House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Counter-Terrorism Legislation Amendment Bill (No. 1) 2014

22. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

23. The Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 (the Bill) amends the Criminal Code Act 1995 and the Intelligence Services Act 2001.

Overview of measures

Criminal Code Act 1995

24. The amendments to the Criminal Code confer the authority on the Parliamentary Joint Committee on Intelligence and Security to review an instrument either adding an alias or removing a former name from a regulation that lists a terrorist organisation.

25. The amendments to the Criminal Code also include enhancements to the control order regime to:

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expand the objects of the control order regime to include prevention of the provision of support for or the facilitation of a terrorist act or the engagement in a hostile activity in a foreign country

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replace the current requirement for the AFP to provide all documents that will subsequently be provided to the issuing court with a requirement that the AFP provide the Attorney-General with a draft of the interim control order, a statement of facts including any known reason the interim control order should not be made, information about the person's age and a summary of the grounds for the request, which may include national security information within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act), when seeking the Attorney-General's consent to apply for a control order

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expand the grounds upon which a senior AFP member can seek the Attorney-General's consent to request an interim control order to circumstances where the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act or the engagement in a hostile activity in a foreign country

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expand the grounds upon which an issuing court can make a control order to circumstances where the court is satisfied on the balance of probabilities that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act or the engagement in a hostile activity in a foreign country

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provide that an issuing court must take into account that the parties may need to prepare when setting a day for the confirmation hearing

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extend the time before the material provided to an issuing court must subsequently be provided to the Attorney-General from four hours to eight hours where an request for an urgent interim control order has been made to an issuing court, and

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ensure the AFP Commissioner can apply for a variation of a control order where the Commissioner 'suspects' on reasonable grounds that:

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the varied obligations, prohibitions or restrictions would substantially assist in preventing a terrorist act or the provision of support for or the facilitation of a terrorist act, or

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the person the subject of the order has:

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participated in training with a terrorist organisation, or

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engaged in or support for or otherwise facilitated engagement in a hostile activity in a foreign country, or

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been convicted of a terrorism related offence in Australia or overseas.

Intelligence Service Act 2001

26. The amendments to the IS Act will better facilitate the provision by ASIS of assistance to the ADF in support of military operations, and in cooperating with the ADF on intelligence matters by:

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making explicit that such actions are a function of ASIS;

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enabling the issuing of Ministerial authorisations for ASIS to undertake activities in relation to classes of Australian persons, for the purpose of performing the abovementioned functions; and

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enabling the Attorney-General to specify classes of Australian persons who are, or who are likely to be, involved in activities that are, or are likely to be, a threat to security, and to give his or her agreement to the making of a Ministerial authorisation in relation to any Australian person in that specified class.

27. The amendments further address a number of limitations identified in the emergency authorisation provisions of the IS Act, in the course of their practical application by IS Act agencies. In particular, the proposed amendments:

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enable emergency Ministerial authorisations, of up to 48 hours' duration, to be issued orally, and followed by a written record within 48 hours;

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provide for contingency arrangements in the event that none of the Ministers able to issue emergency authorisations (the Prime Minister, Foreign Minister, Defence Minister and Attorney-General) are readily available or contactable. In these circumstances, the head of the relevant IS Act agency may grant an emergency authorisation; and

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provide for contingency arrangements in the event that the Attorney-General is not readily available or contactable to provide his or her agreement to the making of an emergency Ministerial authorisation, where such agreement is required because the authorisation concerns the undertaking of activities in relation to an Australian person who is, or who is likely to be, engaged in activities that are, or are likely to be, a threat to security.

