Bills Digest at a glance

Certain legislative provisions related to counter-terrorism are due to sunset (lapse) on 7 September 2021. This Bill passed the Senate on 12 August 2021 and the Government will seek, with some urgency, to have the Bill passed by the House in the week beginning 23 August 2021.

The Bill will amend the:

• Criminal Code Act 1995 (Cth) to:
• extend the operation of the offence of entering or remaining in a declared area of a foreign country for a further three years and
• the control order (CO) regime and the preventative detention orders (PDO) regime for a further 15 months
• Intelligence Services Act 2001 (Cth) to provide that the Parliamentary Joint Committee on Intelligence and Security may review the operation, effectiveness and proportionality of the declared area provisions prior to their sunset date 
• Crimes Act 1914 (Cth) to extend the operation of the stop, search and seizure powers for a further 15 months and
•    Independent National Security Legislation Monitor Act 2010 (Cth) to extend the reporting date for the Independent National Security Legislation Monitor’s review of continuing detention orders for high risk terrorist offenders to as soon as practicable after 7 December 2021.

While the PJCIS has recommended the extension of the operation of the offence of entering or remaining in a declared area of a foreign country, it has not yet completed its review of the CO and PDO regimes and the stop, search and seizure powers. Where the PJCIS has not made a recommendation, the Government has proposed extending the sunset clause by 15 months.

Purpose and structure of the Bill

The purpose of the Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Bill 2021 (the Bill) is to amend the Criminal Code Act 1995 (Cth) (Criminal Code), Intelligence Services Act 2001 (Cth), Crimes Act 1914 (Cth) and the Independent National Security Legislation Monitor Act 2010 (Cth).

The Bill is presented in one Schedule, with five Parts:

•  Part 1 will amend subsection 119.2(6) of the Criminal Code to extend the operation of the offence of entering or remaining in a declared area of a foreign country for a further three years, until 7 September 2024.
  This Part will also amend the Intelligence Services Act to provide that the Parliamentary Joint Committee on Intelligence and Security (PJCIS) may review the operation, effectiveness and proportionality of declared area provisions by 7 January 2024, nine months priority to their new sunset of 7 September 2024
•  Part 2 will amend section 104.32 of the Criminal Code, to extend the operation of the control order regime for a further 15 months, until 7 December 2022
•  Part 3 similarly amends section 105.53 of the Criminal Code, to extend the operation of the preventative order regime for a further 15 months, until 7 December 2022
•  Part 4 amends section 3UK of the Crimes Act, which will have the effect of extending the operation of the stop, search and seizure powers for a further 15 months, until 7 December 2022 and
•  Part 5 amends the Independent National Security Legislation Monitor Act to require a review of Division 105A of the Criminal Code (relating to the continuing detention of high risk terrorism offenders), as soon as practicable after 7 December 2021.

Background

Australia’s terrorism-related legislation has been in place for almost twenty years, however specific powers under these laws are subject to sunset clauses.[1] Sunsetting forces Parliament to review and re-grant the powers if they are to continue.

In 2014[2] and again in 2018,[3] the sunset clauses dealt with in this Bill were extended by three years, including for a new offence in 2014 of entering or remaining in a ‘declared area’ where terrorist organisations are engaging in hostile activity.

PJCIS review of the sunsetting provisions

Paragraph 29(1)(bb) of the Intelligence Services Act requires the PJCIS to review, by 7 January 2021, the operation, effectiveness and implications of:

•  Division 3A of Part IAA of the Crimes Act (which provides for police powers in relation to terrorism) and any other provision of the Crimes Act 1914 as it relates to that Division and
•  Divisions 104 and 105 of the Criminal Code (which provide for control orders and preventative detention orders in relation to terrorism) and any other provision of the Criminal Code Act 1995 as it relates to those Divisions and
•  sections 119.2 and 119.3 of the Criminal Code (which provide for declared areas in relation to foreign incursion and recruitment).

The PJCIS reported in February 2021, on the Review of ‘Declared Areas’ Provisions: Sections 119.2 and 119.3 of the Criminal Code. The PJCIS is continuing to review, in its Review of AFP Powers, the first two matters above.

In its Review of ‘Declared Areas’ Provisions, the PJCIS noted that, while the current threat of terrorism remains at ‘probable’, the Australian Security Intelligence Organisation (ASIO) considers that the volatility in the security environment globally is increasing:

ASIO noted terrorist hotspots which could see an increase in activity going forward. These areas include Libya, Yemen, Somalia, the Philippines, as well as the Middle East more generally. Further, ASIO is concerned about the rise of far-right extremist ideologies and are closely monitoring whether or not groups meet the criteria to be prescribed as terrorist organisations under the current legislation.

