1.1
The Parliamentary Joint Committee on Intelligence and Security (the Committee) is empowered to review the operation, effectiveness and implications of:
the stop, search and seizure powers provided for under Division 3A of Part IAA of the Crimes Act 1914 (‘Crimes Act’);
the control order (CO) regime provided for under Division 104 of the Criminal Code 1995 (‘Criminal Code’);
the preventative detention order (PDO) regime provided for under Division 105 of the Criminal Code; and
the continuing detention order regime (CDO) provided for under Division 105A of the Criminal Code.
Conduct of the inquiry
1.2
The Committee announced the review on 18 June 2020 and invited written submissions from Government by 28 August 2020 and 10 September 2020 for non-Government submitters.
1.3
The Committee received 10 submissions and five supplementary submissions from government, academia and other stakeholders. A list of submissions received by the Committee is located at Appendix A.
1.4
The Committee held public hearings on 25 September and 1 December 2020. Details of the hearings are included at Appendix B. The Committee also received private briefings in the course of its inquiry.
1.5
Copies of unclassified submissions and transcripts of public hearings can be accessed on the Committee’s website.
Report structure
1.6
This reports consists of five chapters:
This remainder of this chapter describes the history of the legislation under review, the use of the powers to date, and the current security environment;
Chapter 2 discusses the Australian Federal Police’s (AFP) counter-terrorism powers – the stop, search and seizure powers;
Chapters 3 discusses the control order provisions, including a brief discussion of the impact of the amendments proposed by the ESO scheme on the control order scheme;
Chapter 4 discusses the preventative detention order regime; and
Chapter 5 discusses the continuing detention order regime.
Legislative history
1.7
Following the July 2005 terrorist attacks in London, the Government introduced Division 3A into the Crimes Act, and Divisions 104 and 105 into the Criminal Code via the Anti-Terrorism Act (No. 2) 2005 to assist ‘law enforcement and intelligence agencies to effectively prevent and investigate terrorism’. According to the Explanatory Memorandum accompanying the relevant bill, the legislation would, among other things, introduce:
a new regime to allow for ‘control orders’ that will allow for the overt close monitoring of terrorist suspects who pose a risk to the community,
a new police preventative detention regime that will allow detention of a person without charge where it is reasonably necessary to prevent a terrorist act or to preserve evidence of such an act,
a new regime of stop, question, search and seize powers that will be exercisable at airports and other Commonwealth places to prevent or respond to terrorism.
1.8
During the Minister’s second reading speech, the then Attorney-General, the Hon Philip Ruddock, stated that the Bill would ensure the Government was ‘in the strongest position possible to prevent new and emerging threats, to stop terrorists carrying out their intended acts’. Former Attorney-General Ruddock also highlighted that the Bill had been the subject of extensive consultation, with its proposed measures agreed to at a special Council of Australian Governments (COAG) meeting held on 27 September 2005. Under the COAG agreement, State Premiers and the Northern Territory and Australian Capital Territory Chief Ministers agreed to introduce complementary legislation providing for preventative detention for a period of up to 14 days and search powers.
1.9
On 3 November 2005, the Bill was referred to the Senate Legal and Constitutional Legislation Committee for inquiry and report. After an extensive review, in which it received 294 submissions, the Senate Committee recommended that the Bill be passed, subject to a number of amendments designed to improve and strengthen safeguards. A number of the recommendations were supported by the Government, with the Bill passing the Senate and House of Representatives on 6 December and 7 December 2005 respectively. The Anti-Terrorism Act (No. 2) 2005 received Royal Assent on 14 December 2005.
1.10
In 2010, section 3UEA (the emergency entry to premises provisions) was added into the Criminal Code by the National Security Legislation Amendment Act 2010. According to the Explanatory Memorandum accompanying the relevant Bill, the purpose of section 3UEA was ‘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’.
Review of AFP powers since introduction
1.11
The provisions have been reviewed by the Committee and the Independent National Security Legislation Monitor (INSLM).
Advisory Report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014
1.12
The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (‘Foreign Fighters Bill’) was introduced to address the threat of terrorism posed by the return of approximately 160 Australian individuals who had become involved with extremist groups in Iraq and Syria.
1.13
In relation to control orders, the Foreign Fighters Bill proposed altering the threshold for an application for a control order from ‘considers’ to ‘suspects’, to amend the criteria for applying and issuing a control order to include circumstances relevant to the issue of foreign fighters, and increasing the amount of time a person can be required to stay at a specified premises.
1.14
In relation to preventative detention orders, the Foreign Fighters Bill proposed the inclusion of a subjective test for the AFP member to suspect on reasonable grounds that the relevant person will do one or more things related to a terrorist act, to amend the threshold to preserve evidence, to allow oral or electronic applications for PDOs or prohibited contact orders in an emergency, and to enable PDOs to be issued based on a description where a person’s full name is not known.
