House of Representatives

Counter-Terrorism Legislation Amendment Bill (No. 1) 2016

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)
This memorandum takes account of amendments made by the Senate to the bill as introduced and supersedes the explanatory memorandum tabled in the senate

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) 2016

5. The Counter-Terrorism Legislation Amendment Bill (No. 1) 2016 (the 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

Administrative Appeals Tribunal Act 1975

6. The Bill amends section 40 of the ASIO Act, requiring consequential technical amendments to the AAT Act.

Australian Security Intelligence Organisation Act 1979

7. Currently, the Australian Security Intelligence Organisation (ASIO) can only furnish a security assessment either directly to a state or territory in respect of a designated special event or in all other cases indirectly via a Commonwealth agency. Such arrangements are resource intensive and significantly hinder the timely provision of security assessments to state and territory authorities. The Bill amends the ASIO Act to enable ASIO to furnish security assessments directly to states and territories.

8. The Bill also makes amendments to implement recommendations contained in the INSLM report. These amendments will introduce new protections to the section 35P regime requiring that disclosure of information made by members of the community, except those who received the relevant information in their capacity as an entrusted person, will only constitute an offence if the information will endanger the health or safety of a person or prejudice the effective conduct of a special intelligence operation (SIO). The amendments will also include a defence of prior publication available only to persons who did not receive the relevant information in their capacity as an entrusted person.

Classification (Publications, Films and Computer Games) Act 1995

9. Under the Classification Act, a publication, film or computer game that directly or indirectly advocates a terrorist act is classified Refused Classification (RC) and cannot be published in Australia. Currently, 'advocates' means 'counsels' or 'urges'. The Bill amends the Classification Act to bring the meaning of 'advocates the doing of a terrorist act' into line with the revised definition in the Criminal Code by also including the expressions 'promotes' and 'encourages'.

Crimes Act 1914

10. There are impediments to monitoring a person's compliance with a control order imposed by an issuing court on the person. That is because search warrants with an investigatory purpose can only be issued where there is information demonstrating an offence is currently occurring or has already occurred. The Bill amends the Crimes Act to establish a new regime for monitoring the compliance of individuals subject to a control order through monitoring search warrants - not to gather evidence of the commission of a crime that has already occurred. The Bill establishes complementary regimes for monitoring compliance with control orders under the TIA Act and SD Act. The regimes include important safeguards including the threshold for issuing warrants, ministerial and other reporting requirements, and independent oversight by the Commonwealth Ombudsman.

11. When the delayed notification search warrant regime was inserted into the Crimes Act in 2014, the threshold for issue required not only the applicant (eligible officer), but also the police officer approving the application (chief officer) and the person considering whether to approve the warrant (eligible issuing officer) to suspect and believe certain things on reasonable grounds. The Bill amends the delayed notification search warrant regime to clarify that while the eligible officer must suspect and believe those matters on reasonable grounds, the chief officer and eligible issuing officer are not required to personally hold the relevant suspicions and belief. Rather, they must be satisfied that there are reasonable grounds for the eligible officer to hold those suspicions and belief.

Criminal Code Act 1995

12. Australia continues to face a serious terrorist threat. This heightened threat environment has seen an increased operational tempo from Australia's law enforcement agencies to protect the public from terrorist acts, including some widely noted counter-terrorism operations conducted by Joint Counter-Terrorism Teams comprising the Australian Federal Police (AFP), state police, ASIO officers and members from other relevant agencies. The amendments to the Criminal Code would further strengthen and enhance our existing laws, provide additional safeguards and limitations, and implement outstanding recommendations of independent reviews of our laws, including by:

creating a new offence prohibiting conduct advocating genocide in Division 80 (Treason, urging violence and advocating terrorism or genocide)
removing the authority of the Family Court of Australia and judges of the Family Court of Australia to issue control orders and preventative detention orders (PDOs)
ensuring that receiving funds for providing legal assistance as to whether an organisation is a 'terrorist organisation' is not criminalised
authorising an issuing court to impose a control order on persons 14 years and older, and providing appropriate safeguards, including requiring an issuing court to appoint a lawyer to represent a young person, aged 14 to 17 years, in control order proceedings where the young person does not have legal representation
ensuring that a person subject to a requirement to wear a tracking device under a control order is also required to maintain the tracking device in good operational order, and
clarifying the test for the issuing of a PDO.

National Security Information (Criminal and Civil Proceedings) Act 2004

13. The amendments to the NSI Act include:

enhancing the ability to protect national security information in control order proceedings
incorporating a role for a special advocate to represent the interests of the subject of a control order proceeding when the subject and their legal representative have been excluded from hearing or seeing sensitive national security information
allowing a court to make an order that is inconsistent with regulations made under the NSI Act if the Attorney-General has applied for the order, and
ensuring the regulations continue to apply where an order is made under sections 22 or 38B (Arrangements for federal criminal proceedings / for civil proceedings about disclosures etc. of national security information) to the extent that the regulations relate to issues not included in the order.

Surveillance Devices Act 2004

14. As noted above, there are impediments to monitoring a person's compliance with a control order imposed by an issuing court on the person because SD warrants generally have an investigatory purpose. The amendments to the SD Act establish a new regime for monitoring the compliance of individuals subject to a control order through surveillance device warrants. The Bill establishes complementary regimes for monitoring compliance with control orders under the Crimes Act and TIA Act. The regimes include important safeguards including the threshold for issuing warrants, ministerial and other reporting requirements, and independent oversight by the Commonwealth Ombudsman.

15. Amendments to the SD Act will enable law enforcement agencies to deal with protected information in connection with control order and PDO proceedings nationally, in line with the AFP's existing ability to use information obtained under the TIA Act in Commonwealth PDO proceedings.

Public Interest Disclosure Act 2014

16. The Bill amends section 8 of the PID Act to include orders made under revised section 38J of the NSI Act (in Part 1 of Schedule 15 of the Bill) within the definition of 'designated publication restriction'.

Taxation Administration Act 1953

17. The TA Act prohibits taxation officers from recording or disclosing protected information unless one of the listed exceptions is satisfied. The amendments would create an additional exception to the offence provision, authorising taxation officers to record or disclose information to an Australian government agency for the purposes of preventing, detecting, disrupting or investigating conduct related to a matter of security as defined in the ASIO Act. The amendments also authorise agencies that receive such information to further disclose that information to the Commonwealth Ombudsman. These amendments implement Recommendation 20 of the Committee advisory report.

Telecommunications (Interception and Access) Act 1979

18. As noted above, there are impediments to monitoring a person's compliance with a control order imposed by an issuing court on the person because TI warrants generally have an investigatory purpose. The amendments to the TIA Act establish a new regime for monitoring the compliance of individuals the subject of a control order through telecommunications interception warrants. The Bill establishes complementary regimes for monitoring compliance with control orders under the Crimes Act and SD Act. The regimes include important safeguards including the threshold for issuing warrants, ministerial and other reporting requirements, and independent oversight by the Commonwealth Ombudsman.

19. Amendments to the TIA Act will separately enable law enforcement agencies to use lawfully intercepted information in connection with control order and PDO proceedings nationally, in line with the AFP's existing ability to use such information in Commonwealth PDO proceedings.

Human Rights Implications

Amendments that do not engage human rights

Administrative Appeals Tribunal Act 1975

20. The amendments to the AAT Act are technical amendments and consequential to the amendments made by the Bill to section 40 of the ASIO Act. They do not engage any human rights.

Australian Security Intelligence Organisation Act 1979

Provision of security assessments directly to states and territories

21. The Bill amends section 40 (Assessments for State purposes) of the ASIO Act to enable ASIO to furnish security assessments directly to a state or territory or an authority of a state or territory in circumstances in which any prescribed administrative action in respect of a person by the state, territory or authority could affect security. Currently, ASIO can only provide a security assessment to a state via a Commonwealth agency (except in the case of a designated special event) which severely hinders the timely provision of security assessments to state authorities.

22. 'Security assessment' and 'prescribed administrative action' are defined in section 35 and 'security' in section 4.

23. Minor changes will be made to the provisions providing for the rights of notice and review to ensure they extend to assessments provided directly to a state or territory or an authority of a state or territory. For example, the subject of an adverse security assessment provided to a state can seek review of the assessment from the Administrative Appeals Tribunal (AAT). Section 61 (Effect of findings) of the ASIO Act provides that the AAT findings, to the extent that they do not confirm the assessment, supersede that assessment. The Bill amends section 61 to clarify that a state or a state authority must also treat such AAT findings as superseding the assessment.

24. As this amendment is designed to streamline an existing process, it does not raise any particular human rights concerns.

Crimes Act 1914

Delayed notification search warrants

25. Amendments to Part IAAA (Delayed notification search warrants) of the Crimes Act clarify the suspicion and belief requirements for the issue of a delayed notification search warrant (DNSW). An AFP officer applying for a DNSW must suspect on reasonable grounds that offences have been, are being, are about to be or are likely to be committed and that entry and search of the premises will substantially assist in the prevention or investigation of one or more of those offences. The officer must on reasonable grounds believe that it is necessary for the entry and search to be conducted without the knowledge of the occupier of the premises or anyone present at the premises.

26. The AFP Commissioner, who must authorise the AFP officer to apply for a DNSW, and the eligible issuing officer (a judge of the Federal Court of Australia or of a state or territory Supreme Court or a nominated AAT member) need only be satisfied that there are reasonable grounds for the AFP officer to hold that suspicion and belief. They do not need to personally hold the suspicion and belief and would not usually be in a position to form that suspicion and belief. The amendments clarify that the Commissioner and eligible issuing officer must be independently satisfied that the AFP officer does hold the requisite suspicion and belief and that there are reasonable grounds for holding them.

27. While the DNSW regime has privacy implications, the amendments themselves clarify what was intended under the Crimes Act and do not raise particular human rights concerns.

Criminal Code Act 1995

Removal of the Family Court of Australia as an issuing authority for control orders and continued preventative detention orders

28. Courts that may issue control orders pursuant to Division 104 (Control orders) are currently defined in section 100.1 (Definitions) as the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia. Amending section 100.1 to remove reference to the Family Court and authorise only the Federal Court and the Federal Circuit Court to issue control orders partly implements a recommendation of the Council of Australian Governments (COAG) 2013 Review that the Federal Court should be the only issuing court. COAG agreed with the review panel that the Family Court is a specialist court and that the control orders function fits more appropriately with the broad general federal law jurisdiction exercised by the Federal Court and Federal Circuit Court which are more familiar with the types of powers and functions required to administer the regime.

29. Section 105.2 (Issuing authorities for continued preventative detention orders) sets out who may be appointed as an issuing authority for continued PDOs, including serving and retired judges of the Family Court of Australia or of a State. Amendments to sections 100.1 (Definitions) and 105.2 remove the ability for serving and retired judges of the Family Court to be appointed as issuing authorities for the purpose of issuing continued PDOs. These amendments ensure that only judges who have served in a court which ordinarily exercises functions relevant to criminal law and counter-terrorism will be eligible for appointment as an issuing authority for PDOs.

30. These amendments do not have any human rights implications.

Getting funds to, from or for a terrorist organisation

31. The amendments to subsection 102.6(3) expand the existing exemption to an offence under section 102.6 so that it is not an offence to receive funds for the sole purpose of providing legal advice in connection with the question of whether the organisation is a terrorist organisation.

32. The amendment provides greater scope for the receipt of funds from an organisation and does not raise any human rights concerns.

Public Interest Disclosure Act 2014

33. The amendment to the PID Act arises from the amendments to the NSI Act contained in Part 1 of Schedule 15 of the Bill. The amendment to the PID Act ensures that the new orders under revised section 38J of the NSI Act are included in the definition of 'designated publication restriction', which already includes orders made under existing sections 31 and 38L of the NSI Act.

