3.1
This chapter discusses the proposed extended supervision order (ESO) regime, interim supervision order (ISO) regime, comparable state and territory schemes, interoperability between the proposed scheme and current counter-terrorism powers and oversight measures associated with the scheme.
Overview of the proposed scheme
3.2
The Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 (‘the Bill’) proposes to amend the Criminal Code Act 1995 (‘Criminal Code’) to introduce an extended supervision orders (ESO) scheme.
3.3
The ESO scheme would complement the current suite of powers available to the Australian Federal Police (AFP) to counter the threat of terrorism, primarily the continuing detention order (CDO) regime. As discussed in Chapter 2, a key factor in the development of the ESO regime is the incompatibility between the current CDO and control order provisions.
3.4
Division 105A of the Criminal Code currently outlines the CDO provisions, which allow the Supreme Court to make an order requiring a person convicted of a serious terrorism offence to remain in detention for up to three years at a time at the conclusion of their sentence.
3.5
In order to make a CDO, the Court must be satisfied that no less restrictive measure would mitigate the unacceptable risk to the community if the offender was released into the community, and the Criminal Code provided that an example of a less restrictive measure would be a control order. However, the Supreme Court does not have the ability to make a control order, and the AFP would be required to make a separate application for an interim control order.
3.6
As outlined in Chapter 2, the former Independent National Security Legislation Monitor (INSLM) and the PJCIS considered this issue and recommended the Court be empowered to make an ESO where the threshold for a CDO is not met. Control orders would remain available to be issued in Federal Court and Federal Circuit Court proceedings where offenders do not meet the threshold or criteria for an ESO or CDO, or where they have not been convicted of an offence.
3.7
The Bill describes ESOs and CDOs collectively as post-sentence orders (PSO). The Bill further outlines the pre-conditions for post-sentence orders, including:
Where the offender is serving a custodial sentence for one of the following Criminal Code offences;
an offence against Subdivision A of Division 72 (international terrorist activities using explosive or lethal devices); or
a serious Part 5.3 offence; or
an offence against Part 5.5 (foreign incursions and recruitment), except an offence against subsection 119.7(2) or (3) (publishing recruitment advertisements); or
an offence against the repealed Crimes (Foreign Incursions and Recruitment) Act 1978, except an offence against paragraph 9(1)(b) or (c) of that Act (publishing recruitment advertisements).
Where the offender is detained in custody under a CDO or an interim detention order (IDO);
Where the offender is serving a custodial sentence for an offence other than a specified Criminal Code offence, they have been continuously detained in custody since a CDO or IDO was in place for the offender.
Where the offender is serving custodial sentence for breaching an ESO and the Court is satisfied that there is an unacceptable risk of the commission of a serious Part 5.3 offence as a result of the breach of the ESO or interim supervision order (ISO).
Where the offender is serving a custodial sentence for breaching a control order and an interim control order was sought prior to the person being released from custody. The Court must be satisfied that there is an unacceptable risk of the commission of a serious Part 5.3 offence as a result of the breach of a control order.
3.8
The Australian Human Rights Commission (AHRC) said that offences contained in s 119.2 (entering, or remaining in, declared areas) of the Criminal Code should be excluded from the list of offences that permit an application for an ESO or CDO against an offender serving a custodial sentence. The AHRC said offences against s 119.2 did not indicate a high risk to the community safety at the conclusion of a custodial sentence.
3.9
In addition, the Bill outlines pre-conditions for ESOs, separate to CDOs. An offender may be eligible for an ESO when:
An ESO or ISO is in place for the offender;
An individual is detained in custody for an offence other than a specified Criminal Code offence, and at the commencement of their period in custody an ESO or ISO was in place;
An individual served a sentence of imprisonment for a specified Criminal Code offence, and prior to release from custody, the person was subject to an interim control order.
3.10
In order to issue an ESO, the Court must be satisfied on the balance of probabilities of the following matters:
That the offender poses an unacceptable risk of committing a serious terrorism offence as set out by Part 5.3 of the Criminal Code; and
That each of the conditions imposed on the offender are reasonably necessary, and reasonably appropriate and adapted, to address the risk to the community of the offender committing a serious terrorism offence.
3.11
In order to satisfy itself that the offender poses an unacceptable risk of committing a serious terrorism offence, the Court may appoint one or more suitably qualified experts to assess and report on the level of risk of the commission of a serious terrorism offence posed by the offender.
3.12
Where the above conditions are satisfied, the Court may issue an ESO for a period not exceeding three years. The period must be limited to what is reasonably necessary to address the risk of commission of a serious terrorism offence. However, there is no limit proposed in the Bill to the number of times an ESO can be made where the offender continues to present an unacceptable risk to the community.
3.13
An ISO may be issued pending a determination of an ESO application, or as an alternative to an IDO in CDO proceedings, for a period not exceeding 28 days. Successive ISOs should not exceed three months total, unless exceptional circumstances apply.
3.14
In order to issue an ISO, the Court must be satisfied that the offenders’ sentence, PSO, interim post sentence order (IPSO), or control order will end before an application for an ESO – or CDO where appropriate – is determined. In addition, the Court must be satisfied that there are reasonable grounds for considering that an ESO will be made in relation to the offender, and in addition, that each of the conditions proposed are reasonably necessary.
3.15
As mentioned above, an ESO may impose any conditions on an offender that the Court considers reasonably necessary. The Bill sets out general conditions that could form part of an ESO, and these relate to matters such as:
Movement, travel and residence of an offender, including curfews.
Travel documents, licences and changes to or use of different names.
Communication 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.
Participation in interviews and assessments and the provision of information, including the sharing of information about the offender.
The listed conditions replicate those available to the Court to confer as part of a control order, but provide the Court with the flexibility to impose any conditions deemed necessary to protect the community from the threat of terrorism.
3.16
The Bill would also authorise the imposition of a range of prohibitions in issuing an ESO, including:
Prohibitions or restrictions on the possession and/or use of weapons, chemicals and drugs, such as illicit drugs or alcohol.
Prohibitions on attending locations like ports, airports or certain suburbs, as well as a prohibition on attending places determined by a person or class of persons specified in the order.
Prohibitions on obtaining foreign or Australian travel documents, passports, visas, airline tickets, provisional travel documents, United Nations Laissez Passer document, Refugee/Convention Travel Documents.
Prohibitions on the offender using names other than those specified in the order.
Prohibitions on undertaking specified work, classes of work or activities relating to either, such as work involving access to weapons (security guard), access to chemicals or heavy vehicles.
Prohibitions on communicating with named individuals or classes of individuals, such as persons convicted of specified terrorism offences or persons located in a specified country.
3.17
The Court may also impose conditions related to monitoring and enforcing that may be included in an ESO, which may include:
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.
3.18
The Explanatory Memorandum says that conditions in ESO ‘may be framed as requiring the offender to allow or permit certain things to occur’. As an example, the Explanatory Memorandum says the Court may impose a condition requiring an offender to allow the AFP to attend their residence to ensure compliance with a condition:
… a court could include a condition in an ESO to the effect that ‘the offender must allow AFP officers to attend the offender’s residence to confirm compliance with a curfew condition, and to enter the premises for that purpose’. If such a condition were included then the AFP could attend the premises and ask the offender to come to the door to confirm they were home during the hours of a curfew. If the offender refused to open the door and did not allow for the AFP to enter then the AFP would not be able to enter the premises, as the allowance required by the ESO condition would have not been provided. This may constitute a breach of an ESO condition. If an offender breaches an ESO, section 3WA of the Crimes Act may apply to empower a constable (a member or special member of the AFP or a member of the police force or police service of a State or Territory) to arrest the subject without a warrant. As the offence of breaching an ESO is an indictable offence, a constable could then enter the premises to arrest the offender, using reasonable force, under section 3ZB of the Crimes Act. Alternatively, the AFP would be able to seek a monitoring warrant under the Crimes Act.
