Key points
- The main purpose of the Counter-Terrorism and Other Legislation Amendment Bill 2023 (the Bill) is to extend provisions relating to control orders, preventative detention orders and terrorism-related stop, search and seizure powers, currently due to sunset on 7 December 2023, for a further three years to 7 December 2026.
- These powers have been subject to sunset clauses since their enactment in 2005 and this will be the fifth time in which they have been extended.
- The Bill will also 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. Both the INSLM and the PJCIS recommended that stronger safeguards be imposed with respect to these powers.
- The Bill will also amend the list of conditions that may be imposed as part of the control orders scheme to give the court the discretion to impose ‘a very broad range of conditions directed at all aspects of a person’s life’.
- Stakeholders, including the Law Council of Australia and the Australian Human Rights Commission, have previously raised concerns about the operation and extension of these provisions.
- Parliamentary committees, including the Senate Standing Committee on the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights, have also previously raised concerns about these powers, including the justification for their extension.
Introductory Info
Date introduced: 10 August 2023
House: House of Representatives
Portfolio: Attorney-General
Commencement: The day after Royal Assent
Purpose of
the Bill
The main purpose of the Counter-Terrorism
and Other Legislation Amendment Bill 2023 (the Bill) is to amend certain
Commonwealth Acts 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 December 2023, for a further three years to 7 December 2026
- 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
- expand
the reporting requirements in relation to the operation of the post-sentence
order scheme
- extend
the operation of provisions relating to unauthorised disclosure of information
by current and former Commonwealth officers by 12 months to 29 December 2024.
Background
Australia’s
anti-terrorism laws
Since September 2001, successive Australian governments
have enacted a series of significant legislative reforms to update national
security laws and bolster Australia’s response to potential terrorist threats.[1]
As noted by academics Keiran Hardy and George Williams, ‘despite the
substantial law-making in the first decade [since 2001], Australia's
counterterrorism laws continued to grow in number and scope, as well as in
their novelty’.[2]
In particular, following the July
2005 terrorist attacks in London, the Parliament enacted the
Anti-Terrorism
Act (No. 2) 2005 which introduced the:
These powers have been subject to sunset clauses since
their enactment,[3]
with an initial sunset clause of 10 years agreed to by the then Council of
Australian Governments (COAG) at its meeting of 27 September 2005.[4]
In 2014, the Government sought to extend the powers for
another 10 years.[5]
However, following the recommendation of the Parliamentary Joint Committee on
Intelligence and Security (PJCIS), the Government agreed to extend the sunset
clauses until 7 September 2018.[6]
This was to allow the PJCIS and the INSLM to conduct a review of these powers to
inform a decision on whether to retain the measures for a further period.[7]
In 2018, the sunset clauses were extended again until 7 September 2021.[8]
They were then further extended to 7 December 2022,[9]
and extended again until 7 December 2023.[10]
The provisions in the Bill will extend the use of these provisions for the
fifth time since they were enacted.
Significant reforms were also introduced in 2016 via the
enactment of the Criminal
Code Amendment (High Risk Terrorist Offenders) Act 2016 which inserted
new Division 105A into the Criminal Code, the object of which was to
provide for the continuing detention of terrorist offenders who pose an
unacceptable risk of committing serious offences if released into the community
following the end of their sentence.[11]
Further reforms to these provisions occurred by way of the enactment of the Counter-Terrorism
Legislation Amendment (High Risk Terrorist Offenders) Act 2021 which
provided for courts to make an extended supervision order as an alternative to
a continuing detention order.[12]
These provisions are scheduled to sunset on 7 December 2026.[13]
Recent
reviews of Australia’s anti-terrorism laws
In recent years, there have been several reviews of
Australia’s counter-terrorism laws which have focused on the powers the Bill is
seeking to extend. This Bills Digest does not provide a comprehensive summary
of all these reviews and government responses but rather provides a high-level
overview and links to relevant sources.
Council of
Australian Governments Review of Counter-Terrorism Legislation
As part of its decision to introduce the 2005 powers, Commonwealth
and state/territory ministers agreed that COAG would review the legislation
after five years.[14]
The review did not commence until August 2012 and the final
report was tabled
in Parliament on 14 May 2013 by the then Attorney-General. There were 47
recommendations (see pp. x-xvi of the report) ranging from the definition of a
terrorist act through to processing items connected with terrorist acts, the
proscription of terrorist organisations, funding a terrorist organisation and
associating with terrorist organisations.[15]
With respect to the 2005 powers, COAG recommended:
- retention
of the control order regime, but with significant amendments, including:
- consideration
of a system of ‘Special Advocates’ to participate in proceedings relating to
control orders
- introduction
of minimum standards of information to be given to a person subject to a
control order
- amendments
to reduce the severity of some of the conditions that may be applied under a
control order and specific provision for the Commonwealth Ombudsman to oversee
interim and confirmed control orders
- repeal
of the preventative detention order regime and
- amendments
to stop, search and seizure powers available in relation to terrorism.
Reviews by
the Independent National Security Legislation Monitor
There have been a number of reviews by the INSLM which
have considered the use of these powers.
