Division 104 of the Criminal Code Act 1995
Overview of the provisions
3.1
Division 104 of the Criminal Code Act 1995 (Criminal Code) sets out the circumstances in which a control order may be made by the issuing court (either the Federal Court or the Federal Circuit Court). A control order can be made in relation to any person over the age of 14 for the following purposes:
protecting the public from a terrorist act;
preventing the provision of support for, or the facilitation of a terrorist act; or
preventing the provision of support for or the facilitation of, the facilitation of the engagement in a hostile activity in a foreign country.
3.2
The Criminal Code provides that a senior AFP member must seek the consent of the AFP Minister prior to making an application for an interim control order. Following the consent of the AFP Minister, the AFP may make an application to the issuing court for an interim control order.
3.3
A control order may impose a range of prescribed obligations, prohibitions and restrictions on a person, including:
a prohibition or restriction on the person being at specified areas or places;
a prohibition or restriction on the person leaving Australia;
a requirement that the person wear a tracking device; and
a prohibition or restriction on the person carrying out specified activities (including in respect of his or her work or occupation).
3.4
The court may set a date to vary, revoke, confirm or void an interim control order.
3.5
The court may grant the interim control order where it is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions imposed on the person by the order are reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from the threat of terrorism.
Urgent interim control orders
3.6
Division 104 of the Criminal Code provides that a senior AFP member may request that an issuing court make an interim control order in person, or by telephone, fax, email or other electronic means without the consent of the AFP Minister if the senior AFP member considers it necessary to make the request due to urgent circumstances and the senior AFP member suspects on reasonable grounds that the provisions of section 104.2 apply.
3.7
Where a senior AFP member makes an application for an urgent interim control order either in person or electronically, the senior AFP member must seek the consent of the AFP Minister within eight hours of making the request. Where the AFP Minister refuses consent, or does not provide consent within eight hours, the order immediately ceases to be in force.
Control orders relating to minors
3.8
The minimum age for a person to be the subject of a control order is 14 years and a judicially confirmed control order for a subject between 14 and 17 cannot last longer than three months.
3.9
Where an individual under age of 18 does not have legal representation, the court must appoint a lawyer to act for the person in relation to any proceedings. This however, is not required for any ex parte proceedings relating to the interim control order request or if the person has previously refused a lawyer previously appointed to them.
Offences relating to control orders
3.10
Where an individual contravenes a control order the penalty is imprisonment for up to five years.
3.11
Further penalties also apply for the control order subject and others that knowingly or recklessly interferes with, disrupts or loses a function of a tracking device that is required as part of a control order. Both offences carry a penalty of five years imprisonment.
Review history
3.12
The control order regime has been subject to a number of reviews since it was introduced. These reviews have been covered in depth in the Committee’s Review of police stop, search and seizure powers, the control order regime and the preventative detention order regime, but are briefly summarised below.
3.13
In a 2012 review of the control order regime, the former Independent National Security Legislation Monitor (INSLM) Mr Bret Walker SC determined that control orders were not effective, appropriate or necessary. However, the former INSLM considered that control orders could be useful in circumstances where a person convicted of terrorism offences still remained a threat to the community after the end of their sentences. At the time, the former INSLM recommended that the control order regime be repealed.
3.14
However, in 2013, the Council of Australian Governments (COAG) completed its Review of Counter-Terrorism Legislation and found value in continuing the control order regime, but additionally, there were insufficient safeguards contained in the legislation. It made several recommendations, including:
that the Commonwealth Ombudsman be empowered to oversee control orders;
that prohibitions or obligations imposed by a control order have the least effect on the subject’s life, privacy or freedom of movement as necessary;
that a person subject to an interim control order be provided with information about rights of review and appeal options available to them if the interim order becomes a confirmed order; and
that the Australian Government consider amending the legislation to introduce a system of ‘special advocates’ to participate in control order proceedings.
3.15
In 2014, the Committee concluded that the AFP should have access to control order provisions in the Committee’s review of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 to be able to combat terrorism. The Committee recommended an extension of the sunset date of the control order provisions from December 2015 to September 2018.