3.19
The Bill also provides that monitoring and compliance powers must be reasonably necessary to give effect to the condition. The Explanatory Memorandum says that the reasonableness of a direction depends on the particular circumstances and conditions of the ESO:
For example, directing the offender to report to a police station at 11am twice a week may generally be reasonable, but if the offender lived on the other side of the city, or worked in the mornings, then such a direction may not be reasonable. Similarly, calling an offender and expecting them to answer the phone at 3am may not appear reasonable, but may be reasonable if the offender worked shifts and was generally available at 3am, or if there was a risk to the protection of the community that necessitated contact at 3am. If a direction required an offender to act in contravention with the terms of the order, such as requiring the offender to attend a particular place between the hours that the ESO required the offender to be at home, then such a direction may be unreasonable (unless, for example, the curfew was an exemption condition (see section 105A.7C)).
3.20
Additionally, the Bill provides that the Court may identify conditions in the ESO as exemption conditions, which may be subject to certain limits, which would allow an offender to seek a temporary exemption from a condition. The Explanatory Memorandum states that a temporary exemption may be used to allow an offender to attend a specified appointment at a location that may otherwise be prohibited:
For example, an ESO may prohibit an offender from going to a particular location, such as the area around an airport. If the Court had made that an exemption condition, then the offender could apply to the person or persons specified in the order for an exemption to attend that location at a particular time for a particular reason, such as a medical appointment. The specified authority could approve the exemption subject to certain conditions, such as identifying a specific period of time in which the offender may be present in that location, or requiring the offender to make themselves known to a particular person at the relevant building before attending the appointment.
3.21
The Bill provides that the AFP Minister may apply to the Court to vary, add or remove conditions imposed by an ESO or ISO. In making an application, the AFP Minister must include an explanation for each variation, addition or removal. Additionally, the offender or their legal representative may also apply for an order to vary an ESO or ISO. The offender or their legal representative must supply an explanation as to why each condition should be varied, added or removed to the AFP Minister within two days of the application.
3.22
The Bill sets out the process for applications for variation by consent of both parties, and the process for variation other than by consent. Where an application for variation is occurring other than by consent, the Bill provides that the Court may appoint relevant experts to assist in determining whether the variation request is reasonably necessary, reasonably appropriate and adapted to achieving the outcome of the scheme. While a variation to an ESO or ISO may be in place for the duration of the order, the Court may also vary an ESO or ISO temporarily.
Existing counter-terrorism powers and interoperability
3.23
As discussed in Chapter 2, and above, the ESO scheme was recommended by the Committee and the INSLM to address the lack of interoperability between the control order scheme and the CDO scheme. Amendments proposed by the Bill relating to control orders are discussed in Chapter 4, and this section focuses on CDOs and ESOs in the context of the PSO regime.
3.24
Currently, the AFP may make an application to the Supreme Court for a CDO or an application to the Federal Court for a control order. Since the threat level was raised to PROBABLE in September 2014, the AFP has applied for 15 interim control orders, and – as at October 2020 – was managing 9 confirmed control orders with State and Territory bodies.
3.25
The AFP said that if the ESO scheme commences they anticipate fewer applications for control orders, however said that control orders would continue to have a specific place in the counter-terrorism framework:
The AFP does not support any proposal to repeal the control order scheme once ESOs have commenced. Control orders remain a key tool to address risks, and will continue to apply to a broader cohort of individuals, including those who are not eligible for consideration for an ESO, for example:
a.
individuals who have not been charged with any offence,
b.
individuals who have been convicted of related offences, who are not eligible for consideration of an ESO or CDO under the HRTO framework (for example, an offence against section 102.8 - associating with terrorist organisations) who are about to be released following completion of their sentence, and
c.
individuals who have been convicted of an offence at some point in the past (whether or not they were considered for and/or subject to post-sentence orders immediately following their release from prison).
3.26
The Bill prevents a control order sought for a Commonwealth offence being enacted at the same time as an ESO, as set out by the AHRC:
…the Bill anticipates that a control order could be sought while a person is in custody or subject to a CDO or ESO. The control order would not begin to be in force at that time. This would mean that the person would not simultaneously be subject to two sets of Commonwealth post-sentence obligations. The control order would only begin to be in force after the person was both released from custody and no longer subject to a CDO or ESO.
The 12 month maximum duration of a control order commences from when the order is made (not from when it begins to be in force), meaning that if the control order is made while the person is subject to an ESO, the time will start running while the ESO is still in force, and the control order would only be in force for the remainder of the 12 month period after the expiry of the ESO.
3.27
The Law Council of Australia said there is nothing in the Bill that would prevent the Minister from seeking a control order when the Court had refused an ESO brought on the same or similar grounds:
This creates a risk that COs could be sought as a form of ‘repechage’ for a failed ESO application. This raises the types of concerns the Law Council has previously identified about the use of COs after charges against a person have been withdrawn, or a brief from the AFP is refused by the Commonwealth Director of Public Prosecutions, due to lack of evidence. This occurred in the CO proceedings in Gaughan v Causevic [(No. 2) [2016] FCCA 1693] in 2016.
3.28
The Law Council of Australia considers that the ongoing availability of control orders as a potential post sentence order could be oppressive to individuals and require diversion of resources. The Law Council recommended that the Bill be amended to prohibit seeking a control order where an ESO application has failed, or as an alternative, to prevent a control order application from being made where an ESO has failed unless there are exceptional circumstances warranting special consideration.
3.29
The AFP said that the fact that an ESO application had failed would not be the sole reason the AFP would consider applying for a control order, and that the decision to make an application for a control order would be based on a number of factors:
As a matter of practice, the mere fact that an ESO application was unsuccessful would not be reason alone for the AFP to consider making a control order application against a released offender. The AFP may consider a control order application appropriate where information became available that was not considered by the original court, and where there remained considerable risk to the community and prospects of success for obtaining a control order in the Federal Court were reasonable.
…
Where the court refuses to issue an ESO, the offender is released into the community, and new information comes to AFP attention very soon after ESO proceedings are finalised that the person poses a risk, which was not considered by that court because the information was not available at that time.
Interoperability of state and territory schemes
3.30
The AHRC said that there has been an expansion in State and Territory post-sentence detention regimes since 2016. At the time of this inquiry, most States and Territories had a post sentence order scheme in place.
Table 3.1: Post-sentence orders at State and Territory Level
|
|
|
|
|
|
New South Wales
|
Terrorism
Violent offences
Sex offences
|
Yes
|
Yes
|
|
South Australia
|
Terrorism
Violent offences
Sex offences
|
Yes
|
Yes
|
|
Victoria
|
Violent offences
Sex offences
|
Yes
|
Yes
|
|
Western Australia
|
Violent offences
Sex offences
|
Yes
|
Yes
|
|
Queensland
|
Sex offences
|
Yes
|
Yes
|
|
Northern Territory
|
Sex offences
|
Yes
|
Yes
|
|
Tasmania
|
Violent offences
Sex offences
|
Yes (declaration as part of sentencing)
|
Proposed
|
|
Australian Capital Territory
|
None
|
No
|
No
|
Source: AHRC, Submission 3, pp. 14-15
3.31
The AHRC said that the Bill in its current form would ‘result in multiple overlapping regimes of PSOs’ and provided, for example, that an offender in NSW could be subject to up to four PSO regimes. The AHRC said that while there were protections in the Bill against a control order or ESO being in place at the same time no such provision prevented the operation of Commonwealth and State and Territory provisions operating at the same time:
However, leaving to one side a Court’s inherent power to protect against an abuse of process, there does not appear to be any statutory provision that would prevent the concurrent operation of either the ESO regime or the control order regime on the one hand, and the two postsentence regimes in force in New South Wales on the other.
By contrast, when it comes to criminal law, there are both common law rules that protect against double prosecution (that is, being tried for two different offences in respect of the same set of facts)137 and statutory provisions that prevent a person being punished for both State and Commonwealth terrorism offences dealing with the same subject matter.
3.32
The Law Council of Australia said that the scheme should prohibit a person being subject to concurrent post-sentence orders under Commonwealth and State and Territory legislation and should also be amended to contain issuing criteria that requires the court to consider additional matters:
whether the person is subject to a post-sentence supervision order under State or Territory legislation, and if so, the conditions of that order; and
the cumulative impact on the person of multiple post-sentence orders under Commonwealth and State or Territory laws, including the risk of oppression.
3.33
The Attorney-General’s Department said that an application for a Commonwealth ESO would likely fail on proportionality reasons if a state based PSO was already in place:
In applying for a post-sentence order (including an ESO, if the Bill is passed), the AFP Minister must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that the order should not be made, and to include that information in the application to the Court. The fact that a state order were already in existence and would be concurrent with a Commonwealth order could reasonably be regarded as being such a fact.