Human rights implications

28. The Bill engages the following human rights:

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the right to freedom from arbitrary detention and the right to liberty of the person in Article 9 of the International Covenant on Civil and Political Rights (ICCPR)

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the right to freedom of movement in Article 12 of the ICCPR

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the right to a fair trial, the right to minimum guarantees in criminal proceedings and the presumption of innocence in Article 14 of the ICCPR

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the right to protection against arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR

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the right to freedom of expression in Article 19 of the ICCPR

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the right to freedom of association in Article 22 of the ICCPR, and

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the right to work in Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Schedule 1

Parliamentary Joint Committee on Intelligence and Security Report review of changes terrorist organisation listings

29. This amendment relates to an amendment in the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 which allows the Attorney-General to make a declaration that an alias be added or omitted to a terrorist organisation which is specified by a regulation. The amendment in this Bill requires the Attorney-General to advise the Parliamentary Joint Committee on Intelligence and Security before amending a regulation that lists a terrorist organisation by adding an alias or removing a former name and to allow the Committee to review any proposed change during the disallowable period. This amendment will implement recommendation 8 of the Committee's Advisory Report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014. This amendment adds an additional safeguard to the process of amending terrorist organisation listings and does not engage any human rights.

Control order amendments

30. Control orders are a protective mechanism and constitute an important element of the counter-terrorism strategy. They provide the AFP with a means to request that a court impose obligations, prohibitions and restrictions on a person for the purpose of protecting the public from a terrorist act. The Parliamentary Joint Committee on Human Rights acknowledged in its recent report that the objective of the control order regime

of 'providing law enforcement agencies with the necessary tools to respond proactively to the evolving nature of the threat presented by those wishing to undertake terrorist acts in Australia'... may properly be regarded as a legitimate objective for the purposes of international human rights law. ^[1]

31. The control order regime has been used judiciously to date-at September 2014, two control orders have been issued. This reflects the policy intent that these orders do not act as a substitute for criminal proceedings. Rather they should only be invoked in limited circumstances and are subject to numerous legislative safeguards that preserve the fundamental human rights of a person subject to a control order.

32. The amendments to the control order regime in the Bill:

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expand the objects of the control order regime, and subsequently grounds upon which a control order can be requested and issued, to include prevention of the provision of support for or the facilitation of a terrorist act or the engagement in a hostile activity in a foreign country

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reduce the documentation the AFP is required to provide when seeking the Attorney-General's consent to apply for a control order

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provide that an issuing court must take into account that the parties may need to prepare when setting a day for the confirmation hearing , and

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ensure the AFP Commissioner can apply for a variation of a control order in appropriate circumstances.

33. These amendments engage several human rights, including on the basis that the new grounds upon which a control order can be requested and issued may potentially increase the number of individuals who be subject to a control order. To the extent that such rights are limited, the restrictions are reasonable, necessary and proportionate to achieving the legitimate objective of protecting the public from a terrorist act and not compromising national security interests.

34. Outlined below are the rights that are likely to be engaged by the control order provisions in the Bill.

Right to freedom of movement in Article 12 of the ICCPR

35. Article 12 of the ICCPR provides that persons lawfully within the territory of a State shall have the right to freedom of movement within that State. Among the restrictions that may be placed on an individual subject to a control order is that they may be restricted from being in specified areas or places (paragraph 104.5(3)(a)), they may be prohibited from leaving Australia (paragraph 104.5(3)(b)) and they may be required to remain at specified premises between specified times each day, or on specified days (paragraph 104.5(3)(c)). Freedom of movement can be permissibly limited if the limitations are provided by law and are necessary to achieve a legitimate purpose, such as protecting national security and public order.

36. The control order regime is comprehensively prescribed by legislation. A person subject to a control order will only have their right to freedom of movement restricted on grounds clearly established by domestic law and on grounds which are in accordance with the requirements of Division 104. As well as being authorised by law, the purpose of the control order regime is to protect the Australian public from a terrorist act. This is because the circumstances in which a control order may be sought, including the expanded grounds proposed by this Bill are:

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where the order:

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would 'substantially assist in preventing a terrorist act', or

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would 'substantially assist in preventing the provision of support for or the facilitation of a terrorist act', or

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where a person has been

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providing training to or receiving from or participating in training with a listed terrorist organisation

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engaging in a hostile activity in a foreign country

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convicted in Australia or a foreign country of an offence relating to terrorism, a terrorist organisation or terrorist act, or

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providing support for or otherwise facilitated the engagement in a hostile activity in a foreign country.