3.16
In addition, the Parliamentary Joint Committee on Human Rights reviewed the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 and found that several of the powers contained within Division 104 ‘may not satisfy the requirement of being reasonable, necessary and proportionate in pursuit of their legitimate objective’.
3.17
The Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 proposed several amendments to the control order powers, including broadening the grounds under which a control order could be imposed. The Committee concluded a review into the Bill and supported the control order powers and the proposed amendments of the Bill, but did make several recommendations, including waiting for the outcome of an INSLM review, further clarity around some terms, and an increased oversight role for the Attorney-General.
3.18
In 2016, the former INSLM, the Hon Roger Gyles AO QC, completed two reports on the control order safeguards as recommended by the 2013 COAG review. In the first report, the former INSLM Gyles’s supported the adoption of the ‘special advocates’ regime.
3.19
The former INSLM’s second report considered the outstanding recommendations of the COAG report. The INSLM supported some of the COAG Committee’s recommendations but in other cases found that they were not necessary, were already implemented, or had already been accepted.
3.20
In 2016, the Committee reviewed the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 which proposed several amendments to the control order regime. The Bill sought to expand control order powers, including lowering the age a control order could be sought from 16 to 14, introduced additional provisions to monitor compliance, new obligations on subjects of control orders to wear tracking devices, and new provisions to protect national security information during control order proceedings.
3.21
The Committee supported the passage of this Bill, subject to the implementation of a number of recommendations – including the former INSLM’s 2014 recommendation to introduce a special advocate for situations where a person subject to a control order and their lawyer had been excluded from proceedings. The Government accepted all the Committee’s recommendations.
3.22
In a 2017 report, the former INSLM, Dr James Renwick SC, found that the control order regime continued to be necessary due to the ongoing terrorism threat, the limited use of these measures by law enforcement agencies, and that control order measures had been highly effective in pursuing the objectives of the regime during recent use. The former INSLM also concluded that the control order regime was proportionate to the terrorist threat level on the basis that, at the interim and confirmation state, the imposition of a control order was a matter for the court and that this:
…ensures an independent judicial assessment of the case for the controls, which are tailored to the purpose of the order and the personal circumstances of the controlee. It ensures that the order addresses the threat as revealed by the evidence.
3.23
Although the former INSLM found the control order regime was necessary, the former INSLM recommended a number of minor and technical amendments to the regime. In addition, the former INSLM recommended that Division 104 of the Criminal Code continue for another five years.
3.24
In February 2018, the Committee completed its report Review of police stop, search and seizure powers, the control order regime and the preventatives detention order regime. It made five recommendations to Government about the control order regime, including that the control order scheme continue for a period of three years, that the Committee have the opportunity to review the provisions prior to the sunset date, and that the Criminal Code be amendment to provide for an extended supervision order regime.
3.25
The report also recommended that the Criminal Code be amended to:
clarify the status of a request for an interim control order during confirmation proceedings as well as consideration of further improvements to clarify the application of civil procedure rules;
provide for the controlee or the AFP to apply to the court to vary the terms of an interim control order; and
extend the minimum period between an interim control order and a confirmation hearing to seven days.
3.26
On 24 May 2018 the Government tabled its response to the Committee’s review indicating its support for each of the recommendations made by the Committee in relation to the control order regime.
Use of the provisions
3.27
The AFP has sought 13 interim control orders since 2014, which were granted, and eight of the interim control orders were later confirmed. Ten control orders have been granted since 2019.
3.28
Assistant Commissioner Scott Lee, Counter Terrorism and Special Investigations, AFP, said that the majority of control orders sought since 2019 were in relation to terrorist offenders released from a term of imprisonment:
The majority of the increased number of control orders since January 2019, as the deputy commissioner [of the AFP] said, has primarily been in relation to high-risk terrorist offenders who have been released from custody. There was a total of 10. Nine of those remain current. Eight of those relate to HRTO[High Risk Terrorist Offender]-eligible persons, and the ninth relates to a person who has had their conviction overturned on appeal. That is the reason for the increase in control orders. Primarily, it has been in relation to the high-risk terrorist offender cohort that has been released from custody.
