Referral of the Bill
1.1
The Counter Terrorism Legislation Amendment (2019 Measures No.1) Bill (the Bill) was introduced into the Senate by Senator the Hon Jonathon Duniam, Assistant Minister for Forestry and Fisheries and Assistant Minister for Regional Tourism, on 1 August 2019.
1.2
In his second reading speech Senator Duniam said:
The Counter-Terrorism Legislation Amendment Bill 2019 continues the important work of protecting our community. It will ensure that there is a presumption against bail and parole for all terrorists and their supporters. It will also make two changes to improve the operation of the continuing detention order scheme for high-risk terrorist offenders.
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On 1 August 2019 the Attorney-General referred the Bill to the Parliamentary Joint Committee on Intelligence and Security (the Committee) for inquiry and report.
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The Committee agreed to undertake an inquiry into the Bill and provide Parliament with an advisory report.
1.5
This is a reintroduced Bill. The Counter-Terrorism Legislation Amendment Bill 2019 lapsed at the dissolution of the House of Representatives on Thursday 11 April 2019. At this time the Committee’s review of the Counter-Terrorism Legislation Amendment Bill 2019 (previous inquiry) also lapsed.
1.6
Pursuant to Clause 8 of Schedule 1 of the Intelligence Services Act 2001 the Committee accepted as evidence to its review of the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019 all evidence including submissions and transcripts taken for the Committee’s review of the Counter-Terrorism Legislation Amendment Bill 2019.
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The Committee wrote to all previous submitters informing them of this decision and invited any of them to provide a supplementary submission to the current inquiry. The Committee also noted that the INSLM’s report The prosecution and sentencing of children for Commonwealth terrorist offence (the report) had been tabled in April 2019 and was available to submitters to comment on, specifically in relation to those matters raised by the report and addressed by the Bill.
Conduct of the inquiry
Previous inquiry
1.8
During its previous inquiry the Committee received four submissions and two supplementary submissions. The Committee held one public hearing in Canberra on Friday 15 March 2019 (the first hearing) with officials from the Attorney-General’s Department and the Department of Home Affairs.
Current inquiry
1.9
For the current inquiry the Committee wrote to all previous submitters informing them of this decision and invited any of them to provide a supplementary submission to the current inquiry. The Committee also noted that the INSLM’s report The prosecution and sentencing of children for Commonwealth terrorist offence (the report) was now available to submitters to comment on specifically in relation to those matters raised by the report and addressed by the Bill.
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The Committee held one public hearing in Canberra on Tuesday 27 August 2019 (the second hearing).
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A list of submitters is included at Appendix A.
1.13
A list of witnesses appearing at the hearings is included at Appendix B.
Previous inquiries’ request for embargoed copy of Independent National Security Legislation Monitor Report
1.14
During its previous inquiry the Committee noted that the amendments affect the parole and sentencing of children. In relation to this the Explanatory Memorandum states: that
the Independent National Security Legislation Monitor (INSLM) recently conducted a review into the prosecution and sentencing of children for Commonwealth terrorist offences. Schedule 1 of the Bill responds to two of the issues considered by the INSLM, namely the application to children of the existing presumption against bail, and, the minimum non-parole period for terrorist offenders under section 19AG of the Crimes Act.
1.15
The Independent National Security Legislation Monitor Act 2010 (Cth) (INSLM Act) provides for the appointment of the Independent National Security Legislation Monitor (INSLM). The INSLM independently reviews the operation, effectiveness and implications of national security and counter-terrorism laws; and considers whether the laws contain appropriate protections for individual rights, remain proportionate to terrorism or national security threats, and remain necessary. The current INSLM is Dr James Renwick SC.
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At the request of the then Prime Minister, the Hon Malcom Turnbull MP the INSLM conducted a review into the trial and punishment of children for terrorism offences.
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On 26 November 2018, the INSLM delivered to the Attorney-General, the Hon Christian Porter MP, the INSLM’s report to the Prime Minister The Prosecution and Punishment of Children for Terrorism Offences’.
