The Bills Digest at a glance

The purpose of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2018 (the Bill) is to:

• Extend provisions relating to control orders, preventative detention orders and the declared area offence, and terrorism-related stop, search and seizure powers, currently due to sunset on 7 September 2018, for a further three years
• Extend provisions relating to questioning warrants and questioning and detention warrants, also currently due to sunset on 7 September 2018, for a further 12 months and
• Implement the Government’s response to certain recommendations made by the Independent National Security Legislation Monitor (INSLM) and the Parliamentary Joint Committee on Intelligence and Security (PJCIS) in their most recent reviews of those provisions by:
  • increasing the minimum period between an interim control order being made and the date set for a confirmation hearing from 72 hours to seven days
  • allowing interim control orders to be varied
  • clarifying the status of the original request for an interim control order in confirmation hearings
  • providing that the issuing court must not make an order for costs against the person in relation to whom a control order is sought or has been made (subject to a limited exception)
  • requiring the Australian Federal Police (AFP) to notify the PJCIS in writing of the making of an initial preventative detention order as soon as reasonably practicable
  • amending the exception to the declared areas offence to include performing an official duty for the International Committee of the Red Cross
  • enabling the Minister for Foreign Affairs to revoke a declaration of an area, and the PJCIS to review a declaration of an area, at any time
  • requiring the AFP Commissioner to report to the relevant Minister, the INSLM and the PJCIS as soon as practicable after any exercise of the stop, search and seizure powers and
  • requiring the Minister to report annually to Parliament on the use of the stop, search and seizure powers.

INSLM and PJCIS reviews and stakeholder views

Most submitters to the INSLM’s and PJCIS’s reviews recommended that the powers and the declared areas offence be repealed or allowed to lapse instead of being extended. However, with the exception of questioning and detention warrants, the INSLM and PJCIS considered that the current threat environment justified retaining these measures for a further period, subject to some amendments.

Committee consideration

The PJCIS welcomed the implementation of its previous recommendations and recommended that the Bill be passed. The Parliamentary Joint Committee on Human Rights (PJCHR) and the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) reiterated their previously expressed concerns about the measures to be extended. The PJCHR sought the Attorney-General’s advice on how several measures are effective to achieve their stated objectives and whether the limitations on human rights that they entail are reasonable and proportionate. The Scrutiny of Bills Committee left it to the Senate as a whole to determine the appropriateness of extending the current sunset periods for measures it considered to raise significant scrutiny concerns.

Purpose of the Bill

The purpose of the Bill is to amend the Criminal Code Act 1995 (Criminal Code), Crimes Act 1914, Australian Security Intelligence Organisation Act 1979 (ASIO Act), Intelligence Services Act 2001 and the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to:

• extend the provisions relating to control orders, preventative detention orders and the declared area offence, and terrorism-related stop, search and seizure powers, for a further three years
• extend the provisions relating to questioning warrants and questioning and detention warrants for a further 12 months and
• implement the Government’s response to certain recommendations made by the INSLM and the PJCIS in their most recent reviews of those provisions.

Given the relevant provisions are currently due to lapse on 7 September 2018, the Government will seek to have the Bill passed in the first sitting fortnight of the Spring 2018 sittings.

Background

The Australian Parliament enacted significant legislative reforms to respond to the threat of terrorism in the early to mid-2000s, including special questioning and detention powers for the Australian Security Intelligence Organisation (ASIO), terrorism-related stop, search and seizure powers for police, control orders, and preventative detention orders.[1] These powers have been subject to sunset clauses since their enactment.[2] In 2014, the sunset clauses were extended to 7 September 2018, and a new offence was enacted of entering or remaining in a declared area, subject to a sunset date of 7 September 2018.[3] The INSLM and the PJCIS were required to review the powers and the declared areas offence ahead of that date to inform a decision on whether to retain the measures for a further period.[4]

The INSLM and the PJCIS both recommended that each of the measures, except for ASIO questioning and detention warrants, should be retained for a further period, subject to some amendments.[5]

The Bill will implement the first stage of the Government’s response to the INSLM’s and PJCIS’s recommendations. The INSLM and PJCIS also recommended enactment of an extended supervision order (ESO) scheme to address interoperability issues between the control order and continued detention order regimes, and the replacement of ASIO questioning warrants with a revised questioning regime. The Government stated that an ESO scheme will be introduced later in 2018, and had not responded to recommendations relating to ASIO questioning warrants and questioning and detention warrants at the time of publication of this Digest.[6]

The Bill will require a further review of the powers and the declared areas offence by the PJCIS ahead of the new sunset date in 2021, but not by the INSLM.

A brief overview of the current terrorism threat environment is set out below, with further information on each of the measures being extended set out in the ‘Key issues and provisions’ section of this Digest.

Current threat environment

The national terrorism threat level has remained at ‘probable’ since it was last raised in September 2014, which means that there is credible intelligence that ‘indicates that individuals or groups continue to possess the intent and capability to conduct a terrorist attack in Australia’.[7] In its most recent annual report, ASIO’s appraisal of the threat posed by Islamist extremism in Australia was that it ‘remains elevated with little prospect of significant improvement in the near term’.[8]

In the period between September 2014 and March 2018, there were six attacks and 14 major counter-terrorism disruption operations in Australia.[9] Around 110 Australians remain in Syria and Iraq who have either fought with or otherwise supported Islamic extremist groups including the ‘Islamic State’ group.[10] There have been around 240 passport cancellations or refusals and 39 passport suspensions since 2012 based on security assessments of individuals who travelled or intended to travel to the conflict zone; and up to 90 Australians have been killed due to their involvement this conflict.[11] Managing the threat of returning foreign fighters—not just to Australia but to other countries in our region—is an ongoing concern for law enforcement and intelligence agencies; as is the prospect of transnational terrorist groups inciting domestic supporters to launch attacks in Australia and South-East Asia more broadly.[12]