In the 2011–12
annual report of the INSLM, which focused on the control order and
preventative detention order regimes, ASIO’s special counter-terrorism powers
and the statutory definition of ‘terrorism’, the then INSLM, Bret Walker SC,
made 21 recommendations, including repealing both the control order and preventative
detention order regimes.
Following the 2014 extension of the sunsetting
arrangements until 7 September 2018, both the INSLM and the PJCIS were required
to review the powers ahead of that date to inform a decision on whether to
retain the measures for a further period.
On 7 September 2017, the then INSLM Dr James Renwick SC completed
his reports on the operation of these powers:
The INSLM recommended that each of the measures should be
retained for a further period, subject to some amendments.[16]
On 3 March 2023, the current INSLM, Grant Donaldson SC,
completed his statutory
report into Division 105A (and related provisions) of the Criminal Code
which provide for the continued detention of terrorist offenders where the
person has served their sentence. The report was tabled
in Parliament on 30 March 2023.
In noting that these provisions have made Australia ‘a
coarser and harsher society’, the INSLM made a number of significant
recommendations, including that:
- continuing
detention orders be abolished
- changes
be made to the regime for making extended supervision orders
- the
objects of Division 105A be amended to include, as express objects of the
Division, rehabilitation and reintegration of the subjects of a post-sentence
order back into the community.[17]
Reviews by
the Parliamentary Joint Committee on Intelligence and Security
Following the reviews undertaken by the INSLM into the
powers the Bill is seeking to extend, the PJCIS was then required to also undertake
a review into these powers by 7 January 2021.
On 1 March 2018, the PJCIS tabled its reports in relation
to:
In light of the threat environment, and in consideration
of the objective of the powers to combat terrorism, the PJCIS recommended each
of the powers continue for a period of three years, subject to some amendments.[18]
On 18 June 2020, PJCIS commenced
an inquiry into the operation, effectiveness and implications of the:
- stop,
search and seizure powers provided for under Division 3A of Part IAA of the Crimes
Act
- control
order regime provided for under Division 104 of the Criminal Code
- preventative
detention order regime provided for under Division 105 of the Criminal Code and
- continuing
detention order regime provided for under Division 105A of the Criminal Code.
On 18 October 2021, the PJCIS tabled
its report which contained 19 recommendations (pp. xiii-xvii), including
that the powers the Bill is seeking to extend be extended to 7 December 2025 (recommendations
3, 7 and 14).
Other key recommendations, which are the focus of the
Bill, included:
- the
amendment of Division 3A of the Crimes Act regarding notifications
relating to declarations of a prescribed security zone (recommendation 1)
- the
amendment of the Crimes Act relating to matters that the Minister must
consider before declaring a prescribed security zone (recommendation 2)
- that
the Attorney-General’s Department (AGD) consider the appropriateness of the
implementation of a duty judge system where applications for search warrants
could be received and considered on an expedited basis (recommendation 5)
- that
section 3UEA of the Crimes Act be amended to require any agency that
enters premises relating to this section to obtain an ex post facto warrant as
soon as possible (recommendation 6)
- that
the definition of ‘issuing court’ in the Criminal Code be amended to
only the Federal Court of Australia (recommendation 8)
- that
subsection 104.5(3) of the Criminal Code be amended to align the
conditions that can be imposed as part of the control orders scheme with the Counter-Terrorism
Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 (recommendation
10)[19]
- that
Division 104 of the Criminal Code be amended so that the AFP may provide
conditions on control orders with the consent of both parties (recommendation
12)
- that
AGD investigate the cost of providing legal aid for those subject to
proceedings under Division 104 of the Criminal Code including continuing
detention orders and control orders and provide a report to the PJCIS within 12
months of the tabling of the PJCIS’s 2021 report (recommendation 13)
- that
Division 105 of the Criminal Code relating to issuing authorities be
amended to remove: a member of the Administrative Appeals Tribunal (other than
the AAT President or a Deputy President who also holds a commission as a
Federal Court Judge); and a Judge of the Federal Circuit Court (recommendation
15)
- that
the Criminal Code be amended to require public reporting requirements on
the use and implementation of Division 105A (recommendation 19).
The PJCIS also recommended that prior to the relevant
powers sunsetting, the PJCIS should be given the option to conduct another
review of these provisions (recommendations 4, 9, 16 and 17). The Government
has yet to table its response to the PJCIS review, with the Attorney-General stating
on 10 August 2023 that it would table the response shortly.
The PJCIS is currently
undertaking a review into the operation, effectiveness and implications of
Division 105A of the Criminal Code, and any other provision of the Criminal
Code as it relates to that Division.
Committee
consideration
At the time of writing, the Bill has not been referred to
a committee for inquiry.
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills had
not yet considered the Bill at the time of writing.