1.18
Section 30(6) of the INSLM Act requires a (6) a Minister must cause a copy of a report to be presented to each House of the Parliament within 15 sitting days of that House after the day on which he or she receives the report. This meant that the report was not required to be tabled in the Parliament until 2 April 2019.
1.19
Noting the importance of the INSLM’s report to Committee deliberations in relation to amendments contained in the Bill affecting children, on 22 February 2019 the Chair wrote to the Attorney-General requesting that the Committee be provided with an embargoed copy of the INSLM’s report.
1.20
The report was provided to the Committee on 15 March 2019. As noted above the report was tabled in the Parliament in April 2019 and is further discussed in Chapter 2.
Report structure
1.21
This report consists of this chapter which provides a brief summary of the Bill and chapter two which outlines matters raised regarding the Bill including Committee comment and recommendations.
The Bill
1.22
The Bill consists of two schedules as follows:
Schedule 1 – Restrictions on bail and parole, and
Schedule 2 – Amendments relating to continuing detention orders and amendments relating to information disclosure in relation to applications for continuing detention orders.
Schedule 1 – Restrictions on bail and parole
Policy rationale and background
1.23
The policy rationale and background to the amendments in Schedule 1 are described by the Attorney-General’s Department and the Department of Home Affairs as follows:
At the Council of Australian Governments (COAG) meeting on 9 June 2017, First Ministers agreed to ensure there will be a presumption that neither bail nor parole will be granted to those persons who have demonstrated support for, or have links to, terrorist activity. This decision followed the terrorist attack in Brighton, Victoria in June 2017. The perpetrator of that attack was on parole for State offences, and had previously been charged with conspiracy to commit a terrorist attack.
On 5 October 2017, COAG agreed that its 9 June 2017 decision should be underpinned by nationally consistent principles to ensure there is a presumption against bail and parole in agreed circumstances across Australia. The principles were developed in accordance with COAG’s agreement and endorsed by the Australia-New Zealand Counter-Terrorism Committee, namely:
Principle 1 – the presumption against bail and parole should apply to categories of persons who have demonstrated support for, or links to, terrorist activity
Principle 2 – high legal thresholds should be required to overcome the presumption against bail and parole
Principle 3 – the implementation of the presumption against bail and parole should draw on and support the effectiveness of the Joint Counter-Terrorism Team (JCTT) model, and
Principle 4 – implementing a presumption against bail and parole should appropriately protect sensitive information.
The proposed amendments
1.24
Section 15AA of the Crimes Act 1914 (Crimes Act) already provides for a presumption against bail for persons being considered for bail as a result of a charge or conviction for a terrorism offence. The amendments to the Crimes Act proposed in this Bill are necessary to give effect to the COAG decision, by expanding the application of section 15AA, and introducing a presumption against parole for a broader group of offenders, namely:
persons charged with or convicted of a terrorism offence, including persons who might have been previously charged with or convicted of one of the offences listed in section 15AA, but are currently being considered for bail for a further federal offence,
persons who are the subject of a control order within the meaning of Part 5.3 of the Criminal Code, and
persons who have made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of Part 5.3 of the Criminal Code.
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Additionally, the Bill amends the application to children of the existing presumption against bail, and, the minimum non-parole period for terrorist offenders under section 19AG of the Crimes Act.
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The amendments make it explicit that the best interests of the child are a primary consideration, with the protection of the community the paramount consideration, for a bail authority when determining whether exceptional circumstances exist to rebut the presumption against bail where the person is under the age of 18 years. The amendments make it clear that these same factors are to be considered by:
the sentencing court when determining whether exceptional circumstances exist to justify a departure from the minimum non-parole period for a terrorism offence, where the offender is under the age of 18 years, and
the Attorney-General when determining whether exceptional circumstances exist to justify the release of a terrorist offender or terrorism-related offender on parole.