Committee consideration

Parliamentary Joint Committee on Intelligence and Security

The Bill was referred to the PJCIS for inquiry and report. The PJCIS tabled its report on 7 June 2018, welcoming the Government’s acceptance of its previous recommendations and recommending that the Bill be passed.[13]

Parliamentary Joint Committee on Human Rights

The PJCHR reported on the Bill on 26 June 2018. It noted that it had previously raised concerns about the human rights compatibility of the measures for which the Bill will extend the current sunset periods, reiterated its key concerns and sought the Attorney-General’s advice on several matters.[14]

The PJCHR:

• noted that the control order and preventative detention order regimes are ‘likely to pursue a legitimate objective for the purposes of international human rights law’, but sought further advice from the Attorney-General on how those regimes are effective to achieve (or rationally connected to) their stated objectives, and whether the limitations on human rights that those regimes entail are reasonable and proportionate measures to achieve those objectives (including whether they are the least rights-restrictive approach available)[15]
• considered that the declared areas provisions may address legitimate objectives for the purposes of international human rights law, but noted that it had previously questioned whether they are necessary to achieve those objectives and represent the least rights-restrictive approach. It considered that the amendments in the Bill may assist with the human rights compatibility of the provisions, but remained concerned about the way the offence is framed and the relatively narrow exceptions to the offence[16]
• considered that the stop, search and seizure powers are likely to pursue a legitimate objective for the purposes of international human rights law, but sought further advice from the Attorney-General on whether each of the powers is effective to achieve (or rationally connected to) the stated objective, and whether the resulting limitations on human rights are reasonable and proportionate measures to achieve that objective and[17]
• noted its previous assessment that ASIO questioning warrants and questioning and detention warrants were ‘likely to be incompatible with human rights’. It considered that the powers are likely to pursue a legitimate objective for the purposes of international human rights law, but remained unconvinced that they are rationally connected to, and proportionate to, that objective. Further, while the PJCHR acknowledged that full consideration of the INSLM’s and PJCIS’s recommendations about an alternative questioning regime may take time, it was concerned that the existing powers will be extended for a year ‘despite serious questions as to their effectiveness, necessity and proportionality’.[18]

Senate Standing Committee for the Scrutiny of Bills

The Scrutiny of Bills Committee reported on the Bill on 20 June 2018. The Committee noted that it had previously raised scrutiny concerns in relation to all of the measures for which the Bill will extend the current sunset periods. It considered that the Statement of Compatibility with Human Rights provided ‘detailed information about why these powers continue to be necessary’ and noted that the proposed extensions were in line with recommendations of the PJCIS.[19] However, it concluded:

While the committee acknowledges the importance of the stated purpose of the measures described above, it reiterates that these measures substantially depart from traditional approaches to the criminal law and the presumption of innocence, particularly in giving coercive powers to detain and restrain persons who may not have been convicted of, or even charged with, a criminal offence. The committee notes there is a risk that measures that were originally introduced on the basis of being a temporary response to an emergency situation may become permanent by their continual renewal. The committee considers the measures being extended by this bill raise significant scrutiny concerns and may, in some instances, unduly trespass on personal rights and liberties.[20]

The Committee drew its concerns to the attention of senators and left it to the Senate as a whole to determine the appropriateness of extending the current sunset periods for ‘a number of broad coercive powers which raise significant scrutiny concerns’.[21]

Policy position of non-government parties/independents

The Australian Labor Party supports the Bill.[22] Australian Greens MP Adam Bandt and independent MP Andrew Wilkie voted against the Bill being read a second time in the House of Representatives.[23] The Greens have previously called for the abolition of the control order and preventative detention order regimes.[24]

At the time of publication of this Bills Digest, there was no public indication of the policy position of any other non-government parties and independents on the Bill.

Position of major interest groups

Below is a brief summary of the positions taken by stakeholders in submissions to the INSLM’s and PJCIS’s latest reviews of the measures to be extended by the Bill. Most of the submissions were made by legal, human rights and civil liberties organisations and academics.

Control orders

Many submitters to the INSLM’s and PJCIS’s latest reviews, including the Law Council of Australia (LCA), civil liberties councils and the Australian Lawyers Alliance, recommended that the control order regime be repealed or allowed to expire at the current sunset date.[25]

The Australian Human Rights Commission (AHRC) recommended that the regime should be amended to comply with international human rights law, or if that is not possible, repealed.[26] In its submission to the PJCIS, Australian Lawyers for Human Rights (ALHR) supported the INSLM’s recommended changes to the regime and also recommended more substantial amendments.[27]

The AFP stated that in its experience, ‘control orders are an effective tool for managing persons who present a significant terrorism risk’. However, it considered there were several procedural issues that create complications for the AFP and individuals against whom orders are made.^[28]

Jacinta Carroll, currently the Director of National Security Policy at the National Security College, Australian National University, considered that control orders are a useful option short of arrest and charge and should be retained.[29]

Preventative detention orders

Many submitters to the INSLM’s and PJCIS’s latest reviews recommended that the preventative detention order regime be repealed or allowed to expire at the current sunset date.[30] ALHR outlined several concerns with the regime, but did not explicitly advocate for its repeal.[31]

The LCA suggested some amendments to the regime (relating to a threshold for issue and exemption of decisions relating to Division 105 of the Criminal Code from the operation of the ADJR Act).[32]

The AFP stated that preventative detention orders ‘play a critical role in providing the AFP with appropriate powers to prevent terrorist attacks’ and that it considers the regime to be ‘an important emergency power’ that complements state and territory laws that provide for orders of longer duration.[33]

Jacinta Carroll considered that the regime should be retained.[34]

Declared areas

Several submitters to the INSLM’s and PJCIS’s latest reviews recommended that the declared areas offence and accompanying provisions be repealed or allowed to expire at the current sunset date.[35]

The AHRC did not advocate for retention or repeal of the provisions, but did recommend amendments, including that the exception to the offence be reframed to operate more broadly instead of on the basis of specific listed purposes.[36]

The Centre for Military and Security Law at the Australian National University recommended expanding either the humanitarian aid or United Nations components of the exception to the offence to capture humanitarian work such as compliance training on the laws of armed conflict.[37] The Bill includes an amendment to this effect.