34. The amendment does not have any human rights implications.

Human rights implications

35. The Bill engages the following human rights:

the right to an effective remedy in Article 2 of the International Covenant on Civil and Political Rights (ICCPR)
the right to life in Article 6 of the ICCPR
the right to liberty and security of the person and to freedom from arbitrary arrest or detention in Article 9 of the ICCPR
the right to freedom of movement in Article 12 of the ICCPR
the right to a fair trial, the right to minimum guarantees in criminal proceedings and in a suit at law and the presumption of innocence in Article 14 of the ICCPR
the right to protection against arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR
the right to freedom of expression in Article 19 of the ICCPR
the prohibition on advocacy of racial or religious hatred in Article 20 of the ICCPR (noting Australia has a reservation in relation to this Article)
the right to freedom of association in Article 22 of the ICCPR
the rights of parents and children in Articles 23 and 24 of the ICCPR
the prohibition on cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (particularly Article 16)
the right of the child to have their best interests as a primary consideration by courts of law, administrative authorities or legislative bodies in Article 3 of the Convention on the Rights of the Child (CRC)
the right of the child not to be separated from their parents against their will, unless this is in the best interests of the child, in Article 9 of the CRC
the right of the child to freedom of expression in Article 13 of the CRC
the right of the child to freedom of thought, conscience and religion in Article 14 of the CRC
the right of the child to freedom of association in Article 15 of the CRC, and
the right to protection against arbitrary and unlawful interferences with privacy in Article 16 of the CRC.

Australian Security Intelligence Organisation Act 1979

Unauthorised disclosure of information

Right to a fair trial - Article 14(1) of the ICCPR, right to freedom from arbitrary detention - Article 9 of ICCPR, the prohibition on cruel, inhuman or degrading treatment or punishment in Article 7 of ICCPR and the CAT and right to freedom of movement - Article 12 of ICCPR

36. 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. The UN Human Rights Committee has stated that 'arbitrariness' includes the elements of inappropriateness, injustice and a lack of predictability. An arrest or detention must be reasonable and necessary in all circumstances with reference to the recurrence of crime, interference with evidence or the prevention of flight.

37. Article 12 of the ICCPR provides that everyone lawfully within the territory of a State shall, within the territory, have the right to liberty of movement. This right can be permissibly limited if the limitations are provided by law, are necessary to protect national security or the rights and freedoms of others and is consistent with the other rights in the ICCPR.

38. Article 14(1) of the ICCPR provides that in the determination of obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

39. Article 7 of the ICCPR and the CAT prohibit conduct which may be regarded as cruel, inhuman or degrading treatment or punishment ('ill treatment') and can be either physical or mental. The UN treaty bodies responsible for overseeing the implementation of these treaties have provided guidance on the sort of treatment that is prohibited. Examples of cruel, inhuman or degrading treatment include unduly prolonged detention that causes mental harm. Punishment may be regarded as degrading if, for instance, it entails a degree of humiliation beyond the level usually involved in punishment. These rights are absolute and cannot be limited in any way.

40. The Bill engages the rights to a fair trial, freedom from arbitrary detention, protection from cruel, inhuman or degrading treatment or punishment and freedom of movement on the basis that it creates new offences in section 35P with maximum penalties of five and ten years imprisonment.

41. Although the Bill contains four new offences to replace the two existing offences in section 35P, its effect is to increase the burden on the prosecution in relation to 'outsider' offences. The Bill retains the existing offences for ASIO insiders, and introduces additional elements that must be proven before an 'outsider' can be convicted of an offence.

42. Existing section 35P contains two offences for the unauthorised disclosure of information relating to an SIO, which apply regardless of whether or not a person holds a position of trust in relation to ASIO information. The basic offence applies when the person is reckless as to whether the information disclosed relates to an SIO. The aggravated offence applies when the person also intended to endanger the health or safety of any person or prejudice the effective conduct of an SIO, or the person knows that disclosure will endanger the health or safety of any person or prejudice the effective conduct of an SIO. Following the INSLM report, section 35P has been amended to create separate offences for 'insiders' (persons who came to the knowledge or into the possession of relevant information in their capacity as an entrusted person) and 'outsiders' (persons to whom the information came to their knowledge or into their possession other than in the person's capacity as an entrusted person). While this results in an increased number of offences, this simply reflects the fact that outsiders will be subject to separate offences and will no longer be held to the same, stricter, standard as ASIO insiders.

43. The insiders offences are identical to those in existing section 35P. The basic offence contains no harm requirement, and the aggravated offence applies where a person intends to cause harm, or the disclosure will in fact cause harm.

44. For the new 'outsider' offences, the basic offence will contain an additional harm requirement. The basic offence will require the person to be reckless as to whether the disclosure will endanger a person's health or safety, or compromise the effective conduct of an SIO. A person will not commit an offence if the information they disclose is completely harmless. The aggravated offence will require either knowledge or intention in relation to the harm. This is consistent with the INSLM's recommendations and reflects the higher standard of conduct that insiders should be held to in relation to their use, handling and disclosure of sensitive information.

45. Penalties of five and ten years imprisonment are not so significant that they would constitute arbitrary detention or cruel, inhuman or degrading treatment or punishment, or an unlawful restriction on the freedom of movement. Persons participating in an SIO do so on explicit and strict conditions that are additional to any other obligations applying to an ASIO affiliate or employee, and they are potentially subject to greater risks should information pertaining to an SIO be disclosed. The penalties implement a gradation consistent with established principles of Commonwealth criminal law policy, as documented in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. The Guide provides that a heavier maximum penalty is appropriate where the consequences of an offence are particularly dangerous or damaging.

46. The maximum penalty of five years imprisonment applying to each basic offence and the maximum penalty of ten years imprisonment for each aggravated offence reflects an appropriate gradation. These penalties reflect an appropriate gradation with offences relating to unauthorised dealing in sections 18A and 18B, which carry a maximum 3 year penalty. The unauthorised disclosure of information regarding an SIO is considered more culpable than the unauthorised dealing with information pertaining to ASIO's statutory functions.

47. The penalty of up to ten years imprisonment applying to the aggravated offence maintains parity with the penalty applying to the offence of unauthorised communication in section 18 of the ASIO Act. The heavier penalty is appropriate considering the greater level of harm, with the aggravated offence requiring either the intention to jeopardise a person's safety or prejudice the effective conduct of an SIO, or the actual compromise of a person's safety or prejudice to the SIO.

Freedom of expression - Article 19 of ICCPR

48. Article 19(2) of the ICCPR provides that everyone has the right to freedom of expression, including the freedom to impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media. Article 19(3) provides that this right may be limited on grounds including national security. However, any limitations must be prescribed by legislation and be reasonable, necessary and proportionate to achieve the desired purpose.

49. The Bill engages the right to freedom of expression through making it an offence to disclose information relating to an SIO. This is critical as the very nature of an SIO is covert. Communicating such sensitive information can place the health and safety of participants at risk. It also negates the integrity of operations in general and affects the conduct of the operation in question, hindering ASIO's ability to counter threats to national security, including threats of terrorism. As such, the limitation on the right is necessary for both the protection of national security and the health and safety of participants.

50. The offences are reasonable as they distinguish between entrusted persons and outsiders, provide appropriate defences and retain important safeguards facilitating the operation of oversight and accountability bodies. The offences in subsections 35P(1) and (1B) apply a higher standard to a person who receives information in their capacity as an entrusted person, which reflects the greater culpability and existence of a duty of confidence that applies to those who receive information relating to an SIO in their official capacity. The offences applying to outsiders in new section 35P(2) and (2A) will include a harm requirement, so that journalists and other third parties who report on information that will not endanger the health or safety of a person or prejudice the conduct of an SIO will not be guilty of an offence. The offences in new section 35P reflect a reasonable limitation on the right to freedom of expression, adjusted according to whether the person is an entrusted person or an outsider.

51. A new defence will also be included to cover disclosure of information that is already in the public domain. New subsection 35P(3A) provides a defence, only available to individuals who did not receive the relevant information in their capacity as an entrusted person, where the relevant information has already been made publicly available. This provides an exception to the offence and demonstrates that the offence limits the freedom of expression no more than is reasonable and necessary.

52. SIOs remain subject to oversight and accountability mechanisms, which are maintained by section 35P. For example, pursuant to subsection 18(9) of the IGIS Act, the offence would not apply to a document that was dealt with for the purpose of producing information under subsection 18(1) of the IGIS Act. Further, the offence would not apply in accordance with section 10 of the PID Act if information was dealt with for the purpose of making a public interest disclosure in accordance with the PID Act as it applies to ASIO. For example, a person could report a matter in relation to an SIO to the IGIS.

Classification (Publications, Films and Computer Games) Act 1995

Definition of 'advocates the doing of a terrorist act'

53. Paragraph 9A(2)(a) (Refused Classification for publications, films or computer games that advocate terrorist acts) of the Classification Act is amended to give 'advocates the doing of a terrorist act' the same meaning as that given under paragraph 102.1(1A)(a) of the Criminal Code. This ensures that a publication, film or computer game that directly or indirectly 'promotes' or 'encourages' (as well as 'counsels' or 'urges') the doing of a terrorist act must be classified Refused Classification (RC), so cannot therefore be published under state and territory classification enforcement laws.

The right to freedom of expression in Article 19 of the ICCPR, the prohibition on advocacy of racial or religious hatred in Article 20 of the ICCPR

54. Article 19(2) of the ICCPR provides that everyone has the right to freedom of expression, including freedom to seek, receive and impart information and ideas of all kinds through any media. However, Article 19(3) provides that the freedom of expression may be limited where the limitations are provided for by law and are necessary for the protection of national security. This restriction on free expression is justified on the basis that advocating the commission of a terrorist act or terrorism offence is conduct which jeopardises the security of Australia, the personal safety of its population and its national security interests.

55. Article 20(2) sets out a requirement for laws to prohibit any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.

56. Terrorist acts represent the gravest threats to the welfare of Australians as they include causing serious physical harm or death, damaging property, creating a serious risk to the health or safety of the public and interfering with electronic systems. It is reasonable that such conduct should not be advocated and that reasonable steps should be taken to discourage behaviour that promotes such actions. Importantly, deterring the advocacy of such acts promotes the rights of others (in accordance with Article 19(3)(a)). In this instance, this may include protecting people's right to life as covered by Article 6 of the ICCPR.

57. This restriction on freedom of expression is a reasonable, necessary and proportionate measure to protect the public from terrorist acts. Individuals who travel overseas to participate in foreign conflicts often return with radicalised ideologies that include violent extremism. Advocating terrorism heightens the probability of the commission of terrorism offences on Australian soil and encourages others to join the fight overseas.

58. The RC classification for material that 'promotes' or 'encourages' (as well as 'counsels' or 'urges') the doing of a terrorist act does not disproportionately limit freedom of expression. Material that is classified RC contains content that is very high in impact and falls outside generally accepted community standards, including the category of detailed instruction or promotion in matters of crime or violence.

59. Accordingly, the limitation on the freedom of expression is reasonable, necessary and proportionate and unlikely to be greater than the restriction as it is currently worded. Article 20(2) also supports the expanded definition of advocating a terrorist act and the prohibition of such advocacy.

Crimes Act 1914

Monitoring warrants for control orders

60. Division 104 of Part 5.3 of the Criminal Code currently provides for a range of obligations, prohibitions and restrictions (controls) to be imposed on a person to prevent terrorism and hostile activities overseas. The Crimes Act and other Commonwealth legislation confer a range of investigatory powers on law enforcement and other agencies, including the search warrant regime in Division 2 of Part IAA of the Crimes Act. However, Australian law does not provide adequate powers for law enforcement agencies to monitor compliance with controls under a control order to sufficiently reduce the risk that a person will engage in terrorist act planning or preparatory acts while subject to a control order.

61. The former INSLM noted in his 2012 Annual Report that the efficacy of a control order depends largely upon the subject's willingness to respect a court order, and that in the absence of the ability to effectively monitor a person's compliance with the terms of a control order, there is no guarantee that a person will not breach the order or go on to commit a terrorist offence. This is a position shared by our law enforcement agencies. That is because existing Commonwealth coercive powers in relation to the conduct of physical searches, telecommunication interception and surveillance devices are only available for the purposes of investigating an offence that has already been committed or is about to be committed.

62. The amendments create a 'monitoring warrant' regime in a new Part IAAB of the Crimes Act which applies to individuals subject to control orders. Unlike the existing search warrant regime, the new regime will not require the issuing authority to be satisfied that an offence has already occurred or is going to be committed.