Despite COVID-19 border restrictions limiting movement of people, according to the relevant Government Agencies, the declared areas provisions are still necessary in the current global strategic context. The nominal defeat of the Islamic State Caliphate in Syria and Iraq has not reduced the ongoing threat from foreign terrorist fighters to the Australian community.[4]

The PJCIS acknowledged ‘the limited use of the offence and the fact that there are no current declared areas’,[5] however:

… believes it would not be prudent to repeal these provisions during a period of great uncertainty... [Extending the life of the provisions] will allow for reassessment of the provisions after the geopolitical, economic and political outcomes of COVID-19 begin to be felt, which should provide clarity on whether the provisions remain a necessary measure.[6]

PJCIS recommendations

The PJCIS recommended:

• that sections 119.2 and 119.3 of the Criminal Code be extended a further three years, with a new sunset date of 7 September 2024
• that that Criminal Code be amended to provide that the PJCIS may review the operation, effectiveness and proportionality of the ‘declared areas’ provisions prior to the new sunset date
• that, within 18 months the PJCIS receive a briefing from relevant government agencies on the use, proportionality and effectiveness of provisions 119.2 and 119.3 of the Criminal Code
• that the Criminal Code be amended to allow Australian citizens to request an exemption from the Minister for Foreign Affairs to travel to a declared area for reasons not listed in section 119.2, but which are not otherwise illegitimate under Australian law. The Committee recommended that the Minister for Foreign Affairs’ decision is not subject to merits review.[7]

Government response to PJCIS recommendations

The Government agreed to implement the first three recommendations, however, the Government did not support the final recommendation for reasons including that there would be ‘significant practical difficulties in monitoring and determining whether a person authorised to travel to a declared area had complied with any conditions to which their travel authorisation was subject.’[8]

The Bill implements the Government’s response to the PJCIS’ recommendations.

Review of AFP Powers

The PJCIS continues to review the remainder of the matters assigned by paragraph 29(1)(bb) of the Intelligence Services Act; that review is referred to on its homepage as the Review of AFP Powers. On 12 August 2020, the Committee resolved[9] to expand the scope of the Review of AFP Powers to include paragraph 29(1)(cb) of the Intelligence Services Act[10] and review the operation, effectiveness and implications of Division 105A of the Criminal Code (which provides for continuing detention orders) and any other provision of that Code as far as it relates to that Division.

It is important to note that the PJCIS has received submissions and held public hearings but has not yet reported on this mandatory inquiry.

The Government says that ‘the Bill will … ensure that key powers available to the Australian Federal Police will continue to be available … and … it is critical that these powers do not sunset ahead of the PJCIS’ review.’[11]

Current threat environment

In terms of the current threat environment, the national terrorism threat level has remained at ‘probable’ since it was last raised in September in 2014.[12] Since 2012, around 230 Australians (or former Australians) have travelled to Syria or Iraq to fight with or support violent extremist groups involved in conflict, and as at 13 July 2021, around 65 Australians (and former Australians) in Syria or Iraq have fought with, or were otherwise associated with religiously motivated violent extremist groups which remain in the region.[13]

Further, as at 16 July 2021:

• 20 control orders have been issued since September 2014[14] 
• no preventative detention orders have been issued[15] and
• no police powers under Division 3A of Part IAA of the Crimes Act have been used.[16]

The Government advises that the Bill will provide for the ‘continuation of key counter-terrorism powers that ensure the safety and security of all Australians’.[17] Further information on each on the measures being extended is set out in the ‘Key issues and provisions’ section of this Digest.

Committee consideration

The Bill has been not been referred to a parliamentary committee for inquiry and report; however, the Intelligence Services Act gives the PJCIS responsibility for reviewing the Criminal Code and Crimes Act provisions which are extended in this Bill.

Parliamentary Joint Committee on Intelligence and Security

The progress of the PJCIS in reviewing the Criminal Code and Crimes Act provisions is discussed above under the heading ‘PJCIS review of the sunsetting provisions’. The PJCIS does not appear to have explained why it has not completed its review.