However, the Scrutiny of Bills Committee has previously
raised scrutiny concerns in relation to all the measures for which the Bill
will extend the current sunset period.[20]
The Scrutiny of Bills Committee has also continued to raise concerns regarding
the extension of the sunsetting arrangements with respect to these measures:
The committee reiterates 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. 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.[21]
With respect to the most recent extension to the
sunsetting arrangements, the Scrutiny of Bills Committee sought further advice
from the Attorney-General on the need to extend the powers ‘noting that the
explanatory memorandum contained no explanation or justification for the
extension’.[22]
Upon receiving further advice from the Attorney-General
that the extension was required to ensure that there is sufficient time to
consult on, and implement, the Government's response to PJCIS's recommendations,
the Scrutiny of Bills Committee noted that this advice would have been helpful
had it been included in the Explanatory Memorandum and reiterated:
… its expectation that the explanatory materials accompanying
a bill which proposes to extend the sunsetting date of significant coercive
powers should provide a comprehensive justification for the continued need for
the powers, including outlining what exceptional circumstances justify the
extension, whether those exceptional circumstances are expected to continue
into the future and what alternative scrutiny mechanisms are available to
Parliament.[23]
Policy
position of non-government parties/independents
At the time of writing, non-government parties and
independents have not commented publicly on the Bill.
Position of
major interest groups
While stakeholders do not appear to have commented on the
Bill, stakeholders such as the Law Council of Australia (LCA) and the
Australian Human Rights Commission (AHRC) have consistently raised concerns
about the operation and extension of these powers.
For example, in its submission
to the most recent PJCIS
inquiry into these powers, the LCA stated that ‘its primary position is
that, with the exception of certain powers under Division 3A of Part IAA of the
Crimes Act, the powers under review are not necessary or proportionate
responses to the threat of terrorism and should not be renewed beyond their
sunset dates’ (p. 7). Alternatively, if some or all of these powers are to
remain in force, the LCA recommended several amendments to strengthen
applicable safeguards, which are discussed further in the ‘Key issues and provisions’
section of this Digest.
The AHRC also raised
concerns about the scope of the control order regime, arguing that it
‘should be more tightly targeted to people demonstrated to be a risk to the
community’ (p. 9). With respect to preventative detention orders, the AHRC stated
that ‘on the basis of publicly available evidence, this is a clear example of a
power that is not necessary’ and ‘in every case where relevant authorities have
suggested a [preventative detention order] might be used, there are
alternative, less restrictive options available that are just as effective’ (p.
10).
Financial
implications
The Explanatory
Memorandum states that the Bill will have a nil financial impact (p. 13).
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011, 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 has stated
in the Explanatory Memorandum that the Bill engages the following rights (p.
25):
- the
right to protection against being subjected to torture or to cruel, inhuman or
degrading treatment or punishment (Article 7 of the International
Covenant on Civil and Political Rights (ICCPR))
- the
right to freedom from arbitrary detention and arrest, and the right to liberty
and security of the person (Article 9 of the ICCPR)
- the
right to freedom of movement (Article 12 of the ICCPR)
- the
right to a fair trial, the right to minimum guarantees in criminal proceedings
and the presumption of innocence (Article 14 of the ICCPR)
- the
right to protection against arbitrary and unlawful interference with one’s
privacy or home (Article 17 of the ICCPR)
- the
right to freedom of expression (Article 19 of the ICCPR)
- the
right to freedom of association (Article 22 of the ICCPR)
- the
right of the child to have the child’s best interests as a primary
consideration by the courts, administrative authorities or legislative bodies (Article
3 of the Convention
on the Rights of the Child).
The Government considers
that the Bill is compatible because to the extent that it limits human rights,
those limitations are reasonable, necessary and proportionate to achieving a
legitimate objective (p. 40).
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.
However, on previous Bills with a similar effect, the
PJCHR has raised concerns about the human rights compatibility of measures that
extend sunset periods, particularly whether such measures are proportionate and
therefore compatible with human rights.[24]
For example, with respect to the most recent extension of the sunsetting
arrangements, the PJCHR stated:
… noting the [PJCHR’s] previous conclusion that these
provisions do not contain sufficient safeguards to constitute a proportionate
limit on rights, and noting the government has not demonstrated the continued
necessity of all these powers, it has not been demonstrated that the extension
of the control order, preventative detention order and stop, search and seizure
provisions for a further 12 months is compatible with human rights.[25]
Key issues
and provisions
Stop, search and seizure powers
Pursuant to Division 3A of Part IAA of the Crimes Act,
the Minister has the power to declare a ‘Commonwealth
place’ to be a ‘prescribed security zone’ for the purpose of preventing a
terrorist attack, or in response to a terrorist attack (subsection 3UJ(1)).
When an area is declared as such, this gives police
increased powers within that zone. A declaration may be in place for up to 28
days but the Minister must revoke the declaration where there is no longer a
terrorism threat that justifies the declaration being continued or where a
terrorist attack has occurred, the declaration is no longer required (subsections
3UJ(3) and (4)).