The AFP stated that the offence plays a ‘critical role’ in both preventing Australians from travelling to conflict zones to engage in hostile activity, and managing the terrorist threat posed by returning foreign fighters.[38]

Jacinta Carroll supported retaining the provisions, but considered that the offence ‘may need to be reviewed in terms of its operational effectiveness and ability to be used by counter-terrorism authorities’.[39]

Stop, search and seizure powers

Submissions for the latest INSLM and PJCIS reviews into the stop, search and seizure powers supported the introduction of reporting requirements, including those compiled by the AFP and the Attorney-General’s Department (AGD).[40] However, submitters representing legal, human rights and civil liberties groups generally supported this amendment to the regime only if the powers are not instead allowed to expire at the current sunset date or repealed.[41]

The INSLM directed questions for relevant agencies to address, based on concerns that were raised by non-government submitters, namely that:

• the powers have not been used, suggesting that their retention/necessity requires justification[42]
• reasonable grounds for suspicion is an inappropriate standard to exercise the powers[43] and
• the scope of ministerial discretion to declare a prescribed security zone ‘may in practice not be susceptible to meaningful review’.[44]

These concerns were reiterated and elaborated upon in submissions to the PJCIS review after the INSLM had formed the view—primarily on the basis of AFP and AGD submissions—that the powers should be retained subject to the introduction of reporting requirements.[45]

Other submissions outlined the continuing value of the regime to counter-terrorism capability despite the intrusive nature of the emergency powers.[46] The AFP submitted to the PJCIS:

These powers are of critical importance, enabling the AFP to act immediately in the event of a terrorist threat to, or terrorism incident within, a Commonwealth place, or an emergency situation requiring entry where there is a serious and imminent threat of harm, and no time to obtain a warrant.[47]

ASIO questioning warrants and questioning and detention warrants

Non-government submitters to the INSLM and PJCIS reviews recommended allowing the ASIO questioning and detention warrant provisions to lapse, or for them to be repealed. Most non-government submitters recommended that, if retained, the coercive questioning powers under the current regime be amended.[48]

The AGD submission to the 2016 INSLM inquiry stated that amendments to improve the operational effectiveness of the provisions could be made, but that questioning and detention warrants should be retained.[49] The Inspector-General of Intelligence and Security’s submission noted that it had been ‘closely involved with all questioning warrants issued to date’ and that it had ‘no significant concerns with the use of the powers’.[50]

Partly in response to various proposals for amending the regime, and to the 2016 INSLM recommendations, the PJCIS invited relevant agencies to make submissions throughout its inquiry that canvassed alternative models for the coercive questioning framework, including safeguards and oversight arrangements and the potential to expand the scope of the questioning powers beyond matters related to counter-terrorism to security-related matters.[51]

The Bill does not contain an alternate framework that would significantly amend the regime. Instead it extends the operation of existing provisions to allow the Government additional time to consider the PJCIS’s recommendation that the current regime be repealed and replaced with a reformed compulsory questioning framework.

Financial implications

The Bill will have no financial impact.[52]

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.[53]

As noted in the ‘Committee consideration’ section of this Digest, the PJCHR remains concerned about the human rights compatibility of the measures for which the Bill will extend the current sunset periods.

Key issues and provisions

Control orders

Background

Control orders (COs) were introduced in 2005 following the London bombings in July 2005 and the subsequent agreement to strengthen counter-terrorism laws reached at a special meeting of the Council of Australian Governments (COAG) in September 2005.[54] The scope of the control order regime was expanded twice during 2014, and again in 2016.[55]

The purpose of the CO regime in Division 104 of the Criminal Code is to allow obligations, prohibitions and restrictions to be imposed on a person to protect the public from a terrorist act, prevent the provision of support for or facilitation of a terrorist act, and/or prevent the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.[56] A control order may be imposed on a person 14 years of age or older.[57]

A senior AFP member may seek the Minister’s written consent to request an interim CO if he or she suspects on reasonable grounds that:

• the order would substantially assist in preventing a terrorist act, or the provision of support for or the facilitation of a terrorist act or
• the person in relation to whom the order is sought has engaged in certain conduct, or been convicted of an offence relating to terrorism, a terrorist organisation or a terrorist act or a foreign offence constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence.[58]

If the Minister provides his or her consent, an application for a CO may be made to an issuing court. If certain requirements are met and the court is satisfied of certain matters on the balance of probabilities, the court may make an interim CO that imposes one or more of the obligations, prohibitions and restrictions set out in subsection 104.5(3).[59]

The interim CO must specify a day on which the person may attend the court so it can confirm or revoke the order, or declare it to be void.[60] COs may be varied, and can remain in force for up to 12 months if imposed on an adult or three months if imposed on a person 14–17 years of age.[61]

COs have been made six times since the introduction of the regime in 2005, with the first use in 2006 and most recent in 2015.[62]

Review recommendations

The INSLM and PJCIS each concluded that the CO regime remains a necessary and proportionate response to the current threat environment. Both noted that arrest and prosecution remains the preferred option where possible, but considered that COs remained an important tool where a threat is not able to be addressed through traditional criminal justice methods.[63] The INSLM also noted that recent use of COs had been effective:

