- Introduction
- On 10 August 2023 the Attorney-General, the Honourable Mark Dreyfus KC MP, wrote to refer the Counter-Terrorism and Other Legislation Amendment Bill 2023 (‘the Bill’) to the Committee for inquiry and report. The Attorney-General requested that the Committee present its report by 9 October 2023.
Purpose of the Bill
1.2The Bill would extend the operation of Australian Federal Police (AFP) powers relating to terrorism under the Crimes Act 1914 (‘Crimes Act’) and the Criminal Code Act 1995 (‘Criminal Code’) for a further three years, to December 2026. These powers relate to:
- authority to stop, question and search persons and seize items in Commonwealth places, including in ‘prescribed security zones’; without a warrant (Crimes Act, Part 1AA, Division 3A)
- the control order regime (Criminal Code Division 104)
- the preventative detention order regime (Criminal Code Division 105).
- The Bill implements changes to counter-terrorism powers in response to this Committee’s 2021 Review of police powers in relation to terrorism, the control order regime, the preventative detention order regime and the continuing detention order regime, discussed further below.
- The amendments proposed by the Bill would impact:
- prescribed security zones, including requiring the Minister to consider particular matters before declaring a zone, and requiring notification of relevant oversight bodies when a zone is declared
- stop and search powers: implementing a requirement on police to inform the subject of their rights to make a complaint (where practicable)
- control orders, including amending the issuing authority to only the Federal Court of Australia, and requiring new considerations by the court before issuing an interim control order
- preventative detention orders, allowing them to be issued only by superior court judges
- the AFP Minister’s public reporting on continuing detention orders.
- In addition, the Bill proposes to extend the operation of the offence of unauthorised disclosure of information by current and former Commonwealth officers (section 122.4 of the Criminal Code) by 12 months to December 2024 to allow for the finalisation of the Government’s review of Commonwealth secrecy provisions.
- In his second reading speech, the Attorney-General said:
The bill would provide for the continuation and enhancement of important counterterrorism powers that contribute to the safety and security of all Australians. It strikes a balance between ensuring our law enforcement agencies have the powers they need to manage the threat of terrorism, while protecting the rights of individuals through stronger oversight and safeguards.
The terrorism threat in Australia
1.7At the time of the inquiry, Australia’s National Terrorism Threat Level was ‘possible’. The Explanatory Memorandum to the Bill said this ‘means there is credible intelligence that, whilst Australia is a possible target of terrorists, there is limited intention or capability to conduct an attack’.
1.8However, the Explanatory Memorandum also said that the Director-General of Security noted that the current National Terrorism Threat Level does not indicate that the threat of terrorism has been extinguished, and that ‘terrorism is an enduring and evolving threat’.
1.9The Attorney-General’s Department noted that the counter-terrorism laws and frameworks were a key factor in managing the ongoing risk of terrorism:
The current counter-terrorism laws and frameworks, including the control order and the preventative detention order regimes in the Criminal Code, and Division 3A of Part IAA (police powers in relation to terrorism) in the Crimes Act, are a key factor in managing the terrorism risk and threat level in Australia.
The potentially catastrophic consequences of a terrorist attack on places of national significance, or in places of mass gathering, do not change despite the recent downgrade in the National Terrorism Threat Level. The maintenance of counter-terrorism powers and frameworks is a key factor in managing the overall risk of terrorism, and provides a proper basis for the continued existence of these unique powers.
1.10The AFP noted that in 2023 (as at 6 October), four individuals had been charged with alleged terrorism offences. Of those that were charged, two were inspired by Ideologically Motivated Violent Extremism (IMVE), one was inspired by Religiously Motivated Violent Extremism (RMVE), and one individual had a mixed or unclear ideology.
1.11The AFP said that it had observed an increase in the number of individuals, particularly in rural and regional areas, adhering to violent extremist ideologies, ‘particularly ideologies associated with nationalist and racist violent extremism’. The AFP noted, further:
This was particularly notable throughout the COVID-19 pandemic as individuals spent increased amounts of time online, often with an enhanced degree of exposure to extremism even on mainstreaming services. Ultimately, this has also been further compounded by more radical views through the broadcasting of conspiracy theories, anti-government sentiments, protests, and more, thereby ‘normalising’ these perspectives to the broader Australian public.
1.12The AFP said that RMVE remained the ‘predominant threat to Australia’. The AFP noted that while there was limited intent to act, the threat remained:
[RMVE] is enduring and, while many of these extremists appear to have limited genuine intent to act, some continue to aspire to undertake attacks in Australia. RMVE-linked terrorist groups remain a threat, albeit a diminished one.
1.13The AFP advised that a number of individuals had presented with mixed or unclear ideology. The AFP noted that this was an emerging trend:
Online connectivity has enabled likeminded individuals to connect, communicate and rapidly spread messages. As a result, the AFP is increasingly encountering individuals, particularly vulnerable young people, who are displaying an interest in a diverse range of extremist material. This has contributed to the adoption of mixed ideologies.