3.29
Deputy Commissioner Ian McCartney, Investigations, AFP, said that the primary concern in seeking a control order for the AFP was the threat to the community:
I think the key issue is threat to the community. Of the 16 that have been obtained, seven were in the community. We formed the view that control orders were required to reduce or mitigate the threat. Nine related to eligible terrorism offenders who were released from prison out into the community, who we still believed posed a threat. In terms of what we assess, that's the key issue that we assess and it is assessed on a case by case basis.
3.30
Assistant Commissioner Scott Lee, Counter Terrorism and Special Investigations, AFP, said that a number of control orders were sought following the major counterterrorism operation, Operation Appleby:
As the deputy commissioner [of the AFP] has indicated, some of those individuals where we sought control orders—certainly the ones who are not HRTO eligible, or people where we sought control orders post release—were connected to some of our major counterterrorism operations, such as Operation Appleby in New South Wales, which you'd obviously be well aware of.
…
In terms of Operation Appleby, that was an investigation that involved attack planning. It was a domestic threat investigation. There was a control order obtained in relation to an individual where there was not sufficient to charge that person, but we felt that there was sufficient—and obviously a control order was issued in terms of that individual to prevent the risk that that person posed to the community.
3.31
The AFP said that a broad range of people could potentially be eligible for a control order, including those without a history of terrorist offending:
A broad range of persons are potentially eligible for a control order, including persons who may not have a history of terrorist offending but nevertheless pose a risk to the public of committing a terrorist act or providing support for a terrorist act, those who may have provided or received training by a terrorist organisation, and those convicted of a terrorism related offence.
3.32
The AHRC noted that most control orders had been made in relation to people who had been convicted of a terrorism offence and who were being released into the community. The AHRC said that the use of the provisions in other circumstances was not justified, and listed two specific situations including:
as an alternative to prosecution, either where there is a lack of probative evidence that would ground a ‘reasonable suspicion’ permitting arrest, or where the Commonwealth Director of Public Prosecutions has advised that there is no reasonable prospect of conviction; or
as a ‘second attempt’ following an unsuccessful prosecution—for example, where a person has been tried and acquitted.
3.33
The AHRC noted that the AFP said that where there is sufficient evidence to charge an individual for terrorism offences they will always take that approach over seeking a control order:
The AFP said that where there is enough evidence to formally charge and prosecute a person, it will always take this approach over seeking the imposition of a control order. This is substantially borne out in practice. Since September 2014, 110 people have been charged as a result of 51 counter-terrorism related operations across the country. The circumstances in which a control order may be used as a ‘preventative measure’ are therefore limited to circumstances where there is a lack of probative evidence of a crime.
3.34
The AHRC noted an example of an individual subjected to a control order but not charged with terrorism offences, Mr Harun Causevic, who was subjected to a preventative detention order, and then an interim control order requiring Mr Causevic to wear a tracking device. Dr David Neal, Law Council of Australia, said that the requirement to wear a tracking device caused significant distress to Mr Causevic:
I represented a young man, an 18-year-old man named Harun Causevic, in a control order application, and the real issue for him was the requirement that he should wear the ankle bracelet to monitor his movements. He wanted to get work in the construction industry, and he felt ashamed to be wearing the ankle bracelet, because it would indicate to people that he was either a sex offender or a terrorist, and he thought that was too hard to bear. He then basically started to become depressed and, as the length of the control order went on, more and more depressed, which was working against the counselling he was receiving. That probably is the most intrusive of the measures that can be taken. There are also places you're not allowed to go to and people you're not to associate with. And there are a range of positive requirements.
