scheme having been further developed by the government since the report was published.

In light of the above information the committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of proposed paragraph 105A.7A(1)(b) which provides for the court to be satisfied on the balance of probabilities, as opposed to a high degree of probability, that an offender poses an unacceptable risk of committing a serious Part 5.3 offence before the court may make an extended supervision order.¹²⁹

16 Procedure for seeking and making an ESO

As with applications for CDOs, applications for ESOs may be made by the AFP Minister (or a legal representative of the Minister) to a Supreme Court of a state or territory. Applications must include certain information and documents, including the proposed conditions, an explanation of why each condition should be imposed, and facts the Minister is aware of relating to why any of those conditions should not be imposed (except those likely to be protected by public interest immunity).¹³⁰

Assessments of an offender’s risk of committing a serious Part 5.3 offence

As with CDOs, the court must consider whether to appoint one or more relevant experts, and if it considers that doing so is likely to materially assist the court in deciding whether to make an order, appoint one or more relevant experts to assess and report on the risk of the offender committing a serious Part 5.3 offence.¹³¹

The Bill will also include a new provision under which the AFP Minister may direct that a terrorist offender in relation to whom a CDO or ESO could be made or is in force be subject to an assessment of the risk of the offender committing a serious Part 5.3 offence. The Minister may appoint a relevant expert to assess and report on the offender for the purpose of determining whether an application for an order, or for a variation or review of an order, should be made.¹³² Such assessments are intended to provide the Minister with additional information on which to base decisions about whether to make applications relating to post-sentence orders, and for ESOs, provide information that may help to identify the most suitable controls to mitigate the offender’s individual risk.¹³³

The Bill also proposes that surveillance device warrants, computer access warrants and telecommunications interception warrants be available for the purpose of determining whether to apply for a CDO or an ESO against an individual who is detained in custody. See below under ‘New surveillance powers: ESOs and CDOs’.

Determining applications

For CDO applications, in addition to the options of making a CDO or dismissing the application, the court will now have the alternative of making an ESO if the relevant threshold is met.¹³⁴ If the court is not satisfied of the need for a CDO, it must request certain information from the Minister and consider whether an ESO should be made.¹³⁵

For ESO applications, the court may make an ESO or dismiss the application.¹³⁶

Section 105A.8 of the Criminal Code currently sets out particular matters to which the court must have regard in deciding whether to make a CDO. Proposed section 105A.6B (at item 82) will replace that section and apply those same considerations to decisions about CDOs and ESOs (with reports of assessments ordered by the Minister added as something that must be considered).

As with CDOs, successive ESOs will be permitted and no limit will be placed on how many successive orders may be made.¹³⁷

How proceedings relating to ESOs will operate

Subdivision E of Division 105A of the Criminal Code contains provisions relating to CDO proceedings. The Bill will amend and expand the following provisions so that they also apply to ESO proceedings:¹³⁸

• section 105A.13 (which applies, with some modifications, the rules of evidence and procedure for civil proceedings)

• section 105A.14 (allowing parties to proceedings to adduce evidence and make submissions)

• section 105A.15 (when documents are taken to have been given to terrorist offenders who are in prison)

• 105A.16 (requiring courts to provide reasons for decisions)

• 105A.17 (providing a right of appeal) and

• 105A.18 (consequences for proceedings relating to an order for a terrorist offender being released).¹³⁹

17 Withholding application and supporting information from terrorist offenders

Currently, when an application for a CDO is made by the AFP Minister, the AFP Minister is required to provide the offender with a copy of the application within two business days.¹⁴⁰ However, the AFP Minister is not required to include national security information excluded (or for which an exclusion is to be sought) under the National Security Information (Criminal and Civil Proceedings) Act 2004 or by a court order.¹⁴¹ Information covered by public interest immunity may also be withheld.¹⁴² These provisions will be repealed by item 72 of Schedule 1 to the Bill.

Instead, proposed sections 105A.14A–14D, at item 120 of Schedule 1, set out information that must be provided to the offender when the AFP Minister makes specified post-sentence order applications, and detail circumstances when the information will not need to be provided.

Proposed section 105A.14A applies when the AFP Minister applies to the Supreme Court of a state or territory for:

• a CDO or ESO

• an interim CDO or ESO

• a variation of an ESO or interim ESO or

• a review of a CDO or ESO.

In such circumstances, the AFP Minister (or their legal representative) is required to provide offenders and their legal representatives with a copy of the application, and any additional materials the court seeks from the AFP Minister (such as proposed conditions and the reasons why they are needed) if the court is considering whether to make an ESO on an application for a CDO. Documents must be provided within two business days; however, the AFP Minister may exclude sensitive information from applications or materials where the information is:

• national security information (under proposed section 105A.14B)

• subject to a claim of public interest immunity (under proposed section 105A.14C)¹⁴³ or

• terrorism material (that is, it advocates support for engaging in terrorist acts or violent extremism, or joining or associating with a terrorist organisation; or relates to planning or preparing for, or engaging in, terrorist acts or violent extremism) (under proposed section 105A.14D).

Right to a fair hearing

The Scrutiny Committee noted that the current provisions for COs which allow information to be withheld from the offender on national security and public interest immunity grounds (as set out above) ‘clearly undermine the fundamental principle of natural justice which includes a fair hearing’, and that the proposed provisions suffer the same shortcoming: ¹⁴⁴

In judicial proceedings a fair hearing traditionally includes not only the right of a person to contest any charges against them but also to test any evidence upon which any allegations are based … it may not be possible, in practice, to contest the case for the imposition of [an ESO] without access to the evidence on which the case is built.

… it should be noted that judges routinely accept that the courts are 'are ill-equipped to evaluate intelligence' and the possibility that the executive may be wrong in their national security assessments. For this reason, the fact that national security information is read by judges does not mean that they will be well placed to draw a different balance between security risk and fairness than is drawn by the executive.¹⁴⁵

The Explanatory Memorandum states that revealing information relevant to the ESO application may risk ‘jeopardising ongoing counter-terrorism and national security investigations’ and have consequences for the safety of human sources because it might disclose ‘sensitive sources, methodologies and capabilities employed by security agencies’.¹⁴⁶

The Scrutiny Committee acknowledged the rationale and commented:

The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of:

• proposed sections 105A.14B–105A.14D which provide that certain information (such as national security information) may be excluded from the copies of applications and materials provided to an offender and their legal representative; and

• the proposed amendments to the National Security Information (Criminal and Civil Proceedings) Act 2004 set out in items 189–210 of Schedule 1 which would allow the court to consider and rely on national security information which is not disclosed to the offender or their legal representative.

The committee considers that these provisions may negatively impact an offender's ability to effectively contest an application for an extended supervision order that is made against them.¹⁴⁷

The Attorney-General acknowledged that the proposed provisions were exceptional and stated they would only be used ‘… in exceptional circumstances, where it is absolutely necessary to present highly sensitive information to a court to support an application.’¹⁴⁸ The Attorney-General also noted the involvement of the court:

… information the AFP Minister seeks to exclude under proposed sections 105A.14B–105A.14D on either national security grounds, on the basis of public interest immunity, or as terrorism material, will ultimately be a matter for the court to determine.¹⁴⁹

Where material is redacted, it cannot be relied on in the proceedings:

The Attorney-General further advised that where sensitive information is redacted then the redacted or summary version must be relied upon in substantive proceedings, and no regard can be made to the original sensitive materials.¹⁵⁰

The Attorney-General also noted the proposed amendments to the NSI Act, which would make a special advocate available to:

… represent the offender's interests during the parts of a hearing from which the offender and their ordinary legal representative are excluded when the court agrees to consider highly sensitive court-only evidence. The special advocate is able to make arguments to the court querying the need to withhold information from the offender, and can challenge the relevance, reliability and weight accorded to that information. The appointment of a special advocate ensures that the offender will have a reasonable opportunity to present their case and challenge the arguments adduced by the other party.

The appointment of a special advocate is at the discretion of the court, which is best placed to assess whether a special advocate is necessary to assist the court process and safeguard the rights of the offender in proceedings. In some instances, the court may consider itself sufficiently equipped to safeguard the rights of the offender without the appointment of a special advocate. It is appropriate that that decision be made on a case by case basis by the court.¹⁵¹

The Scrutiny Committee acknowledged the Attorney-General’s advice but maintained its scrutiny concerns. It considered that the further information provided by the Attorney-General (that court-only evidence orders are considered exceptional measures and will only be used in exceptional circumstances) should be included in guidance on the face of the Bill:¹⁵²

The committee's preference would be for this approach to be set out on the face of the bill to provide high level guidance as to when court-only evidence orders may be used in applications for extended supervision orders. The committee considers that this would provide an important safeguard on the use of court-only evidence orders with the aim of ensuring that they are only employed when absolutely necessary, given that the provisions undermine the right to a fair hearing. The inclusion of high level guidance on the face of the bill would allow the courts to have regard to the government's position that such orders should only be used in exceptional circumstances where absolutely necessary when making a decision.¹⁵³

The Scrutiny Committee requested the Attorney-General's further advice as to whether the Bill can be amended to provide high level guidance that the court-only evidence provisions in items 189–210 of Schedule 1 may only be used in exceptional circumstances, where it is absolutely necessary to present highly sensitive information to a court to support an application.¹⁵⁴

The Attorney-General advised that amending the Bill would not result in any change to the effect and operation of the provisions:¹⁵⁵

I am of the view that it is not necessary to amend the Bill to provide guidance of that kind. Doing so would not result in any change to the effect and operation of the provisions under the National Security Information (Criminal and Civil Proceedings) Act 2004, which already stipulate the circumstances in which orders may be sought.

Wherever possible, proceedings for extended supervision orders will be held in open court. The court-only evidence provisions would only be used in circumstances where it is necessary to protect highly sensitive information where disclosure may be likely to prejudice national security. It would ultimately be a matter for the court to determine if, and how, information is to be protected in proceedings, balancing the need to protect highly sensitive national security information with the offender's right to a fair hearing. The court may also appoint a special advocate to represent the interests of the offender if the court makes an order that the offender and/or their legal representatives are not entitled to be present at any part of a hearing in the proceeding.¹⁵⁶

The Scrutiny Committee noted the advice but remained of the view that it would be appropriate to amend the Bill. If no amendment is made, the Scrutiny Committee requested that an addendum to the Explanatory Memorandum be tabled material to assist with future interpretation of the Bill.¹⁵⁷ The Scrutiny Committee drew its scrutiny concerns to the attention of senators and left to the Senate as a whole the appropriateness of the court-only evidence provisions of the Bill.¹⁵⁸

The proposed scheme for special advocates is discussed further below under the heading ‘National security information and special advocates’.

18 Interim supervision orders

If the Minister has applied for an ESO, the Minister may apply for an interim supervision order (ISO) that will impose conditions on an individual until the court has determined whether to make an ESO.¹⁵⁹ An ISO may also be made by a court as an alternative to an interim detention order.¹⁶⁰

The court may make an ISO if satisfied of particular matters, including that there are reasonable grounds for considering that:

• an ESO will be made and

• each of the conditions to be imposed are reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk of the individual committing a serious Part 5.3 offence.¹⁶¹

An ISO may be made for a period of up to 28 days that the court is satisfied is reasonably necessary to determine the application for a CDO or ESO.¹⁶² More than one ISO may be made in relation to an offender, but the total period of all ISOs must not exceed three months unless the court is satisfied that there are exceptional circumstances.¹⁶³

19 Conditions that may be imposed under an ESO or ISO

The court will be permitted to impose any conditions that it is satisfied on the balance of probabilities are reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from an unacceptable risk of the offender committing a serious Part 5.3 offence.¹⁶⁴ The Bill will set out non-exhaustive lists of general conditions and conditions relating to monitoring and enforcement that a court may impose, as outlined below.

This approach departs from the INSLM’s recommendation that the scheme allow for the imposition of the same obligations, prohibitions and restrictions as control orders under ESOs.¹⁶⁵ However, it is consistent with state ESO laws that apply to serious or high risk offenders, under which guidance is provided on particular conditions or types of conditions that may be imposed, but the court retains discretion to impose any other conditions it considers appropriate/sees fit.¹⁶⁶

General conditions

Proposed subsection 105A.7B(3) of the Criminal Code sets out a non-exhaustive list of general conditions that a court may impose on an individual under an ESO or an ISO. The conditions are more extensive than those that may be imposed under a control order.¹⁶⁷ They include things such as prohibitions on being present at certain places or types of place, restrictions on where the individual resides and on any travel, prohibitions on communicating with certain individuals or specified classes of individuals, restrictions on access to telecommunications (including use of the internet), restrictions on undertaking particular work or engaging in study, and requirements to participate in treatment or rehabilitation or undertake psychological or psychiatric assessment or counselling.

A person’s lawyer may be included as a specified individual or fall within a specified class of individuals with whom an individual must not communicate.¹⁶⁸ Subsection 105A.7B(7) makes explicit that where this has occurred, the person may communicate or associate with any other lawyer who is not so specified.