Key elements of these powers include:
- a
police officer pursuant to this Division can stop, question and search persons
and seize items in a Commonwealth place without requiring a warrant to exercise
these powers. This can be done if the police officer suspects on reasonable
grounds that the person may have just committed, be committing or be about to
commit, a terrorist act (paragraph 3UB(1)(a))
- a
police officer can exercise these powers in a prescribed security zone even
without reasonable grounds to believe that the person may have just committed,
be committing or be about to commit a terrorist act (paragraph 3UB(1)(b))
- further,
a police officer can enter premises (even if the premises are not a
Commonwealth place or prescribed security zone) if they suspect on reasonable
grounds that it is necessary to search the premises for an item and to seize it
if they find it there to prevent that item from being used in connection with a
terrorism offence and it is necessary to do so without a search warrant because
there is a serious and imminent threat to a person’s life, health or safety
(section 3UEA).
Key
provisions
Schedule 1 of the Bill proposes to extend the operation of
the stop, search and seizure powers for three years until 7 December 2026 (item
9) and introduce a number of safeguards with respect to these powers which
give effect to recommendations 1, 2 and 3 of the recent PJCIS report.
Changes to
declaration of prescribed security zones
Item 3 inserts proposed subsection 3UJ(1A)
which provides that the Minister must have regard to the following grounds when
declaring a Commonwealth place to be a prescribed security zone:
- whether
the impact of a declaration on the rights of persons in the Commonwealth place
would be reasonable and proportionate
- the
appropriate duration of the declaration
- where
the ground giving rise to the proposed declaration relates to preventing a
terrorist act from occurring, the availability and effectiveness of any powers
conferred by a law of the Commonwealth, state or territory that would assist in
preventing the terrorist act from occurring
- where
the ground giving rise to the proposed declaration relates to responding to a
terrorist act that has occurred, the availability and effectiveness of any
powers conferred by a law of the Commonwealth, state or territory that would
assist in responding to a terrorist act that has occurred
- where
the declaration is one of a series of successive declarations in relation to
the Commonwealth place, the impact and proportionality of successive
declarations and
- other
matters (if any) the Minister considers relevant.
Item 4 repeals and replaces proposed subsection
3UJ(3) to allow the Minister to specify at the outset that a declaration may
remain in effect for a period of less than 28 days. Currently, a declaration ceases
to have effect 28 days after it is made unless it is revoked by the Minister.
Item 5 inserts proposed subsections 3UJ(5A) and
(5B) which require the AFP Commissioner and the Minister to respectively
provide notification of, and reasons for, the declaration of a ‘prescribed
security zone’ to specified oversight bodies. Specifically, proposed
subsection 3UJ(5A) will require the AFP Commissioner to prepare a statement
as soon as practicable after making a declaration (though within 72 hours) which
states that a declaration has been made and identifying the prescribed security
zone. The AFP Commissioner must then provide the statement to the Commonwealth
Ombudsman, INSLM, and the PJCIS. The provision does not specify that the
statement is required to be in writing. Proposed subsection 3UJ(5B)
requires the Minister to provide the PJCIS a written statement setting out the
reasons for making the declaration as soon as practicable after the declaration
is made. Items 7 and 8 clarify that failure by the AFP
Commissioner or the Minister to make such a statement does not make the
declaration or its revocation ineffective.
Informing a
person of a right to make a complaint
Item 2 inserts proposed subsections 3UD(1) and
(2) which will require that a police officer who stops and detains a person
under section 3UD must inform the person of any right the person has to make a
complaint to the Commonwealth Ombudsman or a State or Territory police
oversight body,[26]
about the conduct of the police officer in exercising the powers conferred by
section 3UD, unless this is not reasonably practicable because of circumstances
of urgency.
Key issues and
stakeholder commentary
In its submission
to the most recent PJCIS review, the AFP noted that these powers had not
been used since their introduction in December 2005, though argued that this
did not mean these powers are not required:
This is not an indication of a lack of utility of these
powers. The stop, search and seizure powers fill a gap in state and territory
emergency legislative framework, ensuring police can respond immediately in the
event of a terrorist threat to, or incident within, a Commonwealth place (p.
8).
While stakeholders such as the LCA and the AHRC were not opposed
to these powers being extended (unlike other powers the subject of the PJCIS
review), this was conditional on the introduction of stronger safeguards with
respect to these powers.
The AHRC
recommended that section 3UEA be repealed unless it could be established that
there was a significant operational gap that made it necessary to retain ‘such
an extraordinary power’ and that the maximum period for a declaration of
prescribed security zone in section 3UJ be reduced from 28 to 14 days (pp. 11–12).
Neither of these recommendations were adopted by the PJCIS.