37. The restriction of freedom of movement must be reasonable, necessary and proportionate to achieving this objective. These requirements are reflected in the legislative framework of the control order regime. An issuing court may only issue a control order where 'the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act' (paragraph 104.4(1)(d)). This ensures that the restrictions on freedom of movement caused by a control order are no greater than is required to protect the welfare of the Australian public. The gravity of consequences likely to be occasioned by a terrorist act justifies a reasonable and proportionate limitation of free movement.

Freedom of association in Article 22 of the ICCPR

38. Article 22 of the ICCPR provides that everyone shall have the right to freedom of association with others. The control order regime may limit this right to the extent that an express restriction may be placed on the subject of a control order that prevents them from associating or communicating with specified individuals (paragraph 104.5(3)(e)). This may also relevantly impact upon the right to respect for family in Articles 17 and 23 of the ICCPR where a restriction is placed on an individual's right to associate with their own family members.

39. However, Article 22(2) allows for permissible limitations on the freedom of association where it is to advance a legitimate objective, one of which is the interests of national security. Moreover, the proportionality of a restriction on association is maintained on the basis that the restriction on associating with certain individuals requires a degree of specificity about the individuals whom a subject of a control order may not associate with. The associations that are restricted are those that increase the likelihood of a terrorist act being committed by the subject of the control order.

40. Moreover, the overarching requirement that a court be satisfied that the control be 'reasonably necessary' and 'reasonably appropriate and adapted' to protecting the public from a terrorist act prevents indiscriminate and disproportionate intrusions into an individual's freedom of association.

41. Accordingly, a restriction on the freedom of association is reasonable, necessary and proportionate.

Right to privacy in Article 17 of the ICCPR

42. Article 17 of the ICCPR provides that no one shall be subject to arbitrary or unlawful interference with their privacy. The collection, use and storage of personal information constitutes an interference with privacy. The control order regime limits the right to protection against arbitrary and unlawful interferences with privacy to the extent it can require the person to wear a tracking device (paragraph 104.5(3)(d)), require the person allow himself or herself to be photographed (paragraph 104.5(3)(j)) and allow impressions of a person's fingerprints to be taken (paragraph 104.5(3)(k)). These limitations on the right to privacy are justified on the basis they protect the public from a terrorist act. These obligations assist in advancing Australia's national security and ensure identification and enforcement of the control order. Photographs and impressions of fingerprints obtained under paragraphs 104.5(3)(j) and (k) are collected, stored and disclosed in accordance with the Australian Privacy Principles (noting that there have been no control orders since the enactment of the Australian Privacy Principles) and section 104.22-treatment of photographs and impressions of fingerprints.

43. The procedures by which this restriction on privacy is permitted are authorised by law and not arbitrary. The operation of the control order regime is prescribed clearly in Division 104. The use of the term 'arbitrary' suggests that any interference to privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable, necessary and proportionate to achieving that objective.

44. Legislative safeguards within the control order regime in Division 104 operate so as to not limit the right to privacy beyond what is reasonable, necessary and proportionate. These include that the restrictions imposed by a control order must be 'reasonably necessary' and 'reasonably appropriate and adapted' for the purpose of protecting the public from a terrorist act. Further, a photograph or impression of fingerprints obtained from the subject of a control order must only be used for the purpose for which they were taken - ensuring identification and enforcement of the order (subsection 104.22(1)). Subsection 104.22(3) creates an offence where a person uses the photograph or impression of fingerprints in a manner inconsistent with the purposes of ensuring compliance with the control order. The offence carries a maximum penalty of imprisonment for two years. Furthermore, a photograph or impression of fingerprints obtained from the subject of a control order must be destroyed as soon as practicable after 12 months after the control order ceases to be in force (subsection 104.22(2)). These guarantees seek to minimise the level of interference with privacy and demonstrate an intention to permit interference only to the extent that it is reasonable, necessary and proportionate to achieve a legitimate end.