For instance, in the Causevic case, Judge Hartnett observed that the control order had had ‘a deterrent effect’, and that the counselling and education in which the controlee participated under the control order had had a ‘beneficial impact’. Indeed, by all accounts, the controls imposed in that case (leaving aside the control requiring the wearing of a tracking device, which was a focal point of the confirmation hearing, and was ultimately removed when the order was confirmed), the control order had the effect of diverting the controlee from radicalisation. Conversely, the Naizmand case demonstrates how a control order can be used to protect the community from individuals who are intent on acting on extremist ideologies. In that case, the control order allowed law enforcement agencies to take action to thwart such acts through the monitoring and enforcement regimes that are available once a control order is in force.[64]

The INSLM recommended that subject to the acceptance of the INSLM’s other recommendations, COs should be retained for a further five years.[65] The INSLM’s recommended amendments to Division 104 were that:

• section 104.14 should be amended to clarify that:

  a. The original request need [sic] for an interim control order need not be tendered as evidence of the proof of its contents.

  b. The issuing court may take judicial notice of the fact that an original request in particular terms was made, but it is only to act on evidence received in accordance with the Evidence Act 1995 (Cth).

(supported by the Government)

• a controlee should be able to apply for a variation to an interim CO, and the court should have the power to amend an interim CO if the AFP Commissioner and controlee agree (supported by the Government) and
• issuing courts should not be able to make orders as to costs in proceedings to confirm a CO (supported in principle by the Government).[66]

The PJCIS recommended that COs should be retained for a further three years.[67] The PJCIS’s recommended amendments to Division 104 were that:

• section 104.14 should be amended in line with the INSLM’s recommendation
• both a controlee and the AFP should be able to apply for a variation to an interim CO and
• the minimum time period between an interim CO being made and the date set for a confirmation hearing be extended from 72 hours to seven days, subject to legal advice on any constitutional concerns arising from such an extension.[68]

The Government supported each of the PJCIS’s recommendations.[69]

Extending the sunset period

Item 7 of Schedule 1 will amend section 104.32 of the Criminal Code to extend the current sunset period by three years so that a CO in force at the end of 7 September 2021 ceases to be in force at that time, and a CO may not be requested, made or confirmed after 7 September 2021, implementing the PJCIS’s recommendation for continuation of the CO regime.

Increasing the minimum period between an interim CO and a confirmation hearing

Section 104.5 of the Criminal Code sets out what must be included in an interim CO. One of the requirements is that the interim CO must specify a day on which the person to whom the order relates may attend the court for the court to confirm or revoke the order, or declare it to be void. Subsection 104.5(1A) provides that the day specified must be as soon as practicable, but at least 72 hours after the interim CO is made. Subsection 104.5(1B) requires that in setting a date, the court takes into account certain matters. These include that both the AFP and the person to whom the order relates and their representatives may need to prepare in order to adduce evidence or make submissions to the court relating to the confirmation of the CO.

Item 2 of Schedule 1 will amend subsection 104.5(1A) to increase the minimum period from 72 hours to seven days, implementing a recommendation of the PJCIS. The PJCIS made the recommendation in response to evidence given by the AFP and the AGD about the difficulties that the AFP would face in preparing for a confirmation hearing within 72 hours, meaning that applications for interim COs might be delayed and the potential benefits of an interim CO lost:

... The Committee is concerned by evidence from the AFP that, due to this relatively short minimum period, it may seek to delay seeking an interim control order [until] it is almost ready to confirm. This has the potential to significantly impact the effectiveness of the regime and risk community safety.

Balanced against this concern is the importance of a person subject to an interim control order being able to contest the order in a timely manner. The confirmation hearing is an essential safeguard in the legislation that provides a controlee with their first and only opportunity to have an interim order revoked.

These two concerns must be carefully balanced. It is the view of the Committee that a minimum seven day period between the interim and confirmation proceedings would be appropriate. In forming this conclusion, the Committee takes into account the experience for control orders made to date, the complexity and resource-intensiveness of the confirmation process, the existing judicial and other external oversight of the regime, and importantly the previous recommendation that a controlee be able to apply to vary an interim control order prior to confirmation – this provides an additional safeguard.

The Committee is also mindful that any extension to the minimum timeframe may potentially raise constitutional concerns and advice should be sought prior to any amendment. The Committee recommends that the Government seek legal advice regarding the constitutionality of extending the timeframe to seven days.[70]

Neither the AFP (which first raised the possibility of potential constitutional concerns) nor the PJCIS outlined the nature of those concerns, and the Explanatory Memorandum does not include any comment on the matter.[71]

Varying interim COs

Division 104 of the Criminal Code currently makes provision for an issuing court to vary a confirmed CO following an application by the controlee or the AFP.[72] However, there is no mechanism for varying an interim CO. AGD and AFP advised:

This is because when the provisions were originally introduced it was anticipated that the confirmation proceeding would follow soon after the interim control order was made. If the conditions in an interim control order needed to be varied it was intended that the changes could be made in the confirmation process.[73]

However, this has not been the case. Three of the six COs that have been made were never confirmed (the interim COs remained in force for one year) and two were confirmed more than six months after the interim COs were made.[74] Accordingly, the INSLM and PJCIS recommended allowing for interim COs to be varied.[75]

Item 3 of Schedule 1 will implement those recommendations. Proposed section 104.11A will allow an issuing court to vary an interim CO on application from the controlee or a senior AFP member, if satisfied that the other party has given written consent to the variation, that it does not involve adding any obligations, prohibitions or restrictions, and that it is appropriate in the circumstances.

Schedule 1 to the ADJR Act lists classes of decisions to which the Act does not apply. Item 1 will insert proposed paragraph (daba) into that schedule so that a decision of a senior AFP member in relation to consent for a variation to an interim CO under section 104.11A of the Criminal Code is not subject to the ADJR Act.

Courts’ consideration of request for interim CO in confirmation hearings

Section 104.14 of the Criminal Code makes provision for hearings relating to the confirmation of a CO. Subsection 104.14(3) requires that before taking action under the section, the issuing court must consider the original request for the interim CO and any evidence adduced, and any submissions made, by relevant parties during the confirmation hearing.