The LCA made
a number of recommendations aimed at making ‘important adjustments to the
regime, which are necessary given its substantial departure from the
established system of warrant-based powers’, which included (pp. 10–12):
- statutory
criteria to guide Ministerial decision-making about the declaration of a
Commonwealth place as a ‘prescribed security zone’
- supplementing
the Ministerial obligation to revoke a declaration of a ‘prescribed security
zone’ if the issuing criteria are no longer met, with further statutory
obligations on the AFP Commissioner to ensure that:
- all
relevant information suggesting that the issuing criteria are no longer met is
brought to the Minister’s attention as soon as possible, so that the Minister
must consider whether to revoke the declaration and
- all
reasonable steps are taken to discontinue the exercise of Division 3A powers on
the basis of a declaration of a ‘prescribed security zone’ if the AFP
Commissioner reasonably believes that the issuing criteria are no longer met,
but the Minister has not yet formally revoked the declaration
- considering
whether the power to make a declaration of a ‘prescribed security zone’ could
be conferred on an independent body, such as a new Investigatory Powers
Division of the Administrative Appeals Tribunal
- explicit
statutory requirements for police officers exercising all Division 3A powers to
consider whether it would be reasonably practicable to obtain a search warrant
(either through specific means or a ‘least intrusive’ threshold)
- requiring
the AFP to notify the Commonwealth Ombudsman, the INSLM and the PJCIS of a
declaration of a ‘prescribed security zone’ within 24 hours of the Minister
making the declaration
- requiring
the Minister for Home Affairs to ensure that the PJCIS is given a written
statement of reasons for the making of the declaration of a prescribed security
zone
- requiring
police officers exercising Division 3A powers to inform a person being stopped
and detained for the purpose of a search of their right to make a complaint to
the Commonwealth Ombudsman or applicable State or Territory police oversight
body or bodies, unless this is not reasonably practicable because of
circumstances of urgency and
- statutory
pre-sunsetting reviews by the INSLM and the PJCIS to assess the operation of
the scheme as a whole and inform Parliamentary decision making about whether it
should continue.
A number of these recommendations were adopted by the PJCIS
in its report, though some are not being given effect to via this Bill (for
example, recommendation 5 (introduction of a duty-judge system) and
recommendation 6 (requirement to obtain an ex post facto warrant)). The PJCIS
also recommended that it should be given another opportunity to review these
powers prior to the new sunset date (recommendation 4).
Control order regime
Currently the control order regime in Division 104 of the Criminal
Code allows an issuing court (either the Federal Court of Australia or the
Federal Circuit and Family Court of Australia) to impose obligations,
prohibitions, and restrictions on a person for the purposes of:
- protecting
the public from a terrorist act
- preventing
the provision of support for, or the facilitation of, a terrorist act
- preventing
the provision of support for, or the facilitation of, the engagement in a
hostile activity in a foreign country.
The control order process consists of two stages: an
interim control order and a confirmed control order. Orders made under this
regime are civil orders as opposed to criminal orders.
Key elements of the regime include:
- generally,
a senior member of the AFP can only apply to an issuing court for an interim control
order subject to the written consent of the Minister (sections 104.2 and 104.3),
though in some cases the senior member may apply to the court for an urgent
interim order without the consent of the Minister (sections 104.6–104.9)
- the
court can make an interim control order if it is satisfied on the balance of
probabilities that the requirements of the Criminal Code have been met
(paragraph 104.4(1)(c)) and that the order is ‘reasonably necessary, and
reasonably appropriate and adapted’ to meet the purposes of the order (paragraph
104.4(1)(d))
- the
obligations, prohibitions and restrictions that may be placed on a controlee
are outlined in subsection 104.5(3) and include that the controlee must remain
in Australia, remain at certain premises between certain hours, wear a monitoring
device, and may be restricted from using certain communications and technology.
Subsection 104.5A(1) sets out further obligations that may be imposed on a
person required to wear a monitoring device
- an interim
control order must be confirmed or otherwise by a court by the person attending
court at least seven days after the control order is made (subsection
104.5(1A)). The court will consider the ongoing need for the control order and
the obligations, prohibitions and restrictions that are imposed
- the
control order can be granted for up to 12 months (sections 104.5, 104.16), or
three months for a person between 14 and 17 years of age. There is a
prohibition on making orders for people under 14 years of age (section 104.28)
- there
is no prohibition on seeking multiple consecutive orders, or any limitation on
the number of consecutive orders that may be issued
- contravention
of a control order is an offence with a penalty of up to 5 years imprisonment
(section 104.27).
Key provisions
Items
1–42 of Schedule 2 of the Bill propose to extend the operation of the control
order powers for three years until 7 December 2026 (item 42) and make
significant changes to the operation of the regime. The Bill will also amend
the language in Division 104 to refer to ‘conditions’ rather than the current
language of ‘obligations, prohibitions and restrictions’.
Changes to
issuing court
Item 2 amends the definition of issuing court to
remove reference to the Federal Circuit and Family Court of Australia. This
will mean that only the Federal Court of Australia will have the power to issue
control orders and responds to recommendation 8 of the PJCIS’s
2021 review. The LCA noted
that this recommendation had previously been recommended by both the COAG
review and the 2017 report of the INSLM but was not supported by the previous
Government in its May 2018 response to the statutory reviews by the INSLM
(2017) and PJCIS (2018) (see background for further information on these
reviews).
Requirement
to consider the combined effect of conditions
Paragraph 104.4(1)(d)
currently only allows the court to make an interim control order where the
court is satisfied on the balance of probabilities that each of the
obligations, prohibitions and restrictions to be imposed on the person by the
order is reasonably necessary, and reasonably appropriate and adapted, for the
purpose of:
- protecting the public from a terrorist act
- preventing the provision of support for or
the facilitation of a terrorist act or
- preventing the provision of support for or
the facilitation of the engagement in a hostile activity in a foreign country.