Conditions relating to monitoring and enforcement

Proposed subsection 105A.7B(5) sets out a non-exhaustive list of conditions that a court may impose on an individual under an ESO or an ISO to facilitate the monitoring of the person’s compliance with, and the enforcement of, the order. This will include, for example, a requirement to be subject to electronic monitoring, to carry and be contactable on a mobile phone, to report periodically to specified persons, to allow a police officer to enter specified premises and search them and their residence, and to facilitate access (including by providing passwords) to their electronic equipment.¹⁶⁹

Specified authorities

Proposed section 105A.7B refers in several instances to specified authorities. For example, a person may be prevented from communicating with individuals determined by a specified authority and may be required to seek the permission of a specified authority before engaging in training or education. Specified authority will be defined to mean a person, or person in a class of persons where:

(a)    the person or class is any of the following:

(i)    a police officer, or class of police officer;

(ii)    if the requirement or condition relates to electronic monitoring—a person, or class of person, who is involved in electronically monitoring the subject;

(iii)    for any requirement or condition in the order—any other person, or class of person; and

(b)    the Court making the order is satisfied that the person or class is appropriate in relation to the requirement or condition; and

(c)    the person or class is specified in the order.¹⁷⁰

Temporary exemptions from certain conditions

The court may specify conditions from which an individual may apply for a temporary exemption. For such conditions, the individual may apply in writing to a specified authority for an exemption and the specified authority must grant or refuse the exemption, or grant the exemption subject to any reasonable directions specified in writing.¹⁷¹

As the PJCHR noted, the Bill does not impose a timeframe in which a specified authority must respond to an application, provide guidance on factors to be taken into consideration, or require a specified authority to provide reasons for its decision.¹⁷²

Variations

The Minister or the individual on whom an ESO or ISO has been imposed (or a legal representative of either) will be able to apply to a court to have the ESO or ISO varied.¹⁷³

Variations by consent

Variations that do not involve adding any conditions may be made where both parties agree to the variation or removal of conditions if the court is satisfied that the variation is appropriate in all the circumstances.¹⁷⁴

Other variations

The Minister may apply to vary or add conditions, and the individual may apply to vary or remove conditions. The Minister, one or more AFP members, the offender and one or more representatives of the offender may adduce additional evidence or make additional submissions to the court in relation to the application.¹⁷⁵

As with an application for an ESO, the court may appoint one or more relevant experts to assess and report on the risk of the offender committing a serious Part 5.3 offence, to inform a decision on whether to grant a variation.¹⁷⁶ While this is an appropriate inclusion, it creates a situation where a relevant expert may be appointed to assess whether an ISO should be varied, but not whether one should be made in the first place.¹⁷⁷

For applications to add or vary conditions, the court may make the variation if satisfied on the balance of probabilities that each of the conditions being added or varied is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence. For applications to remove conditions, the court may make the variation if it is not satisfied on the balance of probabilities that those conditions are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk.¹⁷⁸

20 Reviews of CDOs and ESOs

Subdivision D of Division 105A of the Criminal Code:

• requires the Minster to apply periodically for reviews of each CDO

• allows the Minister or an individual subject to a CDO, or a legal representative of either, to apply for a review of a CDO at any time and

• sets out the requirements and processes for such reviews.

The Bill will expand these provisions to also apply to review of ESOs.¹⁷⁹

Reviews of CDOs and ESOs will be required every 12 months, or if the order is suspended when a review is due because the offender is detained in custody, on or before the day that detention ends.¹⁸⁰

Upon review, the court may affirm a CDO or ESO (with or without variations) or revoke it.¹⁸¹ If the court does not affirm a CDO, it must first consider making an ESO before revoking the order.¹⁸²

Offences

Three offences will apply to individuals subject to ESOs or ISOs:

• engaging in conduct that contravenes a condition of the ESO or ISO

• engaging in conduct that contravenes a direction specified under an exemption to a condition of the ESO or ISO and

• where the ESO or ISO requires the person to wear a monitoring device, engaging in conduct that results in interference with, or disruption or loss of, function of the monitoring device or any related monitoring equipment.¹⁸³

Each of these offences carries a maximum penalty of five years imprisonment, the same penalty that applies to similar offences that apply to the subjects of control orders.¹⁸⁴

The first two offences listed above will be added to the definition of serious offence in the TIA Act, meaning that interception warrants will be available to investigate those offences where the relevant threshold for issue is met.¹⁸⁵

An offence will also apply to any other person who engages in conduct that results in interference with, or disruption or loss of, function of a monitoring device required to be worn by someone under an ESO or ISO or any related monitoring equipment. This offence will apply where the other person knows or is reckless as to whether an ESO or ISO is in place that requires the wearing of a monitoring device.¹⁸⁶ This offence is similar to an offence that applies under the control order scheme and carries the same maximum penalty of five years imprisonment.¹⁸⁷

21 Reporting about ESOs and ISOs

Section 105A.22 requires the Minister to cause annual reports to be prepared about the operation of Division 105A and tabled in Parliament. The Bill will amend that section to require annual reports to include statistical information about ESOs and ISOs as well as CDOs and interim detention orders.¹⁸⁸

22 SCHEDULE 1 PART 2 and PART 3: AMENDMENTS TO OTHER ACTS

23 Expansion of monitoring and surveillance powers for individuals subject to ESOs

Law enforcement officers may currently make use of entry, search and seizure, surveillance device, computer access and telecommunications interception powers in relation to individuals subject to control orders. These powers, normally used to investigate offences, are available to law enforcement in relation to an individual subject to a CO for the purposes of monitoring compliance with the CO, protecting the public from a terrorist act and preventing certain terrorism-related activity.¹⁸⁹

Consistent with a recommendation of the INSLM, the Bill will amend the Crimes Act, SD Act and TIA Act to extend the monitoring powers that apply in relation to individuals subject to control orders, to individuals subject to ESOs and ISOs.¹⁹⁰ The powers will be available for the purposes of monitoring an individual’s compliance with an ESO or ISO, and of protecting the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 offence.

The Bill will also amend the SD Act and the TIA Act to allow surveillance device, computer access and telecommunications interception powers to be used for the purpose of determining whether to apply for an ESO or a CDO. Those changes are outlined separately below under the heading ‘New surveillance powers: warrants to obtain evidence for ESO and CDO applications’.

Scrutiny Committee

The Scrutiny Committee noted that it generally has significant scrutiny concerns regarding Bills which allow for the extensive use of significant monitoring and surveillance powers. It noted:

… the committee is not satisfied that appropriate safeguards exist in the existing legislation to protect the personal rights and liberties of persons subject to an extended supervision order. For example, the committee notes that warrants authorising the use of many of the monitoring and surveillance powers may be issued by members of the Administrative Appeals Tribunal and the committee has a long-standing scrutiny view that the power to issue warrants or orders relating to the use of intrusive powers should only be conferred on judicial officers.

The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of extending significant monitoring and surveillance powers under a number of Acts to persons subject to an extended supervision order, noting that these powers may trespass on a person's rights and liberties.¹⁹¹

Law Council

The Law Council was concerned that both the existing broad range of monitoring powers available to determine whether a breach of a CO has occurred and the proposed expansion of monitoring powers to ESOs was likely to be a disproportionate response under human rights law. It recommended the repeal of existing monitoring powers, and the removal of the proposed expansions of those powers from the Bill. That is, it recommended the Bill should be amended to omit the proposed expansions of monitoring powers in Parts 2 and 3 of Schedule 1.¹⁹²

Overview of proposed provisions

Entry, search and seizure

Part IAAB of the Crimes Act provides a scheme under which police may exercise certain powers in relation to an individual subject to a control order, or a premises to which the person has a prescribed connection (for example, the premises is the person’s residence, workplace, business or educational institution), to monitor compliance with the order or for certain protective and preventative purposes. The Bill will amend the Crimes Act to allow the same powers to be exercised in relation to individuals subject to an ESO or ISO, for the purposes of monitoring compliance with an ESO or ISO or of protecting the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 offence.¹⁹³

Broadly, the powers that will be available are:

• entry to premises and exercise of monitoring powers, including search, either by consent or under a monitoring warrant¹⁹⁴

• conducting an ordinary or frisk search of a person subject to an ESO or ISO, either by consent or under a monitoring warrant¹⁹⁵

• searching any recently used conveyance and recording fingerprints, and taking samples from things found in a search, without the need to obtain further consent or an additional warrant¹⁹⁶

• powers to ask questions and request or require documents following entry to premises¹⁹⁷

• powers to seize things believed to be evidential material, tainted property or seizable items following a search of a person or premises under a warrant and¹⁹⁸

• the ability to use and share things seized, documents produced, and answers provided for certain purposes.¹⁹⁹

More extensive powers will be available under a warrant than by consent. A monitoring warrant may be issued by a magistrate in relation to an individual subject to an ISO or ESO or premises to which that person has a prescribed connection if the magistrate considers it is reasonably necessary for the purpose of monitoring compliance with an ESO or ISO or of protecting the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 offence.²⁰⁰

The Bill proposes applying certain safeguards, record-keeping and reporting requirements that currently apply to the use of those powers in relation to control orders to the use of powers in relation to ESOs and ISOs:

•  Items 168–169 of Schedule 1 propose amending section 3ZZNH of the Crimes Act to ensure a person subject to a monitoring warrant in relation to an ESO or ISO is entitled to be present during a search.

•  Items 184–186 of Schedule 1 propose amending section 3ZZOD of the Crimes Act to require that a revoked, void or varied monitoring warrant in relation to an ESO or ISO is not executed.

•  Section 3ZQU of the Crimes Act limits the purposes for which things and documents may be shared. Items 187–188 of Schedule 1 propose expanding the application of section 3ZQU to material obtained under section 3ZZKE of the Crimes Act that relates to a Part 5.3 object or a Part 5.3 supervisory order (that is, a CDO, ESO or ISO).²⁰¹

Surveillance devices

Surveillance device warrants authorise the installation, use and maintenance of a surveillance device to covertly monitor activities, conversations or movements connected to certain premises and/or persons.²⁰² Surveillance devices may also be used without a warrant in limited circumstances.²⁰³

As noted above, surveillance devices may be used in relation to an individual subject to a control order for the purposes of monitoring compliance with the control order, protecting the public from a terrorist act and preventing certain terrorism-related activity.²⁰⁴

The Bill will amend the SD Act to also allow surveillance devices to be used to obtain information relating to individuals subject to an ESO or ISO, for the purposes of monitoring compliance with an ESO or ISO or of protecting the community from the unacceptable risk of the person subject to the order committing a serious Part 5.3 offence.

An eligible Judge or nominated AAT member will be permitted to issue a surveillance device warrant to obtain information relating to an individual subject to an ESO or ISO if satisfied that:

• an order is in force and

• there are reasonable grounds for a law enforcement officer’s suspicion that the use of the device would be likely to substantially assist in protecting the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 offence or determining whether the order has been or is being complied with.²⁰⁵

In determining whether to issue a warrant, consideration must be given to certain matters, including the privacy impacts, the existence of alternative means of obtaining the information and the likely value of the information for the purpose for which it is sought.²⁰⁶

Use of surveillance devices without a warrant

Federal law enforcement officers have broad powers under subsections 37(1) and 38(1) of the SD Act to use surveillance powers without a warrant. State and territory police are given more limited powers. The Bill proposes broadening the powers of state and territory police to include use of optical, listening and tracking devices without a warrant for the purpose of protecting the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 offence or determining whether the order has been or is being complied with.²⁰⁷ Consistent with existing powers, use of tracking devices will require internal authorisation by a senior officer.²⁰⁸

The Bill will apply similar safeguards, record-keeping and reporting requirements to the use of surveillance devices (and treatment of information obtained) in relation to ESOs and ISOs as currently apply to the use of those powers in relation to control orders.²⁰⁹

Computer access

Computer access warrants authorise the doing of specified things (such as entering premises and using a computer or other electronic equipment) in relation to a relevant target computer to obtain access to data.²¹⁰ Like surveillance device warrants, computer access powers are executed covertly.

As noted above, computer access warrants may be issued in relation to an individual subject to a control order for the purposes of monitoring compliance with the control order, protecting the public from a terrorist act and preventing certain terrorism-related activity.²¹¹

The Bill will amend the SD Act to also allow warrants to be issued to obtain information relating to individuals subject to an ESO or ISO, for the purposes of monitoring compliance with an ESO or ISO or of protecting the community from the unacceptable risk of the person subject to the order committing a serious Part 5.3 offence.

An eligible Judge or nominated AAT member will be permitted to issue a computer access warrant to obtain access to data held in a target computer to obtain information relating to an individual subject to an ESO or ISO if satisfied that:

• an order is in force and

• there are reasonable grounds for a law enforcement officer’s suspicion that the data access would be likely to substantially assist in protecting the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 offence or determining whether the order has been or is being complied with.²¹²

In determining whether to issue a warrant, consideration must be given to certain matters, including the privacy impacts, the existence of alternative means of obtaining the information and the likely value of the information for the purpose for which it is sought.²¹³

The Bill will apply similar safeguards, record-keeping and reporting requirements to the execution of computer warrants (and treatment of information obtained) in relation to ESOs and ISOs as currently apply to the use of those powers in relation to control orders.²¹⁴

Telecommunications interception

As noted above, telecommunications interception warrants may be issued in relation to an individual subject to a control order for the purposes of monitoring compliance with the control order, protecting the public from a terrorist act and preventing certain terrorism-related activity.²¹⁵

The Bill will amend the TIA Act to also allow warrants to be issued to obtain information relating to individuals subject to an ESO or ISO, for the purposes of monitoring compliance with an ESO or ISO or of protecting the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 offence.