63. If warrants were only available once law enforcement had a suspicion that an offence had already occurred, a controlee might already have been able to provide support for terrorist activity or take preparatory steps for a terrorist act. If a person were able to perform these kinds of actions before law enforcement agencies could take action, the preventative and protective purposes of control orders would be undermined. Consequently, this regime adopts a threshold appropriate to the monitoring of a person in relation to whom a superior court has already decided the relevant threshold for issue of a control order has been met and who therefore, by definition, is of security concern.

64. It is imperative that our law enforcement agencies have adequate powers to monitor a person's compliance with the conditions of the control order. Without sufficient powers to monitor compliance, community safety may be put at risk if the person does not choose to comply with the conditions of the order and breaches go undetected. Furthermore, the knowledge that law enforcement is able to use its powers to actively monitor compliance with a control order provides a strong disincentive to a person to breach the conditions of a control order. This enhances the effectiveness of the control order regime.

65. The regime is modelled on the monitoring regime in the Regulatory Powers (Standard Provisions) Act 2014 (RPSP Act) and the existing search warrant provisions in the Crimes Act. The SD Act and the TIA Act are also being amended by this Bill to confer powers on law enforcement agencies to monitor compliance with control orders.

66. Where a search is to be conducted of the premises or vehicle owned or occupied by or in the possession of the person who is subject to a control order, entry can be either under a warrant or by consent of the person (provided the person has authority to give consent). Consistent with section 25 of the RPSP Act, the AFP must notify the person subject to the control order that they can refuse consent. The person can also withdraw consent.

67. The monitoring powers in sections 19 and 20 of the RPSP Act are reproduced in the regime, including searching premises; inspecting, examining, measuring or testing things on the premises; inspecting or copying documents; and operating electronic equipment to put data into documentary form or to transfer data to a disk, tape or other storage device. The powers under section 24 of the RPSP Act to ask the occupier to answer questions and produce any document relevant to compliance with the conditions of the control order are also reproduced.

68. The new regime also imports section 17 of the RPSP Act, which ensures that, even where a monitoring warrant is in place, the person has the right not to answer questions or produce documents if the answers or documents might tend to incriminate them or if they can claim legal professional privilege. The new regime provides that before a constable asks or requires a person to answer a question or produce a document they must explain to the person their rights concerning legal professional privilege and privilege against self-incrimination. Further, the regime provides that should a constable fail to explain to the person their rights in relation to answering a question or producing a document any answer given or document produced will not be admissible as evidence against the person in a criminal proceeding. These amendments implement Recommendation 10 of the Committee advisory report.

69. Before issuing a monitoring warrant the issuing officer is under a positive obligation to consider whether the exercise of monitoring powers under the warrant would be likely to have the least interference with the liberty and privacy of any person that is necessary in all of the circumstances. This requirement implements Recommendation 9 of the Committee advisory report, and is intended to achieve an appropriate balance between the objectives of the regime to mitigate risks and protect the community, and the privacy of individuals.

70. The monitoring warrant regime incorporates important reporting requirements and independent oversight by the Commonwealth Ombudsman regarding the operation of the regime.

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

71. Article 17 of the ICCPR provides that no-one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence.

72. Lawful interference with the right to privacy is permitted under Article 17 of the ICCPR, provided it is not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted the requirement of 'reasonableness' to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances.

73. Entry to and search of a person's home by consent will engage, but will not limit, the protection from arbitrary and unlawful interference with privacy in Article 17. The person will not be compelled to answer questions or produce documents when requested by police. Entry and search are only authorised if consent is informed and voluntary, limiting the impact on privacy.

74. Entry to and search of a person's home under a monitoring warrant (and without consent) will engage, and limit, the protection from arbitrary and unlawful interference with privacy in Article 17. The person is compelled to answer questions and produce documents as required by police unless doing so might tend to incriminate them or if they can claim legal professional privilege. Entry and search under a monitoring warrant affects the person's privacy.

75. Although third parties present at premises may be questioned regardless of whether the premises are entered on the basis of consent or a premises monitoring warrant, they are under no obligation to provide information or documents unless a monitoring warrant in relation to premises is in force. Accordingly, even where a warrant is in force, questioning or requests for documents can only occur where the purpose relates to one or more of the four prescribed purposes set out in paragraphs 3ZZKE(3)(c)-(f).

76. Further safeguards are also built into the regime where entry and search is under a monitoring warrant. They include a requirement that the monitoring warrant issuing officer is satisfied on the balance or probabilities that, where a search is to be conducted of the premises or vehicle owned or occupied by or in the possession of the person who is the subject of a control order, the search is reasonably necessary and reasonably appropriate and adapted to the purposes of:

protecting the public from a terrorist act
preventing the provision of support for, or the facilitation of, a terrorist act
preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country, or
determining whether the relevant control order has been, or is being, complied with.

77. Similarly, surveillance devices or the interception of telecommunications will only be available where they would be likely to substantially assist in one of these four purposes listed above.

78. Furthermore, the regime imposes a positive obligation on an issuing officer to have regard to whether allowing one or more constables to exercise the monitoring warrant powers would be likely to have the least interference with any person's liberty and privacy that is necessary in the circumstances. This requirement acknowledges the infringement of these powers on a person's privacy by striking an appropriate balance between the objectives of the regime in mitigating risk and protecting the public, against the right to privacy of the subject of the control order.

79. The Crimes Act regime is closely modelled on the existing provisions in the RPSP Act, which sets out a range of powers relevant to monitoring, investigation and enforcement purposes. The powers in relation to entry and inspection by consent are consistent with those in the RPSP Act. The powers in relation to seizure of potential evidence-which can only be exercised under a monitoring warrant, not where entry was by consent-are modelled on the existing search warrant regime in Part IAA of the Crimes Act.

80. The interference with the right to privacy is proportionate and limited to ensuring that a person who is subject to a control order is prevented from engaging in any activity related to terrorist acts and terrorism offences. The monitoring warrant powers are subject to appropriate limitations which ensure that the use of power is reasonable and necessary. These measures require the monitoring warrant issuing officer to be satisfied of thresholds that mean that the powers cannot be used in an arbitrary fashion and that the level of intrusiveness is no more than necessary to achieve a legitimate objective. This legitimate objective is to assist law enforcement officers to prevent serious threats to community safety. The potentially intrusive nature of the powers is balanced by their use solely in respect of terrorism offences, which constitute the gravest threat to the safety of Australians.

81. The new regime protects against arbitrary abuses of power as the entry, monitoring, search and information gathering powers are conditional upon consent by the occupier of the premises, with seizure only possible by prior judicial authorisation. Where entry is based on the occupier's consent, the consent must be informed and voluntary and the occupier can restrict entry for a particular period. Authorised persons and any persons assisting them must leave the premises if the occupier withdraws consent.

82. The new regime specifies that an issuing officer of a warrant to enter premises for the purpose of monitoring must be a judicial officer. In addition, an authorised person cannot enter premises unless their identity card is shown to the occupier of the premises. If entry is authorised by warrant, the authorised person must also provide a copy of the warrant to the occupier. This provides for the transparent use of the relevant powers and mitigates arbitrariness and the risk of abuse.

83. The regime includes a number of other safeguards and accountability mechanisms, record keeping and reporting requirements, and independent oversight by the Commonwealth Ombudsman. These features implement Recommendation 11 of the Committee advisory report. The regime provides that the AFP Commissioner must keep a record of each monitoring warrant issued, each instrument revoking a monitoring warrant and any order granting an extension to a monitoring warrant period. The AFP Commissioner must also notify the Commonwealth Ombudsman that a warrant has been issued, provide a copy of the warrant and notify the Ombudsman of any contravention of a provision of Part IAAB by an AFP member. Furthermore, the Ombudsman must report annually to the Attorney-General on the compliance of members of the AFP with Part IAAB. The Attorney-General must report to the Parliament on the operation of the regime, including the number of warrants issued and executed and must also include, in full, the Ombudsman's report on the AFP's compliance with the regime.

84. The monitoring warrant powers do not constitute an arbitrary or unlawful incursion into a person's right to privacy. To the extent that there is a restriction on an individual's right to privacy, a number of important protections are built into the regime to ensure any interference is reasonable, necessary and proportionate to achieve a legitimate objective-the effective operation of control orders for the purpose of maintaining community safety. Safeguards and limitations on the use of regulatory powers ensure that such lawful interferences with a person's privacy are not arbitrary or at risk of abuse.

Criminal Code Act 1995

New offence of advocating genocide

85. Division 80 of the Criminal Code (Treason, urging violence and advocating terrorism) currently contains a range of offences for urging or advocating certain conduct, including terrorism, which attracts a maximum penalty of seven years imprisonment.

86. Division 268 (Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court) sets out the offences concerning genocide carried out by various means. All attract a penalty of life imprisonment. In section 80.2D of the renamed Division 80 (Treason, urging violence and advocating terrorism or genocide), the Bill creates the new offence of advocating the commission of any of the genocide offences in sections 268.3 to 268.7.

87. The new offence is modelled on the recently enacted offence prohibiting advocating terrorism in section 80.2C of the Criminal Code, but has some important differences that reflect the relevant international instruments.

88. The meaning of 'advocates' in section 80.2D is consistent with that in subsection 80.2C(3), that is, to 'counsel, promote, encourage or urge' genocide. The new offence provides that a person commits an offence if the person engages in conduct reckless as to whether another person will engage in genocide. The new offence also reflects subsection 80.2C(4), which provides that advocating genocide is an offence, even if the genocide itself does not occur.

89. The offence applies to advocacy of genocide of people who are outside Australia or the genocide of national, ethnic, racial or religious groups in Australia and the advocacy itself can occur either in Australia or overseas.

90. Subsection 80.2D(2) provides a double jeopardy protection, which states that a person cannot be tried by a federal court or a state or territory court for an offence against subsection 80.4D(1) if the person has already been convicted or acquitted by the International Criminal Court for an offence constituted by substantially the same conduct.

91. The maximum penalty for advocating genocide will be seven years imprisonment. This reflects that the conduct is at least as serious as advocating terrorism, but less serious than inciting genocide under section 11.4 and Division 268, which requires that the offender would have to 'intend' that genocide occur, and carries a maximum penalty of ten years imprisonment.

The right to freedom of expression in Article 19 of the ICCPR and the prohibition on advocacy of racial or religious hatred in Article 20 of the ICCPR

92. Article 19(2) of the ICCPR provides that everyone has the right to freedom of expression, including freedom to seek, receive and impart information and ideas of all kinds through any media. However, Article 19(3) provides that the exercise of this freedom carries special duties and responsibilities and may therefore be limited where the limitations are provided for by law and are necessary for respect of the rights or reputations of others.

93. It is reasonable that genocide should not be advocated and that reasonable steps should be taken to discourage behaviour that promotes such activity. Importantly, deterring the advocacy of genocide promotes the rights of others (in accordance with Article 19(3)(a)). In this instance, this may include protecting people's right to life as covered by Article 6 of the ICCPR.

94. Article 20(2) sets out a requirement for laws to prohibit any advocacy for national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. This also supports the provision of an offence of advocating genocide as discrimination, hostility and violence may all be drivers of genocide.

95. Australia however entered the following reservation to Article 20 when ratifying the ICCPR:

Australia interprets the rights provided by Articles 19 [freedom of opinion and expression], 21 [right of peaceful assembly] and 22 [freedom of association] as consistent with Article 20; accordingly the Commonwealth and the constituent States, having legislated with respect to the subject matter of the Article in matters of practical concern in the interests of public order (ordre public), the right is reserved not to introduce any further legislative provision on these matters.

96. Australia regards the requirement for prohibition by law provided for in Article 20(2) as consistent with the right to freedom of opinion and expression in Article 19. The United Nations Human Rights Committee has noted that the acts addressed in Article 20 are all subject to restriction pursuant to Article 19(3), which allows for the freedom of opinion and expression to be subject to restrictions to ensure respect for the rights or reputations of others and for the protection of national security, public order, public health or morals.

97. While the reservation suggests Australia does not believe that it must do more to meet its obligation under Article 20 as existing laws already fulfil that obligation, it does not prevent Australia from creating further offences if a need were identified.