Further, in
determining whether each of the obligations, prohibitions and restrictions to
be imposed on the person by the order is reasonably necessary, and reasonably
appropriate and adapted, subsection 104.4(2) requires that the court must take
into account:
- as a paramount consideration in all
cases—the objects of this Division 104
- as a primary consideration in the case
where the person is 14 to 17 years of age—the best interests of the person; and
- as an additional consideration in all
cases—the impact of the obligation, prohibition or restriction on the person’s
circumstances (including the person’s financial and personal circumstances).
Items 5 and
7 of the Bill will amend
these provisions to provide that the court must consider each of the conditions
separately and the combined effect of all of the conditions in determining
whether the conditions are reasonably necessary, and reasonably appropriate and
adapted for the purposes listed in paragraph 104.4(1)(d). The listed purposes
will not change.
Changes to conditions
which may be imposed under a control order
The most significant changes in Schedule 2 relate to the
changes to the types of controls that can be placed on a person under a control
order.
Items 10 and 11 will repeal the current provisions
which specifically set out the obligations, prohibitions and restrictions that can
be imposed by a court (subsections 104.5(3) to (6) and section 104.5A) and
replace them with proposed subsection 104.5A which instead sets out the
type of conditions a court may impose. As noted by the Explanatory
Memorandum, unlike the current approach, the new provisions ‘are intended
to provide examples of conditions to the court and are not intended to limit
the conditions that a court may impose’ (p. 50).
Proposed subsection 104.5A(1) sets out a broad list
of general conditions that may be included in a control order which relate to:
- movement,
travel and residence of a person, including curfew
- travel
documents, licenses and changes to or use of different names
- communication,
association and the use of technology
- possession
of specified articles or substances
- employment,
training, education and other activities, including recreational activities and
treatment, rehabilitation and intervention programs or activities.
Proposed subsection 104.5A(2) provides for a list
of conditions that may be included in a control order to give effect to the
order or facilitate or monitor compliance with the order. These relate to:
- testing
for use and possession of substances
- photographs
and fingerprints
- electronic
monitoring, compliance with schedules of movement and carrying and use of a
mobile phone
- reporting
to places and persons, and curfew checks
- entry,
search and seizure relating to premises and electronic devices, items and
technology.
These non-limiting lists of possible conditions that may
be imposed by a court under proposed subsections 104.5A(1) and (2) appear
to be significantly broader than the obligations, prohibitions and restrictions
that can be currently placed on a controlee under subsection 104.5(3). As
stated in the Explanatory
Memorandum, ‘these provisions make clear that a control order may include a
very broad range of conditions directed at all aspects of a person’s life’ (p. 50).
The Bill will retain existing safeguards (for example, not
requiring a person to be detained at a specified premises for more than 12
hours within a 24 hour period, retained in proposed subsection 104.5A(5))
and allow a court to impose additional obligations on a person required to wear
a monitoring device as currently set out in section 104.5A.
The Bill will also allow the issuing court to specify that
a condition in an order is an exemption condition (proposed section 104.5B).
Where a condition is specified as such, the person subject to the order can
apply in writing to the court for a temporary exemption from having to comply
with that condition.
Variation
of control orders
Items 12 and 25 will repeal the current provisions
relating to variation of control orders by consent in section 104.11A and
insert proposed section 104.22 in response to recommendation 12 of the
PJCIS’s 2021 report.
Currently a
court may vary a control order where the parties have consented and the
variation is appropriate in the circumstances, provided the variation does not involve
adding any obligations, prohibitions or restrictions to the order. Proposed
section 104.22 will allow a court to impose new conditions (as well as
varying or removing conditions) where the parties have consented and where it
is appropriate in the circumstances. The Bill will also introduce additional
requirements for the court to consider when the person the subject of the
control order is under 18 years of age.
Key issues
and stakeholder commentary
As noted
by the AFP, ‘a broad range of persons are potentially eligible for a
control order, including persons who may not have a history of terrorist
offending but nevertheless pose a risk to the public of committing a terrorist
act or providing support for a terrorist act, those who may have provided or
received training by a terrorist organisation, and those convicted of a
terrorism related offence’ (p. 6). In its submission
to the PJCIS, the AFP provided an overview of individuals who have been
subject to control orders (with further details set out in its supplementary
submission):
The release of terrorist offenders and other persons posing a
threat to the community has seen the AFP with State and Territory partners
manage 10 individuals on control orders since 2019. Since 2014, when the
National Threat Level was raised to PROBABLE, the AFP has applied for and been
granted thirteen interim control order applications, eight of which were later
confirmed. A number of interim and confirmation applications are still awaiting
consideration by the court. (p. 5)
While the majority of control orders have been imposed on
persons who have been convicted of terrorist offences, they have also been
imposed in other situations. The AHRC raised
concerns about the use of control orders in these scenarios:
… the Commission considers that there is no convincing
justification for the use of control orders, and specifically the attendant
limitations on human rights, in relation to people with no previous history of
terrorist activity, where there is a lack of probative evidence that would even
ground a ‘reasonable suspicion’ that they are currently involved in planning
any terrorist act, or where prosecutors have confirmed that there is no
reasonable prospect of a conviction. (pp. 59–60)
The AHRC also raised
concerns that the use of control orders ‘after a person has been tried and
acquitted of a criminal offence is concerning from a rule of law perspective’
(p. 60).