Further, in imposing conditions as part of an ESO, a Court would need to be satisfied that each condition was reasonably necessary, and reasonably appropriate and adapted to the purpose of protecting the community. This threshold is unlikely to be met in circumstances where an offender is already subject to conditions under a state order.
3.34
The Law Council of Australia noted that it was conceivable that the issuing authority would consider matters of potential conflict in individual cases, but that express statutory guidance would be preferable. Ms Christina Raymond, Senior Policy Lawyer, Law Council of Australia, said that express decision-making criteria would also aid the Minister in determining whether to make an application:
A further benefit in having expressed statutory guidance is not only at the point at which the court considers the application but also in helping to inform decision-making and due diligence at the point of the Minister for Home Affairs making a decision about whether to apply for an order, and, if so, the conditions that should be sought on that order. It would be a useful prompt for the minister and those advising them to look at whether existing state or territory applications exist or whether orders have been made under the state and territory laws, and to proactively manage and pre-empt any interaction issues that might arise.
3.35
In addition, the Law Council noted that in New South Wales (NSW) the Supreme Court had held that a person serving a sentence for a Commonwealth offence would be eligible for a PSO under the Terrorism (High Risk Offenders) Act 2017 (NSW):
… in 2019, the Supreme Court of New South Wales held that a person who was serving a sentence of imprisonment for assaulting prison guards, and had previously been convicted of a foreign incursions offence under section 119.1 of the Commonwealth Criminal Code, was eligible for an order under the THROA.
If the Bill is passed, proposed subsection 105A.3A(3) would provide that the person would also be eligible for a Commonwealth post-sentence order, if they had been continuously imprisoned since being convicted of the foreign incursion offence.
3.36
Noting that the same State and Territory Supreme Court would hear a PSO application, the Attorney-General’s Department said that applications would be undertaken with significant consultation between Commonwealth and State and Territory agencies:
These orders are sought with significant consultation and input from State and Territory agencies, including police and corrective services agencies. Commonwealth, State and Territory agencies are cognisant of the fact that if concurrent applications were progressed, both applications would be heard by the same State or Territory Supreme Court, and the risk that the Court would perceive or consider concurrent proceedings to be oppressive.
Assessing risk of offending
3.37
As mentioned above, the Bill provides for relevant experts to be appointed to determine the risk of the commission of a specified serious offence. The Department of Home Affairs said that Violent Extremism Risk Assessment Version 2 Revised (VERA-2R) assessments may be used to assess the level of risk:
In managing HRTO-eligible offenders, the Department of Home Affairs requests information from relevant Commonwealth, State, and Territory agencies to inform and support decisions about an offender’s ongoing management. This may include agencies providing previous VERA-2R assessments undertaken to support decisions about police investigations, prisoner management, treatment and release. As part of a contemplated CDO application, the Department may also engage a relevant expert (e.g. a forensic psychologist) who is qualified to undertake a VERA-2R assessment for a particular purpose: understanding the risk the offender poses of committing a serious Part 5.3 offence if released into the community.
The proposed amendments will enable the AFP Minister to direct eligible terrorist offenders to be subject to a risk assessment for the purposes of considering whether a post-sentence application be made (see proposed section 105A.18D). This will ensure current and relevant information can be considered when determining the most appropriate management option for an eligible offender.
3.38
The Department of Home Affairs said that VERA-2R is used by a variety of trained individuals to assess a person’s risk of engaging in violent extremism:
The VERA-2R is used in Australia by trained professionals in law enforcement, corrections, countering violent extremism programs and other human services. It used to assess a person’s risk of engaging in violent extremism across a range of activities, including:
assessment for offender custodial accommodation and management regimes;
decisions about rehabilitation and reintegration planning, and treatment programs;
parole decisions by the Commonwealth Attorney-General and state or territory parole authorities;
applications for CDOs under the HRTO regime and NSW Terrorist High Risk Offender (THRO) schemes;
assessment of persons of interest identified by countering violent extremism disengagement programs; and
assessment of Australian citizens returning to Australia from conflict zones.
3.39
The Law Council of Australia said that predicting a person’s future conduct is inherently difficult, and the Law Council is concerned that the VERA-2R assessment tool is not sufficiently mature.
3.40
Department of Home Affairs said that while VERA-2R was chosen by the High Risk Terrorist Offenders Implementation Working Group, other assessment tools may be used where appropriate:
In selecting the VERA-2R for the High Risk Terrorist Offenders (HRTO), a HRTO Implementation Working Group, comprised of Commonwealth and State and Territory representatives, were informed by Australian psychologists experienced in assessing high-risk sex and violent offenders and an international literature review.
The Department continues to monitor the range of tools available to support violent extremist risk assessment. VERA-2R users may also use other assessment tools as appropriate to the circumstances of the person being assessed.
3.41
Assistant Commissioner Scott Lee, AFP, said that the VERA-2R tool was a part of the assessment process, but that more information would be used to contribute to ongoing annual risk assessments once the offender was released into the community:
VERA 2R is part of the assessment process, but obviously there's other information that would be available to us when they're out in the community that we would use as part of that assessment process. So whether it's through the actions of the AFP, through their engagement with state and territory agencies, other information that we might have available to us, that would all form part of that annual review.
3.42
The use of the VERA-2R tool in assessing applications for CDOs is considered further in the Committee’s concurrent Review of police powers in relation to terrorism, the control order regime, the preventative detention order regime, and the continuing detention order regime.
Warrants powers to support post-sentence order applications
3.43
In addition to providing warrants to allow for monitoring of compliance with an ESO, the Bill also provides for the AFP to apply for a warrant to seek information that would support an application for a PSO. The Attorney-General’s Department and the Department of Home Affairs said that the obtaining such information would assist the AFP Minister to understand the level of the offender’s risk and decide if an application for a PSO is required:
The Bill expands the availability of existing monitoring powers, including surveillance device warrants, computer access warrants and telecommunication service warrants, to gather information in relation to HRTO-eligible offenders who are serving a custodial sentence. This will ensure that the AFP Minister is provided contemporaneous evidence to understand the offender’s level of risk, which will inform the decision whether or not to apply for a PSO. The information obtained while the person is in custody and serving a sentence is likely to be more relevant and in admissible form, as compared to other types of information, and will strengthen the evidence available to the Minister in determining whether it is appropriate to make an application in all the relevant circumstances.
3.44
The AHRC said that the threshold for obtaining warrants for an offender in custody was lower than monitoring warrants that currently applied in relation to control orders, where:
A warrant may be granted where there is are ‘reasonable grounds to suspect there is an appreciable risk of the person committing a serious Part 5.3 offence’ – ‘appreciable risk’ is not a term that appears elsewhere in the Criminal Code;
A warrant may be granted where the information likely to be obtained would be ‘likely to assist’ rather than ‘likely to substantially assist’ in determining whether to apply for an PSO; and
The issuing authority is not required to consider the intrusion on an individual’s privacy.
3.45
The Attorney-General’s Department and the Department of Home Affairs said that the threshold of ‘likely to assist’ was inserted in recognition that the likely value of the information in the early stages of an investigation would be at the information gathering stage:
There are a number of additional elements the Judge or Administrative Appeals Tribunal member must expressly consider for these warrants, including the likely value of the information sought in determining whether to apply for a PSO. The threshold ‘likely to assist’ applied here is different from ‘likely to substantively assist’ which is applied in criminal investigative contexts where law enforcement authorities are in receipt of information informing a higher degree of suspicion of criminal conduct. This is because there will be a lower level of certainty as to how valuable the information obtained would be at the early stages of information gathering in the context of the Minister’s determination as to whether or not to make a PSO application. It is vital that the offender’s level of risk to the community is comprehensively understood to ensure that the type of order (if any) that is ultimately applied for by the Minister is appropriately adapted and proportionate to the risk posed by the offender if released into the community.
Standard of proof and judicial process
3.46
As discussed above, the Bill contains procedures that mirror aspects of existing counter-terrorism powers, but also departs from them in a number of ways. The following sections set out the evidence received from submitters in relation to certain procedural matters including the standard of proof, the inclusion of provisions relating to court-only evidence, the exclusion of administrative review processes, and costs.