98. A person charged with the offence of advocating genocide may be able to rely on the good faith defences in section 80.3, which protect freedom of expression in certain circumstances, including in relation to artistic works, public discussion or debate, and news and current affairs. This strengthens the view that the new offence is not out of step with Article 19 and would only target conduct that is unjustifiable and that poses a substantial risk to particular groups of people.

99. This restriction on freedom of expression is a reasonable, necessary and proportionate measure to protect particular groups of people from the threat of genocide, whether in Australia or overseas. Accordingly, a limitation on the freedom of expression in this case is reasonable, necessary and proportionate.

The punishment of certain acts in relation to genocide, including direct and public incitement to commit genocide, in Articles III and IV of the Genocide Convention<

100. This amendment bolsters Australia's commitment to implementing its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). Article III states that genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide are punishable acts. Article IV states that persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals. The amendment more fully addresses the 'direct and public incitement to commit genocide' in Article III by ensuring that public advocacy of the forms of genocide reflected in sections 268.3 to 268.7 of the Criminal Code are punishable, even without any of the genocide-related acts actually having been carried out.

101. It should be noted that the Genocide Convention, unlike the ICCPR, is not one of Australia's seven 'core' conventions against which the human rights compatibility of legislation must be measured. Australia is also not seeking to extend its jurisdiction to cover acts of genocide carried out overseas. Its human rights obligations are primarily confined to Australian territory.

Reduction in minimum age for control orders

102. Control orders under Division 104 of Part 5.3 of the Criminal Code have been a tool available to law enforcement since 2005.

103. 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 (controls) on a person for the purpose of protecting the public from a terrorist act. Law enforcement may have sufficient information or intelligence to establish serious concern regarding the threat posed by an individual, but may not have sufficient time or evidence to lay charges and commence a criminal prosecution. In these circumstances, control orders provide a mechanism to manage the threat in the short to medium term. Use of a control order is therefore considered in conjunction with, and is complementary to, criminal prosecution, and allows a balance to be achieved between mitigating the risk to community safety and allowing criminal investigations to continue.

104. The control order regime has been used judiciously to date. This reflects the policy intent that these orders are not punitive in nature and 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.

105. Control orders can currently be made only in relation to persons 16 years of age or older. Subsection 104.28(1) (Special rules for young people) specifically prevents a control order being requested, made or confirmed in relation to a person who is under 16 years of age. Further, special safeguards apply to control orders made in relation to a person aged 16 or 17 years. Specifically, a control order can only be made for a maximum duration of three months, rather than the maximum of 12 months applicable for persons over 18 years of age.

106. Section 104.28(1) builds upon the existing control order regime to allow a control order to be requested, made or confirmed in respect of a young person who is 14 or 15 years of age. This age threshold is higher than the age at which a child can be prosecuted for a criminal offence in Australia (ten years of age). The amendment will expand the control order regime to children from 14 years of age, and will apply the existing safeguards and additional safeguards on such control orders. In particular the amendment will require an issuing court to appoint a lawyer to represent a young person in control order proceedings, other than proceedings the issuing court has determined should be held ex parte, where the young person does not have legal representation. This amendment implements Recommendation 2 of the Committee advisory report.

107. The lowering of the minimum age follows incidents, both in Australia and overseas, organised or led by young persons below 16 years of age. With school-age students being radicalised and engaging in radicalising others and capable of participating in activity which poses a threat to national security, the age limit of 16 years is no longer sufficient if control orders are to be effective in preventing terrorist activity.

108. The vulnerability of young people to violent extremism demands proportionate, targeted measures to divert them from extremist behaviour. It is appropriate and important that all possible measures are available to avoid a young person engaging with the formal criminal justice system and to mitigate the threat posed by violent extremism. Consequently, the ability to use control orders to influence a person's movements and associations, thereby reducing the risk of future terrorist activity, addresses a substantial concern and the regime is aimed and targeted at achieving a legitimate objective.

109. It should be noted that control orders are not a punitive measure but a preventative and protective measure. They are intended, as stated in paragraph 104.4(1)(d), to protect the public from a terrorist act, to prevent the provision of support for the facilitation of a terrorist act, or to prevent support for or the facilitation of engagement in a hostile activity in a foreign country.

110. A young person will not be separated from members of his or her family and will be able to continue to attend the school at which he or she is enrolled unless the issuing court determines that it is in the child's best interests that the child be separated from one or more family members or that the child should obtain his or her education at another school or through other means. This could occur, for example, if the issuing court considers the young person's interactions with the particular family member/s or at the particular school are contributing to the reasons for the imposition of the control order.

111. A control order does not authorise detention. Where the issuing court is satisfied on the balance of probabilities that a restriction on the young person's movements is reasonably necessary and appropriate and adapted to achieving one of the purposes of the control order regime, it can impose a requirement that the young person remain at specified premises between specified times each day or on specified days. This 'curfew' can be for up to a total of 12 hours in any 24-hour period.

112. The court can also require that the young person wear a tracking device, require them to be photographed and fingerprinted, and require that they report to specified people at particular times and places. They can be prohibited or restricted from being at certain places, leaving Australia, communicating with specified people or accessing particular forms of telecommunications or technology, including the internet, possessing or using of specified articles or substances and the carrying out of specified activities.

113. The penalty for contravening a control order is five years imprisonment, regardless of the age of the subject (section 104.27). Prosecution for the offence would require proof that the young person intentionally breached the relevant condition.

114. The rights discussed below are mainly those in the CRC. It should be noted that the CRC does not have an equivalent to the right to freedom of movement as set out in Article 12 of the ICCPR.

The right of the child to have their best interests as a primary consideration by courts of law, administrative authorities or legislative bodies in Article 3 of the CRC

115. Article 3 of the CRC requires that the best interests of the child shall be a primary consideration for all actions concerning social welfare institutions, courts of law, administrative authorities or legislative bodies.

116. Paragraph 104.4(1)(d) of the Criminal Code requires that before imposing a control on a person the court must be satisfied on the balance of probabilities that the control is reasonably necessary, and reasonably appropriate and adapted to protecting the public from a terrorist act, or preventing the provision of support for or the facilitation of the engagement in, a terrorist act or engagement in a hostile activity overseas.

117. The amendments specify the matters the court must consider when determining what is 'reasonably necessary, and reasonably appropriate and adapted'. Specifically in relation to young persons, Division 104 (Control Orders) will require the issuing court to give consideration to the 'best interests' of a person who is 14 to 17 years of age. 'Best interests' is consistent with Article 3. In determining what is in their best interests, new subsection 104.4(2A) (Making an interim control order) provides that the court must take into account:

the age, maturity, sex and background (including lifestyle, culture and traditions) of the person
the physical and mental health of the person
the benefit to the person of having a meaningful relationship with their family and friends
the right of the person to receive an education
the right of the person to practise their religion, and
any other matter the court considers relevant.

118. This list of factors is adapted from the Family Law Act 1975 (Family Law Act) and is consistent with Article 3 of the CRC. This will ensure that the particular circumstances and vulnerabilities of the young person are taken into account in determining their 'best interests' before a control order is issued or confirmed.

119. The Family Law Act requires the best interests of the child to be treated as 'the paramount' consideration when considering whether to make certain orders. In contrast, as recommended by the Committee, the paramount consideration with respect to control orders is the safety and security of the community. Accordingly, rather than being the paramount consideration, the issuing court will be required to consider the young person's best interests as a primary consideration. New subsection 104.4(2A) treats the young person's best interests as 'a primary' consideration.

120. For all control orders, regardless of the person's age, the court must take into account, as an 'additional consideration', the impact of each control on the person's circumstances, including their financial and personal circumstances (subsection 104.4(2)).

121. As is the case now for persons who are 16 to 17 years of age, control orders for all those who are 14 to 17 years of age will be for a maximum of three months from the day on which the interim order was made (subsection 104.28(2)), although this does not prevent the court from making successive orders (subsection 104.28(3)).

122. Reasonable steps must also be taken to serve the interim control order, variations of the control order, a revocation of the control order and confirmation of the interim control order on at least one parent or guardian of the young person (paragraph 104.12A(2)(c)).

123. All potential subjects of a control order, including young persons, must be informed of their right to seek legal advice and legal representation in relation to control order proceedings (subparagraph 104.12(1)(b)(iiia)).

124. This amendment will be supplemented by practical steps designed to ensure the young person has information about how to find and access legal advice and representation. In particular, when serving the young person, the AFP will provide, in writing, contact details for the relevant legal aid service in the jurisdiction. Given a young person who has been served with a control order is likely to experience feelings of uncertainty or confusion, a document providing the details about where to go for legal assistance is expected to be the best way of ensuring the young person has the information they need when they need it. In addition, the application of existing processes and agreements would mean a young person subject to a control order would always have access to legal aid. The National Partnership Agreement on Legal Assistance Services sets priorities for the delivery of legal assistance. Under that Agreement, children and young people are a priority client group and matters where the defendant is a child are a priority service area.

125. Other rights set out in the CRC, including the right to health care (Article 24) and the right not to be separated from their parents against their will (unless separation is in the best interests of the child) (Article 9), are recognised indirectly in new subsection 104.4(2A). Subsection 104.4(2A) lists the matters a court is to take into account when determining the child's best interests. The right of the child to an education (Article 28) and to practise their religion (Articles 14 and 30) are explicitly recognised.

126. A control order would only be issued against a young person, especially one as young as 14, in the rare circumstance that it was required to prevent a young person from being involved in a terrorist act. This includes protecting a young person who may be acting under the direction or influence of an extremist group or individual. In these circumstances, the wellbeing and best interests of a young person may be adversely affected if a control order is not issued in relation to that young person. For example, the issuing of a control order in relation to a young person may prevent the young person contacting the group or individual who may be encouraging the young person to engage in terrorist-related conduct.

127. A control order would only be issued against a young person where the existing issuing criteria have been satisfied in order to protect the broader community against the threat of a terrorist act. The proposal to allow the imposition of control orders on young persons would not replace existing mechanisms such as those available under the Family Law Act to ensure young persons living in an unsafe environment have access to appropriate support.

The right to freedom of expression in Article 13 of the CRC, the right of the child to freedom of thought, conscience and religion in Article 14 of the CRC, the right of the child to freedom of association in Article 15 of the CRC, the right to protection against arbitrary and unlawful interferences with privacy in Article 16 of the CRC, the right to freedom of movement in Article 12 of the ICCPR

128. Any combination of the controls listed in subsection 104.5(3) may be imposed as a term of a control order:

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 remain at specified premises between specified times each day, or on specified days
a requirement that the person wear a tracking device
a prohibition or restriction on the person communicating or associating with specified individuals
a prohibition or restriction on the person accessing or using specified forms of telecommunication or other technology (including the internet)
a prohibition or restriction on the person possessing or using specified articles or substances
a prohibition or restriction on the person carrying out specified activities (including in respect of his or her work or occupation)
a requirement that the person report to specified persons at specified times and places
a requirement that the person allow himself or herself to be photographed
a requirement that the person allow impressions of his or her fingerprints to be taken
a requirement that the person participate in specified counselling or education.

129. These conditions have at least the potential to enliven Articles 13, 14, 15 or 16 of the CRC, along with Article 12 of the ICCPR. Articles 13, 14 and 15 of the CRC and Article 12 of the ICCPR provide for exceptions which are provided by law and which are necessary to protect national security and/or public safety, public order, public health or morals, or the rights and freedoms of others. Instead of the rights and freedoms of others, Article 13 provides for laws necessary for respect for the rights or reputations of others. Article 16 of the CRC (like the equivalent Article 17 in the ICCPR) does not provide permissible exceptions.

130. Article 13 of the CRC provides that children have the right to freedom of expression, including freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, in any form or through any medium. However, Article 13 also provides that freedom of expression may be restricted if lawful and necessary, including for the protection of national security. This restriction on free expression is justified on the basis that the commission of a terrorist act or terrorism offence is conduct which jeopardises the security of Australia, the personal safety of its population and its national security interests.

131. A control order may include a prohibition or restriction on a young person's use of social media. This restriction will be justified if it is aimed at preventing the young person from using social media to support or facilitate a terrorist act.