The INSLM noted that a request for an interim CO may be supported by hearsay evidence, so long as the source is identified, while the normal rules of evidence apply to confirmation hearings (meaning that some evidence that is admissible for the purposes of requesting an interim CO is not admissible in confirmation hearings). To resolve the tension arising between the application of the rules of evidence and the requirement to consider the original request for the interim CO, the INSLM recommended that section 104.14 be amended to clarify that:

a. The original request need for an interim control order need not be tendered as evidence of the proof of its contents.

b. The issuing court may take judicial notice of the fact that an original request in particular terms was made, but it is only to act on evidence received in accordance with the Evidence Act 1995 (Cth).[76]

The PJCIS supported this recommendation.[77] Items 4 and 5 will implement the second part of the recommendation.

Item 5 of Schedule 1 will insert proposed subsection 104.14(3A) to provide that in a confirmation hearing, the issuing court must take judicial notice of the fact the original request for an interim CO was made in particular terms, but may only take action on evidence adduced and submissions made at the confirmation hearing. Item 4 will make a consequential amendment to subsection 104.14(3).

Costs in CO proceedings

The INSLM considered that it would not be appropriate for a controlee to be ordered to pay costs associated with CO proceedings, and recommended an amendment to Division 104 of the Criminal Code to provide that the issuing court is not to make any order as to costs.[78] The Government accepted the recommendation in principle, and item 6 of Schedule 1 will implement the Government’s response.[79]

Proposed subsection 104.28AA(1) will provide that in proceedings relating to a CO, the issuing court must not make an order for costs against the person in relation to whom the order is sought or has been made. This will be subject to a limited exception under proposed subsection 104.28AA(2), which will provide that subsection (1) does not apply to the extent that the court is satisfied that the person has acted unreasonably in the conduct of the proceedings. The Explanatory Memorandum states:

Examples of unreasonable conduct could include causing unnecessary delays to proceedings and not narrowing the issues in contention. Such conduct could result in the AFP incurring significant additional costs. In such circumstances, it may be appropriate for the issuing court to make a cost order against the controlee, to the extent of the unreasonable conduct.[80]

The Explanatory Memorandum also states that nothing in the proposed section is intended to prevent the controlee seeking costs against the AFP.[81]

Preventative detention orders

Background

Like COs, preventative detention orders (PDOs) were introduced in 2005 following the London bombings in July 2005 and the subsequent agreement to strengthen counter-terrorism laws reached at a special meeting of the COAG in September 2005.^[82]

The purpose of the PDO regime in Division 105 of the Criminal Code is to allow a person to be taken into custody for a limited period in order to either prevent a terrorist act that is ‘capable of being carried out, and could occur, within the next 14 days’ from occurring, or preserve evidence of, or in relation to, a terrorist act that occurred in the previous 28 days.[83]

A member of the AFP may apply to a senior member of the AFP for a PDO against a person 16 years of age or older, for an initial period of 24 hours. An order extending the period of detention to 48 hours may only be granted by certain members of the judiciary and certain members of the Administrative Appeals Tribunal.[84]

No PDOs have been made under the Commonwealth regime.[85] However, since 2014, several have been made under equivalent state laws, which provide for detention of up to 14 days.[86]

Review recommendations

The INSLM and PJCIS each recognised the extraordinary nature of the powers available under the PDO regime, but nonetheless concluded that it remains a necessary and proportionate response to the current threat environment.[87]

The INSLM stated the issue of whether to retain PDOs was ‘finely balanced and difficult’, but ultimately concluded that ‘significant changes both in the modus operandi of terrorist attacks and those carrying them out warrant ... some form of preventative detention regime’.[88] The INSLM remained unconvinced that the Commonwealth PDO regime adequately responded to that need, and considered that ‘its use is likely to be limited to a case where there is a disagreement between the AFP and relevant state police force as to the need for a PDO (or, in the case of NSW, investigative detention)’.[89] However, pending further development of a national investigative detention regime, the INSLM recommended that the PDO regime be retained for a further five years.[90]

The PJCIS acknowledged the position put in submissions to its own inquiry and that of the INSLM that the non-use of the Commonwealth PDO regime and availability of alternative powers make the regime unnecessary, but stated:

... the Committee considers PDOs to be a power of ‘last resort’ that are only expected to be used in times of an unfolding emergency (or in its immediate aftermath) and when the traditional investigative powers available to law enforcement are inadequate to contain the threat. The fact that the AFP has never used PDOs at a Commonwealth level reflects that this purpose is understood. Similarly, the existence of state and territory powers does not obviate the need for the Commonwealth regime.

The bar on questioning a person subject to a PDO has led some to conclude that the powers are not necessary, as they do not assist the investigation of terrorism acts. However, the Committee notes that the purpose of the provisions is the protection of the community via the prevention of terrorism acts, not the investigation of terrorism offences.[91]

The PJCIS recommended that the PDO regime be retained for a further three years, and that the AFP be required to notify the PJCIS as soon as practicable after any Commonwealth PDO is made and brief the committee if requested.[92]

Extending the sunset period

Item 11 of Schedule 1 will amend section 105.53 of the Criminal Code to extend the current sunset period by three years so that a PDO or a prohibited contact order in force at the end of 7 September 2021 ceases to be in force at that time, and neither type of order may be applied for or made after 7 September 2021. This will implement the PJCIS’s recommendation for continuation of the PDO regime.

Notifications to the PJCIS

Item 8 of Schedule 1 will amend subsection 105.8(8) of the Criminal Code so that the AFP member nominated to oversee the exercise of powers and performance of obligations in relation to a PDO is required to notify the PJCIS in writing of the making of an initial PDO as soon as reasonably practicable.