Ultimately, the contest—which was very lengthy and extensive—over that control order was an attempt to have the bracelet removed so that he could get into employment and become rehabilitated. It took a huge amount of time and money to achieve that result, but it was achieved and, at the end of the hearing, the court ordered that the bracelet be removed immediately. I checked this morning, and, since that time, which I think was in 2016, he seems to have been doing very well and has not been involved in any other trouble.
3.35
The AFP said that a number of interim and confirmation applications were still awaiting consideration by the court. Assistant Commissioner Scott Lee, Counter Terrorism and Special Investigations, AFP said that there was a heavy reliance on governmental resources to make an application:
What I would say also though is that in terms of the control order process, as part of the application process, there is a heavy reliance on our own AFP legal resources as well as the Australian Government Solicitor and external counsel, in terms of the making of those applications.
3.36
The AFP provided two examples of approximate costs that may be incurred in applying for a control order:
The cost of the legal proceedings (including preparation of the application for an interim control order and preparation for a confirmed control order) will vary significantly from case to case. However a general guide on costs is below. These are the costs of engaging the Australian Government Solicitor (AGS) and counsel. It does not include the costs of services provided by AFP Legal.
Example 1: A control order which was not opposed at the interim and confirmation stage, and proceeded by submissions only (ie. it did not require calling any witnesses or preparing significant amounts of admissible evidence), incurred a cost of approximately $127,000 for AGS services (including counsel).
Example 2: A control order which was opposed at the interim and confirmation stage, involved the preparation of additional evidence for the confirmation stage, but proceeded by submissions only at confirmation (ie. it did not require calling any witnesses) incurred a cost of approximately $354,000 for AGS services (including counsel).
3.37
In addition to the resourcing impacts from the application process, the AFP said that the resources to monitor compliance with the conditions of a control order are ‘having a significant impact on the AFP and its Commonwealth and State and Territory partners’.
3.38
The AHRC said that there have been two prosecutions for breach of a control order including:
an individual sentenced to two years of imprisonment for breaching a condition preventing the use of public telephones or a device other than the one approved for use. The individual used a public telephone twice and an unauthorised phone on one occasion. The content of the phone calls did not relate to criminal activity; and
an individual was sentenced to four years of imprisonment for accessing three Islamic State of Iraq and the Levant propaganda videos, two of which the individual viewed twice. The individual’s sentence was ‘four times longer than the good behaviour bond he had been ordered to comply with as a result of his only previous criminal conviction.’
3.39
The AFP said that the control order scheme is not sufficiently flexible to accommodate variation in an individual’s daily life. The Law Council of Australia said that temporary variations with the consent of both parties could provide a non-judicial avenue to provide flexibility:
The Law Council acknowledges that it would be desirable for the CO [control order] regime to provide a mechanism for fast and flexible temporary variations, which are sought by the CO subject, and provide legal protections for the CO subject from exposure to criminal liability in these circumstances. Given the serious inadequacies in legal financial assistance for CO subjects, it may be preferable to consider a non-judicial mechanism.
However, strong safeguards and clear limits would be crucial, given that such a proposal would place the AFP in the position of being the sole arbiter of whether a temporary variation of a CO would present a risk to the community.
3.40
During the 2019-20 reporting period, the Office of the Commonwealth Ombudsman said it did not receive or review any complaints about the AFP's use of the control order regime under Division 104 of the Criminal Code.
Necessity of the Regime
3.41
The AFP said that the control order scheme remains a necessary mechanism for managing the terrorism risk to the Australian community.
3.42
The joint submission of the Attorney-General’s Department, the Department of Home Affairs and the AFP said that the recent use of control orders has demonstrated their ongoing use in the pre-prosecution and post-sentence context:
Control orders form part of the comprehensive suite of powers required within the context of the current, dynamic terrorism threat environment, as a medium to long-term risk mitigation measure for persons of counter-terrorism interest in the community. The availability of control orders, demonstrated by their more frequent application in recent times, continues to be necessary and of high utility in both the pre-prosecution and post-sentence context in dealing with individuals who pose a significant terrorism risk to the community, and in instances where there is not enough evidence to reach the threshold for a criminal offence.