The key thresholds for an eligible Judge or nominated AAT member to issue a telecommunications service warrant for purposes connected to an ESO or ISO will be satisfaction that:

• there are reasonable grounds for suspecting that a particular person is using, or likely to use, the service

• an ESO or ISO is in force in relation to the particular person, or another person that the particular person is likely to communicate with using the service and

• information likely to be obtained by intercepting communications made to or from the service would be likely to substantially assist in connection with protecting the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 offence or determining whether the order has been or is being complied with.²¹⁶

The key thresholds for an eligible Judge or nominated AAT member to issue a named person warrant for purposes connected to an ESO or ISO will be satisfaction that:

• there are reasonable grounds for suspecting that a particular person is using or likely to use more than one telecommunications service

• an ESO or ISO is in force in relation to the particular person

• information likely to be obtained by intercepting certain communications would be likely to substantially assist in connection with protecting the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 offence or determining whether the order has been or is being complied with.²¹⁷

In determining whether to issue either type of warrant, consideration must be given to certain matters, including the privacy impacts, the existence of alternative means of obtaining the information, the likely value of the information for the purpose for which it is sought and the possibility that the person subject to an ESO or ISO has committed or will commit a serious Part 5.3 offence.²¹⁸

The Bill will apply similar safeguards, record-keeping and reporting requirements to the execution of interception warrants (and treatment of information obtained) in relation to ESOs and ISOs as currently apply to the use of those powers in relation to control orders.²¹⁹

Scope of some monitoring powers

The monitoring powers may be used for the purposes of achieving a Part 5.3 object. For ESO-related powers under the SD Act, this will mean the protection of the community from the unacceptable risk of the person [subject to the order] committing a serious Part 5.3 offence.²²⁰ However, for ESO-related powers under the Crimes Act and the TIA Act, this will mean protection of the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 offence.²²¹

New surveillance powers: warrants to obtain evidence for ESO and CDO applications

The Bill will also allow surveillance device warrants, computer access warrants and telecommunications interception warrants to be issued for the purpose of determining whether to apply for an ESO or CDO in relation to a person who is detained in custody. These additional powers are proposed as a means of obtaining contemporary evidence, in admissible form, on which to base an assessment of the level of risk an offender presents.²²²

Threshold for issue

An eligible Judge or nominated AAT member will be permitted to issue a surveillance device or computer access warrant under the SD Act if satisfied that:

• a person is a terrorist offender in relation to whom an application for a post-sentence order could be made

• the person is detained in custody

• there are reasonable grounds for a law enforcement officer’s suspicion that there is an appreciable risk of the person committing a serious Part 5.3 offence

• consideration is being given, will be given, or is likely to be given by the AFP Minister as to whether to apply for a post-sentence order in relation to the person and

• there are reasonable grounds for a law enforcement officer’s suspicion that:

– the use of a surveillance device to obtain information or

– access to data held in a computer

would be likely to assist in determining whether to apply for the post-sentence order.²²³

In determining whether to issue either type of warrant, consideration must be given to the extent to which the privacy of any person is likely to be affected, the existence of alternative means of obtaining the information, the likely value of the information in determining whether to apply for an order, and any previous applications for equivalent warrants.²²⁴

The key thresholds for an eligible Judge or nominated AAT member to issue an interception warrant under the TIA Act will be satisfaction that:

• there are reasonable grounds for suspecting that a particular person is:

– using or is likely to use the service (for a telecommunications service warrant) or

– using or is likely to use more than one telecommunications service (for a named person warrant)

• the person is a terrorist offender in relation to whom an application for a post-sentence order could be made

• the person is detained in custody

• there are reasonable grounds to suspect that that there is an appreciable risk of the person committing a serious Part 5.3 offence

• consideration is being given, will be given, or is likely to be given by the AFP Minister as to whether to apply for a post-sentence order in relation to the person and

• information that would be likely to be obtained through the proposed interception would be likely to assist in determining whether to apply for the post-sentence order.²²⁵

Unlike other types of telecommunications warrants, warrants for this new purpose will not be able to be issued in relation to a service likely to be used by someone other than the offender to communicate with the offender (that is, so-called ‘b-party’ warrants will not be available).²²⁶

In determining whether to issue either type of interception warrant, consideration must be given to certain matters, including the privacy impacts, the existence of alternative means of obtaining the information, and the likely value of the information.²²⁷

Use of information obtained under SD Act and TIA Act for state laws

The Bill will amend the SD Act and the TIA Act to allow information lawfully obtained under those Acts to be used or communicated for purposes relating to a post-sentence detention law or a post-sentence supervision law.²²⁸ These are state laws that provide for post-sentence detention or supervision of terrorist, serious or high risk offenders listed in the definitions or prescribed by regulations.²²⁹

24 National security information and special advocates

The object of the NSI Act is to ‘prevent the disclosure of information in federal criminal proceedings and civil proceedings where the disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice’.²³⁰ The Bill will expand special provisions in the NSI Act that apply to control order proceedings to also apply to ESO and ISO proceedings.

Where the main provisions of the NSI Act are invoked for civil proceedings (which include those relating to control orders, CDOs and ESOs), the court must hold a closed hearing to determine whether information potentially prejudicial to national security may be disclosed (and if so, in what form), or whether to allow a witness to be called.²³¹ It must then make an order about the disclosure or non-disclosure of information, or whether a party must not or may call a person as a witness.²³² Those orders do not permit evidence withheld from the affected party or their legal representative to be adduced in the substantive civil proceeding.²³³

The NSI Act was amended in 2016 to provide for special orders in control order proceedings that allow the court to consider information in those proceedings that is not disclosed to the individual subject to the order or their representative for national security reasons.²³⁴ The Explanatory Memorandum for the relevant Bill explained the need for such orders as follows:

In some circumstances, information will be so sensitive that existing protections under the NSI Act are insufficient. For example, critical information supporting a control order may reveal law enforcement or intelligence sources, technologies and methodologies associated with gathering and analysing information. The inadvertent or deliberate disclosure of such material may endanger the safety of individuals as well as the general public, or jeopardise sources and other intelligence methods. However, the inability to provide such information to a court may mean that a control order is unable to be obtained.

The speed of counter-terrorism investigations is increasing. In order for control orders to be effective, law enforcement need to be able to act quickly, and be able to present sensitive information (which is in the form of admissible evidence) to a court as part of a control order proceeding without risking the integrity, safety or security of the information or its source.²³⁵

In order to mitigate the impact of those orders on procedural fairness, a special advocates scheme was introduced alongside the new orders.²³⁶ The scheme provides for court-appointed, security-cleared special advocates to represent the interests of a person subject to a control order in parts of a control order proceeding from which they and their legal representative have been excluded under section 38I (closed hearings) or 38J (special court orders).²³⁷

The Bill will amend the NSI Act to extend the provisions for special court orders and special advocates to ESO and ISO proceedings.

Special court orders

Section 38J of the NSI Act provides for three types of orders that allow the court to consider in control order proceedings information that is not disclosed to the person subject to a control order or their legal representative:

where the information is in the form of a document, the controlee and their legal representative may be provided with a redacted or summarised form of the national security information. However, the Court may consider all of the information contained in the original source document, even where that information has not been provided in the redacted or summarised form (subsection 38J(2))

irrespective of the form of the information, the controlee and their legal representative may not be provided with the national security information, however the Court may consider all of that information (subsection 38J(3)), or

a witness may be called and the information provided by the witness need not be disclosed to the controlee or their legal representative, however the Court may consider all of the information provided by the witness (subsection 38J(4)).²³⁸

The Bill will amend section 38J to make the same orders available for ESO and ISO proceedings.²³⁹ It will allow sensitive information to be adduced by the AFP Minister and considered by the court, but withheld from the person to whom an application or order relates and their legal representative, in proceedings relating to:

• applications to make or vary an ESO or ISO, and to review an ESO, in relation to a terrorist offender and

• applications for a CDO in relation to a terrorist offender, only where the court has decided not to make a CDO and is considering whether to make an ESO.²⁴⁰

The court may make an order only after considering certain matters, including whether the order would have a substantial adverse effect on the proceeding, and only if satisfied that the person to whom the proceedings relate has been given sufficient information about the allegations on which the application was based to enable effective instructions to be given about those allegations.²⁴¹

Special advocates

The function of a special advocate is to represent the interests of a party by making submissions to the court, adducing evidence and cross-examining witnesses in parts of proceedings or hearings from which the party and their legal representative are excluded, and by making written submissions to the court.²⁴² The court may appoint a person as a special advocate if the person meets the requirements specified in the regulations and the court has given the parties to the proceeding and the Attorney-General the opportunity to make submissions about who should be appointed. Unless satisfied that certain circumstances apply, the court must appoint a person requested by the party to be represented or their legal representative if that person meets the requirements specified in the regulations.²⁴³

The Bill will amend provisions in Subdivision C of Division 3 of Part 3A of the NSI Act to extend the special advocates scheme to ESO and ISO proceedings, where the court has made an order that results in the person to whom an application or order relates and their legal representative being excluded from part of a hearing or proceeding.²⁴⁴

The INSLM recommended that the Government consider making the special advocates scheme available for applications under Division 105A.²⁴⁵ The Bill does not propose to extend the special advocates scheme to applications for CDOs. However, nor does it propose to enable special court orders to be made that would allow the court to rely on sensitive information not disclosed to the subject of a CDO or CDO application (except where a court has decided not to make a CDO and is instead considering making an ESO).

25 Exclusion of decisions from judicial review

The Bill will amend Schedule 1 to the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to add decisions of the AFP Minister under Division 105A of the Criminal Code to the list of decisions to which the ADJR Act does not apply.²⁴⁶ The decisions the Minister may make under Division 105A include directing a terrorist offender to undergo expert assessment, and applying for a post-sentence order.

The Lawyers Alliance submitted that due to the impact on basic rights that an ESO would have, there should be an option for judicial review under the ADJR Act.²⁴⁷

26 SCHEDULE 2: INTERNATIONAL PRODUCTION ORDERS

The Telecommunications Legislation Amendment (International Production Orders) Bill 2020 (the IPO Bill) will add Schedule 1 to the TIA Act to introduce a regime for Australian agencies to obtain international production orders (IPOs) that require designated communications providers overseas to intercept communications and provide access to stored communications and telecommunications data. The IPO scheme is intended to provide a faster alternative to the formal mutual legal assistance process for obtaining access to certain information and data held by overseas providers (and for overseas authorities to access information and data held by Australian providers).²⁴⁸

The IPO Bill will allow IPOs for interception, stored communications and telecommunications data to be sought for the purpose of monitoring compliance with a control order or protecting the public from a terrorist act and preventing certain terrorism-related activity.²⁴⁹

Schedule 2 of the Bill contains amendments that will only commence if the IPO Bill is enacted. They will amend Schedule 1 to the TIA Act so that IPOs for interception, stored communications and telecommunications data can also be sought for the purpose of monitoring compliance with an ESO or ISO or protecting the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 offence.

Appendix  A: Consolidated list of Law Council recommendations for amendments to the Bill

Recommendation 1—criminal standard of proof and rules for drawing inferences

Preferred option

• Proposed paragraphs 105A.7(1)(b) and 105A.7A(1)(b) and (c) (items 82 and 87 of Schedule 1 to the Bill) should be amended to provide that:

– the criminal standard of proof applies to decisions to issue ESOs and CDOs; and

– the criminal rules for drawing inferences apply to any findings of a person’s future risk for the purpose of issuing an ESO or CDO.

Alternative (non-preferred) option

• As a minimum, paragraphs 105A.7A(1)(b) and (c) (item 87 of Schedule 1 to the Bill) should be amended to provide that the standard of proof for an ESO is ‘a high degree of probability’ (the standard for CDOs).

Recommendation 2—withdrawal of ESO regime if standard of proof not increased

• If there is no appetite to increase the standard of proof for ESOs, to at least the standard recommended by the third INSLM (‘a high degree of probability’) then:

– the ESO regime should not proceed; and

– Division 104 of the Criminal Code should be amended to confer jurisdiction on State and Territory Supreme Courts to issue COs.

Recommendation 3—cumulative assessment of all ESO conditions

• Proposed paragraph 105A.7A(1)(c) (item 87 of Schedule 1 to the Bill) should be amended to require the issuing court to assess, and be satisfied of, the necessity and proportionality of:

– each individual condition proposed to be included in an ESO; and

– the combined effect of all of the proposed conditions of the ESO.

Recommendation 4—limitations on the range of ESO conditions

• Proposed section 105A.7B (item 87 of Schedule 1) should be amended so that:

– the conditions prescribed in subsections 105A.7B(3) and (5) are exhaustive of the conditions that may be imposed under ESOs; and

– the conditions available for an ESO should be limited to those available for a CO under subsection 104.5(5). In particular:

• there should be no power to impose an ESO condition requiring a person to participate in counselling, education, psychiatric or psychological assessment unless the person has consented to the inclusion of that condition (equivalent to existing subsection 104.5(6) in relation to COs); and

• the power to impose conditions prohibiting a person’s association with others should be subject to a limitation on associations with close family members for matters of family or domestic concern (equivalent to the existing subsection 104.5(4) in relation to COs).