Items 9 and 10 will amend subsections 105.12(8), 105.15(6) and 105.16(6) to insert equivalent notification requirements for the making of a continued PDO or a prohibited contact order.

These amendments implement a recommendation of the PJCIS.

Declared areas offence

Background

The offence of entering or remaining in a declared area was enacted in 2014 as part of a legislative package introduced to respond to the threat posed by Australians fighting with overseas terrorist and insurgent groups and potentially returning to Australia.[93] It is an offence under section 119.2 of the Criminal Code for a person who is an Australian citizen or resident, or who holds a visa under the Migration Act 1958 or has voluntarily put him or herself under the protection of Australia, to enter or remain in an area of a foreign country declared by the Minister for Foreign Affairs under section 119.3 of the Criminal Code. The Minister may make such a declaration if satisfied that a terrorist organisation listed under Division 102 of the Criminal Code is engaging in ‘hostile activity’ in that area. It is a defence to the offence if a person entered or remained in the area solely for one or more listed purposes (such as providing aid of a humanitarian nature or making a bona fide visit to a family member).[94]

Two areas have been declared for the purposes of the offence: the al-Raqqa province in Syria (effective 5 December 2014; no longer in force) and the Mosul district in Iraq (effective 2 March 2015, renewed 2 March 2018).[95]

A Sydney man became the first person to be charged with the declared areas offence in December 2017. The AFP alleges that he travelled to the Syrian conflict zone in March 2015 and returned to Australia in October 2015.[96] As at 1 December 2017, the AFP had arrest warrants for six people that included a charge of entering or remaining in a declared area, and all of those people were overseas.[97]

Review recommendations

The INSLM and the PJCIS both recommended the declared areas provisions be retained.

The INSLM considered that the offence ‘responds to a continuing threat of returning foreign fighters and addresses needs that are not addressed by other offences’ in Division 119 of the Criminal Code (which deals with foreign incursions and recruitment). He recommended that the provisions be retained for a further five years, subject to declarations being reviewable by the PJCIS at its discretion at any time before a declaration ceases or is revoked.[98]

The INSLM also recommended that the Government consider amendments or a regulation to allow an individual to seek the Minister for Foreign Affairs’ permission to enter or remain in a declared area for such a period and on such conditions as the Minister may choose to impose. This recommendation was made in the context of concerns that the current exception to the offence is too narrow.[99] The INSLM considered that trying to accommodate all potential legitimate purposes in the exception would be potentially unworkable, as would replacing the exception with a requirement for the prosecution to prove that a person’s travel was for an illegitimate purpose, and suggested an authorisation scheme might be a more suitable approach.[100] The Government has rejected this recommendation, stating that it does not consider such a scheme could be effectively implemented and monitored.[101]

The PJCIS considered that the offence remains necessary, is proportionate, and should be retained for a further three years.[102] It also recommended amendments to:

• include humanitarian work beyond direct aid, including compliance training on the laws of armed conflict, as a legitimate purpose in the exception to the offence (supported by the Government in principle)
• provide that the Minister for Foreign Affairs may revoke a declaration at any time, including where the legislative test continues to be met but the declaration is no longer necessary or desirable (supported by the Government) and
• implement the INSLM’s recommendation about the PJCIS’s review of declarations (supported by the Government).[103]

Extending the sunset period

Item 13 of Schedule 1 will amend subsection 119.2(6) of the Criminal Code to extend the current sunset period by three years to 7 September 2021, implementing the PJCIS’s recommendation for continuation of the declared area provisions.

Humanitarian work

Subsection 119.2(3) of the Criminal Code provides for an exception to the declared areas offence whereby the offence does not apply if a person entered or remained in a declared area solely for one or more listed purposes. A defendant bears an evidential burden in relation to the exception, meaning he or she would need to adduce or point to evidence that suggests a reasonable possibility that the exception applies.[104]

One of the purposes listed in subsection 119.2(3) is ‘providing aid of a humanitarian nature’. The PJCIS considered that it is currently unclear whether this would include humanitarian work other than direct aid, such as compliance training on the laws of armed conflict:

... the lack of clarity has the potential to deter non-government organisations from deploying Australian personnel to declared areas. Given the important role of organisations such as the International Red Cross Red Crescent Movement in conflict environments, the Committee considers deterring such organisations from operating in declared areas to be beyond the intention of the legislation. The Committee recommends that this matter be clarified.[105]

The Government accepted this recommendation in principle.[106] The Bill will leave the aid purpose unchanged. Instead, item 12 of Schedule 1 will repeal and replace paragraph 119.2(3)(e), which currently lists as a legitimate purpose performing a duty for the United Nations or an agency of the United Nations. The amendment will expand the paragraph to also include performing an official duty for the International Committee of the Red Cross. The Government considers this approach to be preferable on the basis that a ‘broadly framed exception’ could undermine the effectiveness of the offence and ‘may be exploited by individuals who use the exception to shield their illegitimate activities’.[107]

Revoking declarations

Subsection 119.3(5) of the Criminal Code requires the Minister for Foreign Affairs to revoke a declaration if he or she ceases to be satisfied that a listed terrorist organisation is engaging in hostile activity in the declared area. The PJCIS recommended that the Minister should also have the discretion to revoke a declaration at any time, including ‘where changes in non-legislative factors suggest that the declaration is no longer necessary or desirable, taking into account security advice from relevant agencies’.[108] Item 14 of Schedule 1 will implement that recommendation, enabling the Minister to revoke a declaration if he or she considers it necessary or desirable to do so under proposed subsection 119.3(5A).[109] The Minister may make a new declaration of the same area if he or she becomes or remains satisfied that a listed terrorist organisation is engaging in a hostile activity in the area.[110]

PJCIS review of declarations

Subsection 119.3(7) of the Criminal Code currently provides that the PJCIS may review a declaration made by the Foreign Minister before the end of the period during which it may be disallowed. The INSLM and the PJCIS recommended that the PJCIS should be permitted to review declarations at any time they are in force (and the PJCIS that the committee report back to Parliament).[111] Item 15 of Schedule 1 will repeal subsection 119.3(7) and replace it with proposed subsections 119.3(7) and (8) to implement those recommendations.