Presumption against bail for a broader group of offenders
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Currently, section 15AA of the Crimes Act provides that a bail authority must not grant bail to a person charged with or convicted of a terrorism offence (other than an offence against section 102.8 of the Criminal Code), unless the bail authority is satisfied that exceptional circumstances exist to justify bail.
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Item 3 of the Bill amends the existing presumption against bail in section 15AA of the Crimes Act so that it covers persons charged with or convicted of a terrorism offence, as well as the offenders provided for in new subsection 2A, described below.
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Item 7 inserts a proposed new subsection 15AA(2A), expanding the existing presumption against bail to include a person subject to a control order within the meaning of Part 5.3 of the Criminal Code as well as a person who has made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of Part 5.3 of the Criminal Code.
The application to children of the existing presumption against bail
1.30
Item 8 inserts a proposed new subsection 15AA(3A) amending section 15AA of the Crimes Act to make it explicit that bail authorities, when determining whether exceptional circumstances exist to justify bail for persons under the age of 18 years, must take into account the best interests of the child as a primary consideration while maintaining the protection of the community as the paramount consideration.
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This item also amends subsection 15AA(3A) and seeks to ensure that the persons covered by the new subsection 15AA(2A) are able to appeal against a decision of a bail authority in relation to exceptional circumstances, as is provided for under the current provision in relation to persons charged with or convicted of a terrorism offence.
Presumption against parole
1.32
Item 16 inserts new section 19ALB to introduce a presumption against parole for a person who has either been convicted of a terrorism offence, is subject to a control order under Part 5.3 of the Criminal Code or has made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of Part 5.3 of the Criminal Code.
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The presumption is intended to operate to prevent terrorist offenders and other terrorism-related offenders being released on parole unless exceptional circumstances exist.
The application to children of the minimum non-parole period for terrorist offenders under section 19AG of the Crimes Act
1.34
Item 13 amends section 19AG to require a court, when sentencing a terrorist offender who is under the age of 18 years, to fix a non-parole period of three quarters of the head sentence as provided for in subsection 19AG(2) unless the court is satisfied that exceptional circumstances exist to justify a shorter non-parole period. In determining whether exceptional circumstances exist, the court must have regard to the protection of the community as the paramount consideration and the best interests of the child as a primary consideration.
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The Explanatory Memorandum states that:
The INSLM considered the operation of section 19AG in his review of the prosecution and sentencing of children for terrorism. While item 13 differs from the approach recommended by the INSLM in recommendation 1 of his report, the measure is intended to be responsive to the issues raised during the INSLM inquiry and the report, namely the need to protect the rights of children who are being prosecuted and sentenced for terrorism offences.
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131. In relation to exceptional circumstances the Explanatory Memorandum points out that:
the fact that the offender was under the age of 18 years at the time of the offending and at the time of sentencing would not of itself constitute exceptional circumstances that would justify a non-parole period of less than three quarters of the head sentence,
the onus is on the offender to show that there is a situation which is out of the ordinary, or unusual in some respect, to satisfy the court that exceptional circumstances exist to justify a non-parole period that is shorter than three quarters of the head sentence, and
without limiting the matters the court may take into account in determining whether exceptional circumstances exist, the sentencing court may find that one or a combination of factors when considered in conjunction with an offender’s age constitute exceptional circumstances.
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In relation to the term exceptional circumstances the Explanatory Memorandum states that the term is ‘not defined’ in order to maintain the discretion of the Attorney-General and that if
the Attorney-General is not satisfied that exceptional circumstances exist in relation to a person covered by subsection 19ALB(3), the Attorney-General must not make a parole order. If this is the case, the Attorney-General must give the person written notice informing the offender of the refusal and the reasons for the refusal, in accordance with the existing arrangements under section 19AL of the Crimes Act. The Attorney-General would then need to reconsider the offender for parole within 12 months of the refusal decision, in accordance with the existing arrangements under subsection 19AL(2)(b)
If the Attorney-General is satisfied that exceptional circumstances exist to justify the release on parole of a person covered by subsection 19ALB(2), the Attorney-General would make a parole order setting out the conditions of the release, as provided for in existing section 19AN of the Crimes Act. The conditions of release in relation to terrorism-related offenders are developed in consultation with relevant Commonwealth and state and territory agencies.