132. Article 14-the right of the child to freedom of thought, conscience and religion-may be engaged by the prohibition or restriction on being at specified areas or places (paragraph 104.5(3)(a)) if these include places of religious worship or places where the person may seek material related to their thoughts or beliefs such as bookshops or libraries. Article 14 provides that this freedom may be subject to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. There is therefore clear scope to limit this freedom if necessary to protect the general public.

133. The restriction on being at particular places may engage the young person's freedom of association under Article 15, along with the prohibitions on communicating or associating with specified individuals and on carrying out specified activities, and a requirement that the young person report to specified persons at specified times and places.

134. Like Article 14, Article 15 provides that this freedom may be subject to such restrictions which are in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others. A control order would only impose limitations on the people a young person can associate with if doing so is in the interests of national security or public safety and the rights and freedoms of others.

135. Imposition of a tracking device is one of the controls that can be imposed by an issuing court as part of a control order. In relation to young persons aged 14 to 17 years, the issuing court would need to take into account whether it is in the young person's best interests to impose such a control, noting the visible nature of a tracking device. As with all controls, the court could only impose this requirement, including the ancillary requirements in new subsection 104.5(3A), if it were reasonably necessary, and reasonably appropriate and adapted to achieving one of the purposes set out in Division 104.

136. Imposition of a tracking device on a young person will raise issues with respect to the right not to be subjected to unlawful and arbitrary interferences with privacy in Article 16 of the CRC (in the same way that it would for an adult under Article 17 of the ICCPR). For the interference with privacy not to be 'arbitrary', the interference must be reasonable, necessary and proportionate in the particular circumstances.

137. Situations where the imposition of a tracking device on an adult may be reasonable may be assessed as not being reasonable in relation to a young person in the same circumstances. For example, an issuing authority will need to assess the extent to which a visible tracking device on their wrist or ankle is likely to affect a young person's ability to continue to attend school and to participate effectively in school. The circumstances where it would be reasonable to impose a tracking device on a person as young as 14 are likely to be limited.

138. Photographs and impressions of fingerprints obtained under paragraphs 104.5(3)(j) and (k) are collected, stored and disclosed in accordance with both the Australian Privacy Principles and section 104.22 (Treatment of photographs and impressions of fingerprints). Section 104.22 requires that photographs or 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-and that photographs and fingerprints must be destroyed 12 months after a control order period unless proceedings in relation to the control order have not yet been brought.

139. The CRC does not have an article equivalent to Article 12 of the ICCPR which states that everyone has the right to freedom of movement within their own country and the freedom to leave any country, including their own.

140. Among the controls that may be placed on an individual-adult or young person-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 under Article 12 if the limitations are provided by law and are necessary to achieve a legitimate purpose, such as protecting national security and public order.

141. 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 are where the issuing court is satisfied on the balance of probabilities that:

the order would 'substantially assist in preventing a terrorist act'
a person has been providing training to or receiving from or participating in training with a listed terrorist organisation
a person has been engaging in a hostile activity in a foreign country
a person has been convicted of a terrorism offence in Australia
a person has been convicted overseas for an offence that, if it occurred in Australia, would be a terrorism offence within the definition in subsection 3(1) of the Crimes Act
the order would substantially assist in preventing the provision of support for or facilitation of a terrorist act, or
the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country.

142. Each of the obligations, prohibitions and restrictions to be imposed on the person by the order must be reasonably necessary and reasonably appropriate and adapted for the purpose of:

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 engagement in a hostile activity in a foreign country.

143. The court therefore imposes only those requested conditions that would be necessary to fulfil one or more of the above purposes.

Control orders and tracking devices

144. Under subsection 104.5(1) of the Criminal Code a court may impose a requirement on a person to wear a tracking device as one of the obligations, prohibitions or restrictions of a control order. The court must be satisfied on the balance of probabilities that imposing such a requirement is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act, preventing the provision of support for, or the facilitation of a terrorist act or engagement in a hostile activity overseas.

145. The amendments to the control order regime in Division 104 of the Criminal Code ensure the effectiveness of this control in achieving these purposes by:

requiring the subject of the control order to maintain the tracking device in good working order
authorising the AFP to take steps, including entering specified premises, to ensure the tracking device and associated equipment are installed and maintained in good working order, and
creating offences for interfering with the operation of a tracking device.

146. In order for the requirement to wear a tracking device to be effective, the tracking device must remain operational while the requirement is in place. The additional obligations, authorisations and prohibitions are designed to ensure the effectiveness of this control in protecting the public from, and mitigating the risk of occurrence of, a terrorist act.

The right to freedom from arbitrary arrest or detention in Article 9 of the ICCPR

147. 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. The UN Human Rights Committee has stated that 'arbitrariness' includes the elements of inappropriateness, injustice and a lack of predictability. An arrest or detention must be reasonable and necessary in all circumstances with reference to the recurrence of crime, interference with evidence or the prevention of flight.

148. The Bill engages the right to freedom from arbitrary detention as it creates new offences in section 104.27A of the Criminal Code, with maximum penalties of five years imprisonment. Penalties of up to five years imprisonment for interfering with the operation of a tracking device are the same as the penalty for contravening a term of a control order under existing section 104.27 of the Criminal Code. Parity of these penalties is appropriate given that all of the offences are directed to similar sorts of wrongdoing that frustrate and undermine the efficacy of the control order regime.

149. Any prosecution for an offence must be supported by admissible evidence and both the physical and fault elements proved to the criminal standard beyond reasonable doubt.

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

150. Article 17 of the ICCPR provides that no-one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence.

151. Lawful interference with the right to privacy is permitted under Article 17 of the ICCPR, provided it is not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted the requirement of 'reasonableness' to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances.

152. The amendments allow an issuing court to authorise the AFP to enter premises for the purposes of installing equipment for the operation of the tracking device, and take steps specified in the order to ensure that the tracking device and associated equipment remain in good working order. Entry to premises will engage, and limit, the protection from arbitrary and unlawful interference with privacy in Article 17.

153. The regime requires judicial authorisation of such action, and only after the issuing court has determined on the balance of probabilities that such a requirement is reasonably necessary, and reasonably appropriated and adapted for one of the purposes of protecting the public from, or mitigating the risk of, a terrorist act occurring.

154. The amendments provide that the issuing court may specify persons, times and places for the subject of the control order to report to for the purpose of having the tracking device inspected. Having this information specified as a term of the control order ensures that a person's compliance with certain terms of a control order cannot be examined at any time. It is intended to achieve a balance between the subject of the control orders' right to privacy and the need to ensure the effective operation of the tracking device.

155. Accordingly, the limitation on the right to privacy is reasonable, necessary and proportionate to the legitimate purpose of ensuring the efficacy of the requirement to wear a tracking device.

Preventative detention orders

156. The PDO regime is governed by Division 105 of the Criminal Code. Division 105 outlines the basis on which a PDO may be sought, the duration of the detention (no longer than 48 hours under the Commonwealth regime) and the rights and conditions associated with detention. The PDO regime seeks to achieve the legitimate objective of preventing an imminent terrorist act occurring and preserving evidence of, or relating to, a recent terrorist act. The imposition of a PDO is employed in emergency circumstances where traditional law enforcement powers are unavailable.

157. The amendments to the PDO regime contained in Schedule 5 are intended to clarify the required nature of the terrorist act under subsection 105.4(5) of the Criminal Code. The amendments achieve this by:

replacing subsection 105.4(5) and the 'imminent test' with a threshold that focusses on the capability of a person to commit a terrorist act as opposed to the specific time the terrorist act is expected to occur, and
clarifying that the thresholds applicable to the AFP member and issuing authority under subsection 105.4(4) apply to the requirements in subsection 105.4(5).

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

158. 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. The law itself should not be arbitrary and it must not be enforced in an arbitrary manner. In all instances, detention must be lawful, reasonable and necessary.

159. The amendments do not impact upon the right to freedom from arbitrary detention and arrest.

160. The right to freedom from arbitrary detention is safeguarded by the existing provisions in the PDO regime. These provisions continue to operate in conjunction with the amendments contained in Schedule 5. In particular, the basis for applying for a PDO and the proportionality requirements contained in subsection 105.4(4) mitigates the inappropriate imposition of a PDO. The application for a PDO requires that an AFP member must suspect, on reasonable grounds, that the person will engage in a terrorist act, possess a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act or has done an act in preparation for, or is planning, a terrorist act (subparagraphs 105.4(4)(a)(i)-(iii)). The issuing authority must similarly be satisfied that there are 'reasonable grounds to suspect' the same matters (subparagraphs 105.4(4)(b)(i)-(iii)).

161. Having satisfied this threshold, the AFP member and issuing authority must also satisfy the proportionality tests contained in paragraphs 105.4(4)(c) and 105.4(4)(d). That is, they must demonstrate that a PDO will 'substantially assist' in preventing a terrorist act occurring (paragraph 105.4(4)(c)) and that detention for the period specified is 'reasonably necessary' for the purpose of preventing the terrorist act (paragraph 105.4(4)(d)). Law enforcement agencies must make out a case for why the limitations imposed by the PDO are justified in each circumstance. The cumulative effect of these provisions ensure that PDOs are only used in the most exceptional and extreme circumstances, where rapid preventative detention is reasonably necessary for preventing a terrorist act occurring, even where the timing of that terrorist act remains uncertain.

162. The amendments to the PDO regime do not adversely impact upon the freedom from arbitrary detention and arrest in Article 9 of the ICCPR.

National Security Information (Criminal and Civil Proceedings) Act 2004

Protecting national security information in control order proceedings

163. There are two parts to the amendments to the NSI Act contained in Schedule 15.

Part 1 of Schedule 15 - Main amendments

164. Part 1 provides for the enhanced protection of national security information in control order proceedings under Division 104 of the Criminal Code. Part 1 amends the NSI Act by enabling the court to make three new types of orders in control order proceedings for the making, confirming or varying of a control order. The effect of these orders is to allow information to be used in control order proceedings (subject to the rules of evidence) which is not disclosed to the subject of the control order and their legal representative.

165. The three new orders that may be made under revised section 38J in relation to a control order proceeding provide that:

the subject of the control order and their legal representative may be provided a redacted or summarised form of the national security information. However, the court may consider all of the information contained in the original source document, even where that information has not been provided in the redacted or summarised form (new subsection 38J(2))
the subject of the control order and their legal representative may not be provided with any information contained in the original source document. However, the court may consider all of that information (new subsection 38J(3)), or
a witness may be called and the information provided by the witness need not be disclosed to the subject of the control order or their legal representative. However, the court may consider all of the information provided by the witness (new subsection 38J(4)).

166. The amendments also provide that at a closed hearing to determine whether one of the new orders should be made, the Attorney-General (or the Attorney-General's legal or any other representative) may request the court to order that one or more specified parties to the control order proceeding and their legal representatives not be present during the closed hearing. Even if the individual's legal representative is security cleared, the court may exclude them from the closed hearing, if the court considers it appropriate.

167. The amendments to the NSI Act pursue a legitimate objective, being the protection of national security information in control order proceedings where disclosure may be likely to prejudice national security. In light of the current threat environment, it is increasingly likely that law enforcement will need to rely on evidence that is extremely sensitive in nature, such that disclosure, even to a security-cleared lawyer, could compromise the safety of human sources and the integrity of ongoing police investigations. In the absence of the amendments contained in Part 1 of Schedule 15 there is a substantial risk that the inability to rely on, and protect, sensitive information may result in a control order being unable to be obtained against an individual who poses a risk to the safety of the community. This is because law enforcement would not be satisfied that existing protections under the NSI Act mitigate the risks associated with the disclosure of such information.

168. The speed of counter-terrorism investigations is increasing. In order for control orders to be effective, law enforcement agencies need to be able to act quickly, and to be able to present sensitive information (which is in the form of admissible evidence) to a court as part of a control order proceeding without risking the integrity, safety or security of the information or its source.

Part 2 of Schedule 15 - Special advocates

169. Part 2 of Schedule 15 creates a role for special advocates where the subject of a control order has sensitive information withheld from them (and their legal representative) as a result of an order under revised section 38J, and are excluded from parts of the control order proceeding when that information is considered by the court.