Stop, search and seizure powers

Background

Like COs and PDOs, new stop, search and seizure powers were introduced in 2005 following the London bombings in July 2005 and the subsequent agreement to strengthen counter-terrorism laws reached at the special meeting of the COAG in September 2005.[112] Division 3A of Part IAA of the Crimes Act introduced powers for AFP and state and territory police officers to stop, question and search persons where:

• an officer suspects a person’s involvement in a terrorist act and that person is in a Commonwealth place or
• a person is within a prescribed security zone in a Commonwealth place.[113]

The powers also enable searches of premises—and seizure of things—without a warrant. These powers may only be exercised if there are reasonable grounds to suspect that a thing may be used in connection with a terrorism offence and the circumstances are serious and urgent.[114]

Examples of a Commonwealth place where the powers may be exercised include certain airports, departmental premises and court buildings.[115] The provisions enable police officers to apply to the responsible Minister for a declaration that a Commonwealth place is a prescribed security zone—for example, in the event intelligence identifies that an imminent terrorist threat applies to a Commonwealth place, or if an attack has just occurred at a Commonwealth place.[116] The standard of suspicion is a requirement only applicable in relation to stopping and searching persons in a Commonwealth place; if a person is in a prescribed security zone, that standard does not apply.[117]

The purpose of these powers is to confer on police effective and nationally consistent means of disrupting and responding to a perceived terrorist threat.[118] They are characterised as emergency powers, given that a person may be required to provide personal information; be detained and/or searched; or have personal belongings or possessions seized on a standard of suspicion and in relation to an offence that may not yet have been committed.[119] The 2017 INSLM review noted that ‘the operational imperatives that resulted in the powers ... being enacted have not receded—indeed, strong police capabilities are perhaps all the more essential to respond to current and reasonably foreseeable terrorism threats’.[120]

At the time that the Bill was introduced, the stop, search and seize powers had not been used.[121]

Review recommendations

The 2017 INSLM review posited that ‘the fact the powers have not been exercised is a reflection of their limited (but nevertheless important) application’.[122] Noting ‘there are reporting mechanisms in much of the cognate state and territory legislation’, the INSLM recommended the continuation of the powers—subject to a sunset provision—on the basis that Division 3A be amended to incorporate a requirement for annual reporting to the responsible Minister, copied to the INSLM and PJCIS.[123] Further, the INSLM proposed that the Commonwealth Ombudsman be given an oversight role, analogous to that in relation to the delayed notification search warrant regime under Part IAAA of the Crimes Act.[124]

The PJCIS similarly recommended in 2018 that the powers be continued, subject to additional oversight arrangements and an extension of the sunset provision.[125] However, unlike the INSLM, the PJCIS recommended against considering the delayed notification search warrant regime as an appropriate basis for oversight arrangements. The PJCIS formed this view on evidence presented by the AFP and AGD that distinguished, inter alia, the overt exercise of the Division 3A powers from the covert exercise of powers under the delayed notification search warrant regime.[126]

Noting that these agencies otherwise endorsed the introduction of transparency mechanisms to enable oversight of the Division 3A powers, the PJCIS recommended a two-fold reporting framework, namely that the AFP report:

• to the AFP Commissioner as soon as practicable after Division 3A powers are exercised and
• to the Parliament annually on the exercise of Division 3A powers.[127]

The PJCIS further recommended that the Intelligence Services Act be amended to enable the committee to monitor and review the exercise of Division 3A powers, and require that the committee be given sufficient operational information to perform such review.[128]

Extending the sunset period

Item 17 of Schedule 1 will amend subsections 3UK(1), (2) and (3) of the Crimes Act to extend the operation of the stop, search and seizure powers for an additional three years to 7 September 2021.

Reporting requirements

Item 16 of Schedule 1 will insert proposed Subdivision CA into Division 3A of Part IAA of the Crimes Act. Under proposed section 3UJA, the AFP Commissioner will be required to report the exercise of powers under Subdivision B as soon as practicable thereafter to the responsible Minister (currently the Minister for Home Affairs), the INSLM and the PJCIS. The Commissioner’s report will be required to detail specifics about the exercise of powers by AFP police officers, namely:

• the number of instances officers seized terrorism and/or serious offence related items under section 3UE; entered premises without a warrant in order to conduct the search and seizure of such items under section 3UEA; and/or served seizure notices in relation to those seizures under section 3UF and
• the circumstances in which an officer has required a person to provide personal information under section 3UC; and/or an officer has stopped and searched a person under section 3UD.

Under proposed section 3UJB, the responsible Minister will be required to table an annual report on the exercise of these powers in each House of the Parliament. For each year ending 30 June, the Minister’s annual report must include:

• the number of instances in which powers have been exercised under sections 3UE, 3UEA and 3UF and
• the number of incidents in which powers have been exercised under sections 3UC and 3UD.

In addition, the report must include the number of applications under section 3UI—and the number of ministerial declarations consequently made under section 3UJ—that Commonwealth places are prescribed security zones.

These amendments implement like recommendations of the INSLM and PJCIS: that the stop, search and seizure powers be continued subject to additional reporting requirements.