Senate Standing Committee for the Scrutiny of Bills

In its Scrutiny Digest, the Senate Standing Committee for the Scrutiny of Bills drew its concerns to the attention of the Senate as a whole, ‘to consider the appropriateness of extending, by a further one to three years, the operation of a number of broad coercive powers which raise significant scrutiny concerns.’[18] In brief, the Committee is concerned that:

• the control order regime is a substantial departure from the traditional approach to restraining and detaining persons on the basis of a criminal conviction… [C]ontrol orders provide for restraint of personal liberty without there being any criminal conviction …[19]
• preventative detention orders … permit a person’s detention by the executive without charge or arrest, and without even a necessary intention to charge the subject with an offence[20]
• the broad delegation of power in allowing the Minister for Foreign Affairs to make [a declared areas] declaration … in particular, that the offence could apply even if a person did not know the area was subject to a relevant declaration and they had no intention to commit any particular crime or activity[21]
• the power to stop, search and question a person in a prescribed security zone, without the need for any reasonable suspicion, has the potential to be highly coercive.[22]

The Scrutiny of Bills Committee reiterated its previous concerns that 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 … and may, in some instances, unduly trespass on personal rights and liberties.[23]

The Senate has since passed the Bill, with no amendments.[24]

Parliamentary Joint Committee on Human Rights

At the time of publication, the Parliamentary Joint Committee on Human Rights (PJCHR) has not reported on this Bill and is not likely to report before the Bill is passed. However, on previous Bills with a similar effect, the PJCHR has raised concerns about the human rights compatibility of measures that extend sunset periods.[25]

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.[26]

Policy position of non-government parties/independents

In the Senate the Australian Labor Party moved a second reading amendment to the Bill calling for the Government to implement the PJCIS’ recommendation that the declared areas provisions be amended to allow an Australian citizen to request an exemption from the Minister for Foreign Affairs to travel to a declared area for a reason not listed in section 119.2 of the Criminal Code.[27] During debate, Senator Pratt said:

Labor, on this matter, are not persuaded. We think that the government should implement the committee's bipartisan and unanimous recommendations. Labor recognise the implementation is not without its challenges. Because of that complexity, and the national security context, we think it is an amendment that should be drafted following close consultation with the Department of Foreign Affairs and Trade and Australia's national security agencies. That is why Labor are moving a second reading amendment calling on the government to implement the recommendation. Subject to that qualification, I commend the bill to the Senate.[28]

The Australian Greens’ Senator Lidia Thorpe spoke on the Bill in the Senate, and criticised the Government for introducing the Bill with not much time to consider the issues:

They want to completely disregard the processes and procedures of making laws, including committee review and proper debate and scrutiny in the Senate and the other place. That alone should cause everyone concern. It’s not clear that the government has fixed the issue in the legislation. Indeed, it’s trying to kick it down the road for, hopefully, a new government to deal with.[29]  

Senator Rex Patrick queried the Minister during debate on the Bill:

It relates to the timing of the Bill. I think the PJCIS reported in February and this Bill was introduced on, I think 4 August. This is in the context that perhaps it could have been introduced earlier. What was the delay? I say that as a crossbencher who has to deal with a lot of legislation. There was potentially the ability to consider the bill more closely. I'm curious as to the sequence or the timing, in terms of when the committee reported, when the government received a draft bill, when the bill was finalised, and perhaps some details around that.[30]

In response, Attorney-General Cash stated that ‘one of the requirements is for the government to actually consult with states and territories, and, as you know, that can take some time.’[31]

At the time of publication of this Bills Digest, there was no further comment on the Bill from other non-government parties or independents.

Position of major interest groups

At the time of publication, there no public comment on the Bill has been identified. However, in an article published in The Guardian last year, Pauline Wright, then President of Law Council of Australia (LCA):

… called on parliament to be cautious before making any decision to renew the declared area regime, saying it should assess whether it was necessary and proportionate in the current security environment.

She said the law council did not support the renewal of these broadly worded powers two years ago and remained concerned people accused of breaching them may have to rely on discretion by law enforcement and prosecutors.[32]

However, this is in direct contrast to the recommendation from the PJCIS. The PJCIS was disinclined to allow these provisions to sunset at a time of possible economic and security fallout from COVID-19 and when international borders might be reopening.[33] On previous Bills of a similar nature, the LCA has said that ‘COVID-19 should not be used as an excuse to curtail Australia’s personal freedoms that are unrelated to the pandemic’.[34]

Financial implications

The Government advises that the Bill will have no financial impact.[35]

Key issues and provisions

Part 1—Declared areas in foreign countries

The Minister may declare an area in a foreign country[36] if satisfied that a terrorist organisation listed under Division 102 of the Criminal Code is engaging in hostile activity[37] in that area.

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 Australian fighting with overseas terrorist and insurgent groups and potentially returning to Australia.[38]

It is an offence under section 119.2 of the Criminal Code for a person who:

• is an Australian citizen or resident or
• holds a visa under the Migration Act 1958 (Cth) 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.