3.43
The joint Academic Submission provided by Dr Jessie Blackbourn and others said that the control orders scheme was no longer relevant in light of the proposed introduction of a extended supervision orders scheme:
We do not, as a matter of principle, oppose the use of post-sentence restraints in certain circumstances (which we will outline below). However, in keeping with [the former INSLM] Mr Walker’s proposal, we believe that control orders are not the appropriate tool for imposing such restraints. Instead, any post-sentence restraints should be exclusively contained in Division 105A of the Criminal Code. Transferring the post-sentence restraints currently facilitated by control orders to that Division would enable the crafting of a regime of extended supervision orders that complements the power to order continued detention.
3.44
The Law Council of Australia said that the control orders scheme should cease to exist following the sunset date, and should the scheme continue that the monitoring powers associated with the control orders scheme be repealed.
3.45
The Muslim Legal Network New South Wales (MLN NSW) said that the arguments made by the AFP for the retention of the control orders scheme was not ‘well founded’ and recommended the control orders regime be repealed.
3.46
Mr Edward Santow, Human Rights Commissioner, AHRC said that control orders are not necessary due to the thresholds required for arrest and offences related to preparatory offences:
Control orders are not required during the investigation stage, because of the low threshold for arrest and the broad range of preparatory offences. Police do not need control orders to intervene at an early stage to disrupt any planned terrorist activity. If there is no reasonable suspicion that a person is planning or taking steps towards engaging in an act of terrorism, the restrictions imposed by a control order cannot be justified.
3.47
The AHRC said that control orders should be more targeted to those who pose a risk to the community and said that this could be achieved through an extended supervision order (ESO) scheme:
The Commission submits that control orders should be more tightly targeted to people demonstrated, through a rigorous process of scrutiny and review, to be a risk to the community.
It appears that this function could be performed by an ESO regime.
Proposed extended supervision order scheme and the interplay with the control orders scheme
3.48
The proposed ESO scheme is considered in detail in the Committee’s concurrent Advisory Report on the Counter-Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, however a number of submitters commented on the interplay between the existing control order scheme and the proposed ESO scheme.
3.49
The introduction of the ESO scheme is founded in the consideration of interoperability between the existing CDO scheme – discussed in Chapter 4 – and the control orders scheme. The AFP said that the ESO scheme will allow the Court to make an order as a less restrictive alternative to a CDO:
The introduction of ESOs will address interoperability issues between the two schemes, enabling a State or Territory Supreme Court to make an ESO as a less restrictive alternative to continuing detention, which can be imposed for up to three years. Currently, the AFP must apply to a Federal Court for a control order where continuing detention is not ordered to address the risks posed by a terrorist offender at the completion of their sentence. The AFP’s experience with control orders has informed the development of the ESO scheme to ensure controls available under the ESO scheme are effective in managing the risk posed by convicted terrorist offenders.
3.50
Mr Edward Santow, Human Rights Commissioner, AHRC, said that the ESO scheme would more appropriately target the precise risk and threat of terrorism:
An ESO regime is fundamentally based on an assessment of someone's previous proven conduct, so ESOs would apply to people who have already been convicted of terrorism offences, and any restrictions on those individuals would be, I guess, based on an assessment of what that past conduct might say about their likely future conduct. By contrast, control orders don't have that same limitation. They can be sought in respect of people who have never been convicted of any offence or charged with or accused of any offence. So we would say that is better targeted to the precise risk and threat of terrorism.
3.51
The AHRC said that if the control order scheme and the ESO scheme exist in parallel the Criminal Code should be amended to provide that the AFP Minister is unable to give consent to an AFP request for a control order if CDO or ESO proceedings are pending.
3.52
The Department of Home Affairs, Attorney-General’s Department and the AFP said that the ESO scheme was ‘specifically designed to target a narrower cohort of individuals compared to those to whom the control order scheme is intended to apply’ and clarified that ‘convicted offenders cannot be subject to orders under both an ESO and a control at the same time.’