ASIO questioning warrants and questioning and detention warrants

Background

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth) added Division 3—Special powers relating to terrorism offences—at the end of Part III of the ASIO Act. This amendment to the ASIO Act was part of the legislative response to large-scale terrorist attacks that involved many participants and extensive planning, such as the 11 September 2001 attack in the United States.[129] ASIO’s special powers regime was thus one of the earliest counter-terrorism measures introduced in Australia’s post-9/11 security context, providing ASIO with new intelligence gathering and preventative tools.[130]

The purpose of ASIO’s special powers regime is to ensure a person involved in a terrorism offence is ‘discovered ... preferably before they perpetrate their crimes’[131]—especially where that person might seek to undermine a counter-terrorism operation through a lack of cooperation, for example, or subverting evidence. The provisions allow for ASIO to obtain a warrant to either require a person:

• to appear before a prescribed authority for questioning (a questioning warrant (QW))[132] or
• to be taken into custody to then appear for such questioning and detained until the relevant statutory time limit (the longest being seven days) expires (a questioning and detention warrant (QDW)).[133]

A person subject to either type of warrant must provide ASIO with information sought through questioning: if not, that person commits an offence (unless the person does not have the information sought).[134] The regime also enables ASIO to require a person subject to a warrant to produce ‘any record or thing’ in their possession or control requested in accordance with the warrant.[135] The ability for a person subject to a warrant to communicate with others while being questioned or detained is restricted: other than to make a complaint to an authority listed in the ASIO Act, a person may only contact a person identified in the relevant warrant or in a direction given by the prescribed authority, and may be prevented from divulging particular information.[136]

ASIO’s special powers regime has been characterised as extraordinary since its proposal as a counter-terrorism measure.[137] The PJCIS reported on the operation, effectiveness and implications of the regime in March 2018, noting:

One of the most extraordinary aspects of the questioning and detention powers is the ability to detain persons, including those not suspected of involvement in a terrorism offence. A QDW authorises the pre-emptive detention of a person, and a QW allows for the prescribed authority to order the detention of a person who has appeared for questioning. Under either warrant, a person may be detained for up to seven days.[138]

In 2016, the INSLM noted that there was no precedent in any comparable country for a person to be ‘detained in custody, virtually incommunicado without ever being accused of involvement in terrorist activity, on grounds which are kept secret and without effective opportunity to challenge the basis of his or her detention’.[139]

The extraordinary nature of the regime meant that it was originally subject to a three-year sunset clause, which was extended by ten years under the ASIO Legislation Amendment Act 2006 (Cth). It was again preserved, until 7 September 2018, under the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth) as part of the legislative response to the threat posed by radicalised individuals returning to Australia from conflict zones in Iraq and Syria; and the risk of so-called ‘lone-wolf’ terrorists planning less co-ordinated and smaller-scale attacks.[140]

The most recent INSLM and PJCIS reviews highlighted the non-use of any QW after 2010, up to which point ASIO had obtained 16 QWs from when they were first introduced in 2003.[141] As at March 2018, no QDWs had ever been obtained under the regime.[142]

Review recommendations

The 2016 INSLM review, consistent with preceding INSLM opinion, recommended that the QDW provisions ‘be repealed or cease when the sunset date is reached. Successive extensions of the sunset date since 2006 should end’.[143] By contrast, the INSLM’s recommendation in 2016 for the special powers regime ‘on balance’ was that:

[it] should be replaced by a questioning power following the model of coercive questioning available under the Australian Crime Commission Act 2002 (Cth) as closely as possible. A sunset clause should not be necessary for such a questioning power.[144]

The non-use of any QDW since the regime was first introduced was a point that the PJCIS considered relevant in arriving at similar recommendations in March 2018 that the regime in its current form be repealed, but that ASIO should retain a coercive questioning power.[145]

In submissions to the PJCIS review, ASIO and AGD argued that the regime be retained in some form.[146] The PJCIS recommended an extension of the current regime for a further 12 months to allow for the proposal and review of new legislation presenting ‘an alternative apprehension framework, possibly with a separate authorisation process, to ensure attendance at questioning and prevent contact with others or the destruction of information’.[147] The PJCIS noted that ‘it is important that the powers available to ASIO are appropriate for its role as an intelligence, rather than a law enforcement, agency’.[148]

Extending the sunset period

Item 18 of Schedule 1 will amend section 34ZZ of the ASIO Act to extend the current sunset period by 12 months to 7 September 2019. The Government, in the Explanatory Memorandum, states that ‘it is critical these powers remain available to ASIO ... pending consideration of the PJCIS review and 2016 INSLM Report’.[149] In its advisory report on the Bill, the PJCIS noted that this extension implements the recommendation to allow ‘sufficient time for a reformed ASIO compulsory questioning framework to be developed and then reviewed by this Committee’ and that its other recommendations are not dealt with in this Bill.[150]

Review of terrorism-related powers

The PJCIS recommended that it be required to complete a further review of the operation, effectiveness and implications of Division 3A of Part IAA of the Crimes Act (stop, search and seizure powers), Divisions 104 and 105 of the Criminal Code (COs and PDOs) and sections 119.2 and 119.3 of the Criminal Code (declared areas) ahead of the revised sunset date.[151]

Item 19 of Schedule 1 will implement that recommendation by repealing and substituting paragraph 29(1)(bb) of the Intelligence Services Act to require the PJCIS to review those provisions by 7 January 2021. This will provide the government of the day eight months to consider and respond to the PJCIS’s recommendations ahead of the new sunset date of 7 September 2021.

The Bill will not amend the Independent National Security Legislation Monitor Act 2010 to require a further review of those provisions by the INSLM before they are due to sunset. However, the INSLM could review the operation, effectiveness and implications of the provisions to be extended by this Bill at any time on his or her own initiative.[152]

Other provisions

Part 6 of Schedule 1 will make technical amendments to section 105.5A of the Criminal Code (which relates to applications for continuing detention orders) to correctly reflect that the Attorney-General (not the ‘AFP Minister’ (Minister for Home Affairs)) retains responsibility for administering the National Security Information (Criminal and Civil Proceedings) Act 2004.

Part 7 of Schedule 1 contains transitional provisions relevant to the operation of amendments in items 2, 3, 5 and 6 (relating to control orders) and item 14 (relating to declared areas) of the Bill.