In its submission to the recent PJCIS inquiry, the LCA stated
that it ‘maintains its longstanding position, which was endorsed by the first
INSLM, that the [control order] regime is not necessary to manage the security
threat presented by terrorism’:
Rather, the Law Council continues to support placing reliance
on the investigation and enforcement of the wide range of criminal offences
that are available in relation to terrorism-related activities, and offences in
the nature of ‘foreign incursions’ to undertake violent and other hostile
activities in other countries. This includes offences directed specifically to
preparatory and ancillary conduct, which can also operate in combination with
the extensions of criminal responsibility in Chapter 2 of the Criminal Code
(such as attempt, conspiracy and aiding and abetting).
The enforcement of these offences is also supported by the
exercise of the extensive and greatly expanded range of investigatory powers
available to law enforcement and intelligence agencies. (p. 23).
The LCA stated
that if the regime were to continue then a number of safeguards should be
introduced (pp. 8-9), including amendments to clarify the nature and extent of
certain conditions of control orders (for example, an express prohibition on
mandatory relocation).
The LCA also noted
there was ‘an argument that the [control order] regime may no longer be
required once an appropriate [extended supervision order] regime is
implemented’ (p. 29). This was also supported by the AHRC who noted
that an extended supervision order regime would be more consistent with human
rights and:
… would allow the same controls to be imposed as the current
control order regime, but would be limited to people who have been convicted of
a terrorist offence and who would still present unacceptable risks to the
community at the end of their sentence if they were free of all restraint upon
release from imprisonment. [p. 60].
As discussed in the background to this Bills Digest, the
enactment of the Counter-Terrorism
Legislation Amendment (High Risk Terrorist Offenders) Act 2021 introduced
an extended supervision order regime which allows state/territory Supreme
Courts to impose a range of supervision, monitoring and management conditions
(including possible electronic monitoring) on a high-risk offender at the end
of their sentence. There are a number of similarities between the control order
regime and the extended supervision order regime and the INSLM has prepared
a comparison of the two regimes.
In its evidence to the PCJIS, the AFP stated
that the ‘current list of twelve available controls limits the capacity for a
judicial officer to tailor controls to the particular threat posed by each
individual subject to a control order’ and that this does not correlate with
the range of conditions that could be imposed under the extended supervision
order scheme (p. 5). The PJCIS accepted this evidence in recommending that the
list of conditions that may be imposed as part of the control orders scheme be
amended to align with the extended supervision order scheme (recommendation
10). As part of its 2021
review of these provisions, the PJCIS also recommended that the Government
undertake a review of the list of conditions that could be imposed as part of a
control order and report back to the PJCIS by July 2022 (recommendation 11).
Preventative detention order regime
Division 105 of the Criminal Code sets out the
circumstances in which a preventative detention order may be issued. Through a
preventative detention order, an individual can be taken into custody and can
be detained for up to 24 hours for an initial order or up to 48 hours for a continued
order. This is intended to prevent a terrorist act from occurring as well as to
preserve evidence of, or relating to, a recent terrorist attack.
The Explanatory
Memorandum to the Bill sets out key elements of the preventative orders
regime (pp. 10–11):
- a preventative
detention order (PDO) has a limited duration, being a maximum of 48 hours with
the requirement to seek the approval of an issuing authority for an extension
beyond the initial 24 hours
- where
a PDO is issued for the purpose of preventing a terrorist act, the AFP
applicant and the issuing authority must be satisfied of three matters: the
terrorist act is capable of being carried out and could occur within the next
14 days, the making of the order would substantially assist in preventing a
terrorist act occurring, and detaining the person is reasonably necessary to
prevent a terrorist act occurring
- where
a PDO is issued for the purpose of preserving evidence of a terrorist act, the
AFP member and issuing authority must be satisfied that the terrorist act has
occurred within the last 28 days, that it is necessary to detain the person to
preserve evidence of, or relating to the terrorist act, and that detention is a
reasonably necessary step in achieving this outcome
- an AFP
member may apply to an issuing authority for a continued PDO which may only be
issued after fresh consideration of the merits of the application and the
statutory criteria
- a prohibited
contact order (PCO) may be sought where it is reasonably necessary to prevent
serious harm to a person, to avoid a risk to action being taken to prevent the
occurrence of a terrorist act, or to avoid other specified risks outlined in
subsection 105.14A(4)
- the
key review mechanisms include: the detainee’s right to seek merits review of
the decision to make or extend an order in the Security Division of the
Administrative Appeals Tribunal, and the detainee’s right to bring proceedings
in a court relating to the issuing of the order or their treatment in detention
(both rights arise after the order expires).