Right to freedom of expression in Article 19(2) of the ICCPR

45. The right to freedom of expression in Article 19(2) of the ICCPR can be limited by the control order regime to the extent that the subject of a control order may be prohibited or restricted from accessing or using specified forms of telecommunications or other technology, including the internet (paragraph 104.5(3)(f)). This is in accordance with a legitimate purpose in Article 19(3) on the grounds of national security.

46. The restriction on freedom of expression is justified on the basis that certain ideas that advocate terrorist acts or promote extremist ideologies may jeopardise national security and the communication of such ideas may endanger the liberty and safety of others. The legislative requirement that all restrictions be 'reasonably necessary' and 'reasonably appropriate and adapted' to prevent the public from a terrorist act ensures that restrictions on the freedom of expression are no greater than what is reasonable, necessary and proportionate to achieving the legitimate objective.

Freedom from arbitrary detention and arrest in Article 9 of the ICCPR

47. Article 9 of the ICCPR provides that no-one shall be subjected to arbitrary arrest or detention or deprived of their liberty except on such grounds and in accordance with such procedure as are established by law. Under section 104.5(3)(c), a control order can impose a requirement on an individual to remain at specified premises between specified times each day, or on specified day, which could be considered a form of detention (by requiring an individual to be in one place for up to twelve hours).

48. However, the curfew period cannot in any sense be considered 'arbitrary'. The conditions of a restriction to remain within specified premises is established by and granted in accordance with the law. In determining whether a restriction on a person's movement for an extended period is acceptable, the issuing court must consider whether the restriction is 'reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act' (paragraph104.4(1)(d)). Furthermore, the court must also take into account the impact of the restriction on the person's circumstances, including the person's financial and personal circumstances (subsection 104.4(2)). These remove the element of arbitrariness from an extended curfew and ensure that any limitations on an individual's rights are reasonable, necessary and proportionate.

Right to work under Article 6 of ICESCR

49. Article 6 of ICESCR requires that State Parties must recognise the right to work, including the right of everyone to have the opportunity to gain their living by work which they freely choose or accept and take appropriate steps to safeguard this right. Article 4 of the ICESCR provides that States may only subject the rights contained in the Covenant to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society. The control order regime may limit this right to the extent it can authorise a prohibition or restriction on the person carrying out specified activities, including in respect of his or her work or occupation (paragraph 104.5(3)(h)).

50. The restriction on the right to work has been authorised by law and is subject to important legislative safeguards. Intrusions into the right to work at a place of choice are limited by the legislative requirement that the restriction be 'reasonably necessary and reasonably appropriate and adapted' to protect the public from a terrorist act. This clarifies that the restriction is an important part of achieving the objectives of the control order regime and that the impact on the rights of the individual subject to the control order is not greater than is necessary to achieve this objective. Of particular importance is the requirement that courts also turn their mind to the specific impact of a restriction on a person's circumstances, including the person's financial and personal circumstances. This ensures that any of the proposed restrictions on a subject of a control order cannot be characterised as disproportionate as they do not impose restrictions where they are not specifically needed.

Right to a fair trial in Article 14 of the ICCPR

51. More broadly, the control order regime is confined in its scope and is protected from misuse by a range of legislative safeguards that protect the rights of the subject of a control order. For instance, the right to a fair trial and due process under Article 14 of the ICCPR is enhanced by:

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the requirement that the control order only come into force when the individual is notified of it (section 104.12)

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the subject's right to apply for the order to be varied, revoked or declared void as soon as they are notified that an order is confirmed (section 104.18)

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the subject of the order and their lawyer's right to obtain a copy of the order outlining the reasons for the order (section 104.13), and

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a court's ability to revoke or vary a confirmed control order on an application made under sections 104.18 or 104.19 (section 104.20).

52. In addition, amendments in this Bill will improve access to a fair hearing by providing that an issuing court must take into account that the parties may need to prepare when setting a day for the confirmation hearing.