3.53
The AFP said that the range of conditions available to be imposed under the proposed ESO scheme would have equal value under the control orders scheme:
Many of the conditions proposed for ESOs would have equal protective, preventative and operational utility in the control order scheme. In particular, ESOs will include an improved suite of conditions available to the court and improved mechanisms for managing exemptions for and variations to conditions imposed by the court.
3.54
The ESO scheme proposes to allow the AFP Minister to the court to vary, add or remove conditions imposed by an ESO, as well as to provide for a temporary variation. The AFP said that flexibility in varying conditions of control orders would improve the ability of the scheme to adapt variables in a subject’s life:
AFP experience has demonstrated that the control order scheme is not sufficiently flexible to accommodate for variables in a subjects daily life. For example, division 104 does not currently contemplate the ability of AFP officers to provide an individual who is subject to a control order with a temporary exemption to a condition, even where there is no identified risk to the community in providing a specific exemption. In practice, the AFP has had to rely on informal exemptions from time to time for the order to be functional.
3.55
The Law Council said that the AFP had not provided evidence of the risk to the community arising from the inadequacies in the range of available conditions:
…its submission provides no evidence of risk to the community arising from its stated concerns about inadequacies in the range of available conditions. Nor has it specified the additional controls that it considers are needed to enable the conditions of COs to be better tailored to manage the risks presented by individual respondents to CO applications. In the absence of evidence, the Law Council considers that there is no credible case for any expansion of the already broad range of existing controls.
3.56
The proposed ESO scheme provides for variation of an order with the consent of both parties, and for variation other than by consent. The AFP said that the control order scheme has no mechanism to allow for changing a control order if the other party does not consent:
There is also currently no mechanism for police to vary an interim control order if the subject of the order does not consent. There is also no ability to add to the controls until after the order is confirmed. Even though the AFP could seek to amend controls at the confirmation stage, we cannot add an obligation, prohibition or restriction. Further, confirmation proceedings may be delayed by several months following the imposition of the interim order, resulting in significant delay where additional conditions may be needed because of a change in circumstances or an increase in the risk the subject poses to the community. These restrictions reduce the flexibility of the scheme, and do not acknowledge that a respondent may, for example, experience a change in residential, education or employment arrangements while on an interim order, which can be up to several months, or the entire 12 months if not confirmed.
3.57
The Law Council of Australia said that it was unlikely an individual subject to a control order would not consent to amending conditions when they became out of date due to the offence provisions that would apply to a breach:
In all of the hypothetical scenarios described in the AFP submission, it is impossible to envisage any rational circumstances in which a controlee would not consent to a variation of an interim CO. The controlee would be exposed to criminal sanction, including a maximum penalty of five years’ imprisonment, if they did not comply with the outdated CO conditions, which became outdated because of the controlee’s change of personal circumstances. This is a self-evident incentive for a controlee to seek, or agree to, variation of the interim CO. No evidence has been provided of any case in which a controlee has withheld their consent in such circumstances.
Provision of legal assistance
3.58
The Committee’s Review of police stop, search and seizure, the control order regime and the preventative detention order regime considered the issue of the provision of legal assistance in control order proceedings, including the recommendations of the former INSLM in his 2017 review of Division 104 and 105 of the Criminal Code.
3.59
In 2017, the former INSLM Dr Renwick recommended that ‘the Attorney-General should give consideration to the adequacy of legal aid for control order proceedings.’
3.60
The Attorney-General’s Department said that it had concluded negotiations to provide more than $2 billion in legal assistance to states and territories over five years:
The Attorney-General finalised negotiations on the National Legal Assistance Partnership (2020-25) (NLAP) which was agreed by the Commonwealth and all states and territories and commenced on 1 July 2020. Under the NLAP, the Australian Government will provide more than $2 billion in legal assistance funding to the states and territories over five years from 2020-21. To respond to demand in the legal assistance sector, under the NLAP, the Australian Government committed more than $248 million in additional funding for legal assistance services. Legal aid commissions will receive approximately $1.2 billion in baseline funding over five years to provide a range of services. This includes assistance in relation to Commonwealth civil law matters, which could include assistance in relation to a control order matter.