It is a defence if the 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).

At the time of publication, there were no declared areas. Most recently, the Minister for Foreign Affairs revoked the declaration of the Mosul district in the Ninewa province of Iraq, with effect from 19 December 2019.[39] Prior to this, the al-Raqqa province in Syria had also been declared (effective 5 December 2014; no longer in force).[40]

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

The PJCIS reported that the Deputy Counter-Terrorism Co-ordinator, Richard Feakes (Department of Home Affairs) stated that the declared area provisions act ‘as a potential deterrent to prevent Australians from travelling to areas where terrorist organisations are active, unless they have a legitimate purpose to do so.’ Further, the AFP stated that:

The offences continue to form a necessary part of the suite of powers available to the AFP and law enforcement partners to combat terrorism. The AFP considers that the provisions should be retained.[41]

Items 2–4 will amend the Intelligence Services Act to provide that it is a function of the PJCIS, if it resolves to do so, to review the operation, effectiveness and proportionality of declared area provisions (section 119.2 and 119.3 of the Criminal Code) by 7 January 2024.

This date is intended to allow the PJCIS time to report on the provisions and for Government to consider any recommendations prior to the September sunset date.[42]

The formula ‘if the Committee resolves to do so’ is only currently used for one function of the PJCIS—paragraph 29(1)(ce):

1. The functions of the Committee are: …

(ce) if the Committee resolves to do so—to commence, by 7 September 2023, a review of the operation, effectiveness and implications of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979.

Part 2—Control Orders[43]

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.[44] The scope of the control order regime was expanded twice during 2014, and again in 2016.[45]

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.[46] A control order may be imposed on a person 14 years of age or older.[47]

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.[48]

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).

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.[49] 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.[50]

The PJCIS has not yet recommended that COs should be retained. Therefore, the Government is proposing to extend the sunset provision by 15 months, until 7 December 2022, to ensure the powers ‘do not sunset prior to tabling of the PJCIS report of its most recent review into AFP powers, and provides time for Government to consider any recommendations the PJCIS may make’.[51]

Item 5 of the Bill will amend subsections 104.32(1) and (2) of the Criminal Code to extend the operation of the control order regime for a further 15 months, until 7 December 2022.

Part 3—Preventative Detention Orders

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.[52]

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.[53] 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.[54]

Item 6 of the Bill will amend subsections 105.53(1) and (2) of the Criminal Code to extend the operation of the PDO regime for a further 15 months, until 7 December 2022. 

Similar to the CO provisions, this amendment will ensure that the powers do not sunset prior to the tabling of the PJCIS reporting into AFP powers, and provides time for Government to consider any recommendations the PJCIS may make.[55] The Explanatory Memorandum further outlines that:

The PDO regime supports the legitimate objective of protecting Australia’s national security interests, including preventing terrorist acts. In recent years, there has been an increase in the threat of
smaller-scale, opportunistic attacks by lone actors. Law enforcement agencies have had less time to respond to these kinds of terrorist threats than other terrorist plots. In these circumstances, PDOs are a proportionate and necessary measure that enable police to disrupt and respond to terrorist activity at an early stage.[56]

However, no PDOs have been issued since their introduction 16 years ago.[57]

Part 4—Stop, search and seizure powers

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.[58]

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.[59]

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.[60]

Item 7 of the Bill will amend subsections 3UK(1),(2) and (3) of the Crimes Act 1914 to extend the operation of the stop, search and seizure powers for 15 months, to 7 December 2022. Similar to the CO and PDO provisions, this amendment will ensure that the powers do not sunset prior to the tabling of the PJCIS reporting into AFP powers, and provides time for Government to consider any recommendations the PJCIS may make.[61]

Part 5—Review of Division 105A of the Criminal Code

The Independent National Security Legislation Monitor (INSLM) independently reviews the operation, effectiveness and implications of Australia’s counter-terrorism and national security laws, ensuring they contain appropriate protections for individual rights, and remain necessary and proportionate.[62] Item 9 will repeal the existing subsection and substitute an extended reporting date for the INSLM’s review of Division 105A of the Criminal Code (continuing detention orders for high risk terrorist offenders). Proposed subparagraph 6(1C)(b) will require the INSLM to complete the review as soon as practicable after 7 December 2021.

The Explanatory Memorandum states that the new reporting date ‘will enable the ISLM to engage in interstate consultations which were disrupted by COVID-19 travel restrictions, and provide a greater body of evidence to review the practical operation of Division 105A.’[63]