Recommendation 5—safeguards for the temporary variation power

• Proposed section 105.7C (item 87 of Schedule 1 to the Bill) should be amended to include the safeguards at paragraph [51] of this submission.

Recommendation 6—removal of Ministerial power to appoint ‘relevant experts’

• Proposed section 105A.18D (item 134 of Schedule 1) should be omitted from the Bill.

• If an offender voluntarily participates in a ‘pre-application’ risk assessment conducted by a person nominated by the Minister:

– the court which hears a subsequent application for a CDO or ESO against that person should not be subject to an express statutory obligation to consider a report of that person, as part of its assessment of the offender’s future risk; and

– instead, the admission and treatment of such a report in CDO or ESO proceedings should be left to the general discretion of the court to admit relevant evidence and determine its weight.

Recommendation 7—legal assistance funding for all post-sentence orders

• Item 122 of Schedule 1 to the Bill should be omitted and substituted with amendments to section 105A.15A of the Criminal Code, which empower the court to make orders for legal assistance in proceedings for all post-sentence orders (that is, both CDOs and ESOs).

• The Bill should further amend one or both of Divisions 105A and 104 of the Criminal Code to include a similar power to that in section 105A.15A, enabling a court to make orders for legal assistance in prosecutions for the offence of breaching an ESO or CO condition, if those offences are to be the basis for making a person eligible for an ESO or CDO, under proposed subsections 105A.3A(4) and (5).

• There should be a dedicated Commonwealth legal assistance funding stream for all post-sentence orders, in addition to COs.

Recommendation 8—offences for breaching ESO conditions

• Proposed sections 105A.18A and 105.18B (item 133 of Schedule 1 to the Bill) should be amended to establish the ‘two-tiered’ breach offence regime outlined at paragraph [84] of this submission.

Recommendation 9—express provisions dealing with interaction of regimes

• The Bill should be amended to include a statutory scheme to manage interactions between post-sentence orders issued under Commonwealth, State and Territory laws (as in force from time-to- time). This should include:

– a prohibition on a person being subject to concurrent post-sentence orders under Commonwealth and State or Territory legislation; and

– issuing criteria that specifically require a court to consider the cumulative impacts on the person of being subject to multiple, consecutive post-sentence orders under Commonwealth and State or Territory legislation.

Recommendation 10—limitations & safeguards in relation to ‘post-sentence’ COs

Preferred option

• Division 104 of the Criminal Code should be amended to remove the ability to obtain a CO, if a State or Territory Supreme Court has refused an ESO application made on the same, or substantially similar, grounds.

Alternative (non-preferred) option

• Alternatively, there should be a condition which prevents a CO application from being made in such cases, unless the issuing court for the CO is satisfied that there are exceptional circumstances.

Recommendation 11—amendments to the ESO regime to align with Law Council recommendations on the CDO regime

• The Bill should be amended to incorporate the measures at paragraph [102] of this submission. These measures would implement, in relation to ESOs, the Law Council’s recommended amendments to CDOs (made as part of the Committee’s current review of the CDO regime).

Recommendation 12—ESO regime must only apply prospectively

• The Bill should be amended to omit proposed subsection 105A.3A(8) of the Criminal Code (inserted by item 59 of Schedule 1 to the Bill).

Recommendation 13—removal of monitoring powers for ESOs

• The Bill should be amended to omit the proposed expansions of monitoring powers in Parts 2 and 3 of Schedule 1.

Recommendation 14—expansion of IPO regime to ESO monitoring powers

• If there is an intention to retain monitoring powers for ESOs, and to expand the IPO regime to cover these powers:

– the IPO Bill should be further amended to implement the Law Council’s recommended amendments to strengthen safeguards for that regime (as set out in its separate submissions to the Committee’s inquiry into the IPO Bill); and

– the Government should provide advice as to whether it has informed the US Government of the proposed expansion of the IPO regime, for the purpose of the US determining whether a potential bilateral agreement with Australia would satisfy the human rights conditions of the US CLOUD Act (18 USC 121 §2523(b)(1)).

Recommendation 15—administration of the special advocates regime

• The Government should establish an independent office to administer the special advocates regime, including the appointment of special advocates and the provision of administrative support to special advocates.

• The office should be independent to all law enforcement and security agencies and government departments.

• Consideration could be given to conferring this function on legal aid commissions, contingent on adequate additional resourcing.

• Resourcing for this function should not be drawn from existing legal assistance budgets, or the budgets of the federal courts, the Administrative Appeals Tribunal, or oversight bodies.

Recommendation 16—statutory judicial review rights regarding Division 105A

Preferred option

• The Bill should be amended to omit item 153 of Schedule 1 so that Ministerial decision-making under Division 105A is subject to ADJR Act review. In particular, this should include Ministerial decisions to:

– apply for an order under proposed section 105A.5; and

– appoint a person as a ‘relevant expert’ and to direct that person to conduct a mandatory risk assessment of a prisoner under proposed section 105A.18D.

Alternative option

• The Bill should be amended to:

– omit item 153 of Schedule 1; and

– substitute it with amendments to section 9A of the ADJR Act, to bring administrative decisions under Division 105A of the Criminal Code within the definition of a ‘related criminal justice process decision’ in subsection 9A(4) of the ADJR Act.

Recommendation 17—ASIO’s ESO-related advice should be subject to Part IV

• In the absence of a cogent justification, the Bill should be amended to omit the proposed amendments to section 35 of the ASIO Act in item 154 of Schedule 1.

• That is, ASIO should be required to furnish a security assessment if:

– it gives security advice about ESO conditions or the exercise of monitoring powers in relation to a person subject to an ESO; and

– that advice meets the current definition of a ‘security assessment’ in existing section 35 of the ASIO Act, including the current definition of the component term ‘prescribed administrative action’.

Recommendation 18—exclusion of offences for breach of CO or ESO conditions

• Proposed subsections 105A.3A(4) and (5) (item 59 of Schedule 1) should be omitted from the Bill.

Recommendation 19—power to withhold or limit access to ‘terrorism material’

• The Bill should be amended to omit proposed section 105A.14D (item 120 of Schedule 1 to the Bill).

Recommendation 20—additional conditions for monitoring devices

Preferred option

• The Bill should be amended to omit item 16 of Schedule 1. Any proposed expansion of CO conditions should be examined separately in the Committee’s current statutory review of the CO regime.

Alternative (non-preferred) option

• Proposed subsection 104.5A(1) (item 16 of Schedule 1 to the Bill) should be amended so that the court has discretion about whether to impose the requirements in paragraphs (b) and (c).

• The obligation in proposed subparagraph 104.5A(1)(c)(i) to allow a specified authority to enter the controlee’s residence should be limited to entry for the purpose of maintaining a monitoring device (not ‘any purpose relating to the electronic monitoring of the person’).

Recommendation 21—omission of obligations to carry & answer specified phone

Preferred option

• The Bill should be amended to omit proposed paragraph 104.5(3)(da) (item 16 of Schedule 1 to the Bill).

Alternative (non-preferred) option

• If the condition in proposed paragraph 104.5(3)(da) is to be retained, the Bill should be amended as follows:

– the condition in proposed paragraph 104.5(3)(da) should only be available if the court also imposes a condition under new paragraph 104.5(3)(d), which requires the person to be subject to electronic monitoring; and

– proposed paragraph 104.5(3A)(b) should be omitted from the Bill, so that the power to give directions under proposed paragraphs 104.5(3)(da)(iii) is limited to the purpose of giving effect to the obligations in subparagraphs 104.5(3)(da)(i) and (ii) to carry a specified mobile phone, and to answer or return calls promptly.

Appendix  B: Consolidated list of AHRC recommendations for amendments to the Bill

Recommendation 1

The Commission recommends that the Bill not be passed in its current form.

Recommendation 2

The Commission recommends that the existing control order regime be repealed and replaced by an extended supervision order regime in the form recommended by the third INSLM.

Recommendation 3

If Recommendation 2 is not accepted, the Commission recommends that the existing control order regime be amended to focus only on orders for preventative purposes, as recommended by the PJCIS in 2016, leaving the extended supervision order regime to apply to post-sentence orders. This should be done by:

• repealing ss 104.2(2)(b) and (d) of the Criminal Code

• repealing ss 104.4(1)(c)(ii)–(v) and (vii) of the Criminal Code

• making any other necessary consequential amendments.

Recommendation 4

The Commission recommends that the offence in s 119.2 of the Criminal Code (entering, or remaining in, declared areas) be excluded from the definition of ‘terrorist offender’ in proposed s105A.3(1)(a) of the Criminal Code, with the effect that a person convicted for such an offence is not liable for a post-sentence order.

Recommendation 5

The Commission recommends that the threshold for making an extended supervision order in proposed s 105A.7A(1)(b) of the Criminal Code be amended to require that the Court be ‘satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence’.

Recommendation 6

The Commission recommends that the proposed definition of ‘specified authority’ in s 100.1(1) of the Criminal Code be limited to police officers and public authorities responsible for corrections.

Recommendation 7

The Commission recommends that any condition imposed by an extended supervision order or interim supervision order that requires a person to participate in treatment, rehabilitative or intervention programs or activities, psychological or psychiatric assessment or counselling, interviews or other assessments, be subject to a further condition that a person is only required to participate if they agree, at the time of the relevant activity, to so participate.

Recommendation 8

The Commission recommends that the Bill be amended to prevent the imposition of a condition in an extended supervision order or an interim supervision order that would permit or amount to home detention.

Recommendation 9

The Commission recommends that the conditions requiring a person to consent to certain monitoring and enforcement activity in proposed ss 104.5A(1)(c)(i), (2)(a) and (5); 105A.7B(5)(g)–(j); and 105A.7E(1)(c)(i), (2)(a) and (5) of the Criminal Code be removed from the Bill on the basis that they are not necessary, given the existing and proposed new monitoring warrants.

Recommendation 10

The Commission recommends that the Bill be amended to set out the parameters for decision making by a specified authority in relation to an application for an exemption under s 105A.7C of the Criminal Code. This should include:

• the considerations that the specified authority must take into account in making its decision

• the timeframe for a decision by the specified authority

• a requirement that the specified authority provide written reasons for its decision

• clear review rights for an applicant.

Recommendation 11

The Commission recommends that proposed ss 105A.7A(2), 105A.9A(5), 105A.9C(2) and 105A.12A(5) of the Criminal Code be amended to ensure that a Court hearing an application for the making or variation of an extended supervision order or interim supervision order, or conducting a review of an extended supervision order, is required to take into account the impact of the proposed conditions on the person’s circumstances, including their financial and personal circumstances, for the purpose of determining whether the condition is reasonably necessary and reasonably appropriate and adapted.

Recommendation 12

The Commission recommends that proposed s 105A.18D of the Criminal Code, dealing with the power of the AFP Minister to direct an offender to be assessed by an expert chosen by the Minister, be removed from the Bill.

Recommendation 13

If Recommendation 12 is not accepted, the Commission recommends that:

• proposed s 105A.18D of the Criminal Code be amended to confirm that the offender is not required to attend an assessment with an expert chosen by the AFP Minister; and

• proposed s 105A.6B of the Criminal Code be amended to remove the requirement for the Court to take into account the level of the offender’s participation in any assessment under s105A.18D.

Recommendation 14

The Commission recommends that proposed s 105A.6(5A) of the Criminal Code, which would weaken the use immunity provided to individuals required to attend an assessment with a court appointed expert, be removed from the Bill.

Recommendation 15

The Commission recommends that if s 105A.18D of the Criminal Code, dealing with compulsory attendance at an assessment by an expert chosen by the AFP Minister, is retained in the Bill, then subsection (5), dealing with the use immunity provided to individuals required to attend an assessment, be removed from the Bill and replaced with a use immunity in the same terms as the current s 105A.6(5A).

Recommendation 16

The Commission recommends that the Bill be amended to remove the ability of the AFP Minister to apply for a variation of an interim supervision order to add conditions prior to the hearing of an application for a continuing detention order or an extended supervision order.

Recommendation 17

The Commission recommends that the agency responsible for monitoring compliance with control orders and ESOs should be given discretion to allow them to respond appropriately to different kinds of breaches, including by warning the offender, or deciding not to take action, in relation to minor breaches.

Recommendation 18

The Commission recommends that the agency responsible for monitoring compliance with control orders and ESOs should publish a policy providing guidance as to how it will exercise the discretion referred to in Recommendation 17.

Recommendation 19

The Commission recommends that the offences of contravening a control order (s 104.27 of the Criminal Code), contravening an ESO (proposed s 105A.18A), and interfering with a monitoring device that a person is required to wear pursuant to a control order or an ESO (proposed ss104.27A and 105A.18B) be subject to a defence of reasonable excuse.

Recommendation 20

The Commission recommends that the maximum penalty for the offences of contravening a control order (s 104.27 of the Criminal Code), contravening an ESO (proposed s 105A.18A), and interfering with a monitoring device that a person is required to wear pursuant to a control order or an ESO (proposed ss 104.27A and 105A.18B) be three years imprisonment.