1.15
While the Foreign Fighters Bill proposed amending the sunset date of the provisions for 10 years, the Committee recommended that the stop, search and seizure powers, control order provisions and the preventative detention order provisions sunset 24 months following the date of the next Federal election which was enacted and resulted in revised sunset date of 7 September 2018. The Committee also recommended that the INSLM consider the stop, search and seizure powers, the control order provisions and preventative detention orders, and complete the report 12 months following the Federal election. The former INSLM published the reports on these powers in September 2017.
Advisory Report on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016
1.16
The Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 (‘HRTO Bill’) introduced the continuing detention order scheme, to address the growing number of terrorist offenders serving sentences who may continue to pose a risk to the community following the conclusion of their sentence.
1.17
The continuing detention order scheme was introduced following a COAG resolution in 2016 which agreed in-principle to the Commonwealth leading the process to develop a post-sentence preventative detention order scheme that could be applied uniformly by states and territories.
1.18
The continuing detention order scheme, including its development, is discussed in detail in Chapter 5.
INSLM Statutory Deadline Reviews
1.19
The former INSLM, Dr James Renwick SC, completed reports on the stop, search and seize powers, as well as the control order, and the preventative detention order schemes in September 2017. As part of this review the former INSLM also considered the issue of interoperability between the control orders and continuing detention orders schemes.
1.20
The former INSLM considered that though the AFP had not had the occasion to use the stop, search and seize powers since they were introduced, the operational basis for the introduction of the powers had not changed. The former INSLM concluded that the powers should continue for an additional five years.
1.21
In relation to the control order scheme the former INSLM noted that the first INSLM recommended repealing the provision, and that instead of repeal, the provisions had been amended to:
broaden the basis for obtaining a control order;
to improve monitoring of compliance; and
introduce a special advocates regime to enable access to otherwise classified material in court-only proceedings.
1.22
The former INSLM considered that the control order provisions were necessary and proportionate – subject to the implementation of a series of recommendations – to the threat of terrorism, and should be continued for a period of five years.
1.23
The former INSLM made recommendations to improve the interim control order process, to clarify and improve control order provisions related to costs, and recommended the implementation of outstanding recommendations from a previous review of control order safeguards by the second INSLM.
1.24
In relation to preventative detention orders, the former INSLM considered that the absence of an application did not mean that the provisions were redundant, and noted the evidence of the AFP in particular:
I place particular weight on the submissions of the AFP, as the responsible law enforcement agency, as to the need for the continuing availability of the provisions in div 105 despite no PDOs having been sought or made. In light of what the Deputy Commissioner of the AFP described at the public hearing as ‘the major increase in the threat of smaller-scale opportunistic attacks by lone actors’, with the concomitant risk of little to no lead time to prevent a spontaneous attack, the need to act quickly to disrupt terrorist activity, and prevent potentially catastrophic consequences, may call for the invocation of the PDO regime in div 105.
1.25
The former INSLM noted that the Commonwealth PDO scheme provided that a person could be detained for 48 hours whereas under state and territory legislation a person could be detained for up to 14 days. The former INSLM said that the Commonwealth PDO provisions had ‘significantly less utility than complimentary regimes which are in force pursuant to state and territory legislation.’
1.26
The former INSLM supported the continuation of the Commonwealth PDO scheme but noted that there was ongoing development in the area of administrative detention. The former INSLM referred to the introduction of an investigative detention regime in NSW as an example of possible future developments.
Review of police stop, search and seizure powers, the control order regime and the preventative detention order regime.
1.27
In February 2018, the Committee completed a review under the Intelligence Services Act 2001 on the stop, search and seizure powers provided by the Crimes Act as well as the control order and preventative detention order regime provided for by the Criminal Code.
1.28
In light of the threat environment, and in consideration of the objective of the powers to combat terrorism, the Committee recommended each of the powers continue for a period of three years.
1.29
The Committee considered the issue of interoperability between control orders and CDOs, and agreed with the conclusion of the former INSLM that an extended supervision order (ESO) scheme should be implemented. The proposed ESO scheme is considered in more detail in the Committee’s concurrent inquiry Advisory Report on the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020.
1.30
The remainder of the Committee’s recommendation were enacted through the Counter-Terrorism Legislation Amendment Bill (No. 1) 2018.
The current security environment
1.31
At the time of the Committee’s inquiry, the National Terrorism Threat level remained PROBABLE, after being elevated in 2014, meaning that credible intelligence indicated that individuals and groups continued to have the intention and capability to conduct a terrorist attack in Australia.
1.32
The AFP noted that while the primary threat to Australia when the powers were introduced in 2005 was large-scale operations by organised terrorism networks, the rise of the Islamic State of Iraq and the Levant (ISIL) shifted the nature of the terrorism threat to Australia:
Australia’s terrorism landscape is continually evolving. The primary threat to Australia in 2005 was from large-scale operations by substantial, organised terrorism networks. Numerous western countries experienced mass casualty attacks, including coordinated suicide bombings in the UK and Spain.