3.61
The Law Council of Australia said that legal assistance funding should be available to all persons subject to a control order application:
Legal assistance funding should be available to all persons who are the subject of a CO application, not only children in accordance with section 104.28 of the Criminal Code and the Criminal Code Regulations 2019. In particular, consideration should be given to delivering this financial assistance through State and Territory legal aid commissions, akin to existing arrangements for complex criminal cases.
3.62
Dr David Neal, Law Council of Australia, said that there is a significant disparity between the resources available to an individual that is subject to control order application and the government:
Legal aid, as one of the submissions to this inquiry points out, would only allow $750 for an expert report in relation to one of the clients that they had on a control order. Legal aid is very, very restrictive in what it will allow in terms of preparation for cases, and these cases involve thousands of pages of listening device transcripts, multiple references to websites he is alleged to have accessed, surveillance material, reports of police who had been following him—at one stage I think we counted somewhere in the order of 20,000 pages of material. Legal aid doesn't allow for that sort of work to be done. They don't even allow for writing the submission to the court about why the control order conditions should not be applied.
By contrast, in that case, [Stephen] Donaghue, who was not then the Solicitor-General, was briefed with a junior. He had two or three Australian government solicitors assisting with the preparation of the case, as well as the AFP, while the defence team was in part funded by legal aid but in large measure not. This contrasts with the model that has existed in the Attorney-General's Department for the provision of expensive criminal case funding, in particular for terrorism cases. We would say that equality of arms—indeed the Attorney-General's Department's own policy speaks about equality of arms and that the resource available to the respondent, in that case Causevic, should be of an equal standard to those available to the applicant, in that case the AFP.
…
It's important for the reasons that are spoken of in the Attorney-General's Department's policy on fair trials. Fair trials and the protection of people's rights depend on them being able to present those rights to the court and not to be presenting them in circumstances where senior and junior counsel and three solicitors are able to prepare the case for one party while the other party is left to the charity of certain members of the legal profession plus the legal aid commissions to fund their defence at a much lower level. These are extraordinary powers. The Law Council concedes that they are necessary in some instances, but they are extraordinary and they are extraordinarily intrusive. Because of the volatility of the issues surrounding terrorism in particular, things are prone to getting irrational. That's why you need to have proper representation for the defendants or respondents in these cases—so that the evidence can be carefully assessed and, where it falls short of the mark, those powers can be rolled back from that person. If we claim to want to protect human rights then we have to have the mechanisms available to make that a reality.
3.63
Ms Pauline Wright, President, Law Council of Australia, recommended a separate funding stream for respondents that is provided by the Commonwealth:
We are of the view that there should be a separate additional funding stream for respondents provided by the Commonwealth. It could be administered by legal aid or available directly as a Commonwealth grant, but our preference would be for legal aid to administer those additional funds, because of their existing mechanisms for complex criminal cases that David Neal's already referred to. But this would need dedicated additional funds, not from existing budgets. There's just not sufficient there for legal aid. The states and territories would need to be funded for their administration costs as well, and to ensure they have sufficient expertise in relation to control orders and the like.
Committee Comment
3.64
The Committee notes the evidence of the Department of Home Affairs, the Attorney-General’s Department and the Australian Federal Police that the control order provisions still have an important role in Australia’s response to the threat of terrorism.
3.65
The Committee notes the evidence of submitters that the introduction of the proposed extended supervision order scheme will have an impact on the ongoing use of the control orders scheme and that the provisions of Division 104 of the Criminal Code should be repealed.
3.66
However, the Committee considers that it is necessary to evaluate the extended supervision order scheme prior to making a determination that the control order scheme is no longer necessary to address the threat of terrorism.
3.67
The Committee notes the recent passage of an extension of sunset provisions to 7 December 2022, however, considers that a longer sunset period would be appropriate. The Committee therefore recommends a new sunset date of 7 December 2025.