170. The appointment of a special advocate is at the discretion of the court, which is best placed to assess whether a special advocate is necessary to assist the court process and safeguard the rights of the subject of a control order. In some instances, the court may consider itself sufficiently equipped to safeguard the rights of the subject of a control order without the appointment of a special advocate. It is appropriate that that decision be made on a case by case basis when the Attorney-General seeks to protect information under revised section 38J.

171. The role of the special advocate is to represent the interests of the subject of a control order proceeding in parts of the control order proceeding from which they and their legal representative have been excluded. The special advocate will be given the sensitive national security information the Attorney-General is either seeking to protect under an order under revised section 38J, or has obtained protection for as a result of a revised section 38J order. The special advocate has the powers necessary to represent the interests of the subject of a control order effectively in closed hearings. These powers are:

making submissions to the court at any part of a hearing in the proceeding during which the party and the party's legal representative are not entitled to be present
adducing evidence and cross-examining witnesses at such part of a proceeding, and
making written submissions to the court.

172. Before receiving the sensitive information, the special advocate will generally be able to communicate without any restriction with the subject of a control order and their legal representative. Following the receipt of the sensitive information, the special advocate will only be able to communicate with the subject of the control order in writing and with the approval of the court. The special advocate will not be able to disclose to the subject of the control order or their legal representative the content of the sensitive information provided to them. The subject of a control order and their legal representative will be able to continue to communicate with the special advocate. However, communications must be in writing and in the case of the subject of a control order, only through their legal representative.

The right to a fair hearing in Article 14(1) of the ICCPR

173. The amendments to the NSI Act apply only in relation to proceedings under Division 104 of the Criminal Code for the making, confirming and varying of a control order. These proceedings are suits at law for the purposes of Article 14 of the ICCPR. The withholding of information from a subject of a control order impacts upon Article 14(1) of the ICCPR, which safeguards the right to a fair hearing in a suit at law. In particular, the amendments to the NSI Act may limit the equality of arms principle which requires that all parties to a proceeding must have reasonable opportunity of presenting their case under conditions that do not disadvantage them against other parties to the proceeding.

174. However, it is important when considering the impact on an individual's right to a fair trial that the proposed amendments be considered as a whole rather than in isolation. While the new orders provided under revised section 38J depart from ordinary instances of procedure and judicial process, the incorporation of a role for special advocates and the inherent capacity of the court to act fairly and impartially as well as the safeguards built into the NSI Act provide several mechanisms through which a fair hearing is guaranteed. These mechanisms are outlined below.

175. Firstly, the involvement of the special advocate provides a significant safeguard against the contravention of the equality of arms principle. The special advocate will be able to see the sensitive information that has been withheld from the subject of a control order. While the special advocate cannot communicate to the subject of a control order about that information or take instructions in relation to that information, the special advocate will still be able to make arguments querying the need to withhold that information from the subject of a control order (and their legal representative) and can challenge the relevance, reliability and weight accorded to that information.

176. The restrictions on the ability of the special advocate to communicate the sensitive information to the subject of a control order is a reasonable, necessary and proportionate measure in order to protect highly sensitive information. The unauthorised disclosure of that information may disrupt ongoing law enforcement or intelligence operations, reveal technologies and methods used to collect and analyse intelligence, endanger the lives of human sources or adversely impact upon Australia's relationships with its international partners. Despite these communication restrictions, the involvement of a special advocate protects the subject of a control order's right to a fair trial and enhances the degree of procedural fairness they are afforded.

177. Secondly, in determining whether to make an order under revised section 38J, the court must be satisfied that the subject (or proposed subject) of the control order has been given 'sufficient information about the allegations on which the control order request was based to enable effective instructions to be given in relation to those allegations'. What constitutes 'sufficient' information will be determined on a case-by-case basis.

178. This minimum standard of disclosure of information ensures that the subject of the control order has sufficient knowledge of the essential allegations on which the control order request is sought (or varied), such that they are able to dispute those allegations during the substantive control order proceedings. Where this level of information is provided, the subject's right to a fair trial will be satisfied, notwithstanding that they may not be provided with the detail or sources of the evidence forming the basis of the allegations against them.

179. Thirdly, in determining whether to make an order under new section 38J, the court must have regard to the following factors:

the potential prejudice to national security in not making one of the orders under new section 38J (paragraph 38J(5)(a))
whether the making of an order under new section 38J would have a 'substantial adverse effect on the substantive hearing in the proceeding' (paragraph 38J(5)(b)), and
any other matter the court considers relevant (paragraph 38J(5)(c)).

180. The requirement to give consideration to the adverse effect on the substantive hearing ensures that the court expressly contemplates the effect of any potential order under revised section 38J on a party's ability to receive a fair hearing. The case-by-case basis on which such an assessment is made provides the court with the discretion to adequately assess the impact of an order under revised section 38J on each subject (or proposed subject) of the control order.

181. Fourthly, the NSI Act guarantees procedural fairness by preserving the discretion of the court. The amendments to the NSI Act do not compel the court to make any of the orders that may be sought under Schedule 15. The court may decline making an order under revised section 38J, or where it does make an order, the court may determine what form such an order may take (for instance, whether there should be redactions or summaries of information provided). Similarly, the court has the discretion under new subsection 38I(3A) to decline excluding specified parties and their legal representatives from the closed hearing proceedings.

182. The amendments in Schedule 15 also preserve the right of the court to stay a control order proceeding where one of the new orders under revised section 38J has been made and the order would have a substantial adverse effect on the substantive control order proceeding. Accordingly, even where the court has made an order under revised section 38J, the court is not prevented from later determining that the operation of the order is such that it compromises the ability of the subject (or proposed subject) of the control order the right to receive a fair hearing.

183. Furthermore, existing subsection 19(3) preserves the power of the court to control the conduct of civil proceedings, in particular with respect to abuse of process unless the NSI Act expressly or impliedly provides otherwise. Where a legislative scheme departs from the general principles of procedural fairness, the question for the judiciary will be whether, taken as a whole, the court's procedures for resolving the dispute accord both parties procedural fairness and avoid practical injustice. The discretion provided to the court in managing a control order proceeding enables the court to assess at each stage of the proceeding, whether the subject of a control order has been afforded procedural fairness.

184. Finally, the normal rules of evidence will continue to apply to evidence sought to be introduced under the new orders contained in revised section 38J, in accordance with that section and existing Criminal Code provisions (section 104.28A). Where evidence is withheld from the subject of a control order, that evidence must be admissible pursuant to the rules of evidence applicable in control order proceedings. Moreover, the amendments in Schedule 15 do not dictate to the court what weight it should give to any evidence that is withheld (either in full or in part) from the subject of the control order in the substantive control order proceeding.

185. The amendments to the NSI Act achieve the legitimate objective of protecting national security information in control order proceedings, the disclosure of which may be likely to prejudice national security. The protection of national security information can be vital, not only in maintaining the confidentiality and integrity of law enforcement and intelligence operations and methodologies, but also in maintaining the trust with which such information has been provided to law enforcement. However, the imperatives of protecting national security information under Schedule 15 do not deprive the subject of a control order proceeding of procedural fairness. The fundamental right to a fair hearing in a suit at law guaranteed by Article 14(1) of the ICCPR is upheld as a result of: the role of the special advocate when the amendments contained in Part 1 of Schedule 15 are enlivened, the safeguards contained in Schedule 15 and the existing provisions of the NSI Act, which provide the court options for redressing any unfairness that may arise during a control order proceeding where national security information is sought to be protected.

Surveillance Devices Act 2004

186. The SD Act regulates the use of surveillance devices. It establishes procedures for law enforcement officers to obtain surveillance device warrants for the purposes set out in section 14 (offence investigations, child recovery orders, mutual assistance investigations and integrity operations). Surveillance device warrants have not however been available to law enforcement agencies for monitoring control orders. This is problematic because some control order conditions cannot effectively be monitored without electronic surveillance.

187. The proposed new monitoring warrants within the SD Act will apply to individuals subject to a control order under Division 104 of the Criminal Code. Unlike the existing surveillance device warrant regime, the new regime will not require the issuing authority to be satisfied that one or more relevant offences have been, are being, are about to be, or are likely to be, committed. Rather, this regime will allow law enforcement officers to apply to an issuing authority for a surveillance device warrant for the purposes of monitoring compliance with a control order issued under Division 104. It will allow surveillance device information to be used in any proceedings associated with that control order.

188. The new regime will also extend the circumstances in which agencies may use less intrusive surveillance devices without a warrant to include monitoring of a control order. It will also allow protected information obtained under a control order warrant to be used to determine whether the control order has been complied with.

189. The power to use surveillance devices for monitoring purposes will remain a covert power. The amendments will introduce new deferred reporting arrangements, which will permit the chief officer of an agency to defer public reporting on the use of a monitoring warrant in certain circumstances, balancing the public interest in timely and transparent reporting with the public interest in preserving the effectiveness of this covert power.

190. The Bill allows a law enforcement officer to apply for, or authorise, a surveillance device warrant if the officer suspects on reasonable grounds that the use of a surveillance device would be likely to substantially assist in the purpose of:

protecting the public from a terrorist act
preventing the provision of support for, or the facilitation of, a terrorist act
preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country, or
determining whether the control order, or any succeeding control order, has been, or is being, complied with.

191. The Bill permits the limited use of protected information obtained under a control order warrant relating to an interim control order which is subsequently declared void. The information may be used, communicated, recorded or given in evidence in a proceeding when it is necessary to assist in preventing or reducing the risk of the commission of a terrorist act, serious harm to a person, serious damage to property or a purpose connected with a Commonwealth, state or territory PDO regime.

192. This limited permission to use information obtained on the basis of an interim control order that has been declared void reflects the significant public interest in protecting members of the public from terrorist acts or serious harm, and in preventing serious damage to property. Notwithstanding that the underlying order in relation to which the warrant was made is no longer valid, there remains a strong justification for allowing the information be used to prevent significant harm to the public. To provide otherwise would frustrate the protection of the community where information obtained in good faith must be relied on to prevent or reduce the commission of a terrorist act or other related serious harm.

The right to life and security of the person in Articles 6 and 9 of the ICCPR

193. The Bill promotes the right to life and the right to security of the person. The right to security of the person in Article 9 of the ICCPR requires states to provide reasonable and appropriate measures to protect a person's physical security. The right to life also places a positive obligation on states to protect individuals from unwarranted actions by private persons, such as acts of terrorism. The obligation to protect life requires the State to take preventative operational measures to protect individuals whose safety may be compromised in particular circumstances, such as by a terrorist act. This includes enhancing the capabilities of law enforcement agencies to respond to a heightened terrorist threat.

194. The risk of persons subject to control orders continuing to engage in preparatory acts has intensified due to changes in the threat environment. Terrorism is increasingly conducted by smaller groups or lone actors engaging in short-term, low-complexity attack plans, reducing the warning time for attacks, and the ability for agencies to detect, investigate and disrupt attacks before they occur. From a counter-terrorism perspective, the number of persons of concern in Australia is substantially higher than at any point historically, and is expected to increase substantially if, and when, foreign fighters return, placing exceptionally high pressure on agencies. Similarly, returning foreign fighters will necessarily impact the domestic threat environment given their combat and tradecraft experience, and established terrorist networks.

195. Articles 6 and 9 require states to take positive steps to protect individuals' physical security. This can include enhancing the capabilities of law enforcement agencies to respond to a heightened terrorist threat. The amendments to the SD Act enable law enforcement agencies to better detect, monitor and investigate potential terrorist threats in this heightened threat environment. By enhancing the access to surveillance devices to monitor compliance with control orders, agencies can identify risks early and intervene to prevent an act of terrorism.

The right to a fair trial and fair hearing under Article 14 of the ICCPR

196. Article 14 of the ICCPR protects an individual's right to a fair trial and fair hearing. The right applies to both criminal and civil proceedings and to cases before both courts and tribunals. The right is concerned with procedural fairness and encompasses notions of equality in proceedings, the right to a public hearing and the requirement that hearings are conducted by an independent and impartial body.