Standard of proof
3.47
The Bill provides that the court must be satisfied ‘on the balance of probabilities’ that an ESO is required, which is a lower standard of proof than that required for CDOs – ‘a high degree of probability’.
3.48
The Australian Lawyer’s Alliance (ALA) said that the standard of proof should be amended to ‘a high degree of probability’ in consideration of the restrictions that could be put in place as a result of the order, and in consideration of Australia’s international law obligations.
3.49
The Law Council of Australia said it would prefer that the standard be raised to the criminal standard of proof, and that an assessment of risk of future offending be subject to criminal rules of inference; where the matter must be the only reasonable inference that is capable of being drawn.
3.50
The Law Council said that, as a non-preferred alternative, the standard of proof should be raised to a ‘high degree of probability’ otherwise the ESO scheme should not proceed and State and Territory Supreme Courts should be empowered to issue control orders.
3.51
The AHRC noted that the INSLM recommended the higher standard of proof when considering the regime:
… the INSLM specifically considered, and rejected, the option of using the balance of probabilities standard of proof, as applies to control orders, in respect of ESOs, noting that the difference in standards and associated assessments ‘is consistent with the differing nature of the risk that the respective regimes are designed to address’
3.52
The Attorney-General’s Department said that aligning the standard of proof with that required for a control order was appropriate due to ESOs and control orders imposing ‘restrictions on an offender’s personal liberties that fall short of custody’.
3.53
The AHRC also said that every other jurisdiction in Australia, aside from South Australia, required the court to be satisfied to a ‘high degree of probability’ prior to making an order, and was not satisfied that the standard of proof did not give ‘sufficient weight to the significant restrictions on liberty imposed by the ESO regime’.
3.54
The Attorney-General’s Department said that it had given weight to the experiences of NSW and Victoria when considering the appropriate standard of proof.
3.55
The Attorney-General’s Department also said that the legal threshold for obtaining an ESO would be higher than a control order due to the requirement that the court be satisfied that the offender pose an unacceptable risk of committing a designated serious offence when released:
Despite an alignment of the standard of proof, the legal threshold for the making of an ESO would still be a higher threshold than that which applies to a control order, in that the court must be satisfied that the offender poses an unacceptable risk of committing a serious Part 5.3 offence. This balances the need for the ESO scheme to protect the community, while recognising that ESOs are targeted at a cohort of persons who pose a higher level of risk to the community as compared to control orders.
3.56
The Law Council of Australia said that consideration of unacceptability of risk involves consideration of the level of risk and the consequences of actions resulting from the risk, contrasted with the standard of proof:
As a preliminary comment, it is important to bear in mind that the standard of proof is distinct from the unacceptability of risk. The relevant test is whether there is an unacceptable risk of the commission of a serious terrorism offence. This test necessarily involves consideration of both the level of risk and the likely consequences were the risk to be realised. The bar of unacceptability is not likely to be high in terrorism cases. A slim risk of a catastrophic outcome may be unacceptable. (See, for example, State of NSW v Naaman (No.2) [2018] NSWCA 328; (2018) 365 ALR 179 at [29] at point (5)).
The standard of proof is the level of satisfaction by the court that the risk is unacceptable. The competing standards are satisfaction: (a) beyond reasonable doubt; (b) to a high degree of probability; or (c) on the balance of probabilities.
Court-only evidence
3.57
The Bill seeks to amend the National Security Information (Criminal and Civil Proceedings) Act 2004 (‘NSI Act’) to allow for the offender and their representative to be excluded from proceedings – ‘court-only’ evidence – while the Court considers highly sensitive information in relation to an ESO application.
3.58
The NSI Act had the provision to allow court-only evidence for control orders, but not for CDOs. The Bill proposes to continue to expressly prohibit the consideration of court-only evidence for determining whether to make a CDO.
3.59
The Attorney-General’s Department and Department of Home Affairs said that the ability to provide court-only evidence was necessary to protect highly-sensitive national security information:
This could be necessary in cases where there is highly sensitive information relevant to control order proceedings, which may disclose law enforcement or intelligence sources, methodologies and capabilities. Disclosure of this information could compromise ongoing counter-terrorism and national security investigations, endanger human sources or disclose the capabilities of law enforcement agencies.
3.60
The ALA said that due to the limit on an individual’s right to liberty as a result of a successful ESO application, all ESO proceedings should take place in open court:
Given that an ESO can limit an individual’s right to liberty and security of the person, the ALA considers that ESO proceedings should take place in open court, that the person who is the subject of those proceedings should be present in court, and that the person should have a right to be legally represented by the advocate of their choice in court during those proceedings.
3.61
Where the court-only evidence provisions are required, the Bill provides that a special advocate may represent the offender’s interests. The AHRC said that though special advocates provide greater fairness, there would be limitations in the scheme:
The special advocate procedure provides greater fairness to respondents in proceedings where claims have been made by the State that relevant evidence should be withheld from a respondent on national security grounds. However, there are still aspects of this regime that need to be kept under review in relation to their compliance with human rights.
One of the key limitations of the special advocate regime is that once the national security information has been disclosed to the special advocate, there are restrictions on the ability of the special advocate to take instructions from the respondent. The NSI Act provides for communication in writing between the special advocate and the respondent in a way that is monitored and approved by the Court.
3.62
The Attorney-General’s Department and the Department of Home Affairs said that it has not been necessary to use the court-only evidence provisions or the special advocate regime since their introduction, but said that the provisions continued to be necessary.
3.63
The Law Council of Australia supported the expansion of special advocates to ESO proceedings, but recommended that the Government establish an independent office to administer special advocates:
The Government should establish an independent office to administer the special advocates regime, including the appointment of special advocates and the provision of administrative support to special advocates.
The office should be independent to all law enforcement and security agencies and government departments.
Consideration could be given to conferring this function on legal aid commissions, contingent on adequate additional resourcing.
Resourcing for this function should not be drawn from existing legal assistance budgets, or the budgets of the federal courts, the Administrative Appeals Tribunal, or oversight bodies.
Review of administrative decisions
3.64
The Bill proposes to amend the Administrative Decisions (Judicial Review) Act 1977 (‘ADJR Act’) to exempt all decisions made by the AFP Minister as part of the PSO regime. The Attorney-General’s Department and the Department of Home Affairs summarised the amendments:
The Bill would amend the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to exempt all decisions made by the AFP Minister under Division 105A of the Criminal Code from judicial review under that Act, which will ensure that there is not fragmentation or frustration of the legal process. This includes the Minister’s decision to apply for a CDO or an ESO and the Minister’s decision to direct an offender to be subject to an assessment of risk. Judicial review of these decisions may be conducted as part of the substantive proceeding on the application for a PSO, and exemption from ADJR Act review does not present a practical or substantive limitation on a respondent’s ability to seek judicial consideration of the Minister’s decision. The Bill will also amend the Australian Security Intelligence Organisation Act 1979, for the avoidance of doubt, to provide that a condition imposed by an ESO or ISO, or an action relating to electronic monitoring, is not a prescribed administrative action under that Act.
3.65
The ALA said that given the potential impact of an ESO on an individual, the post-ESO review timeframes, and the standard of proof for an ESO, judicial review under the ADJR Act should be an option.
3.66
The Explanatory Memorandum provides that an individual may seek judicial review through the High Court of Australia or the Federal Court of Australia under the Judiciary Act 1903 which would allow the contents of a report prepared for the purposes of a PSO application to be reviewed and the decision of the Minister to be reviewed in line with the provisions of the Australian Constitution.
3.67
The Law Council of Australia said that the absence of provision in the ADJR Act may make it extremely difficult to obtain the necessary evidence to make an application for judicial review:
… judicial review in original jurisdiction (or section 39B jurisdiction) is no substitute for a right to ADJR Act review. In the absence of a statutory right to reasons for an administrative decision, as exists under section 13 of the ADJR Act, it may be extremely difficult for an individual to obtain the necessary evidence to make an application for judicial review under original or section 39B jurisdiction. This will be particularly difficult should the Commonwealth respond to a review application with extensive claims for public interest immunity over relevant evidence.
3.68
While the Law Council of Australia said the preferred option would be to omit the exemption of Division 105A from the ADJR Act, an alternative recommendation would be to amend the ADJR Act so that PSOs would be a form of ‘related criminal justice process decisions’.