Schedule 2

Main amendments to the IS Act

53. The Government is of the view that the provisions of Schedule 2 to the Bill do not engage any human rights, on the basis that the provisions are directed to clarifying and streamlining - without reducing safeguards - the procedural arrangements that enable IS Act agencies to undertake activities, with appropriate authorisation to do so.

54. Importantly, the amendments do not expand the functions of ASIS or the other IS Act agencies. The new ASIS function makes explicit that ASIS's functions include assistance to the ADF and in cooperating with the ADF on intelligence matters, but as reflected in subsection 6(7), ASIS is already able to undertake such activities under its existing functions. What is changed is the means by which the Minister responsible for ASIS is able to authorise ASIS to undertake activities in accordance with a direction issued under subsection 8(1) of the IS Act. Also changed is the means by which the Attorney-General can, where required to do so, provide agreement to a Minister providing an authorisation to an IS Act agency. Similarly the new emergency authorisation arrangements change the means for obtaining authorisation and agreement respectively and in an extreme circumstance would allow an agency head in very limited circumstances to provide an authorisation which would last for no more than 48 hours.

55. However, the Government acknowledges that contrary arguments may be advanced, on the basis that amendments which streamline authorisation processes might be said to extend the ability of IS Act agencies to obtain an authorisation to engage in activities for the purpose of collecting intelligence on, or undertaking other activities in relation to, persons or entities outside Australia. The Statement of Compatibility has been prepared to address such contentions, in the event that the Government's position is not preferred or accepted by those scrutinising the Bill. The following analysis identifies the rights that might be said to be engaged for the above reason, and explains how any limitations thought to be imposed are adapted to a legitimate objective, and are necessary for, and proportionate to, the achievement of that objective.

56. It may be suggested that the measures in Schedule 2 to the Bill engage the following rights:

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Right to protection against arbitrary and unlawful interferences with privacy and reputation - Article 17 of the International Covenant on Civil and Political Rights (ICCPR); and

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Right to an effective remedy - Article 2 of the ICCPR

Right to protection against arbitrary and unlawful interferences with privacy and reputation - Article 17 of the ICCPR

57. To the extent that the measures in the Bill extend the ability of IS Act agencies to obtain a Ministerial authorisation to undertake activities permitted under the IS Act for the purpose of collecting intelligence on, or undertaking other activities in relation to, persons or entities outside Australia, they might be said to engage the right to protection against arbitrary and unlawful interferences with privacy and reputation of persons who may be the subject of, or otherwise affected by, such activities.

58. Any interference with personal privacy as a result of the authorised activities of IS Act agencies relevant to the performance by those agencies of their statutory functions is necessary for the achievement of a legitimate objective. In the case of the amendments to the statutory functions of ASIS, this legitimate objective is to ensure that ASIS is able to provide critical support to the ADF in support of military operations, and for the purpose of cooperating with the ADF on intelligence matters, in a timely way (including in circumstances that may enable ASIS to assist in saving lives of Australian soldiers and other personnel deployed to conflict zones).

59. The amendments in Schedule 2 concerning emergency authorisations are further necessary to achieve the legitimate purpose of enabling intelligence agencies to act quickly (by reason of an agile emergency authorisation process) to collect vital intelligence in circumstances of extreme urgency or to take other action in accordance with the IS Act, where to follow the normal processes governing Ministerial authorisations would preclude agencies from obtaining such intelligence, or otherwise compromise their ability to do so. (This may arise if, for example, none of the Ministers who are able to grant an authorisation are readily available or contactable, as no contingency arrangements are presently made in the IS Act for this. Such an undesirable outcome may also arise if the requirement that emergency Ministerial authorisations must be in writing cannot be satisfied in a particular case - for example, by reason of a Minister's remote location without access to means of instantaneous written communication, or because the circumstances are so time-critical that the time taken to reduce an authorisation to writing may cause the relevant intelligence collection opportunity to be lost.)

60. Any such interference with personal privacy as a result of the measures in Schedule 2 is also subject to extensive and appropriate safeguards to ensure that it is necessary, appropriate and adapted to the legitimate objectives to which the amendments are directed as noted above.