3.68
The Committee recommends that the control order regime as outlined in Division 104 of the Criminal Code Act 1995 be extended to 7 December 2025.
3.69
The Committee also recommends that provision be made that the Committee may commence a review into the control order provisions prior to the sunset date.
3.70
The Committee notes the current definition of ‘issuing court’ in Division 104 of the Criminal Code Act 1995 means the Federal Court of Australia or the Federal Circuit Court of Australia. The Committee considers that only the Federal Court should be able to issue control orders.
3.71
The Committee recommends that the definition of ‘issuing court’ in the Criminal Code Act 1995 be amended to only the Federal Court of Australia.
3.72
The Committee recommends that section 29 of the Intelligence Services Act 2001 be amended to provide that the Parliamentary Joint Committee on Intelligence and Security may commence a review of Division 104 of the Criminal Code Act 1995 prior to the sunset of the provisions.
3.73
The Committee notes the evidence received from the AFP regarding the limitations of the restricted list of conditions that can be applied under the control order scheme, and that this does not correlate with the range of conditions that could be imposed under the extended supervision order scheme.
3.74
The Committee notes that the control order provisions were introduced 15 years ago where the technological landscape was markedly different. While the Committee notes the concerns of the Law Council of Australia, the Committee considers there would be a benefit in modernising the range of conditions of available under a control order and aligning the conditions to those available under the proposed extended supervision order scheme.
3.75
The Committee recommends that the list of conditions that may be imposed as part of the control orders scheme be amended to align with the proposed extended supervision order scheme.
3.76
The Committee recommends that section 104.5(3) of the Criminal Code Act 1995 be amended to align the conditions that can be imposed as part of the control orders regime with proposed Schedule 1, clause 105.7A of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020.
3.77
The Committee recommends that the government undertake a review of the range of conditions that could possibly be imposed as part of a control order, given the provisions were introduced some 15 years ago.
3.78
The Committee recommends the Australian Government undertake a review of the range of conditions that could be imposed as part of a control order, and report back to the Parliamentary Joint Committee on Intelligence and Security by July 2022.
3.79
The Committee notes the concerns raised by the Law Council of Australia in relation to the circumstances in which a control order could be amended without consent, and considers that Division 104 of the Criminal Code should be amended to provide that conditions may be added with consent of both parties.
3.80
The Committee recommends that Division 104 of the Criminal Code Act 1995 be amended to provide that the Australian Federal Police may add conditions with the consent of both parties, provided that:
the consent of the subject of the order is fully informed and he or she has been given every reasonable opportunity to consult with a legal representative; and
consent may be withdrawn by either party at any time.
3.81
The Committee notes the ongoing discussion regarding funding arrangements for those undergoing control order proceedings. The Committee also notes the evidence of the Attorney-General’s Department in relation to the funding arrangements in place for legal assistance where individuals cannot access private legal services.
3.82
The Committee notes that contested control order hearings can incur significant costs, and that as a result of previous reviews there have been certain controls implemented in an effort to address the costs of proceedings. However, the Committee notes the evidence of the Law Council of Australia that the funding provided is inadequate to meet the needs of individuals subject to civil proceedings under the control order scheme.
3.83
Noting the evidence of the Attorney-General’s Department on the anticipated outcomes and expected benefits of the National Legal Assistance Partnership, the Committee recommends that the Attorney-General’s Department undertake a review of the adequacy of access to funding as part of the control order or continuing detention order schemes, and an evaluation of the proposal of the Law Council of Australia in relation to a separate funding stream for Commonwealth civil proceedings.
3.84
The Committee recommends that the Attorney-General’s Department:
investigate the cost of providing legal aid for those subject to proceedings under Division 104 of the Criminal Code Act 1995, including continuing detention orders and control orders, on the basis that people subject to the most rights-restrictive powers should receive assistance to ensure adequate representation provided the costs to the Commonwealth are reasonable; and
provide a report to the Parliamentary Joint Committee on Intelligence and Security within the 12 months of the tabling of this report.