3.69
The Law Council of Australia said that amending the ADJR Act would allow for statutory judicial review to be deferred until the completion of the hearing and the expiry of the appeal period for the process, or allow the Minister to apply for a permanent stay of review proceedings. The Law Council also said there would be three discrete benefits in the amendment, including the ability for the Court to make an assessment on individual cases, clarification on the treatment of monitoring warrants, and would articulate the close connection between the criminal justice process and PSOs.
Reasonable costs and expenses
3.70
The Bill provides that a court may make an order requiring the Commonwealth to meet the reasonable costs of legal representation for a person subject to an application for a CDO, but does not provide the same for the ESO scheme.
3.71
The Court may presently make such orders for control orders and CDO applications, and Ms Christina Raymond of the Law Council of Australia said that the ability for the Court to make an order for reasonable costs should be extended to circumstances where the AFP Minister applies for an ESO-only:
I would also make the point that we are somewhat concerned about the drafting of a provision in 105A.15A. This provision concerns the ability of the court to make an order that the Commonwealth meet the reasonable costs of legal assistance for a respondent to a continuing detention order application if through no fault of their own they can't afford or can't obtain legal assistance. While we welcome that provision, we are concerned that the bill does not extend it to circumstances in which the minister decides not to seek a continuing detention order but only to seek an extended supervision order. On our reading of the proposed amendments, in those circumstances the court would not have the power to make one of those orders to require the Commonwealth to provide legal assistance, and we aren't sure—there is no explanation provided in the explanatory memorandum—what the reasons for that exclusion are. Our view is that it should be closed so that the court's power applies equally to all post-sentence applications.
Imposition of conditions under the scheme
3.72
The overview of the Bill above outlines that the Court may impose a range of conditions as part of an ESO or ISO which is not prescribed specifically by the Bill. The following sections discuss evidence received in relation to the breadth of available conditions, mandatory participation in programs, the process to amend or vary conditions, the definition of specified authority in the Bill, and the processes for monitoring compliance with conditions as part of an ESO.
Breadth of available conditions
3.73
As mentioned in Chapter 2, the former INSLM considered the interoperability of control orders and CDOs in September 2017.
3.74
The former INSLM said that in comparing the Commonwealth control order scheme and the State and Territory schemes, the conditions that could be applied were substantially similar and therefore recommended that if a Commonwealth-level ESO scheme were to be implemented, the conditions should be the same as the control order scheme.
3.75
The AHRC noted that the that two non-exhaustive lists of possible conditions contained in the Bill – as described above – are ‘significantly more extensive than conditions that could be imposed in relation to a control order. AHRC said that the Court is not a sufficient safeguard to ensure that the orders are reasonably necessary and reasonably appropriate and adapted.
3.76
The AHRC noted that the absence prescriptive conditions in the Bill could allow for conditions to be sought that would be akin to home detention:
In some cases, where an Act contains both a specific power to do something and a more general power which could also extend to the same thing, the Act is interpreted in a way that does not permit the thing to be done otherwise than in accordance with the more specific power. That is, an affirmative grant of power necessarily implies a negative—a prohibition on doing the thing in another way. However, it is far from clear that the principle would apply in this case. One reason for that is that the power to impose conditions by an ESO is expressed in broad terms, and the curfew condition is explicitly framed as merely an example of one condition that could be imposed. Further, there is no suggestion in the Explanatory Memorandum that this example represents an outer limit of the curfew power.
3.77
The Attorney-General’s Department said that the list of indicative conditions had been developed in reference to state schemes, and the requirements viewed as necessary by agencies:
In relation to state experience, the list of indicative conditions has been developed with reference to existing state schemes, and the kinds of conditions which agencies view as necessary to manage the risk posed by individual offenders on their release. State and Territory supervision orders adopt the approach of providing that a court may impose any conditions which it considers are appropriate, with a range of indicative conditions which may be regarded as appropriate. A number of state schemes go further by setting out specific conditions which are presumed to be included, unless the Court regards otherwise.
3.78
The AFP said that the inclusion of additional conditions in the Bill ‘ensures that ESOs can be adapted to the specific risks posted by the individual offender and ensures the conditions imposed are best suited or tailored to mitigate that risk’. The AFP said that the rationale behind this was to address the increasingly complex monitoring and management of terrorist offenders:
Since control orders were introduced in 2005, the controls available remain largely unchanged. By contrast, the monitoring and management of terrorist offenders in the community has become increasingly complex. Terrorist offenders in the community have access to a myriad of tools, technology and people which enable them to: mask identities and intentions; conceal associations and membership; and, unless interrupted, commence preparations to carry out terrorism acts with the intention to harm the Australian community. As a result, the AFP supports the inclusion of conditions for ESOs which will provide the flexibility to tailor orders to manage the specific risk each terrorist offender may pose to the community.
3.79
The Attorney-General’s Department and the Department of Home Affairs said that the additional conditions also recognise that an offender who is eligible for an ESO may be considered a higher risk than a person subject to a control order.
3.80
The Law Council of Australia recommended that the Bill be amended to require statutory limitations on the range of conditions:
In particular, there should be statutory limitations on the range of conditions that a Court may impose, in view of the gravity of consequences of an ESO for the individual. A fixed, statutory range of potential conditions would provide an important safeguard against the miscarriage of an unlimited discretion to fashion a condition of any kind. Such a miscarriage could, as the Supreme Court of New South Wales cautioned in 2017, result in the imposition of conditions that are ‘unjustifiably onerous or simply punitive’ or reflect what is most ‘convenient or resource efficient’ for the relevant authorities administering the order.
Mandatory participation in rehabilitation or de-radicalisation programs
3.81
The Bill allows the Court to impose a condition that would require a person to participate in a de-radicalisation program, with the potential for a further period of imprisonment if the condition is not complied with.
3.82
The AHRC said that voluntary participation in de-radicalisation programs accords with research, and the Bill as drafted could have the potential to harden existing extremist views:
The approach taken by the States and Territories is consistent with research in this area which finds that:
in order for individuals to be disengaged, they must first be willing to hear alternate ideas and accept the support on offer. Forced participation is unlikely to achieve either the desired results or positive outcomes and, in many cases, may harden the radical views of those forced to participate.
The Bill would depart from that principle by permitting conditions to be imposed on an ESO that would force a person to:
attend and participate in treatment, rehabilitative or intervention programs or activities
undertake psychological or psychiatric assessment or counselling
participate in interviews and assessments
allow the results of interviews and assessments to be disclosed to a ‘specified authority’
provide specified information to a ‘specified authority’.
3.83
The Department of Home Affairs said that it does not hold data on participation in treatment, rehabilitation or intervention activities, but is aware that ‘some HRTO-eligible offenders have refused to engage, have disengaged after a period of participation, and/or have reengaged after a period of disengagement in these activities’.
3.84
The Attorney-General’s Department and the Department of Home Affairs said that participation in these programs is an important part of addressing the risk of serious offending and ensuring rehabilitation back into the community:
ESOs are designed to protect the community from serious Part 5.3 offences. Rehabilitation and reintegration of offenders will be an important part of the scheme. This reflects the public interest in ensuring appropriate support is provided to convicted terrorist offenders to address their rehabilitative needs and support their effective integration back into the community.
Under paragraph 105A.7B(3)(n), the Court may include in an ESO a requirement that an offender attend and participate in treatment, rehabilitation or intervention programs or activities, or undertake psychological or psychiatric assessment or counselling. These conditions aim to disengage the person from violent extremism and address barriers to successfully re-entering the community. The offender’s engagement in tailored programs, assessments and counselling will provide insight into the level of risk the person poses and changes to their level of risk over time, and recognises that offenders may have continuing rehabilitation needs post-sentence.
3.85
The Department of Home Affairs said that it was not aware of an offender being compelled to undertake a treatment, rehabilitation or intervention program as part of a control order, but the Department was aware of some individuals that had a requirement to participate as part of a control order:
Under a control order, the court may impose a condition that a person is required to participate in specified counselling or education only if the person agrees, at the time of the counselling or education, to participate in the counselling or education. However, a person subject to this control would retain complete discretion to choose whether he or she would participate in such activities or programs.
In 2019-2020, seven individuals were subject to this condition through their control order.