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Proposed new subsection 19ALB(3) makes it explicit that, where an offender is under the age of 18 years, the Attorney-General will consider the best interests of the child as a primary consideration when determining whether there are exceptional circumstances that would justify releasing a terrorism-related offender to parole.
Schedule 2 – Amendments relating to continuing detention orders
Division 105A of the Criminal Code – continuing detention orders
1.39
Part one of Schedule 2 of the Bill relates to Division 105A of the Criminal Code.
1.40
Division 105A of the Criminal Code establishes a scheme for the continuing detention of high risk terrorist offenders who pose an unacceptable risk of committing a serious terrorism offence if released into the community at the expiry of their custodial sentence.
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Under the scheme, the Australian Federal Police (AFP) Minister can apply to a State or Territory Supreme Court for a Continuing Detention Order (CDO). A CDO can only be sought in relation to a ‘terrorist offender’. A ‘terrorist offender’ is defined in subsection 105A.3(1) as an individual who:
has been convicted of specific terrorism offences (outlined in paragraph 105A.3(1)(a)) (eligible terrorism offence),
is either detained in custody and serving a sentence of imprisonment for the offence, or a CDO or interim detention order is in force in relation to them (paragraph 105A.3(1)(b)), and
will be at least 18 years old when the sentence ends (paragraph 105A.3(1)(c)).
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The Supreme Court can only make a CDO if it is satisfied of the three matters outlined in subsection 105A.7(1). These are that
the CDO application is made in accordance with section 105A.5,
the court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a ‘serious Part 5.3 offence’ if released into the community. A ‘serious Part 5.3 offence’ is an offence against part 5.3 of the Criminal Code with a maximum penalty of seven or more years of imprisonment, and
the court is satisfied that there are no less restrictive measures that would be effective in preventing the unacceptable risk posed by the terrorist offender.
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Subsection 105A.7(5) provides that the period of detention ordered by the court must not exceed three years, and must be limited to the period necessary to prevent the unacceptable risk. Section 105A.10 and section 105A.11 provide that a CDO must be reviewed annually, or sooner if the terrorist offender applies for a review and the court is satisfied that new facts or circumstances, or the interests of justice, justify the review.
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For completeness the Explanatory Memorandum points out that the amendments in the Bill:
will not impact upon the range of safeguards already guaranteed under Division 105A. These include:
the high threshold that must be satisfied for the making of a CDO – that the court be satisfied, to a high degree of probability, based on admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if released into the community (paragraph 105A.7(10(b))
the court must be satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk before making a CDO (paragraph 105A.7(1)(c))
the making of a CDO is a judicial process subject to civil rules of evidence and procedure (section 105A.7, section 105A.8 and section 105A.13)
the court may appoint one or more independent experts whose opinion it must have regard to in determining whether to make a CDO (section 105A.6 and section 105A.8)
CDO is appealable as of right and with leave (section 105A.17), and
a CDO is subject to annual review, and the terrorist offender can review a CDO sooner where new facts or circumstances justify reviewing the order or where it is in the interests of justice to review the order (section 105A.11).
Eligibility for a Continuing Detention Order
1.45
Paragraph 105A.5(2)(a) provides that the AFP Minister may only apply for a CDO in relation to a terrorist offender not more than 12 months before the end of their sentence for their eligible terrorism offence, at the end of which they would be required to be released into the community.
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Where an offender has been sentenced for a further offence which is:
served concurrently with the sentence for the eligible terrorism offence, or
served immediately following their sentence for the eligible terrorism offence (cumulative sentence), and that sentence concludes after their sentence for the eligible terrorism offence
the AFP Minister cannot consider whether to make a CDO application. This is because the offender will not be released into the community at the expiry of their sentence for the eligible terrorism offence, but rather will continue to be detained in custody to serve their sentence for the further offence they have committed.