197. The Bill engages this right by inserting a provision which enables agencies to use protected information obtained under a surveillance device warrant relating to an interim control order which is subsequently declared void. The information may be used, communicated, recorded or given in evidence in a proceeding when it is necessary to assist in preventing or reducing the risk of the commission of a terrorist act, serious harm to a person, serious damage to property or a purpose connected with a Commonwealth, state or territory PDO regime (for example, for the purposes of preparing and applying for a PDO to prevent an imminent terrorist act).

198. The provision is intended to address the unlikely scenario where:

an interim control order has been issued in respect of a person
a law enforcement agency has duly obtained a control order warrant in relation to that person
under that control order warrant, the agency has obtained information that indicates that the person is likely to engage in a terrorist act, cause serious harm to a person, or cause serious damage to property, and
before the agency can act on that information, the interim control order is considered by a court at a confirmation hearing and declared void ab initio pursuant to subsection 104.14(6) of the Criminal Code on the grounds that, at the time of making the interim control order, there were no grounds on which to make the order.

199. As the existence of a valid control order is a condition for the issuing of a control order warrant, the likely effect of a court declaring an interim control order void ab initio pursuant to subsection 104.14(6) of the Criminal Code would be that any control order warrants predicated on that control order would also likely be void ab initio.

200. It is a fundamental principle of the Australian legal system that courts have a discretion as to whether or not to admit information as evidence into proceedings, irrespective of the manner in which the information was obtained. As an example, the Bunning v Cross [1] discretion places the onus on the accused to prove misconduct in obtaining certain evidence and to justify the exclusion of the evidence. This principle is expanded on in Commonwealth statute, [2] where there is an onus on the party seeking admission of certain evidence to satisfy the court that the desirability of admitting the evidence outweighs the undesirability of admitting it, given the manner in which it was obtained. This fundamental principle reflects the need to balance the public interest in the full availability of relevant information in the administration of justice against competing public interests, and demonstrates the role the court plays in determining admissibility of evidence.

201. However, the SD Act departs from these fundamental principles, by imposing strict prohibitions on when material under those Acts may be used, communicated or admitted into evidence. [3] Under the SD Act, it is a criminal offence for a person to deal in information obtained under these Acts for any purpose, unless the dealing is expressly permitted under one or more of the enumerated and exhaustive exceptions to the general prohibition. This prohibition expressly overrides the discretion of the judiciary, both at common law and under the Evidence Act, to admit information into evidence where the public interest in admitting the evidence outweighs the undesirability of admitting it, given the manner in which it was obtained. There is also a risk that the prohibition might be interpreted, either by a court considering the matter after the fact, or by an agency considering the question in extremis, to override the general defence to criminal responsibility under the Criminal Code.

202. For this reason, the amendment does not infringe on the right to a fair trial and fair hearing as protected by article 14 of the ICCPR. 'Equality of arms' requires that each party be afforded a reasonable opportunity to present their case under the conditions that do not place them at a substantial disadvantage vis-à-vis another party. [4] This principle essentially denotes equal procedural ability to state the case. This amendment does not engage the 'equality of arms' principle. This is because the amendment does not derogate from, or abridge, existing procedural rights of parties to litigation and would not result in actual disadvantage or other unfairness to the defendant. That is, the amendment does not impact upon opportunities to adduce or challenge evidence or present arguments on the matters at issue. [5]

203. Accordingly, the provisions are a reasonable and proportionate limitation on the right to a fair trial and fair hearing in article 14 of the ICCPR.

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

204. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence. This right may be subject to permissible limitations where those limitations are provided by law and non-arbitrary. In order for limitations not to be arbitrary, they must be aimed at a legitimate objective and be reasonable, necessary and proportionate to that objective.

205. To justify a limitation of human rights, a legitimate objective must address a pressing or substantial concern and not simply seek an outcome that is desirable or convenient. The Bill is intended to enhance law enforcement agencies' abilities to prevent, detect and investigate acts of terrorism. Terrorism is a significant threat to national security and public safety for a variety of reasons. Firstly, politically motivated, violent acts can indiscriminately threaten the lives and physical safety of Australian citizens. This can perpetuate a climate of fear which is socially divisive, threatening the cohesiveness of Australian society. Not only does terrorism undermine national security and community safety, it also damages the cohesiveness of Australian society more generally.

206. The current threat environment has meant that terrorism has become a substantial concern for law enforcement agencies and Australian society more generally. The nature of terrorism itself is changing with smaller groups or lone actors engaging in short-term, low-complexity attack plans, reducing the warning time for attacks. From a counter-terrorism perspective, the number of persons of concern in Australia is substantially higher than at any point historically, and is expected to increase substantially if, and when, foreign fighters from the Syrian conflict return. In light of this, the prevention of terrorism is a legitimate objective.

207. The limited extension of the use of surveillance devices ensures that these amendments are reasonable and proportionate. Surveillance devices powers are intrusive and covert in nature, and can potentially intrude on the privacy of persons other than the person subject to the control order.

208. The purpose of the control order regime is to address the challenge posed by terrorism and hostile activity in foreign countries by mitigating the threat posed by specific, high-risk individuals.

209. The use of surveillance devices to monitor those subject to control orders will better ensure compliance with conditions imposed, and better mitigate the risk of terrorism and involvement in foreign conflicts. If a person subject to a control order perceives there is little likelihood of breaches being detected, there is little incentive for them to moderate their behaviour, and the specific deterrence effect of a control order is potentially undermined.

210. Under the current law, agencies have limited means to monitor a person's compliance with a control order, and to detect planning and preparatory acts for a terrorist act or hostile activity overseas. At present, agencies are often limited to physical surveillance, which is ineffective in many cases and is exceptionally difficult to scale due to its resource-intensive nature.

211. The new provisions will allow law enforcement officers to apply to an issuing authority for a surveillance device warrant for the purposes of monitoring a person subject to a control order, to prevent or protect the public from terrorism or prevent a person from assisting hostile activity in a foreign country.

212. The amendments establish a number of safeguards to ensure that any interference with privacy is for a legitimate objective and implemented in a proportionate manner. Agencies are required to apply to an eligible judge or nominated AAT member for a warrant authorising the use or installation of a surveillance device, where entry into a premises or interference with a vehicle without the owner's permission is required. Independent oversight prior to the use of a privacy-intrusive surveillance device requires law enforcement agencies to demonstrate the necessity and proportionality of surveillance to an independent party. This is an important safeguard.

213. Agencies are not automatically entitled to receive control order warrants in relation to persons who are subject to control orders. Before issuing a control order warrant, the independent issuing authority must be satisfied inter alia that the use of a surveillance device would be likely to substantially assist in one or more of the purposes for which a control order warrant may be issued, being:

protecting the public from a terrorist act; or
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 engagement in a hostile activity in a foreign country; or
determining whether the control order, or any succeeding control order, has been, or is being, complied with.

214. Even where the issuing authority is satisfied that the use of a surveillance device would be likely to substantially assist in one or more of the above purpose, the issuing authority is not required to issue a control order warrant. The decision to issue a control order monitoring warrant is discretionary, and may only be taken after the issuing authority has had regard to a range of competing public interests, including:

the extent to which the privacy of any person (including third parties) is likely to be affected;
the existence of alternative means of obtaining the evidence or information sought to be obtained;
whether the use of a surveillance device is likely to have the least interference with the privacy of any person of any means of obtaining the evidence or information;
the likely value of the information sought to be obtained in relation to the relevant purpose(s) for issuing the warrant;
the likelihood that the person subject to the control order has engaged in, is engaging in, or will engage in, the conduct that sought to be detected and prevented by the control order warrant; and
any previous control order warrants issued in relation to the person.

215. The requirement to 'have regard to' the above matters requires the issuing authority to give those matters a proper, genuine and realistic consideration, and amounts to a requirement for the issuing authority to consider both the necessity for the control order warrant (including the likelihood that the person has engaged in, is engaging in, or will engage in conduct that is sought to be detected and prevented by the warrant, and the likely value of the information that is sought to be obtained, in light of any previous control order warrants issued in relation to the person) and the proportionality of issuing the control order warrant (including the likely degree of interference with the privacy of the person subject to the control order and any third parties, and the availability of alternative, less intrusive methods).

216. In some circumstances, law enforcement officers may authorise the use of a surveillance device without a warrant. The SD Act allows the use of optical surveillance, listening and tracking devices without a warrant in circumstances which do not involve covert entry onto premises or interference with a vehicle. For instance, an officer may use an optical surveillance device in a public place without a warrant. There is a lower threshold for the use of these devices because they are less privacy-intrusive than circumstances where the use of the device requires entry into an individual's premises or vehicle without permission. The Bill does not alter the categories of surveillance devices for which warrants are required, rather it allows all surveillance devices to be used, whether authorised by warrant or not, to monitor compliance with a control order.

217. Strict limitations upon when surveillance devices can be used to enforce control orders ensures that they are only used where they are necessary. The amendments compel the immediate revocation of a warrant and discontinuance of surveillance if it is no longer necessary for the purposes of the investigation, or where the control order is no longer in force.

218. A law enforcement officer can apply for a surveillance device warrant after the control order has been made but before it has come into force by being served on the subject of the order. Likewise, the surveillance device warrant can be issued during this period. This is intended to ensure that officers have an opportunity to install surveillance devices covertly, as there are often limited opportunities to do so. This provision also ensures that monitoring powers are in place before the control order comes into force to avoid the loss of evidence due to a delay in service of the control order warrant. The purposes for which information obtained by way of a surveillance device during this intervening period may be used are strictly limited: agencies are required to destroy information obtained during this period, unless the chief officer of the agency is satisfied that it is likely to assist with the protection of the public from a terrorist act, prevent the provision of support for, or the facilitation of, a terrorist act, or the provision of support for, or the facilitation of, the engagement in hostile activities in a foreign country. The ability to use information obtained prior to the entry-into-force of a control order in these circumstances is a legitimate and proportionate use of surveillance in light of the gravity of the terrorist threat.

219. The amendments contain important record-keeping measures which enhance oversight of the regime. The chief officer of each law enforcement agency is required to report to the Minister on the benefits of surveillance device warrants issued to monitor compliance with a control order. This reporting measure is designed to encourage transparency, by revealing the purposes for which surveillance devices are used and detailing their contribution to the prevention of terrorist acts.

220. The amendments will also introduce new deferred reporting arrangements which will permit the chief officer of an agency to delay public reporting on the use of a surveillance device warrant in relation to a control order in certain circumstances. Due to the small number of control orders which are issued, immediate reporting of any warrants or authorisations of surveillance devices may enable an individual to determine whether they are the subject of surveillance. If a person knows, or suspects that there is a control order surveillance device warrant in place, they are more likely to be able to modify their behaviour to defeat those lawful surveillance efforts. Also, if a person knows or suspects that a surveillance device warrant is not in force, the deterrence value of the control order is limited to the extent that the person believes they can engage in proscribed activity without risk of detection. Deferred reporting balances the public interest in timely and transparent reporting with the need to preserve the effectiveness of control orders to prevent individuals from committing terrorist acts.

221. The Bill will place strict controls on the decision to defer public reporting on the use of control order warrants, reflecting the significant public interest in transparency in relation to the use of exceptional, covert powers. First, the decision to defer public reporting may only be made by the Minister, on the advice of the chief officer of the relevant agency. Second, the chief officer and the Minister must each be satisfied that publicly reporting particular information could be reasonably expected to enable a reasonable person to determine that particular surveillance measures are likely to be, or not to be in force at the time he or she makes his or her decision (which will generally be at different times, given the time taken to prepare the Minister's report based on all agencies' input). Third, where public reporting is deferred in relation to particular information, the chief officer of the relevant agency will be required to reconsider his or her decision each year. Fourth, documentary records must be kept in relation to each such decision. Fifth, each such decision is subject to independent oversight by the Commonwealth Ombudsman.

222. The Bill also allows for the use, recording, communication or publication, or admission into evidence of protected information for the purposes of proceedings arising under, or in relation to control orders and PDOs. These amendments are intended to clarify that protected information can be used in such proceedings, including applications for, appeals against, and civil proceedings in relation to control orders and PDOs. This recognises the importance of protected information to applications for such orders and ensures that covertly collected information can be used in control order and related proceedings.