The Department is aware of one offender who received a recognisance order under the Crimes Act 1914 (Cth) upon conviction, which included a requirement to comply with a condition to attend psychological and other counselling, including counselling directed at ‘de-radicalisation’, as directed by their Community Corrections Officer.
3.86
The Department of Home Affairs said that State and Territory agencies would work with offenders, subject to conditions imposed, to support rehabilitation and reintegration:
Subject to the conditions imposed by a Court, state and territory agencies will work with offenders subject to ESOs on a case-by-case basis to support their rehabilitation and reintegration prospects, and to reduce their risk of reoffending.
This may include participation in a specialised violent extremism disengagement program, such as the Proactive Integrated Support Model (PRISM) in New South Wales or the Community Integrated Support Program (CISP) in Victoria.
States and territories may also provide other measures to support rehabilitation, such as psychological counselling, other offence-related programs and educational and employment programs, as part of a treatment plan tailored to the needs of the offender.
Amending conditions and exemption conditions
3.87
The Bill provides that the AFP Minister may apply to add, vary, or remove conditions of an ESO or ISO at any time. Conditions may be amended by consent, where there is agreement between the parties, or otherwise.
3.88
Under the existing scheme for control orders, the Court may vary an interim control order by removing or varying a condition with the consent of parties, but it the AFP Minister is not permitted to apply to add new conditions until the control order has been confirmed.
3.89
The AHRC noted that a similar prohibition on the adding of new conditions for ISOs has not been replicated, and noted that the consent of parties is not required to vary or amend an ISO. The AHRC recommended that these protections be incorporated into the Bill to more closely align the ESO and ISO scheme with the control order scheme.
3.90
The Department of Home Affairs said that control orders have been amended at the interim stage, confirmation stage, and once a control order has been in place:
This has occurred in control order proceedings for the below individuals:
Mr M Kaya - the Court imposed a varied curfew control at the interim stage.
Mr K Kaya - the Court imposed a varied specified premises control at the confirmation stage.
Mr P Dacre, the Court imposed a varied reporting control at the confirmation stage.
Mr A Granata, the Court imposed a varied reporting control and a varied employment control.
Ms AB Namoa, the Court imposed a varied employment control.
3.91
The AFP said that the inclusion of exemption conditions will ameliorate the requirement to seek a variation of an order for a change in personal circumstances:
Exemption conditions are not recognised under the existing control order scheme. For control orders, the AFP has previously relied on informal exemptions from time to time to accommodate variables in the subject’s daily life. Otherwise, the legislation requires a formal, time consuming process of varying the order with by application to the relevant court. The exemption conditions in the ESO Bill provide a less onerous mechanism for the offender to have the ESO conditions adapted to their day to day personal circumstances.
3.92
The Attorney-General’s Department and the Department of Home Affairs said that exemption conditions are designed to provide flexibility and ‘accommodate short-term changes to an offender’s circumstances where there is no identified risk to the community’.
3.93
The Law Council of Australia noted that there were benefits to providing flexibility to allow an individual to deal with unforeseen personal circumstances, but also considered that there should be additional safeguards to ensure discretion is not arbitrarily enforced.
3.94
The AHRC said that a framework for decision-making should be introduced to ensure decision-making was fair, and recommended that the Bill be amended to articulate the parameters for an exemption application:
The Commission recommends that the Bill be amended to set out the parameters for decision making by a specified authority in relation to an application for an exemption under s 105A.7C of the Criminal Code. This should include:
a.
the considerations that the specified authority must take into account in making its decision
d.
the timeframe for a decision by the specified authority
e.
a requirement that the specified authority provide written reasons for its decision
f.
clear review rights for an applicant.
Specified authority
3.95
The Bill provides that a ‘specified authority’, as related to conditions imposed as part of an ESO, allows the Court to give a group or groups of people the ability to give direction or exercise discretion.
3.96
The designation of a specified authority may relate to the imposition of conditions, or the monitoring of compliance with conditions. The Explanatory Memorandum outlines how the definition may apply, noting that the definition is purposefully broad due to the range of conditions that can be imposed as part of an ESO:
The category of persons who may be designated as a specified authority in an order is broad so that the Court making the order has sufficient flexibility, noting there are a range of conditions that may be imposed under a control order or an ESO. For example, it would allow the Court to make a provider of electronic monitoring services a specified authority for the purposes of a condition imposed pursuant to paragraph 105A.7B(3)(d) where the electronic monitoring of offenders has been outsourced pursuant to an arrangement under section 105A.21A. As another example, it would allow the Court to make a coordinator of countering violent extremism programs in the relevant jurisdiction or a clinical psychologist the specified authority for the purposes of a condition imposed pursuant to paragraph 105A.7B(2)(o).
3.97
The AHRC said that the broad flexibility of the definition creates uncertainty about the extent to which an offender is expected to comply with an order from an individual:
The potential for a broad and indeterminate range of directions to be given by a ‘specified authority’ (ie, any nominated person) adds a significant level of uncertainty to the scope of a person’s obligations that cannot be determined merely from reading the terms of the ESO (or control order) itself. This increases the risk that a person may inadvertently breach an ESO (by doing an act that is contrary to a direction by a specified authority, which may be a direction received over the phone, but not otherwise prohibited by the particular terms of the ESO). Breach of such a direction would expose the person to criminal sanctions.
3.98
The Explanatory Memorandum states that the Court must be satisfied that the specified authority is appropriate, and that would form an appropriate limitation on who could be designated as a specified authority:
In all instances the Court making the order must be satisfied that the specified authority is appropriate in relation to the particular condition. The Court would be able to consider the particular condition that is being imposed and the circumstances and qualifications of the proposed specified authority when determining whether the person or class of persons is appropriate. This is an important safeguard that will limit which person or class of persons could be made a specified authority.
Monitoring compliance with conditions
3.99
While the existing control order provision contains the ability for the Court to impose a condition requiring an individual to wear a tracking device, the Bill provides that the Court may direct an offender to comply with the directions of a specified authority in relation to monitoring, or to carry a specified mobile phone and answer the phone.
3.100
The AHRC said that the directions that a specified authority may give in relation to electronic monitoring are not sufficiently prescriptive, and reiterated the potential for uncertainty in the scope of a person’s obligations.
3.101
Noting the penalty for breaching a condition is a potential additional term of imprisonment for up to five years, the Mr Graeme Edgerton, Deputy General Counsel, AHRC recommended that the Bill be amended to allow for the application of discretion by a specified authority for minor or unintentional breaches of conditions:
We say that there should be a more nuanced regime, so that people who are responsible for enforcing compliance with these orders have the discretion about whether or not to pursue a prosecution for minor or trivial breaches. We say it would be more appropriate for the maximum penalty to be three years rather than five years, bearing in mind that an ESO is an alternative to a CDO, and the maximum CDO period at any one time is three years. If that maximum penalty were three years, it would be equivalent to a failure to comply with parole conditions or a failure to appear in respect of a bail application.
3.102
The Bill also provides that the Court may confer certain functions on specified authorities to, for example, enter and search an offender and seize items during the search. The Court may also provide for the offender to submit to drug, alcohol testing or to test the use of other prohibited items such as firearms.
3.103
The AHRC said that allowing a specified authority to enter and search a premises without consent unnecessarily restricts the right to privacy, and recommended that the Bill be amended to require actual consent or a warrant:
The Commission’s view is that these proposed conditions should be removed from the Bill because they unnecessarily restrict human rights. If a police officer monitoring compliance with an ESO wants to search the person, enter their premises, or carry out some task in relation to an electronic monitoring device, they can do so either:
with the actual consent of the person; or
pursuant to a warrant where the proposed conduct must be justified before an independent decision maker.
3.104
The Bill amends the Crimes Act 1914 (Cth), the Telecommunications (Interception and Access) Act 1979 (Cth), and the Surveillance Devices Act 2004 (Cth) to allow for warrants to be issued for the purposes of monitoring compliance with ESOs. The Bill also provides amendments contingent on the passage of the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 currently under consideration by the Committee.