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The Explanatory Memorandum states that this outcome is
not consistent with the overall objective of the CDO scheme, which is to ensure the safety and protection of the community from terrorist offenders who pose an unacceptable risk to the community of committing a serious Part 5.3 offence if released at the expiry of their custodial sentence. It is consistent with the preventative purpose of the CDO scheme that, where a terrorist offender continues to pose a risk at the expiry of their custodial sentence, they should remain eligible for a CDO irrespective of whether the final custodial sentence from which they will be released is in relation to an eligible terrorism offence, or another offence.
The amendments
1.48
The Explanatory Memorandum sets out the changes proposed by the amendments in the Bill which will seek to address the inconsistency outlined above:
To address this gap in the CDO scheme, Part 1 of Schedule 2 will amend Division 105A to provide that a ‘terrorist offender’ includes an offender who satisfies all of the following conditions:
the offender is serving a sentence of imprisonment for an eligible terrorism offence
the offender is serving, concurrently or cumulatively with their sentence for an eligible terrorism offence, a further sentence of imprisonment for another Commonwealth, state or territory offence
the offender has been continuously detained in custody since being convicted of the eligible terrorism offence
the sentence of imprisonment for the further Commonwealth, state or territory offence concludes after the sentence of imprisonment for the eligible terrorism offence, and
the offender is at least 18 years old when the last sentence ends.
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To put this into effect item 5 inserts new subparagraph 105A.3(1)(b)(ia), which provides that an offender will be eligible for a CDO where they:
have been convicted of an eligible terrorism offence
are detained in custody serving a sentence of imprisonment for an offence other than an eligible terrorism offence, and
have been continuously detained in custody since being convicted of the eligible offence.
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Items two, six and seven propose to ensure the following:
an offender who escapes from custody is taken to be detained in custody and serving a sentence of imprisonment until they resume serving their sentence,
an individual must be 18 years old when the sentence for the offence other than the eligible terrorism offence ends to be eligible for a CDO,
the further offence referred to in new subparagraph 105A.3(1)(b)(ia) can be an offence against a law of the Commonwealth, state or territory,
the further offence referred to in new subparagraph 105A.3(1)(b)(ia) will apply irrespective of whether the sentence for that offence is served concurrently or cumulatively, or both, with:
the eligible terrorism offence (new subparagraph 105A.3(1A)(b)(i)), or
any sentence for other offences that the terrorist offender has served since being convicted of the eligible terrorism offence (new subparagraph 105A.3(1A)(b)(ii)),
it does not matter how many other sentences an offender serves between the time they commenced their sentence for the eligible terrorism offence and the time they are to be released into the community, as long as they have been continuously in detention since being imprisoned for the eligible terrorism offence,
that, for the purposes of new subparagraph 105A.3(1)(b)(ia), the relevant consideration is whether the individual has been continuously ‘detained in custody’ since being convicted of the eligible terrorism offence. Continuous detention is important to ensuring that there remains a clear link with the conviction and sentence for the original eligible terrorism offence.
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Items eight to 13 are technical and administrative amendments.
Schedule 2 – Amendments relating to information disclosure for continuing detention orders
Background
1.52
Currently a CDO application must contain, amongst other things:
any report or other document that the applicant (the AFP Minister) intends, at the time of the application, to rely on in relation to the application (paragraph 105A.5(3)(a)) (inculpatory material), and
any material in the possession of the AFP Minister and a statement of any facts of which the AFP Minister is aware that would reasonably be regarded as supporting a finding that a CDO should not be made (paragraph 105A.5(3)(aa)) (exculpatory material).
1.53
The Explanatory Memorandum points out that:
The unique nature of the CDO information disclosure requirements has raised concerns about the AFP Minister’s ability to safeguard sensitive national security information in a CDO application.
And:
The consequences of the requirement differ depending on whether the Commonwealth is seeking to protect the material through a public interest immunity (PII) claim, or under the [National Security Information (Criminal and Civil Proceedings) Act 2004] NSI Act. There are two gaps in the PII and NSI Act protections that are currently available.