Recommendation 21

The Commission recommends that the PJCIS seek advice from the Attorney-General’s Department about how to ensure, whether by amendment to the Bill or negotiation through COAG, that a person cannot be made subject to both the Commonwealth PSO regime and a State or Territory PSO regime in relation to the same underlying conduct.

Recommendation 22

The Commission recommends that ss 104.4(3) and 104.24(3) of the Criminal Code, which provide that the Court need not include in a control order an obligation, prohibition or restriction that was sought by the AFP if the Court is not satisfied that that it is necessary or proportionate, not be repealed.

Recommendation 23

The Commission recommends that the provisions in the Bill to amend the Telecommunications (Interception and Access) Act 1979 (Cth) and the Surveillance Devices Act 2004 (Cth) to create a new class of warrants for post-sentence order applications be removed.

Recommendation 24

If Recommendation 23 is not accepted, the Commission recommends that the provisions proposed to be inserted into ss 46 and 46(A) of the Telecommunications (Interception and Access) Act 1979 (Cth), dealing with warrants sought for post-sentence order applications, be amended to require the issuing authority to be satisfied that:

• there are reasonable grounds to suspect that there is an unacceptable risk of the person committing a serious Part 5.3 offence (see proposed ss 46(7)(f) and 46A(2C)(f)); and

• information that would be likely to be obtained would be likely to substantially assist in determining whether to apply for the post-sentence order (see proposed ss 46(7)(h) and 46A(2C)(h))

and that the issuing authority must have regard to:

• whether intercepting communications under the warrant would be the method that is likely to have the least interference with any person’s privacy (see proposed ss 46(8) and 46A(2D)).

Recommendation 25

If Recommendation 23 is not accepted, the Commission recommends that the provisions proposed to be inserted into ss 14 and 27A of the Surveillance Devices Act 2004 (Cth), dealing with warrants sought for post-sentence order applications, be amended to require the law enforcement officer applying for the warrant to be satisfied that:

• there are reasonable grounds to suspect that there is an unacceptable risk of the person committing a serious Part 5.3 offence (see proposed ss 14(3BA)(c) and 27A(5A)(c)); and

• the use of a surveillance device or access to the data would be likely to substantially assist in determining whether to apply for the post-sentence order (see proposed ss 14(3BA)(e) and 27A(5A)(e))

and, in addition to the matters in subsection 16(2) or 27C(2), the issuing authority must have regard to:

• whether the use of the surveillance device or access to the data in accordance with the warrant would be the means of obtaining the evidence or information sought to be obtained, that is likely to have the least interference with any person’s privacy.

Appendix  C: Consolidated table comparing Law Council and AHRC recommendations for amendments to the Bill

Provision

Law Council recommendation

AHRC recommendation

Withdrawal of ESO regime if standard of proof not increased

If there is no appetite to increase the standard of proof for ESOs, to at least the standard recommended by the third INSLM (‘a high degree of probability’) then:

• the ESO regime should not proceed; and

• Division 104 of the Criminal Code should be amended to confer jurisdiction on State and Territory Supreme Courts to issue COs.

The Commission recommends that the Bill not be passed in its current form.

Definition of ‘terrorist offender’

Proposed s 105A.3(1)(a) of the Criminal Code

The Commission recommends that the offence in s 119.2 of the Criminal Code (entering, or remaining in, declared areas) be excluded from the definition of ‘terrorist offender’ in proposed s 105A.3(1)(a) of the Criminal Code, with the effect that a person convicted for such an offence is not liable for a post-sentence order.

Definition of ‘specified authority’

Section 100.1(1) of the Criminal Code

The Commission recommends that the proposed definition of ‘specified authority’ in s 100.1(1) of the Criminal Code be limited to police officers and public authorities responsible for corrections.

Criminal standard of proof and rules for drawing inferences

Proposed paragraphs 105A.7(1)(b) and 105A.7A(1)(b) and (c) (items 82 and 87 of Schedule 1 to the Bill)

Preferred option

Proposed paragraphs 105A.7(1)(b) and 105A.7A(1)(b) and (c) (items 82 and 87 of Schedule 1 to the Bill) should be amended to provide that:

• the criminal standard of proof applies to decisions to issue ESOs and CDOs; and

• the criminal rules for drawing inferences apply to any findings of a person’s future risk for the purpose of issuing an ESO or CDO.

Alternative (non-preferred) option

As a minimum, paragraphs 105A.7A(1)(b) and (c) (item 87 of Schedule 1 to the Bill) should be amended to provide that the standard of proof for an ESO is ‘a high degree of probability’ (the standard for CDOs).

The Commission recommends that the threshold for making an extended supervision order in proposed s 105A.7A(1)(b) of the Criminal Code be amended to require that the Court be ‘satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence’.

Cumulative assessment of all ESO conditions

Proposed paragraph 105A.7A(1)(c) (item 87 of Schedule 1 to the Bill)

Proposed paragraph 105A.7A(1)(c) (item 87 of Schedule 1 to the Bill) should be amended to require the issuing court to assess, and be satisfied of, the necessity and proportionality of:

• each individual condition proposed to be included in an ESO; and

• the combined effect of all of the proposed conditions of the ESO.

Limitations on the range of ESO conditions – counselling and home detention

Proposed section 105A.7B (item 87 of Schedule 1)

Proposed section 105A.7B (item 87 of Schedule 1) should be amended so that:

• the conditions prescribed in subsections 105A.7B(3) and (5) are exhaustive of the conditions that may be imposed under ESOs; and

• the conditions available for an ESO should be limited to those available for a CO under subsection 104.5(5). In particular:

- there should be no power to impose an ESO condition requiring a person to participate in counselling, education, psychiatric or psychological assessment unless the person has consented to the inclusion of that condition (equivalent to existing subsection 104.5(6) in relation to COs); and

- the power to impose conditions prohibiting a person’s association with others should be subject to a limitation on associations with close family members for matters of family or domestic concern (equivalent to the existing subsection 104.5(4) in relation to COs).

The Commission recommends that any condition imposed by an extended supervision order or interim supervision order that requires a person to participate in treatment, rehabilitative or intervention programs or activities, psychological or psychiatric assessment or counselling, interviews or other assessments, be subject to a further condition that a person is only required to participate if they agree, at the time of the relevant activity, to so participate.

The Commission recommends that the Bill be amended to prevent the imposition of a condition in an extended supervision order or an interim supervision order that would permit or amount to home detention.

The Commission recommends that proposed ss 105A.7A(2), 105A.9A(5), 105A.9C(2) and 105A.12A(5) of the Criminal Code be amended to ensure that a Court hearing an application for the making or variation of an extended supervision order or interim supervision order, or conducting a review of an extended supervision order, is required to take into account the impact of the proposed conditions on the person’s circumstances, including their financial and personal circumstances, for the purpose of determining whether the condition is reasonably necessary and reasonably appropriate and adapted.

Safeguards for the temporary variation power

Proposed section 105.7C (item 87 of Schedule 1 to the Bill)

Proposed section 105.7C (item 87 of Schedule 1 to the Bill) should be amended to include the safeguards at paragraph [51] of the Law Council’s submission.

The Commission recommends that the Bill be amended to set out the parameters for decision making by a specified authority in relation to an application for an exemption under s 105A.7C of the Criminal Code. This should include:

• the considerations that the specified authority must take into account in making its decision

• the timeframe for a decision by the specified authority

• a requirement that the specified authority provide written reasons for its decision

• clear review rights for an applicant.

Consent to certain monitoring and enforcement activity

Proposed ss 104.5A(1)(c)(i), (2)(a) and (5); 105A.7B(5)(g)–(j); and 105A.7E(1)(c)(i), (2)(a) and (5) of the Criminal Code

The Commission recommends that the conditions requiring a person to consent to certain monitoring and enforcement activity in proposed ss 104.5A(1)(c)(i), (2)(a) and (5); 105A.7B(5)(g)–(j); and 105A.7E(1)(c)(i), (2)(a) and (5) of the Criminal Code be removed from the Bill on the basis that they are not necessary, given the existing and proposed new monitoring warrants.

Use immunity

Proposed s 105A.6(5A) of the Criminal Code

The Commission recommends that proposed s 105A.6(5A) of the Criminal Code, which would weaken the use immunity provided to individuals required to attend an assessment with a court appointed expert, be removed from the Bill.

The Commission recommends that if s 105A.18D of the Criminal Code, dealing with compulsory attendance at an assessment by an expert chosen by the AFP Minister, is retained in the Bill, then sub-section (5), dealing with the use immunity provided to individuals required to attend an assessment, be removed from the Bill and replaced with a use immunity in the same terms as the current s 105A.6(5A).

Ministerial power to appoint ‘relevant experts’

Proposed section 105A.18D (item 134 of Schedule 1)

Proposed section 105A.18D (item 134 of Schedule 1) should be omitted from the Bill.

If an offender voluntarily participates in a ‘pre-application’ risk assessment conducted by a person nominated by the Minister:

• the court which hears a subsequent application for a CDO or ESO against that person should not be subject to an express statutory obligation to consider a report of that person, as part of its assessment of the offender’s future risk; and

• instead, the admission and treatment of such a report in CDO or ESO proceedings should be left to the general discretion of the court to admit relevant evidence and determine its weight.

The Commission recommends that proposed s 105A.18D of the Criminal Code, dealing with the power of the AFP Minister to direct an offender to be assessed by an expert chosen by the Minister, be removed from the Bill.

If that recommendation is not accepted, the Commission recommends that:

• proposed s 105A.18D of the Criminal Code be amended to confirm that the offender is not required to attend an assessment with an expert chosen by the AFP Minister; and

• proposed s 105A.6B of the Criminal Code be amended to remove the requirement for the Court to take into account the level of the offender’s participation in any assessment under s 105A.18D.

Ministerial power to apply for a variation of an ISO

The Commission recommends that the Bill be amended to remove the ability of the AFP Minister to apply for a variation of an interim supervision order to add conditions prior to the hearing of an application for a continuing detention order or an extended supervision order.

Legal assistance funding for all post-sentence orders

Item 122 of Schedule 1

Item 122 of Schedule 1 to the Bill should be omitted and substituted with amendments to section 105A.15A of the Criminal Code, which empower the court to make orders for legal assistance in proceedings for all post-sentence orders (that is, both CDOs and ESOs).

The Bill should further amend one or both of Divisions 105A and 104 of the Criminal Code to include a similar power to that in section 105A.15A, enabling a court to make orders for legal assistance in prosecutions for the offence of breaching an ESO or CO condition, if those offences are to be the basis for making a person eligible for an ESO or CDO, under proposed subsections 105A.3A(4) and (5).

There should be a dedicated Commonwealth legal assistance funding stream for all post-sentence orders, in addition to COs.

Express provisions dealing with interaction of Commonwealth and state and territory regimes

The Bill should be amended to include a statutory scheme to manage interactions between post-sentence orders issued under Commonwealth, State and Territory laws (as in force from time-to- time). This should include:

• a prohibition on a person being subject to concurrent post- sentence orders under Commonwealth and State or Territory legislation; and

• issuing criteria that specifically require a court to consider the cumulative impacts on the person of being subject to multiple, consecutive post-sentence orders under Commonwealth and State or Territory legislation.

The Commission recommends that the PJCIS seek advice from the Attorney-General’s Department about how to ensure, whether by amendment to the Bill or negotiation through COAG, that a person cannot be made subject to both the Commonwealth PSO regime and a State or Territory PSO regime in relation to the same underlying conduct.

Limitations & safeguards in relation to ‘post-sentence’ COs

Division 104 of the Criminal Code

Preferred option

Division 104 of the Criminal Code should be amended to remove the ability to obtain a CO, if a State or Territory Supreme Court has refused an ESO application made on the same, or substantially similar, grounds.

Alternative (non-preferred) option

Alternatively, there should be a condition which prevents a CO application from being made in such cases, unless the issuing court for the CO is satisfied that there are exceptional circumstances.

The Commission recommends that the existing CO regime be repealed and replaced by an ESO regime in the form recommended by the third INSLM.

If that recommendation is not accepted, the Commission recommends that the existing the CO regime be amended to focus only on orders for preventative purposes, as recommended by the PJCIS in 2016, leaving the extended supervision order regime to apply to post-sentence orders. This should be done by:

• repealing ss 104.2(2)(b) and (d) of the Criminal Code

• repealing ss 104.4(1)(c)(ii)–(v) and (vii) of the Criminal Code

• making any other necessary consequential amendments.

The Commission recommends that ss 104.4(3) and 104.24(3) of the Criminal Code, which provide that the Court need not include in a CO an obligation, prohibition or restriction that was sought by the AFP if the Court is not satisfied that that it is necessary or proportionate, not be repealed.

Amendments to the ESO regime to align with Law Council recommendations on the CDO regime

The Bill should be amended to incorporate the measures at paragraph [102] of the Law Council submission. These measures would implement, in relation to ESOs, the Law Council’s recommended amendments to CDOs (made as part of the Committee’s current review of the CDO regime).

ESO regime must only apply prospectively

Subsection 105A.3A(8) of the Criminal Code (inserted by item 59 of Schedule 1 to the Bill).

The Bill should be amended to omit proposed subsection 105A.3A(8) of the Criminal Code (inserted by item 59 of Schedule 1 to the Bill).