3.105
The AHRC summarised the warrants that police and other relevant authorities could obtain to monitor compliance with ESO conditions:
The existing warrant regime, which applies to control orders, would be extended to ESOs. This would allow police and other relevant authorities to obtain:
a ‘monitoring warrant’ to enter and search premises owned or occupied by the relevant person
a ‘monitoring warrant’ to conduct a frisk search of the person or a search of a recently used conveyance
a ‘Part 5.3 warrant’ to intercept communications made by the person over a telecommunications service
a ‘Part 5.3 warrant’ for the installation and use of surveillance devices or for access to computers
a tracking device authorisation, where one of the conditions of the ESO is that the person wear a tracking device.
Each of these warrants and authorisations may be obtained for a range of purposes including determining whether the ESO is being complied with.
3.106
The Law Council of Australia said that the broad range of monitoring powers to determine if a breach has occurred rather than to investigate a criminal offence is likely to be considered a disproportionate response under human rights laws, and recommended the Bill be amended to remove the monitoring powers for PSOs and repeal the existing monitoring powers for control orders.
3.107
The Explanatory Memorandum quotes the former INSLM in saying
… the efficacy of a control order depends largely upon the subject’s willingness to respect a court order when there is an absence of the ability to effectively monitor a person’s compliance with the terms of a control order. Without the ability to effectively monitor this compliance, there is no guarantee that a person will not breach the order or go on to commit a terrorist offence. This is a position that applies equally to ESOs and ISOs.
3.108
The Explanatory Memorandum continues
If warrants were only available once law enforcement had a suspicion that an offence had already occurred, an offender subject to an ESO or ISO may have already breached their order and may have been able to provide support for terrorist activity or take preparatory steps for a terrorist act. If an offender were able to perform these kinds of actions before law enforcement agencies could take action, the preventative and protective purposes of the orders would be undermined.
Oversight and accountability
3.109
The proposed ESO scheme, in line with the CDO scheme and the control order scheme, relies on a range of judicial safeguards as outlined above. In addition, the ESO scheme would be subject to additional oversight and accountability.
3.110
The Law Council of Australia said that judicial discretion should not be relied on as significantly as a safeguard:
As members of the High Court have observed repeatedly, not only is the prediction of a person’s future risk of offending ‘notoriously unreliable at the best of times’ but that exercise is also of a kind that ‘do[es] not in any way partake of the nature of legal proceedings’. That is, proceedings for a post-sentence preventive order ‘do not involve the resolution of a dispute between contesting parties as to their respective legal rights and obligations’ which is the core of judicial power and, consequently, the focus of courts’ adjudicative expertise. Rather, ESO proceedings are ‘directed to making a guess’ about the person’s future conduct, and applying significant restraints on liberty on the basis of that ‘guess’.
As such, the significant departure of the proposed ESO regime from ‘past and present notions of the judicial function in Australia’ significantly reduces the degree of weight that can reasonably be given to judicial discretion as a safeguard against the risks of error, oppression, arbitrariness and significant diversion of court and other public resources that arise from the existence of an unlimited range of ESO conditions.
3.111
The Attorney-General’s Department and the Department of Home Affairs said that there are a range of safeguards related to ESO proceedings:
There are a range of safeguards which would apply to ESO proceedings. In particular:
a.
orders may only be made by a State or Territory Supreme Court, which must be satisfied, on the balance of probabilities, based on admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if released into the community
b.
the making of an ESO is a judicial process that is subject to the rules of evidence and procedure applicable in civil matters
c.
parties to the proceeding (including the offender) can adduce evidence and make submissions, and the Court must give reasons for its decisions
d.
the Court may, at any point during the proceedings, appoint one or more independent experts
e.
the Court may only impose a condition as part of an ESO if it is satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence
f.
the Court must give reasons for its decision, and decisions of the Court can also be appealed, and
g.
the Court is required to review the order on an annual basis, 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.
3.112
The Bill provides that the AFP Minister must report annually to the Parliament about the operation of the ESO scheme under the provisions of the Criminal Code. Amendments to the Telecommunications (Interception and Access) Act 1979 and the Surveillance Devices Act 2004 would also require reporting on the use of powers to monitor compliance with an ESO.
3.113
The Commonwealth Ombudsman noted that the introduction of the ESO scheme would incur additional oversight responsibilities for the Office, though the Bill does not provide a direct oversight role for the Office for the scheme.
3.114
The Commonwealth Ombudsman also noted that the Bill proposed amendments that would allow for the Minister to exclude information from the Office’s statutory reports. The Commonwealth Ombudsman recommended that the provisions be amended to remove the ability for the Minister to exclude information from the report:
The Bill would amend section 61 of the SD Act and section 103B of the TIA Act to enable the Minister to exclude information about Part 5.3 of the Criminal Code from the Office’s statutory reports. The above provisions were originally enacted in relation to control order information and the Bill proposes to amend them to refer more generally to Part 5.3 information. We consider these provisions are inconsistent with the Ombudsman’s role as an independent and impartial office, both in practice and in perception. The Office routinely consults with agencies to identify whether a draft report contains operationally sensitive material that should be removed or amended before it is published. We suggest the Committee consider whether these provisions should be revised or removed.
3.115
The Attorney-General’s Department and the Department of Home Affairs said the Bill would also provide for the Independent National Security Legislation Monitor (INSLM) to review the provisions of Division 105A – including the amendments contained in the Bill – by 7 December 2021.
Committee comment
3.116
The Committee supports the introduction of an extended supervision order and interim supervision order scheme in addition to the existing continuing detention orders scheme and the control orders regime as a complementary tool to address threats to the Australian community when an offender reaches the end of a custodial sentence.
3.117
The Committee notes that the ESO and ISO schemes form part of a number of counter-terrorism powers at both the Commonwealth, State and Territory levels. The Committee notes the advice of the Attorney-General’s Department, the Department of Home Affairs, and the AFP that they will work closely with State and Territory authorities on the implementation of the scheme and on applications for post-sentence orders on an ongoing basis.
3.118
The Committee notes the concerns of submitters in relation to the potential for an offender to be subject to Commonwealth and State or Territory schemes at the same time, and the evidence received that such circumstances would be taken into account by the Court when considering an ESO application.
3.119
While the Committee agrees that the Court would be well placed to consider such matters, the Committee also agrees that it would be appropriate to amend the Bill for the avoidance of doubt to provide that the Court should consider applicable State or Territory post-sentence orders in making an ESO. The Committee recommends that the Bill be amended to require the issuing authority to consider the existence of State and Territory post-sentence orders, and the cumulative effect of multiple post-sentence orders when making an ESO.
3.120
The Committee recommends that proposed clause 105A of the Counter-Terrorism Legislation Amendment (High-Risk Terrorist Offenders) Bill 2020 be amended to provide that an issuing authority must have regard to:
whether the person is subject to a post-sentence supervision order under State or Territory legislation, and if so, the conditions of that order; and
the cumulative impact on the person of multiple post-sentence orders under Commonwealth and State or Territory laws, including the risk of oppression
when considering an application for a post-sentence order.
3.121
The Committee notes the concerns of submitters in relation to assessing the risk of offending and the expansion of warrant powers to enable information to be gathered to support the AFP Minister’s decision to apply for a post-sentence order when the offender is in custody.
3.122
The Committee also notes the evidence received as part of this inquiry, and the Committee’s concurrent inquiry on the AFP’s counter-terrorism powers, on the range of tools available to the AFP to assess the acceptability of the level of risk of a serious offence if an offender is released into the community.
3.123
The Committee notes that the VERA-2R assessment framework is in a formative stage of development. The Committee considers that the VERA-2R tool could be a useful addition to the range of assessment tools used, however, the Committee recommends that an independent review be undertaken of the utility of such a tool in Australia.
3.124
The Committee recommends that an independent review of the range of risk assessment tools used, including the Violent Extremism Risk Assessment Version 2 Revised (VERA-2R) framework and alternatives, be conducted and findings reported to the Parliament. The independent review should consider the existing assessment framework, alternative tools, improvements which could be made and the effectiveness of mandating participation in deradicalisation programs.
3.125
Based on the evidence provided by the Attorney-General’s Department and the Department of Home Affairs regarding the elements for consideration by the issuing authority and the purpose for which the warrants are sought, the Committee is broadly comfortable with the warrant powers proposed by the Bill.
3.126
The Committee acknowledges the concerns raised by submitters regarding the standard of proof required for ESO applications, and notes that the proposal in the Bill departs from the previous recommendation of the INSLM and this Committee.
