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:

• stop, search and seizure powers contained in Division 3A of Part IAA of the Crimes Act 1914 (which also includes a new offence introduced in 2014 with respect to entering or remaining in a ‘declared area’ where terrorist organisations are engaging in hostile activity)
• control order regime provided for under Division 104 of the Criminal Code Act 1995
• preventative detention order regime provided for under Division 105 of the Criminal Code.

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:

• Review of Division 3A of Part IAA of the Crimes Act: Stop, Search and Seize Powers
• Review of Divisions 104 and 105 of the Criminal Code (including the Interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders
• Sections 119.2 and 119.3 of the Criminal Code: Declared Areas.

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:

• Review of the 'declared areas' provisions
• Review of police stop, search and seizure powers, the control order regime and the preventative detention order regime.

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’.