1.54
After a discussion of the relevant provisions of Public Interest Immunity claims and NSI Act in relation to exculpatory and inculpatory information the Explanatory Memorandum points to ‘three challenging options’ that face the AFP Minister:
not to make a CDO application for a high risk terrorist offender because the provision of sensitive exculpatory information to the terrorist offender would prejudice national security
make a CDO application and exclude relevant but sensitive information that goes towards highlighting the risk posed by the terrorist offender, which may undermine the prospects of the application, or
include the sensitive information in the CDO application because the risk posed by the terrorist offender outweighs the prejudice to national security caused by the disclosure of sensitive information.
The amendments
1.55
The Explanatory Memorandum states that the proposed amendments seek to address the above challenge by bringing
the information disclosure obligations for a CDO application more in line with the procedure in other contexts, such as proceedings for criminal prosecutions. Part 2 of Schedule 2 amends the information disclosure requirements by making two targeted amendments to section 105A.5:
make PII available to remove sensitive exculpatory material from an application, and
ensure the full range of protections under the NSI Act are available.
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Item 14 amends paragraph 105A.5(3)(aa) to provide that exculpatory material does not need to be included in the CDO application where the relevant information, material or facts would be the subject of a claim for PII (whether the claim for PII is to be made by the AFP Minister or any other person).
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The Explanatory Memorandum states that the proposed amendment will not affect a court’s inherent powers. It states that:
nothing in amended paragraph 105A.3(aa) precludes the court from exercising its inherent powers to stay proceedings if the court does not consider that the terrorist offender cannot receive a fair hearing. For example, the court may uphold a PII claim to withhold sensitive exculpatory material on the basis that the public interest in not prejudicing national security outweighs the public interest in disclosing that material to the terrorist offender for the purposes of ensuring a fair hearing. However, the court may decide to stay the CDO proceeding on the basis that it would not be in the interests of justice to proceed with a hearing in which the terrorist offender had been denied relevant and important exculpatory material.
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Item 16 repeals subsection 105A.5(6) and substitutes it with new subsection 105A.6(6), and inserts new subsections 105A.5(7) to (9). These proposed amendments relate to the giving of a terrorist offender a complete copy of the CDO application subject to whether or not a Minister has taken certain actions under section 105A.5(a) – (d) as follows:
(a) give a certificate under Subdivision C of Division 2 of Part 3A of the National Security Information (Criminal and Civil Proceedings) Act 2004;
(b) seek an arrangement under section 38B of that Act;
(d) seek an order of the Court preventing or limiting disclosure of the information.
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New subsection 105A.5(7) provides that the AFP Minister’s obligation to give a ‘complete copy’ of the CDO application to the terrorist offender under new subsection 105A.5(6) is subject to:
any certificate issued by the Attorney-General under the NSI Act,
any orders made by the court.
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Proposed new subsection 105A.5(8) provides when the copy of the CDO application must be provided to the terrorist offender.
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Proposed new subsection 105A.5(9) provides that if sensitive exculpatory information, material and facts are excluded from the CDO application under new paragraph 105A.5(3)(aa) on the basis of PII, the AFP minister must give written notice to the terrorist offender personally stating that the information has been excluded on the basis of PII. The notice must be given at the time the copy of the application is given to the offender.
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The Explanatory Memorandum states that this is an ‘important safeguard’ that
provides notice to the terrorist offender that certain exculpatory material has been excluded on the basis of PII. The terrorist offender may seek to have access to that information and contest the basis on which this information has been withheld by the AFP Minister, for instance, through a subpoena. It would then be a matter for the court to determine whether the PII claim should be upheld, balancing the public interest in ensuring the terrorist offender receives a fair hearing by receiving information relevant to the CDO proceeding, with the public interest in ensuring there is no prejudice to national security.
1.63
Item 17 inserts new section 106.10 in the Criminal Code, which contains application provisions about how the proposed amendments in Schedule 2 will apply.