3.127
The Committee notes the intent of the ESO scheme to prevent the offender and the AFP from being heard on potential post-sentence controls or conditions in different jurisdictions, and therefore does not recommend elevating the standard of proof put forward by the Bill.
3.128
The Committee notes the concerns of the Australian Human Rights Commission in relation to the proposal to extend the ability to exclude an offender and their representative when the Court is considering operationally sensitive or classified information.
3.129
The Committee also notes that although the provision for court-only evidence already exists for control order applications, it has not yet been used, and therefore the Committee is satisfied that should a circumstance arise where the Court was required to hear operationally sensitive material, the provision for court-only evidence would be used proportionately and appropriately. The Committee expects that the AFP, and other relevant authorities, would continue to abide by the principle that such proceedings should take place in open court wherever possible.
3.130
The Committee notes evidence from the Attorney-General’s Department and the Department of Home Affairs that allowing ESO proceedings to be subject to administrative review provisions may frustrate the application process when there is an unacceptable risk to the community. The Committee also notes evidence from submitters that the evidence requirements for proceedings under the Judiciary Act 1903 may make legitimate review processes untenable.
3.131
The Committee recommends that the Bill be amended to remove the exclusion of proposed Division 105A from administrative review processes and include post-sentence order processes as ‘related criminal justice process decisions’ under the Administrative Decisions (Judicial Review) Act 1977.
3.132
The Committee recommends s 9A of the Administrative Decisions (Judicial Review) Act 1977 be amended to include post sentence order processes as ‘related criminal justice process decisions’.
3.133
The Committee notes the evidence of the Law Council of Australia in relation to orders for reasonable costs in ESO-only proceedings. The Committee considers that ESO proceedings should be aligned with CDOs and control orders, and that a court should retain the ability to make an order for reasonable costs and expenses when an offender is unable to engage a legal representative in proceedings.
3.134
The Committee recommends that the relevant provision be amended to provide that the Court may make such an order for both ESO proceedings and CDO proceedings.
3.135
The Committee recommends proposed clause 105A.15A of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 be amended to provide that the Court may make an order requiring the Commonwealth to bear all or part of the reasonable costs and expenses of the offender’s legal representation for an extended supervision order proceeding.
3.136
The Committee notes the concerns of submitters in relation to the breadth of conditions available to be applied to an ESO, and the evidence of the AFP that the developments in technology since the introduction of the control order scheme has necessitated more flexibility in determining appropriate conditions to mitigate the risk of terrorist offending. The Committee considers that the evolving nature of risk management relating to the threat of terrorism warrants flexibility in conditions that can be imposed.
3.137
The Committee notes that the Court would apply tests of necessity and proportionality to each of the conditions imposed as part of an ESO, however, these tests are applied individually. The Committee therefore recommends that the Court be required to assess the combined effect of conditions imposed as part of an ESO.
3.138
The Committee recommends that proposed section 105A.7A(1)(c) be amended to require the issuing court to assess, and be satisfied of, the necessity and proportionality of:
each individual condition proposed to be included in an Extended Supervision Order (ESO); and
the combined effect of all of the proposed conditions of the ESO.
3.139
The Committee also notes the concerns of the AHRC in relation to the potential for conditions to constitute home detention, and notes that this is not the intention of the ESO or ISO scheme. Therefore the Committee recommends that the Bill be amended for the avoidance of doubt to provide that an offender cannot be required to remain at specified premises for longer than 12 hours in a 24 hour period.
3.140
The Committee recommends that proposed clause 105A of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 be amended to stipulate that a condition imposed as part of an extended supervision order or interim supervision order cannot require an individual to remain at specified premises for more than 12 hours in a 24 hour period.
3.141
The Committee notes the evidence regarding the possibility that offenders may be subject to mandatory participation in rehabilitation and de-radicalisation programs, and that research indicates that forced participation in these programs may not result in successful completion of the programs. The Committee also notes that participation in these programs can be an integral part of rehabilitation of an offender.
3.142
In addition, the Committee notes that conditions requiring participation in rehabilitation or de-radicalisation programs have already been imposed as part of the existing control order regime. The Committee expects that such conditions will be imposed judiciously, and discretion will apply if an offender chooses not to participate for a window of time. The Committee will return to this issue in a future review.
3.143
The Committee notes the evidence that the Bill will introduce the ability to add new conditions, or amend an interim supervision order without the consent of both parties. The Committee notes that this power would represent a departure from the existing control order scheme.
3.144
Given how closely related the proposed ESO scheme is to the existing control orders scheme, the Committee recommends that the protections in place for interim control orders be replicated in the ESO scheme. Therefore, the Committee recommends that an ISO not be permitted to add new conditions prior to confirming the ESO, and that conditions be amended with the consent of both parties.
3.145
The Committee recommends that proposed clause 105A of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 be amended to require that interim supervisions orders
may not be subject to application to include new conditions prior to confirming an extended supervision order
may be amended with the consent of both parties.
3.146
The Committee notes concerns raised by submitters in relation to the broad range of individuals who can be nominated as a specified authority who is empowered to undertake a range of actions to monitor and ensure compliance with conditions imposed as part of an ESO or an ISO. The Committee understands that, due to the breadth of conditions that are available, it may be necessary to provide a range of potential individuals who can be empowered to undertake these functions.
3.147
The Committee notes the inclusion of exemption conditions to formalise an existing practice in the control order scheme. The Committee supports the intent of exemption conditions to reduce the burden on the judicial system and the parties when exemption conditions can benefit both parties.
3.148
The Committee agrees that the development of a decision-making framework would support consistency in the application of discretion by a specified authority, and believes that this framework would be appropriately contained in supporting guidance material developed as part of the implementation process. The Committee recommends that the Department of Home Affairs develops a framework as part of the implementation of the scheme that provides the considerations a specified authority must undertake, the timeframe for consideration, and record-keeping requirements.
3.149
The Committee recommends that the Department of Home Affairs develop a decision-making framework as part of the implementation of the extended supervision order scheme that provides guidance to a specified authority of
the considerations that must be undertaken by a specified authority
the timeframe for a decision under an exemption condition
the record-keeping requirements of a decision made under an exemption condition.
3.150
The Committee notes the importance of monitoring compliance with conditions as core aspect of the ESO scheme, and notes that while the potential monitoring measures are intrusive, the majority of monitoring powers are subject to a warrant process which would allow the Court to appropriately determine the proportionality of a measure. In addition, the Committee notes that conditions that could amount to monitoring of conditions would also be subject to scrutiny by the Court.
3.151
However, the Committee considers that it is appropriate that the Bill be amended to allow for a specified authority apply discretion for minor or unintentional breaches of conditions noting the seriousness of the consequences for breaches of ESO or ISO conditions.
3.152
The Committee recommends that proposed clause 105A of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 be amended to make clear a specified authority can apply discretion to whether a minor or unintentional breach of an extended supervision order or interim supervision order be subject to prosecution.
3.153
The Committee notes the concerns of the Law Council of Australia regarding the role of the courts in making decisions that would not be considered a typical role of the respective Court. The Committee considers that the provisions of the Bill contain appropriate criteria to enable the State or Territory Supreme Court to determine whether a post-sentence order is appropriate.
3.154
The Committee supports the upcoming review by the INSLM into the provisions of Division 105A of the Criminal Code, including the introduction of the ESO scheme. The Committee notes the recent passage of the Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Bill 2021, which extended the reporting date for the INSLM’s review of Division 105A of the Criminal Code to ‘as soon as practicable after 7 December 2021’.
3.155
The Committee considers that the INSLM may benefit from an additional 12 months to complete the review, noting the introduction of the new powers and the interplay of the CDO scheme with the new ESO scheme.
3.156
The Committee supports the intent of the ESO regime, and considers that there may be value in inquiring into the operation and effectiveness of the ESO regime once the scheme has been in place for a period of time, and with the additional value of the INSLM’s report into the provisions. The Committee therefore recommends that the Intelligence Services Act 2001 be amended to allow for the Committee to commence a review within 12 months of the INSLM’s report being completed.
3.157
The Committee recommends that section 29 of the Intelligence Services Act 2001 be amended to provide that the Committee may commence an inquiry into Division 105A of the Criminal Code Act 1995 within twelve months of the INSLM’s report being completed.