1.14Commander Thomas Hester of the Australian Federal Police noted that the age of those engaged in extremist behaviours was decreasing:
On youth offending, we are seeing an increase in the number of youths, a lot of engagement through online sources, and we're also seeing the age decrease, so becoming lower. That has been the case for a number of years now and it does cause us concerns. But certainly the age, if you look at a recent matter of a 12-year-old, it's a very challenging environment, but the online engagement through that is a big key linkage for us.
Conduct of the inquiry
1.15The Committee announced its inquiry on 7 September 2023 and invited submissions addressing the terms of reference by 6 October 2023.
1.16The Committee received 8 submissions and 1 supplementary submission. AppendixA sets out a list of submissions received.
1.17The Committee held a public hearing on 16 October 2023. Appendix B sets out a list of witnesses who appeared at the public hearing.
1.18Copies of the submissions, the transcript from the public hearing and links to the Bill and Explanatory Memorandum can be accessed at the Committee website.
Report structure
1.19This report comprises three chapters:
- The remainder of Chapter 1 contains an overview of the counter-terrorism powers impacted by the proposals in the Bill, as well as a discussion of the Committee’s previous consideration of these powers in its 2021 review.
- Chapter 2 outlines the key provisions of the Bill and the evidence received by the inquiry.
- Chapter 3 sets out the Committee’s comment on the Bill and its recommendations.
Legislative and review history of counter-terrorism powers
1.20In response to the July 2005 terrorist attacks in London, the Government introduced Division 3A into the Crimes Act 1914 (‘Crimes Act’)and Divisions 104 and 105 into the Criminal Code Act 1995 (‘Criminal Code’) via the Anti-Terrorism Act (No. 2) 2005, to assist ‘law enforcement and intelligence agencies to effectively prevent and investigate terrorism’.
1.21The powers introduced by the Anti-Terrorism Act (No. 2) 2005 included the control order regime, the preventative detention order (PDO) regime and the ‘stop, search and seize powers’.
1.22In 2010, section 3UEA (the emergency entry to premises provisions) was added into the Criminal Code ‘to provide police with a power to enter premises without a warrant in emergency circumstances relating to a terrorism offence where there is material that may pose a risk to the health or safety of the public’.
1.23The counter-terrorism provisions have been amended by legislation several times since their introduction. In addition, the powers have been subject to several reviews, including reviews conducted by this Committee and by the Independent National Security Legislation Monitor (INSLM). Some of the more significant amendments and reviews included:
- Amendments to control order and PDO provisions made by the Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014, considered by the Committee at the time of the Bill’s introduction into Parliament.
- Introduction of the continuing detention order (CDO) regime by the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016, considered by the Committee at the time of the Bill’s introduction into Parliament.
- Review of the police stop and seize powers, the control order regime and PDO regime completed by the Committee in March 2018, following the completion of an inquiry on the same provisions by the then INSLM, DrJames Renwick SC, in September 2017.
- In September 2021, the Committee concluded its inquiry into the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 which introduced the extended supervision order (ESO) regime. The ESO scheme complements the CDO regime in providing for post-sentence supervision in the community for those assessed as posing an unacceptable risk of committing a serious terrorism offence at the conclusion of their custodial sentence, as an alternative to continuing detention. These provisions are collectively known as ‘post-sentence terrorism orders’.
- At the time of this inquiry, the Committee had commenced an inquiry into the post-sentence terrorism orders provided in Division 105A of the Criminal Code, following the publication of the INSLM’s review of the same provisions in March 2023.
- Separately, in October 2021 the Committee concluded its inquiry into the operation, effectiveness and implications of:
- Division 3A of Part IAA of the Crimes Act and any other provision of the Crimes Act 1914 as it relates to that Division; and,
- Divisions 104, 105 and 105A of the Criminal Code and any other provision of the Criminal Code Act 1995 as it relates to those Divisions.
That inquiry considered the stop, search, seize and entry powers, the control order provisions, CDO provisions and PDO provisions. The Committee’s report, Review of police powers in relation to terrorism, the control order regime, the preventative detention order regime and the continuing detention order regime, made nineteen recommendations. The Committee recommended that the sunset provisions for the powers, then due to cease in December 2022, be extended to December 2025 (with the exclusion of the CDO provisions which sunset in December 2026).
1.27The Committee made several other recommendations directed to improving clarity, oversight and interoperability of counter-terrorism laws, as well as amendments to the Intelligence Services Act 2001 (IS Act) to allow the Committee to undertake further reviews of the powers prior to their extended sunset period.
1.28The Bill implements part of the Government response to the Committee’s 2021 report into these powers. The recommendations made by the 2021 inquiry, and the responses proposed in the present Bill, are discussed in more detail in Chapter2.