Monitoring powers for ESOs

Parts 2 and 3 of Schedule 1

The Bill should be amended to omit the proposed expansions of monitoring powers in Parts 2 and 3 of Schedule 1.

The Commission recommends that the agency responsible for monitoring compliance with control orders and ESOs should be given discretion to allow them to respond appropriately to different kinds of breaches, including by warning the offender, or deciding not to take action, in relation to minor breaches.

The Commission recommends that the agency responsible for monitoring compliance with control orders and ESOs should publish a policy providing guidance as to how it will exercise that discretion.

Expansion of IPO regime to ESO monitoring powers

If there is an intention to retain monitoring powers for ESOs, and to expand the IPO regime to cover these powers:

• the IPO Bill should be further amended to implement the Law Council’s recommended amendments to strengthen safeguards.

Administration of the special advocates regime

The Government should establish an independent office to administer the special advocates regime, including the appointment of special advocates and the provision of administrative support to special advocates.

The office should be independent to all law enforcement and security agencies and government departments.

Consideration could be given to conferring this function on legal aid commissions, contingent on adequate additional resourcing.

Resourcing for this function should not be drawn from existing legal assistance budgets, or the budgets of the federal courts, the Administrative Appeals Tribunal, or oversight bodies.

Statutory judicial review rights regarding Division 105A

Item 153 of Schedule 1

Preferred option

The Bill should be amended to omit item 153 of Schedule 1 so that Ministerial decision-making under Division 105A is subject to ADJR Act review. In particular, this should include Ministerial decisions to:

• apply for an order under proposed section 105A.5; and

• appoint a person as a ‘relevant expert’ and to direct that person to conduct a mandatory risk assessment of a prisoner under proposed section 105A.18D.

Alternative option

The Bill should be amended to:

• omit item 153 of Schedule 1; and

• substitute it with amendments to section 9A of the ADJR Act, to bring administrative decisions under Division 105A of the Criminal Code within the definition of a ‘related criminal justice process decision’ in subsection 9A(4) of the ADJR Act.

ASIO’s ESO-related advice should be subject to Part IV

Section 35 of the ASIO Act in item 154 of Schedule 1

In the absence of a cogent justification, the Bill should be amended to omit the proposed amendments to section 35 of the ASIO Act in item 154 of Schedule 1.

That is, ASIO should be required to furnish a security assessment if:

• it gives security advice about ESO conditions or the exercise of monitoring powers in relation to a person subject to an ESO; and

• that advice meets the current definition of a ‘security assessment’ in existing section 35 of the ASIO Act, including the current definition of the component term ‘prescribed administrative action’.

Offences for breach of CO or ESO conditions

Proposed subsections 105A.3A(4) and (5) (item 59 of Schedule 1).

Proposed sections 105A.18A and 105.18B (item 133 of Schedule 1 to the Bill)

Proposed subsections 105A.3A(4) and (5) (item 59 of Schedule 1) should be omitted from the Bill.

Proposed sections 105A.18A and 105.18B (item 133 of Schedule 1 to the Bill) should be amended to establish the ‘two-tiered’ breach offence regime outlined at paragraph [84] of the Law Council submission.

The Commission recommends that the offences of contravening a CO (s 104.27 of the Criminal Code), contravening an ESO (proposed s 105A.18A), and interfering with a monitoring device that a person is required to wear pursuant to a CO or an ESO (proposed ss 104.27A and 105A.18B) be subject to a defence of reasonable excuse.

The Commission recommends that the maximum penalty for the offences of contravening a CO (s 104.27 of the Criminal Code), contravening an ESO (proposed s 105A.18A), and interfering with a monitoring device that a person is required to wear pursuant to a CO or an ESO (proposed ss 104.27A and 105A.18B) be three years imprisonment.

Power to withhold or limit access to ‘terrorism material’

Proposed section 105A.14D (item 120 of Schedule 1 to the Bill).

The Bill should be amended to omit proposed section 105A.14D (item 120 of Schedule 1 to the Bill).

Additional conditions for monitoring devices

Item 16 of Schedule 1.

Preferred option

The Bill should be amended to omit item 16 of Schedule 1. Any proposed expansion of CO conditions should be examined separately in the Committee’s current statutory review of the CO regime.

Alternative (non-preferred) option

Proposed subsection 104.5A(1) (item 16 of Schedule 1 to the Bill) should be amended so that the court has discretion about whether to impose the requirements in paragraphs (b) and (c).

The obligation in proposed subparagraph 104.5A(1)(c)(i) to allow a specified authority to enter the controlee’s residence should be limited to entry for the purpose of maintaining a monitoring device (not ‘any purpose relating to the electronic monitoring of the person’).

Omission of obligations to carry & answer specified phone

Proposed paragraph 104.5(3)(da) (item 16 of Schedule 1 to the Bill)

Preferred option

The Bill should be amended to omit proposed paragraph 104.5(3)(da) (item 16 of Schedule 1 to the Bill).

Alternative (non-preferred) option

If the condition in proposed paragraph 104.5(3)(da) is to be retained, the Bill should be amended as follows:

• the condition in proposed paragraph 104.5(3)(da) should only be available if the court also imposes a condition under new paragraph 104.5(3)(d), which requires the person to be subject to electronic monitoring; and

• proposed paragraph 104.5(3A)(b) should be omitted from the Bill, so that the power to give directions under proposed paragraphs 104.5(3)(da)(iii) is limited to the purpose of giving effect to the obligations in subparagraphs 104.5(3)(da)(i) and (ii) to carry a specified mobile phone, and to answer or return calls promptly.

TIA Act and SD Act warrants

The Commission recommends that the provisions in the Bill to amend the TIA Act and the SD Act to create a new class of warrants for post-sentence order applications be removed.

If the removal recommendation is not accepted, the Commission recommends that the provisions proposed to be inserted into ss 46 and 46(A) of TIA Act, dealing with warrants sought for post-sentence order applications, be amended to require the issuing authority to be satisfied that:

• there are reasonable grounds to suspect that there is an unacceptable risk of the person committing a serious Part 5.3 offence (see proposed ss 46(7)(f) and 46A(2C)(f)); and

• information that would be likely to be obtained would be likely to substantially assist in determining whether to apply for the post-sentence order (see proposed ss 46(7)(h) and 46A(2C)(h))

and that the issuing authority must have regard to:

• whether intercepting communications under the warrant would be the method that is likely to have the least interference with any person’s privacy (see proposed ss 46(8) and 46A(2D)).

If the removal recommendation is not accepted, the Commission recommends that the provisions proposed to be inserted into ss 14 and 27A of the SD Act, dealing with warrants sought for post-sentence order applications, be amended to require the law enforcement officer applying for the warrant to be satisfied that:

• there are reasonable grounds to suspect that there is an unacceptable risk of the person committing a serious Part 5.3 offence (see proposed ss 14(3BA)(c) and 27A(5A)(c)); and

• the use of a surveillance device or access to the data would be likely to substantially assist in determining whether to apply for the post-sentence order (see proposed ss 14(3BA)(e) and 27A(5A)(e))

and, in addition to the matters in subsection 16(2) or 27C(2), the issuing authority must have regard to:

• whether the use of the surveillance device or access to the data in accordance with the warrant would be the means of obtaining the evidence or information sought to be obtained, that is likely to have the least interference with any person’s privacy.

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Notes

[←1]

.    Under proposed subsection 105A.3(1) of the Criminal Code, a post-sentence order (including an ESO) may be made in relation to a person (referred to as a terrorist offender) if:

•    the person has been convicted of an offence listed in paragraph 105A.3(1)(a):

(i) an offence against Subdivision A of Division 72 (international terrorist activities using explosive or lethal devices); or

(ii) a serious Part 5.3 offence (which is an offence against Part 5.3 of the Criminal Code (terrorism), the maximum penalty for which is seven or more years imprisonment); or

(iii) an offence against Part 5.5 (foreign incursions and recruitment), except an offence against subsection 119.7(2) or (3) (publishing recruitment advertisements); or

(iv) an offence against the repealed Crimes (Foreign Incursions and Recruitment) Act 1978, except an offence against paragraph 9(1)(b) or (c) of that Act (publishing recruitment advertisements);

•    one of the preconditions outlined in proposed section 105A.3A applies and

•    the person will be at least 18 years old when the sentence for the conviction mentioned above ends.

[←2]

.    J Renwick, Review of Divisions 104 and 105 of the Criminal Code (including the interoperability of divisions 104 and 105A): control orders and preventative detention orders, Independent National Security Legislation Monitor, Canberra, September 2017.

[←3]

.     Ibid., pp. 67–77.

[←4]

.    Attorney-General’s Department and the Department of Home Affairs (AGD and DHA), Submission to the PJCIS Review of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, [Submission no. 5, Attachment 4], October 2020. The table is best printed on A3 paper.

[←5]

.    M Biddington, Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, Bills digest, 48, 2016–17, Parliamentary Library, Canberra, 29 November 2016.

[←6]

.    G Brandis, ‘Second reading speech: Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016’, Senate, Debates, 15 September 2016, pp. 1029–36; Renwick, Review of Divisions 104 and 105 of the Criminal Code, op. cit., p. 68.

[←7]

.    C Porter, ‘Second reading speech: Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020’, House of Representatives, Debates, 3 September 2020, p. 6477. Counter-terrorism legislation passed in the 44th and 45th Parliaments is listed in C Barker, National security legislation in the 44th and 45th Parliaments: a quick guide, Research paper series, 2018–19, Parliamentary Library, Canberra, 28 June 2019. The CDO scheme is set out in Division 105A of the Criminal Code Act 1995 (Criminal Code).

[←8]

.    Biddington, Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, op. cit., pp. 6–7; Porter, ‘Second reading speech: Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020’, op. cit.; R Kershaw (AFP Commissioner) in Senate Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, 2 March 2020, p. 33; M Burgess (Director-General of Security) in Senate Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, 2 March 2020, p. 83; P Maley, ‘Cops’ legal battle to keep terrorists locked up’, The Australian, 12 February 2020, p. 1; P Maley, ‘Some terrorists unfit for release, says judge’, The Australian, 14 February 2020, p. 2; E Whinnett, ‘Terrorists on the loose: Legal bungle allows jihadis out unsupervised’, The Herald Sun, 9 May 2020, p. 5.

[←9]

.    C Porter (Attorney-General), Strengthening controls on high-risk terrorists offenders, media release, 3 September 2020.

[←10]

.    T Renard, ‘Overblown: exploring the gap between the fear of terrorist recidivism and the evidence’, CTC Sentinel, April 2020, pp. 19–29 (this article examined recidivism in a Belgian sample, but also provides an overview of the findings of other studies and reports published between 2004 and 2020).

[←11]

.    Porter, ‘Second reading speech: Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020’ op. cit.

[←12]

.    R Shanahan, ‘Terrorism: the recidivist risk’, The Interpreter, Lowy Institute blog, 2 December 2019; N Bucci and R Olding, ‘States of imprisonment: jailing jihadists’, The Sydney Morning Herald, 23 September 2017, p. 24.

[←13]

.    P Maley, ‘Aussie acquitted over terror plot surfaces in Syrian jail’, The Australian, 26 October 2019, p. 3.

[←14]

.    C Houston and C Vedelago, ‘Killer’s path to terror’, The Age, 2 June 2017, p. 1; C Knaus and M Davey, ‘ISIS claims responsibility for Melbourne siege that left two people dead’, The Guardian, 6 June 2017.

[←15]

.    Renard, ‘Overblown: exploring the gap between the fear of terrorist recidivism and the evidence’, op. cit.

[←16]

.    See for example: Booth v Kaya [2020] FCA 25 (22 January 2020); Booth v Namoa (No 2) [2020] FCA 73 (3 February 2020); Booth v Kadir Kaya [2020] FCA 764 (28 May 2020); Booth v Dacre [2020] FCA 751 (14 May 2020); Booth v Granata [2020] FCA 768 (29 May 2020).

[←17]

.    K Gair, ‘Convicted DIY terrorist who praised bin Laden accused of control breach’, The Australian, 1 May 2021, p. 7.

[←18]

.    Department of Home Affairs, Control orders, preventative detention orders, and continuing detention orders: annual report 2017–18, Commonwealth of Australia, 2018; Department of Home Affairs, Control orders, preventative detention orders, and continuing detention orders: annual report 2018–19, Commonwealth of Australia, 2020; Whinnett, ‘Terrorists on the loose: Legal bungle allows jihadis out unsupervised’, op. cit.; P Garvey, ‘Row over release of “tinnie terrorist”’, The Australian, 9 March 2020, p. 3; E Whinnett, ‘Jihadis walk free’, The Herald Sun, 17 February 2020, p. 5.

[←19]

.    Minister for Home Affairs v Benbrika [2021] HCA 4.

[←20]

.    Australian Citizenship Act 2007, sections 36B and 36D. We have referred to dual citizens for the sake of simplicity; However, the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 reduced the threshold concerning citizenship, so that the Minister must not make a citizenship cessation determination under section 36B or section 36D if ‘satisfied that the person would, if the Minister were to make the determination, become a person who is not a national or citizen of any country’ (subsections 36B(2) and 36D(2)). For information on the change to the ‘statelessness test’, see C Barker and C Petrie, Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, Bills digest, 58, 2019–20, Parliamentary Library, Canberra, 25 November 2019, pp. 25–27.