In its 2020 submission
to the PJCIS review, the AFP noted that ‘since the introduction of the
legislation in 2005, the AFP has not used the Commonwealth PDO scheme’, though
‘[t]he Joint Counter Terrorism Teams (JCTTs) have, however, relied on
complementary state-based equivalent powers on four occasions in 2014 and 2015’
(p. 9). States and territories have
enacted their own legislation allowing for the detention of a person for up
to 14 days.
Key
provisions
Items 43–51 of Schedule 2 of the Bill propose to extend
the operation of the preventative order powers for three years until 7 December
2026 (item 51) and limit the class of persons who can be appointed as an
issuing authority for a PDO to judges (or certain former judges) of the Federal
Court of Australia or the Supreme Court of a state or territory. This responds
to recommendations 14 and 15 of the 2021 PJCIS report.
Reporting
requirements for the continued detention order regime
Division 105A of the Criminal Code creates a scheme
empowering state and territory Supreme Courts to order that a person who has
been convicted of and served a sentence of imprisonment for one or other
‘terrorist offences’ remain in detention in a prison (a continuing detention
order (CDO)) or be subject to orders that restrict that person’s freedom (an
extended supervision order (ESO)). Broadly, these orders are made when a court
is satisfied that a person poses an unacceptable risk of committing a ‘terrorist
offence’ if they are not detained or restrained.
Section 105A.3 of the Criminal Code provides that a
post-sentence order (a CDO or an ESO) may be made in relation to a person who
has been convicted of an offence specified in paragraph 105A.3(1)(a) where the
person is at least 18 years of age at the time their sentence ends, and
provided that one of the preconditions listed under section 105A.3A applies to
that person.
Section 105.22 of the Criminal Code currently
requires the Minister to table in each House of Parliament an annual report
which includes information about the number of each of the following for each
financial year:
- applications
for each kind of post‑sentence
order
- applications
for each kind of interim post‑sentence
order
- each
kind of post‑sentence
order
- each
kind of interim post‑sentence
order
- applications
for review of each kind of post‑sentence
order by terrorist offenders
- applications
for review of each kind of post‑sentence
order by the Minister, or a legal representative of the Minister
- each
kind of post‑sentence
order affirmed
- each
kind of post‑sentence
order varied
- post‑sentence orders revoked.
Items 54 and 55 of Schedule 2 of the Bill will
expand these reporting requirements to include:
- the
detention arrangements that applied to terrorist offenders who were subject to
a CDO at any time during the year (proposed paragraph 105A.22(2A)(a)).
This may include information about the availability, type and nature of the
detention arrangements, and the cost of providing the detention arrangements to
the cohort subject to a CDO
- rehabilitation
or treatment programs that were made available during the year to terrorist
offenders who were subject to a post-sentence order at any time during the year
(proposed paragraph 105A.22(2A)(b)). This may include information about
the availability, type and nature, as well as the costs of making available
rehabilitation or treatment programs (including therapeutic services) to the
cohort subject to a post-sentence order
- funding
for the administration of Division 105A during the year (proposed paragraph
105A.22(2A)(c)). This may include information about funding provided by the
Commonwealth, either directly or indirectly, to support the implementation of
Division 105A, including the costs of applying for or reviewing Division 105A
orders, legal-assistance funding for terrorist offenders and enforcement costs.
Extension of sunset date for Commonwealth secrecy
offences
Section 122.4 of the Criminal Code currently
creates an offence where a person communicates information; the person made or
obtained the information by reason of his or her being, or having been, a
Commonwealth officer or otherwise engaged to perform work for a Commonwealth
entity; the person is under a duty not to disclose the information, and the
duty arises under a law of the Commonwealth.
As noted in the Explanatory
Memorandum:
At present, approximately 296 non-disclosure duties enliven
the offence in section 122.4. The offence in section 122.4 is intended to be
time-limited, to preserve the operation of these duties, while each duty is
being reviewed to determine whether it should be converted into a stand-alone
specific secrecy offence, or whether criminal liability should be removed. (p.
71)
On 22 December 2022, the Attorney-General announced the
Government had commenced a comprehensive
review of Commonwealth secrecy offences (including these non-disclosure
duties) and the report is due to be handed down on 31 August 2023. Submissions
received in relation to the review have been published on the Attorney-General’s
website.
Item 63 of the Bill will amend subsection 122.4(3)
to extend the operation of these provisions by 12 months (to 29 December 2024),
so that ‘the Government can consider the final report, including any proposed
legislative reforms on non-disclosure duties’ (p. 71).
Concluding comments
Since their enactment in 2005, these provisions have been
the subject of multiple reviews and certain stakeholders have consistently
raised concerns about the operation and extension of these powers. Academics
have noted that ‘the story of [Australia’s counter-terrorism laws] is one of
state power continually expanding, and rarely, if ever, contracting’.[27]
The Government has stated
that the threat of terrorism ‘is an enduring and evolving threat’ (p. 4), and that
the provisions in the Bill will
‘provide for the continuation and enhancement of important counterterrorism
powers that contribute to the safety and security of all Australians’.