61. In particular, any such interference will be limited, because activities may only be authorised if the relevant criteria are satisfied. (These criteria are applied by a Minister, or an agency head in the case of emergency authorisations in the event that a Minister is not readily available or contactable). These include that the Minister (or agency head, in the case of emergency authorisation) must be satisfied, before giving an authorisation, that any activities done in reliance on the authorisation will be necessary for the proper performance of a function by an agency, there are satisfactory arrangements in place to ensure that nothing will be done in reliance on the authorisation beyond what is necessary for the proper performance of a function of the agency, and there are satisfactory arrangements in place to ensure that the nature and consequences of acts done in reliance on the authorisation will be reasonable, having regard to the purpose for which they are carried out. In addition, authorisations that are issued on an emergency basis are subject to a strictly limited maximum duration of 48 hours and cannot be extended.

62. There are appropriate safeguards and oversight mechanisms in place to ensure the proportionality of activities undertaken by ASIS for the purpose of performing the new statutory functions inserted by Schedule 2 to the Bill, and activities undertaken in reliance on emergency authorisations. In particular, the activities of IS Act agencies are subject to the independent oversight of the IGIS in accordance with the Inspector-General of Intelligence and Security Act 1986 (IGIS Act).

63. In addition, the ability of an IS Act agency head to provide an emergency authorisation in place of a Minister (and the Director-General of Security to provide agreement to the making of an emergency authorisation in place of the Attorney-General) are subject to extensive limitations and safeguards. The emergency powers of authorisation are only exercisable if the agency head is satisfied that none of the relevant Ministers are readily available or contactable. The agency head must be satisfied not only that it would have been open to the relevant Minister, on the facts of the case and the statutory authorisation criteria, to issue the authorisation; but further satisfied that the relevant Minister would have made the decision to issue (which requires consideration of how that particular Minister might have weighted different considerations, including based on an awareness of any authorisations issued for previous activities). To ensure it only applies in an extreme emergency, the agency head must also be satisfied that if the activity was not authorised security would be seriously prejudiced or there would be a serious risk to a person's safety. The relevant agency head must also report on the making of any authorisation to the responsible Minister (to whom the agency head is accountable) and to the IGIS (who may conduct oversight of issuing decisions). The responsible Minister is also under a positive obligation, on receipt of such a report, to consider whether to cancel the authorisation, or to issue a Ministerial authorisation, or to decline to do either of these things and allow the emergency authorisation to run to its 48-hour maximum, after which time it will cease. The relevant agency head must, in reporting to the Minister on the issuing of an emergency authorisation by that agency head, specifically advise the Minister of his or her obligation to make a decision.

64. Furthermore, the IGIS will be required to consider the compliance of agency heads' actions with sections 9B and 9C, and provide a report to the relevant responsible Minister, and a copy of the conclusions in that report to the Parliamentary Joint Committee on Intelligence and Security, within 30 days. This oversight will ensure that the provisions are monitored in practice, and that any contraventions are identified and addressed.

65. Further, any intelligence produced can only be retained and communicated in accordance with the rules to protect the privacy of Australians, made in accordance with section 15 of the IS Act. In making the rules, the relevant Minister must have regard to the need to ensure the privacy of Australian persons is preserved as far as is consistent with the proper performance by the agency of its functions. The IS Act also requires that agencies must not communicate intelligence information, except in accordance with the rules. The IGIS must brief the Parliamentary Joint Committee on Intelligence and Security on the content and effect of the rules if requested or if the rules change.

Right to an effective remedy - Article 2 of the ICCPR

66. To the extent that the measures in the Bill might be said to expand the ability of the IS Act agencies to obtain a Ministerial authorisation to undertake activities permitted under the IS Act, they might also be said to expand the circumstances in which the immunity from criminal or civil liability under section 14 of the IS Act applies, in respect of staff members or agents of an IS Act agency who carry out activities in reliance on an authorisation.