[←21]

.    Australian Citizenship Act 2007, section 36D.

[←22]

.    P Dutton (Minister for Home Affairs), Press conference, Brisbane, 25 November 2020; Barker and Petrie, Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, op. cit., pp. 8–9; Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, PJCIS, Canberra, August 2020, p. 66.

[←23]

.    Dutton, Press conference, Brisbane, 25 November 2020, op. cit.

[←24]

.    Renwick, Review of Divisions 104 and 105 of the Criminal Code, op. cit., p. 68.

[←25]

.    Ibid., p. 69.

[←26]

.    Ibid., pp. 69–75.

[←27]

.    Ibid., p. 76.

[←28]

.    Ibid., pp. 76–77.

[←29]

.    PJCIS, Review of police stop, search and seizure powers, the control order regime and the preventative detention order regime, PJCIS, Canberra, February 2018, pp. 73-79 (recommendation 10).

[←30]

.    Australian Government response to Parliamentary Joint Committee on Intelligence and Security and Independent National Security Legislation Monitor reports, 24 May 2018.

[←31]

.    D Richardson, Comprehensive review of the legal framework of the national intelligence community (Richardson Review), Commonwealth of Australia, Canberra, 7 December 2019. Published in four volumes: Volume 1: recommendations and executive summary; foundations and principles; control, coordination and cooperation; Volume 2: Authorisations, Immunities and Electronic Surveillance; Volume 3: Information, Technology, Powers and Oversight; Volume 4: Accountability and Transparency.

[←32]

.    Commonwealth Government response to the Comprehensive review of the legal framework of the national intelligence community, December 2020.

[←33]

.    Richardson Review, op. cit., Volume 1: recommendations and executive summary; foundations and principles; control, coordination and cooperation, Commonwealth of Australia, Canberra, 7 December 2019.

[←34]

.    Richardson Review, op. cit., Volume 2: Authorisations, Immunities and Electronic Surveillance.

[←35]

.    Richardson Review, op. cit., Volume 3: Information, Technology, Powers and Oversight.

[←36]

.    Richardson Review, op. cit., Volume 4: Accountability and Transparency.

[←37]

.    Richardson Review, Volume 1, op. cit., p. 32 [3.1].

[←38]

.    Richardson Review, Volume 1, op. cit., pp. 32–35.

[←39]

.    Richardson Review, Volume 1, op. cit., pp. 44–45.

[←40]

.    Recommendation 170, Richardson Review, op. cit., Volume 3: Information, Technology, Powers and Oversight, discussed at pp. 264–267.

[←41]

.    Commonwealth Ombudsman, Submission to the PJCIS Review of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, [Submission no. 1], October 2020.

[←42]

.    Minister for Home Affairs v Benbrika [2021] HCA 4.

[←43]

.    Ibid., p. 19 [36] [emphasis added].

[←44]

.    Ibid., p. 21 [40] [emphasis added, citations removed].

[←45]

.    Ibid., p. 22 [41] [ citations removed].

[←46]

.    Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee), Scrutiny digest, 14, 2020, The Senate, Canberra, 16 October 2020, pp. 12–15.

[←47]

.    Ibid., p. 14.

[←48]

.    Ibid.

[←49]

.    C Porter (Attorney-General), Response to the Scrutiny Committee—Scrutiny Digest 14 of 2020 Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, reference MC20–031882, n.d.

[←50]

.    Ibid., p. 3. AGD and DHA provide a table comparing the state and territory extended supervision order schemes as Attachment B to Submission to the PJCIS Review op cit., [Submission no. 5, Attachment 2].

[←51]

.    Scrutiny Committee, Scrutiny digest, 16, 2020, The Senate, Canberra, 20 November 2020, p. 32.

[←52]

.    Scrutiny Committee, Scrutiny digest, 14, 2020, op. cit., p. 15.

[←53]

.    Scrutiny Committee, Scrutiny digest, 16, 2020, op. cit., pp. 31–40.

[←54]

.    Scrutiny Committee, Scrutiny digest, 14, 2020, op. cit., p. 15.

[←55]

.    Ibid., p. 18.

[←56]

.    Ibid., p. 18.

[←57]

.    Ibid., p. 20.

[←58]

.    Parliamentary Joint Committee on Human Rights (PJCHR), Human rights scrutiny report, 11, 2020, 24 September 2020, pp. 5–20 (quote taken from p. 18).

[←59]

.    Ibid., pp. 18–20.

[←60]

.    Ibid., pp. 20–26.

[←61]

.    Ibid., pp. 26–29. The PJCHR noted that many of the relevant powers proposed to be available (search, surveillance and interception) were legislated before the committee was established, so had not been subject to a foundational human rights compatibility assessment. It stated that in the absence of such an assessment, it was difficult for the committee to assess the compatibility of extending those powers to the ESO scheme.

[←62]

.    C Porter (Attorney-General), Response to the PJCHR—Report 11 of 2020 Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, reference MC20–030581, n.d.

[←63]

.    Commonwealth Ombudsman, [Submission no. 1] op. cit., p. 3.

[←64]

.    Ibid., pp. 3–4.

[←65]

.    Australian Lawyers Alliance (Lawyers Alliance), Submission to the PJCIS Review of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, [Submission no. 2], 27 October 2020.

[←66]

.    Law Council of Australia (Law Council), Submission to the PJCIS Review of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, [Submission no. 6], 6 November 2020.

[←67]

.    Ibid., p. 6.

[←68]

.    Ibid., p. 6.

[←69]

.    Ibid.

[←70]

.    Ibid.

[←71]

.    Australian Human Rights Commission (AHRC), Submission to the PJCIS Review of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, [Submission no. 3], 29 October 2020.

[←72]

.    Ibid., p. 4.

[←73]

.    Ibid., p. 6.

[←74]

.    Ibid., pp. 5–6.

[←75]

.    Ibid., pp. 7–11.

[←76]

.    Australian Federal Police (AFP), Submission to the PJCIS Review of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, [Submission no. 4], October 2020, p. 5.

[←77]

.    Ibid., p. 8.

[←78]

.    Ibid., p. 8–9.

[←79]

.    Ibid.

[←80]

.    Explanatory Memorandum, Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, p. 2.

[←81]

.    The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the Bill.

[←82]

.    Criminal Code, section 105A.2.

[←83]

.    Scrutiny Committee, Scrutiny digest, 14, 2020, op. cit., p. 14.

[←84]

.    Scrutiny Committee, Scrutiny digest, 16, 2020, op. cit., p. 32.

[←85]

.    Scrutiny Committee, Scrutiny digest, 16, 2020, op. cit., pp. 32–33.

[←86]

.    Definition proposed to be inserted into section 105A.2 of the Criminal Code by item 53 of Schedule 1 to the Bill.

[←87]

.    Proposed section 105A.3.

[←88]

.    Proposed subsections 105A.3A(1)–(5).

[←89]

.    Proposed subsections 105A.3A(6)–(8).

[←90]

.    Explanatory Memorandum, p. 60.

[←91]

.    Criminal Code, subsection 105A.7(1) as amended by item 83 of Schedule 1; proposed subsection 105.7A(1). The unacceptable risk threshold for a CDO will be amended by omitting the words ‘if the offender is released into the community’.

[←92]

.    Chu Kheng Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1.

[←93]

.    Benbrika per Gordon J at p. 56 [134] [citations removed, emphasis added].

[←94]

.    Criminal Code, section 105A.1.

[←95]

.    Benbrika per Gordon J at p. 68 [163]

[←96]

.    See Benbrika per Gordon J at pp. 68 [163]–71 [168].

[←97]

.    Benbrika p. 71 [168] [citation removed].

[←98]

.    Benbrika per Gordon J at p. 73 [177]

[←99]

.    Benbrika per Gageler J at p. 37 [79]. See also Gageler J at p. 39 [85].

[←100]

.    Benbrika per Gageler J at p. 43 [97].

[←101]

.    Kiefel CJ, Bell, Keane and Steward JJ in a joint judgment, pp. 1–27, [1]–[53].

[←102]

.    Benbrika per Kiefel CJ and Bell, Keane and Steward JJ at pp. 19 [36], 25 [46].

[←103]

.    Ibid., at pp. 23 [44]–25 [46] .

[←104]

.    Lodhi v The Queen [2006] NSWCCA 121 per Spigelman CJ at [66] [emphasis added].

[←105]

.    Benbrika per Kiefel CJ and Bell, Keane and Steward JJ at pp. 25 [46] [citations removed, emphasis added],

[←106]

.    Law Council, Submission no. 6 to the PJCIS, op. cit., p. 12.

[←107]

.    Ibid.

[←108]

.    Ibid.

[←109]

.    Benbrika, p. 72 [174].

[←110]

.    Benbrika, p. 25 [46].

[←111]

.    Ibid.

[←112]

.    Ibid.

[←113]

.    Renwick, Review of Divisions 104 and 105 of the Criminal Code, op. cit., p. 76–77.

[←114]

.    Explanatory Memorandum, pp. 3, 67.

[←115]

.    Scrutiny Committee, Scrutiny digest, 14, 2020, op. cit., p. 13.

[←116]

.    Ibid., p. 15.

[←117]

.    C Porter (Attorney-General) letter to Senator Polley, reference MC20–031882, no date, published with Scrutiny digest, 16, 2020, The Senate, Canberra, 20 November 2020. The Committee’s consideration of the Attorney-General’s response is at pages 31 to 40. The Attorney-General’s quote is at p. 33.

[←118]

.    Attachment B to Submission to the PJCIS Review, op. cit., [Submission no. 5, Attachment 2].

[←119]

.    This section of the Digest does not consider state ESO laws that apply only to sexual offenders.

[←120]

.    Crimes (High Risk Offenders) Act 2006 (NSW), section 5B; Terrorism (High Risk Offenders) Act 2017 (NSW), section 20.

[←121]

.    Criminal Law (High Risk Offenders) Act 2015 (SA), subsection 7(4).

[←122]

.    Serious Offenders Act 2018 (Vic), subsection 14(1).

[←123]

.    Crimes (High Risk Offenders) Act 2006 (NSW), sections 5B and 5C; Terrorism (High Risk Offenders) Act 2017 (NSW), section 20 and subsection 34(1); Criminal Law (High Risk Offenders) Act 2015 (SA), subsections 7(4) and 18(2) (note that the option of imposing a CDO only becomes available where a court is satisfied that an individual has breached an ESO); Serious Offenders Act 2018 (Vic), subsections 14(1) and 63(1).

[←124]

.    Law Council, Submission no. 6 to the PJCIS, op. cit., p. 11.

[←125]

.    Ibid., pp. 11 and 13.

[←126]

.    AHRC, Submission no. 3 to the PJCIS, op. cit., pp. 21–23.

[←127]

.    Lawyers Alliance, Submission no. 2 to the PJCIS, op. cit., pp. 5–6.

[←128]

.    Scrutiny Committee, Scrutiny digest, 16, 2020, op. cit., pp. 33–34.

[←129]

.    Ibid., p. 34.

[←130]

.    Section 105A.5 as amended by items 61–72 of Schedule 1.

[←131]

.    Section 105A.6 as amended by items 73–81 of Schedule 1.

[←132]

.    Proposed section 105A.18D.

[←133]

.    Explanatory Memorandum, p. 96.

[←134]

.    Proposed subsections 105A.6A(1) and 105A.7A(1), at items 82 and 87 of Schedule 1, respectively.

[←135]

.    Proposed subsection 105A.7(2) at item 85 of Schedule 1.

[←136]

.    Proposed subsection 105A.6A(2).

[←137]

.    Subsection 105A.7(6) and proposed subsection 105A.7A(5).

[←138]

.    See items 115–119 and 121–132 of Schedule 1.

[←139]

.    Ibid.

[←140]

.    Criminal Code, subsection 105A.5(4).

[←141]

.    Ibid., subsections 105A.5(5) to (8).

[←142]

.    Ibid., subsections 105A.5(9) to (10).

[←143]

.    Under the doctrine of public interest immunity, the Government may seek to claim immunity from requests or orders for the production of documents on the grounds that disclosure would be prejudicial to the public interest: DR Elder, ed., House of Representatives practice, 7th edn, House of Representatives, Canberra, 2018, pp. 625–629. If information is excluded on this ground, a notice must be given to the offender and their legal representative advising them of that fact (proposed subsection 105A.14C(2).

[←144]

.    Scrutiny Committee, Scrutiny digest, 14, 2020, op. cit., p. 16.

[←145]

.    Ibid. [citations removed]

[←146]

.    Explanatory Memorandum, Statement of compatibility with human rights, p. 20.

[←147]

.    Scrutiny Committee, Scrutiny digest, 14, 2020, op. cit., p. 18.

[←148]

.    C Porter (Attorney-General), Response to the Scrutiny Committee—Scrutiny Digest 14 of 2020 Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, reference MC20–031882, n.d., p. 3. Scrutiny Committee, Scrutiny digest, 16, 2020, op. cit., p. 35.

[←149]

.    C Porter (Attorney-General), Response to the Scrutiny Committee—Scrutiny Digest 14 of 2020 Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, reference MC20–031882, n.d., p. 3. Scrutiny Committee, Scrutiny digest, 16, 2020, op. cit., p. 37.