The rise of the Islamic State (IS) and increased ease of online radicalisation changed the threat environment significantly in 2014. The threat shifted from large scale operations to smaller-scale ‘lone-actor’ style attacks.
1.33
The Department of Home Affairs, Attorney-General’s Department and the AFP said that since the elevation of the terrorism threat level there had been seven terrorist attacks in Australia and that law enforcement and security agencies had disrupted a further 18 potential or imminent terrorist attacks.
1.34
The AFP noted that since the Committee last reviewed counter-terrorism powers in 2017, the threat environment had increased in complexity. The AFP said that a number of challenges impacted law enforcement which included:
the demise of ISIL territorial caliphate;
the need to prepare for and investigation the possible return of foreign fighters;
investigations into domestic attack planning;
the increased risk of right-wing terrorism and the aftermath of the 2019 Christchurch attack; and
the role of technology in propagating violent extremist ideologies.
1.35
In its annual report, the Australian Security Intelligence Organisation (ASIO) said the emergence of COVID-19 had an impact on radicalisation and the threat of terrorism:
Islamic extremists continue to disseminate propaganda designed to radicalise, recruit, instruct on and inspire terrorist attacks, including in Australia. Australia continues to be specifically mentioned in pro–ISIL propaganda, and these releases add to a large body of material that encourages terrorism. This propaganda is drawing a younger audience which accesses this material online, and its potential reach increased in 2020 as COVID-19 social isolation increasingly pushed Australians online. Al-Qa‘ida remains active, particularly offshore; although in the next five years Australian prisons are due to release a number of Islamic extremist prisoners whose actions were inspired by al-Qa‘ida.
1.36
The AFP said that extremists have used the COVID-19 pandemic to target racial and ethnic groups:
Recent operational experience indicates an emerging trend of extremists exploiting the public fear associated with the COVID-19 pandemic to target certain racial and ethnic groups. These groups seek to spread disinformation, incite violence, intimidate targets, promote their ideology and recruit new members. They continue to seek to take advantage of increased isolation, unemployment, family stress and financial hardships to recruit individuals vulnerable to online radicalisation.
1.37
The joint submission provided by the Attorney-General’s Department, the AFP and the Department of Home Affairs (‘Joint-agency submission’) said that the threat of terrorism was unpredictable, and that it was necessary to have range of tools to address the threat:
Australia’s response to the terrorism threat has been challenged by the increasingly diverse nature of attacks. The shift from primarily large-scale complex plots by organised networks to small-scale lone actor attacks encouraged by the online proliferation of Islamic State (IS) propaganda has reduced the time available to detect and disrupt plots. However, the disrupted plot to bomb an international flight from Sydney Airport in July 2017 (Operation SILVES) demonstrates the threat from large-scale and complex attack planning has not abated. This unpredictable environment further emphasises the need for law enforcement to have a full range of capabilities to respond appropriately and proportionately to the specific threat, without which, the consequences may be significant loss of life.
1.38
Deputy Commissioner Ian McCartney, Investigations, AFP said that the counter-terrorism effort was a shared responsibility both domestically and internationally:
Australia's counterterrorism effort is a shared responsibility across government and jurisdictions both domestic and international. These powers combined place the AFP and its state and territory partners in the best possible situation to respond to terrorism. The longstanding operational and policy cooperation, including through the joint counter-terrorism teams and the enduring Australia-New Zealand Counter-Terrorism Committee, have served the Australian community well.
1.39
The Joint-agency submission said that the release of terrorism offenders post-sentence also contribute to severity of terrorism risks in Australia:
The growing cohort of released terrorist offenders also poses a potential threat to the Australian community. As at 24 July 2020, 86 individuals have been convicted of and sentenced for Commonwealth terrorism offences. Of these individuals, 45 were sentenced in the last three years, with a further 13 offenders due to be released into the Australian community following the expiry of their custodial sentences between 2020 and 2025. Experiences of other likeminded countries indicates the severity of this risk - in particular, the 2019 London Bridge and 2020 Streatham attackers in the United Kingdom (UK) were previously convicted terrorist offenders who had been released into the community. There is an enduring risk posed by post-sentence offenders and a continued need for appropriate prevention and risk management measures.
Committee review of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020
1.40
At the time of this inquiry, the Committee considered the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 (‘the Bill’). The Bill proposed a number of amendments to the Criminal Code to introduce an extended supervision order (ESO) scheme.
1.41
In addition to the introduction of the ESO scheme, the Bill proposed amending aspects of the control order scheme and the continuing detention order scheme. This report will therefore refer to the concurrent review throughout as the Advisory Report on the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020.
1.42
References to the powers in the Crimes Act and Criminal Code that form the basis for this inquiry are also referenced in the Committee’s review of the Bill inquiry, particularly as it relates to the control order scheme and continuing detention order scheme.