67. Subsection 14(1) of the IS Act relevantly provides that a staff member or agent of an IS Act agency is not subject to legal liability for any act done outside Australia, if the act is done in the proper performance of a function of the agency. Subsection 14(2) relevantly provides that a person is not subject to legal liability for acts done inside or outside Australia, which are preparatory or ancillary to the overseas activities of an IS Act agency.

68. Accordingly, any broader application of an immunity from legal liability may mean that persons who may otherwise have been able to obtain judicial remedies in respect of loss, injury or damage caused by staff members or agents of an IS Act agency would no longer be able to do so.

69. To the extent that the amendments in Schedule 2 to the Bill may engage the right to an effective remedy, they are necessary to achieve a legitimate purpose - namely, to ensure that ASIS is able to provide critical support to the ADF in support of military operations, and for the purpose of cooperating with the ADF on intelligence matters, in a timely way (including in circumstances that may enable ASIS to assist in saving lives of Australian soldiers and other personnel deployed to conflict zones). The amendments in Schedule 2 are further necessary to achieve the legitimate purpose of enabling intelligence agencies to act quickly (by reason of an agile emergency authorisation process) to collect vital intelligence or to undertake other activities in accordance with the IS Act, in circumstances of extreme urgency.

70. The amendments also enable the operation of the immunity in section 14 of the IS Act to be limited in relation to emergency authorisations issued by an agency head, if the relevant responsible Minister determines to cancel the authorisation upon being notified within eight hours of its issuing. Similarly, the independent oversight of the IGIS and the Parliamentary Joint Committee on Intelligence and Security on compliance with the requirements of proposed sections 9B and 9C will help ensure the early identification of any contraventions of these sections, which may be material to the operation (or otherwise) of section 14, in respect of actions done in reliance upon an authorisation issued under section 9B, or an authorisation under section 9A or 9B where section 9C has been relied upon.

71. The amendments are also caveated by significant and appropriate safeguards, which ensure that the right to a remedy is only limited (by the enlivening of section 14) to the extent that is reasonable, necessary and proportionate to ensure that the above legitimate purposes are achieved. In particular, if a person's act was not done in the proper performance of an IS Act agency's functions (including within the limits of a Ministerial authorisation in force), the immunity in section 14 will not apply and the relevant staff member or agent may be subject to legal liability. This outcome could also apply where the issuing criteria for a Ministerial authorisation are not satisfied - for example, in the event that a Minister responsible for an IS Act agency issues a Ministerial authorisation in the absence of obtaining the agreement of the Attorney-General to the issuing of an authorisation, where such agreement is required under the IS Act because the activity purportedly authorised involves an Australian person who is, or is likely to be, engaged in activities that are, or are likely to be, a threat to security.

72. The activities of IS Act agencies are also subject to the extensive, independent oversight of the IGIS in accordance with the IGIS Act. In addition, subsections 14(2B) and (2C) of the IS Act provide that, in any proceedings involving the operation of section 14 of that Act, the IGIS may issue a certificate in relation to the question of whether a particular act was done in the proper performance of an agency's functions. Such a certificate is prima facie evidence of the facts certified therein.

Parliamentary Joint Committee on Intelligence and Security review of the control order regime, preventative detention order regime, declared areas offence and related provision for making a declaration in the Criminal Code and the police stop, search and seizure powers in Division 3A of Part IAA of the Crimes Act 1914

73. This amendment completes the implementation of recommendations 13 and 21 of the Parliamentary Joint Committee on Intelligence and Security Report on the Foreign Fighters Bill. The amendment requires the Committee to review, by 7 March 2018, the control order regime (Division 104), the preventative detention order regime (Division 105) and the declared areas offence and related provision for making a declaration (sections 119.2 and 119.3) of the Criminal Code and the police stop, search and seizure powers in relation to terrorist acts and terrorism offences (Division 3A of Part IAA) in the Crimes Act. This amendment provides an additional opportunity for Parliamentary scrutiny of the operation, effectiveness and implications of these measures and does not engage any human rights.