[←150]

.    Ibid.

[←151]

.    Porter, Response to the Scrutiny Committee, op. cit., pp. 3–4. Scrutiny Committee, Scrutiny digest, 16, 2020, op. cit., pp. 35–36.

[←152]

.    Scrutiny digest, 16, 2020, op. cit., p. 38.

[←153]

.    Ibid.

[←154]

.    Ibid.

[←155]

.    Scrutiny Committee, Scrutiny digest, 1, 2021, 29 January 2021, pp. 65–66

[←156]

.    Ibid.

[←157]

.    Scrutiny Committee, Scrutiny digest, 1, 2021, op. cit., p. 66.

[←158]

.    Ibid.

[←159]

.    Proposed subsection 105A.9A(1), at item 95 of Schedule 1.

[←160]

.    Proposed subsections 105A.9(1B) and (8) and 105A.9A(4).

[←161]

.    Proposed subsections 105A.9A(4) and (5).

[←162]

.    Proposed paragraph 105A.9A(7)(c).

[←163]

.    Proposed subsection 105A.9A(8).

[←164]

.    Proposed subsection 105A.7B(1), at item 87 of Schedule 1.

[←165]

.    J Renwick, Review of Divisions 104 and 105 of the Criminal Code, op. cit., p. 76.

[←166]

.    Crimes (High Risk Offenders) Act 2006 (NSW), subsection 11(1); Terrorism (High Risk Offenders) Act 2017 (NSW), subsection 29(1); Criminal Law (High Risk Offenders) Act 2015 (SA), section 10 (note that this provision also requires some specific conditions to be imposed); Serious Offenders Act 2018 (Vic), section 15 and Division 3 of Part 3 (see in particular section 38). This note does not list state ESO laws that apply only to sexual offenders.

[←167]

.    See subsection 104.5(3) and paragraph 104.16(1)(c) of the Criminal Code.

[←168]

.    Proposed subsection 105A.7B(7).

[←169]

.    Proposed section 105A.7E makes further provision in relation to obligations relating to monitoring devices.

[←170]

.    Item 2 of Schedule 1, amending subsection 100.1(1) of the Criminal Code. This definition will apply in the context of conditions included in ESOs and ISOs, and also control orders.

[←171]

.    Proposed section 105A.7C.

[←172]

.    PJCHR, Human rights scrutiny report, op. cit., p. 15.

[←173]

.    Proposed subsections 105A.9B(1) and 105A.9D(1).

[←174]

.    Proposed section 105A.9D.

[←175]

.    Proposed section 105A.9B.

[←176]

.    Proposed subsections 105A.9C(4)–(6).

[←177]

.    Proposed section 105A.9A does not make provision for the appointment of a relevant expert to inform a decision about whether to make an ISO (this is consistent with section 105A.9, concerning IDOs). This is likely because ISOs are intended as a short term measure able to be imposed quickly. Nonetheless, this creates an anomaly.

[←178]

.    Proposed subsections 105A.9C(1)–(3).

[←179]

.    Items 97–114 of Schedule 1.

[←180]

.    Criminal Code, section 105A.10 as amended by items 97 to 101 of Schedule 1 to the Bill; proposed subsection 105A.10(1B) at item 102 of Schedule 1 to the Bill.

[←181]

.    Criminal Code, section 105A.12 as amended by items 108–113 of Schedule 1; proposed section 105A.12A at item 114 of Schedule 1. CDOs or ESOs may be varied on review to specify a shorter period for which the order will be in force; conditions may also be added, varied or removed from ESOs.

[←182]

.    Proposed section 105A.12(5) at item 110 of Schedule 1.

[←183]

.    Proposed section 105A.18A and proposed subsection 105A.18B(1) at item 133 of Schedule 1.

[←184]

.    Criminal Code, sections 104.27 and 104.27A.

[←185]

.    TIA Act, proposed subparagraph 5D(1)(e)(va) (item 326 of Schedule 1).

[←186]

.    Proposed subsections 105A.18B(2) and (3).

[←187]

.    Criminal Code, subsection 104.27A(2).

[←188]

.    Items 140–147 of Schedule 1.

[←189]

.    Crimes Act, Part IAAB; key provisions in the SD Act include subsection 14(3C), paragraph 16(1)(bc) and subsection 16(2) for surveillance devices, subsection 27A(6), paragraph 27C(1)(e) and subsection 27C(2) for computer access, and section 49A for both; key provisions in the TIA Act include section 38A, subsections 46(4)–(6), subsections 46A(2A)–(2B) and section 59B.

[←190]

.    Renwick, Review of Divisions 104 and 105 of the Criminal Code, op. cit., p. 76.

[←191]

.    Scrutiny Committee, Scrutiny digest, 14, 2020, op. cit., p. 20.

[←192]

.    Law Council, Submission no. 6 to the PJCIS, op. cit., p. 30.

[←193]

.    Items 155–188 of Schedule 1.

[←194]

.    Crimes Act, sections 3ZZKA, 3ZZKB and 3ZZKC as amended by the Bill.

[←195]

.    Ibid., sections 3ZZLA and 3ZZLB as amended by the Bill.

[←196]

.    Ibid.

[←197]

.    Ibid., section 3ZZKE as amended by the Bill.

[←198]

.    Ibid., sections 3ZZKF and 3ZZLC.

[←199]

.    Ibid., Division 8 of Part IAAB as amended by the Bill.

[←200]

.    Crimes Act, proposed definition of Part 5.3 object in section 3ZZJB (inserted by item 157 of Schedule 1), and sections 3ZZOA and 3ZZOB as amended by items 170–183 of Schedule 1.

[←201]

.    Proposed definitions of Part 5.3 object or a Part 5.3 supervisory order are inserted by item 157 of Schedule 1.

[←202]

.    SD Act, section 18.

[←203]

.    SD Act, Part 4.

[←204]

.    Key provisions in the SD Act related to use of surveillance devices against individuals subject to control orders include subsection 14(3C), paragraph 16(1)(bc) and subsection 16(2).

[←205]

.    SD Act, subsection 14(3C) as amended by items 223–226 of Schedule 1 and paragraph 16(1)(bc) as amended by item 228 of Schedule 1. Eligible Judge and nominated AAT member are defined in sections 12 and 13 respectively.

[←206]

.    SD Act, paragraphs 16(2)(c) and (d); proposed subsection 16(4).

[←207]

.    SD Act, section 37 as amended by items 257–259 of Schedule 1 (optical surveillance devices); section 38 as amended by items 260–266 of Schedule 1 (use of device to listen to or record words); and section 39 as amended by items 267–269 of Schedule 1 (tracking devices).

[←208]

.    Tracking devices require the authorisation of an appropriate authorising officer (defined in section 6A).

[←209]

.    SD Act, sections 20 and 21 as amended by items 236–239 of Schedule 1, section 40 as amended by item 270 of Schedule 1, Part 6 (compliance and monitoring) as amended by items 271–301 of Schedule 1.

[←210]

.    SD Act, section 27E. The target computer may be a particular computer, a computer on particular premises and/or a computer associated with, used by or likely to be used by, a person: SD Act, subsection 27A(15). Computer means all or part of one or more computers, computer systems or computer networks, or a combination thereof: SD Act, section 6.

[←211]

.    Key provisions in the SD Act related to use of computer access warrants against individuals subject to control orders include subsection 27A(6), paragraph 27C(1)(e) and subsection 27C(2).

[←212]

.    SD Act, proposed subsection 27A(6) (at item 240 of Schedule 1) and proposed paragraph 27C(1)(e) (at item 244 of Schedule 1). Eligible Judge and nominated AAT member are defined in sections 12 and 13 respectively.

[←213]

.    SD Act, paragraphs 27C(2)(c) and (d) and proposed section 27C(4) at item 247 of Schedule 1.

[←214]

.    SD Act, subsection 27E(5) and (8), sections 27G and 27H as amended by items 253–256 of Schedule 1, Part 6 (compliance and monitoring) as amended by items 271–301 of Schedule 1.

[←215]

.    Key provisions in the TIA Act related to use of interception warrants against individuals subject to control orders include section 38A, subsections 46(4)–(6), subsections 46A(2A)–(2B) and section 59B.

[←216]

.    TIA Act, subsection 46(4) as amended by items 340–344 of Schedule 1.

[←217]

.    TIA Act, subsection 46A(2A) as amended by items 352–356 of Schedule 1.

[←218]

.    TIA Act, subsection 46(5) as amended by items 345–349 of Schedule 1 and subsection 46A(2B) as amended by items 357–361 of Schedule 1.

[←219]

.    TIA Act, section 57 as amended by item 371 of Schedule 1, section 58, section 59B as amended by item 372 of Schedule 1, section 79AA as amended by items 378 and 379 of Schedule 1, Part 2-7 as amended by items 380–383 of Schedule 1, Part 2-8 as amended by items 384–388 of Schedule 1.

[←220]

.    Item 215 of Schedule 1 (proposed definition of Part 5.3 object).

[←221]

.    Items 157 and 315 of Schedule 1 (proposed definitions of Part 5.3 object in the Crimes Act and TIA Act respectively).

[←222]

.    Explanatory Memorandum, pp. 131, 136–137, 150, 154.

[←223]

.    SD Act, proposed subsection 14(3BA) (item 222 of Schedule 1) and proposed paragraph 16(1)(bba) (item 228) (surveillance devices) and proposed subsection 27A(5A) and proposed paragraph 27C(1)(da) (items 240 and 244) (computer access).

[←224]

.    SD Act, subsection 16(2) and proposed subsection 16(3) (surveillance devices) (item 231 of Schedule 1), and subsection 27C(2) and proposed subsection 27C(3) (item 247) (computer access).

[←225]

.    TIA Act, proposed subsections 46(7) and 46A(2C) (items 351 and 362 of Schedule 1).

[←226]

.    TIA Act, proposed subsection 46(7) (compared to subsections 46(1) (offence investigations) and 46(4) (control order/Part 5.3 supervisory order monitoring).

[←227]

.    TIA Act, proposed subsections 46(8) and 46A(2D) (items 351 and 362 of Schedule 1) .

[←228]

.    For the SD Act: Item 217 (definition of relevant proceeding) and items 272 and 276 (permitted uses of protected information) of Schedule 1. For the TIA Act: items 317 and 320 (definition of permitted purpose), item 325 (definition of exempt proceeding), item 375 (employee of carrier may communicate information to agency) and item 390 (proposed section 139B, dealing for purposes relating to Part 5.3 orders).

[←229]

.    Items 215 and 321 of Schedule 1 (definitions of post-sentence detention law and post-sentence supervision law in the SD Act and TIA Act respectively).

[←230]

.    NSI Act, section 3. National security means ‘Australia’s defence, security, international relations or law enforcement interests’: section 8 (security, international relations, and law enforcement interests are defined in sections 9, 10 and 11).

[←231]

.    NSI Act, section 38I. See also Explanatory Memorandum, pp. 112–114.

[←232]

.    NSI Act, section 38L. See also Explanatory Memorandum, p. 114.

[←233]

.    Ibid.

[←234]

.    NSI Act, section 38J.

[←235]

.    Explanatory Memorandum, Counter-Terrorism Legislation Amendment Bill (No. 1) 2016, p. 142. For further background to the 2016 amendments, see C Barker and C Raymond, Counter-Terrorism Legislation Amendment Bill (No. 1) 2016, Bills digest, 20, 2016–17, Parliamentary Library, Canberra, 10 October 2016.

[←236]

.    Barker and Raymond, Counter-Terrorism Legislation Amendment Bill (No. 1) 2016, op. cit., pp. 23–30.

[←237]

.    NSI Act, Subdivision C of Division 3 of Part 3A.

[←238]

.    Explanatory Memorandum, pp. 114–115.

[←239]

.    Items 194-198 of Schedule 1.

[←240]

.    NSI Act, section 7 as amended by item 189 of Schedule 1 (definitions of Division 105A ESO proceeding and ESO or extended supervision order), section 38I as amended by items 190-193 (closed hearing requirements) and section 38J as amended by items 194–198 (special court orders).

[←241]

.    NSI Act, paragraph 38J(1)(c) as amended by item 196 of Schedule 1 and subsection 38J(5).

[←242]

.    NSI Act, section 38PB.

[←243]

.    Ibid., subsections 38PA(2) and (3). The appointment requirements are set out in Regulation 20A of the National Security Information (Criminal and Civil Proceedings) Regulation 2015.

[←244]

.    Items 200–206 of Schedule 1.

[←245]

.    Renwick, Review of Divisions 104 and 105 of the Criminal Code, op. cit., p. 76.

[←246]

.    Item 153 of Schedule 1. The Explanatory Memorandum outlines the Government’s rationale for excluding these decisions from review under the ADJR Act (pp. 103–104).

[←247]

.    Lawyers Alliance, Submission no. 2 to the PJCIS, op. cit., p. 7.

[←248]

.    C Barker, Telecommunications Legislation Amendment (International Production Orders) Bill 2020, Bills digest, 1, 2020–21, Parliamentary Library, Canberra, 3 July 2020.

[←249]

.    Ibid., pp. 32–39.