223. The information obtained from a surveillance device may only be used for the clearly defined purpose of obtaining either a control order or a PDO. Such orders are utilised by national security and law enforcement agencies to prevent the public from a terrorist act. In light of the changing nature and increased risk of terrorism, as detailed above, interference with the privacy of persons who are the subject of a control order is legitimate and proportionate to the objective of protecting the broader community from terrorism.

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

224. Article 19 of the ICCPR provides that all persons shall have the right to freedom of expression, including the freedom to speak, receive and impart information and ideas of all kinds, through any media of a person's choice. This right may be subject to restrictions for the purposes of national security or public order where such restrictions are provided by law and are clearly necessary.

225. This Bill engages the right to freedom of expression indirectly, to the extent that individuals subject to control orders may suspect that their communications are being monitored. This suspicion may cause them to restrict their communications, both in terms of content and audience. The nature of the terrorism threat is evolving, with rapid radicalisation and low sophistication attacks resulting in shorter timeframes for agencies to detect and disrupt attacks. Furthermore, returning foreign fighters will necessarily impact the domestic threat environment given their combat and tradecraft experience, and established terrorist networks. This heightened risk justifies any indirect limitation on free speech for a limited number of specific individuals subject to control orders.

The right to an effective remedy in Article 2(3) of the ICCPR

226. Article 2(3) of the ICCPR protects the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR, including the right to have such a remedy determined by the competent judicial, administrative or legislative authorities or by any other competent authority provided for by the legal system of the State. The right to an effective remedy applies notwithstanding that a violation has been committed by persons acting in an official capacity.

227. The right to an effective remedy applies in relation to violations of other ICCPR rights and freedoms. By establishing a new control order monitoring warrant regime, the Bill indirectly creates a risk that a person's right to protection against arbitrary and unlawful interferences with privacy under Article 17 of the ICCPR may be violated where a surveillance device is used in connection with a control order, or information obtained under monitoring warrant or authorisation is used, in a manner that is unlawful. Accordingly, the Bill engages the right to an effective remedy for any such violation of the right to privacy.

228. The Bill engages the right to an effective remedy by providing immunity, including immunity for ancillary conduct, in limited circumstances, for conduct that could otherwise found a criminal charge. The Bill protects persons from criminal liability for acts done, or omitted to be done, in good faith purportedly under the authority of the SD Act in connection with an interim control order that has subsequently been declared to be void.

229. The scheme is necessary to ensure the effective performance of the statutory functions of law enforcement agencies, by ensuring that law enforcement officers can be confident that they will not face criminal liability for conduct engaged in in good faith:

under a legal authority provided by the SD Act that is valid at the time the officer engages in the conduct, or
under a legal authority provided by the SD Act that the officer reasonably believes to be valid at the time the officer engages in the conduct.

230. Not providing this immunity would impair law enforcement agencies' capabilities and willingness to ensure a safe and secure Australia. Because a Court may declare an interim control order void ab initio, absent an immunity, law enforcement officers would potentially face retrospective criminal liability for conduct they engaged in, in good faith, in reliance on a legal authority that was valid at the time. The existence of such a risk would create a powerful deterrent for officers to rely on valid legal authorities.

231. The limitation to the right to an effective remedy is limited to the extent that it is reasonable, necessary and proportionate to the objective of facilitating the fulfilment of law enforcement agencies' functions in protecting the public from acts of terrorism, preventing the engagement in hostile activities in foreign countries, and monitoring persons' compliance with control orders. The immunity is limited to conduct engaged in, in good faith, and does not apply if, at that time, the person knew, or ought reasonably to have known, that the interim control order underpinning the legal authority provided by the SD Act had been declared void. In particular, the Bill also does not immunise law enforcement agencies (which would ordinarily assume vicarious liability for acts done or omitted to be done by their officers) from civil liability for any such conduct; persons may therefore seek civil remedies for damage or harm suffered as a result of any act done, or omitted to be done, under the authority of the SD Act where that authority was dependent upon the existence of an interim control order that has subsequently been declared void.

232. The SD Act protects this right by ensuring the Commonwealth Ombudsman has robust oversight powers enabling it to compel authorised agencies and individuals to answer questions and provide information. A person may face imprisonment of up to two years if they use, record, communicate or publish protected information outside the purposes permitted in the SD Act.

Taxation Administration Act 1953

Authorised disclosure to an Australian government agency for purposes related to national security

233. Subsection 355-65(2) of Schedule 1 of the TA Act provides for the disclosure of protected information for certain purposes relating to social welfare, health or safety. The amendment supplements existing exemptions, authorising taxation officers to record or disclose protected information to an Australian government agency for the purposes of preventing, detecting, disrupting or investigating conduct that relates to a matter of security as defined by section 4 of the ASIO Act.

234. Consistent with Item 9 of Table 1 at subsection 355-65 of Schedule 1 to the TA Act, this amendment will allow taxation officers to disclose information to an Australian government agency, for certain specified purposes. It is important that the amendment allows the ability to disclose information, for the purposes of preventing, detecting, disrupting or investigating conduct that relates to a matter of security, to 'any' Australian government agency because bodies that have a role in dealing with national security threats vary from time to time. In addition, bodies such as the National Disruption Group are multi-jurisdictional and their composition can change at short notice.

235. This amendment recognises that the public interest in allowing government agencies to use information, to prevent, detect, disrupt or investigate conduct that relates to a matter of security, outweighs the associated loss of privacy.

236. Following Recommendation 20 of the Committee advisory report, new section 355-182 provides an important safeguard in the form of the ability of an Australian government agency officer to disclose protected taxation information to the Commonwealth Ombudsman where the Ombudsman has not sought that information under section 9 of the Ombudsman Act 1976 (the Ombudsman Act).

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

237. For the purposes of the exceptions under the new section 355-182, the recording or disclosure of information must be necessary or appropriate for purposes of preventing, detecting, disrupting or investigating conduct related to security, as defined by section 4 of the ASIO Act. Similar provisions already exist for serious threats to an individual's life, health or safety or public health or public safety and this is an extension of that power. The disclosure is for a limited purpose and is neither arbitrary nor unlawful. Taxation officers may only disclose protected information after the provision commences, but the provision authorises disclosure of information collected before commencement of the Bill.

238. The exceptions to the disclosure prohibitions are designed having regard to the principle that disclosure of taxpayer information should be permitted only where the public benefit associated with the disclosure clearly outweighs the need for taxpayer privacy.

Telecommunications (Interception and Access) Act 1979

239. The TIA Act allows the AFP to use, communicate or give lawfully intercepted information in evidence in relation to the Commonwealth PDO regime. The Bill will enable state and territory agencies to use or communicate lawfully intercepted information in relation to their respective PDO regimes. This will ensure consistency between the Commonwealth's PDO regime and the states and territories' regimes in the following Acts:

Terrorism (Community Protection) Act 2003 (Vic)
Terrorism (Police Powers) Act 2002 (NSW)
Terrorism (Preventative Detention) Act 2005 (Qld)
Terrorism (Preventative Detention) Act 2005 (SA)
Terrorism (Preventative Detention) Act 2005 (Tas)
Terrorism (Preventative Detention) Act 2006 (WA)
Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT), and
Terrorism (Emergency Powers) Act 2003 (NT).

240. The Bill ensures that an officer or staff member of a state or territory agency who previously communicated, made use of, or made a record of lawfully intercepted information for a purpose that would now be covered by the amendment above would be taken not to have contravened the prohibition on communicating lawfully intercepted information. This will ensure that any officer who has in good faith used or communicated lawfully intercepted information for a purpose connected with state and territory PDO legislation is not liable for a breach of the TIA Act.

241. The Bill permits the limited use of either lawfully intercepted information or lawfully accessed information obtained under a control order warrant relating to an interim control order which is subsequently declared void. The information may be used, communicated, recorded or given in evidence in a proceeding when it is necessary to assist in preventing or reducing the risk of the commission of a terrorist act, serious harm to a person, serious damage to property or a purpose connected with a Commonwealth, state or territory PDO regime.

242. This limited permission to use information obtained on the basis of an interim control order that has been declared void reflects the significant public interest in protecting members of the public from terrorist acts or serious harm, and in preventing serious damage to property. Notwithstanding that the underlying order in relation to which the warrant was made is no longer valid, there remains a strong justification for allowing the information be used to prevent significant harm to the public. To provide otherwise would frustrate the protection of the community where communications intercepted in good faith must be relied on to prevent or reduce the commission of a terrorist act or other related serious harm.

The right to life in Article 6 of the ICCPR and the right to liberty and security of the person in Article 9 of the ICCPR

243. The Bill promotes the right to life in Article 6 of the ICCPR and the right to security of the person in Article 9. The right to security of the person requires states to provide reasonable and appropriate measures to protect a person's physical security. The right to life also places a positive obligation on states to protect individuals from unwarranted actions by private persons, such as acts of terrorism. The obligation to protect life requires the State to take preventative operational measures to protect individuals whose safety may be compromised in particular circumstances, such as by a terrorist act. This includes enhancing the capabilities of law enforcement agencies to respond to a heightened terrorist threat.

244. In the existing threat environment, there is a risk that persons subject to control orders may continue to engage in preparatory acts of terrorism. Terrorism is increasingly conducted by smaller groups or lone actors engaging in short-term, low-complexity attack plans, reducing the warning time for attacks, and the ability for agencies to detect, investigate and disrupt attacks before they occur. From a counter-terrorism perspective, the number of persons of concern in Australia is substantially higher than at any point historically, and is expected to increase substantially if, and when, foreign fighters return, placing exceptionally high pressure on agencies. Similarly, returning foreign fighters will necessarily impact the domestic threat environment given their combat and tradecraft experience, and established terrorist networks.

245. Articles 6 and 9 require states to take positive steps to protect individuals' physical security. This can include enhancing the capabilities of law enforcement agencies to respond to a heightened terrorist threat. The amendments to the TIA Act enable law enforcement agencies to better detect, monitor and investigate potential terrorist threats in the heightened threat environment. By enhancing the access to interception to monitor compliance with control orders, agencies can identify risks early and intervene to prevent an act of terrorism.

246. As noted above, returning foreign fighters will necessarily impact the domestic threat environment given their combat and tradecraft experience, and established terrorist networks. Narrowly expanding the grounds on which law enforcement agencies can undertake interception of those subject to control orders will enable them to monitor 'at risk' individuals who have extensive links to terrorist groups, identify potential risks and intervene to prevent an act of terrorism.

247. The amendments allow lawfully intercepted information to be dealt with in relation to state and territory PDOs, and allow lawfully intercepted information obtained under a warrant relating to a control order that is declared void to be used, communicated, recorded or given in evidence in a proceeding when it is necessary to assist in preventing or reducing the risk of the commission of a terrorist act, serious harm to a person, serious damage to property or a purpose connected with a Commonwealth, state or territory PDO regime. This will assist national security and law enforcement agencies to identify terrorism risks early, investigate potential terrorist threats, and thereby prevent an act of terrorism from occurring. Similarly, it will enable agencies to act to prevent individuals from involvement in hostile activity overseas.

The right to a fair trial and fair hearing under Article 14 of the ICCPR

248. Article 14 of the ICCPR protects an individual's right to a fair trial and fair hearing. The right applies to both criminal and civil proceedings and to cases before both courts and tribunals. The right is concerned with procedural fairness and encompasses notions of equality in proceedings, the right to a public hearing and the requirement that hearings are conducted by an independent and impartial body.

249. The Bill engages this right by inserting a provision which enables agencies to further use either lawfully intercepted information or lawfully accessed information obtained under an interception warrant relating to an interim control order which is subsequently declared void. The information may be used, communicated, recorded or given in evidence in a proceeding when it is necessary to assist in preventing or reducing the risk of the commission of a terrorist act, serious harm to a person, serious damage to property or a purpose connected with a Commonwealth, state or territory PDO regime (for example, for the purposes of preparing and applying for a PDO to prevent an imminent terrorist act).

250. The provision is intended to address the unlikely scenario where:

an interim control order has been issued in respect of a person
a law enforcement agency has duly obtained a control order warrant in relation to that person
under that control order warrant, the agency has obtained information that indicates that the person is likely to engage in a terrorist act, cause serious harm to a person, or cause serious damage to property, and
before the agency can act on that information, the interim control order is considered by a court at a confirmation hearing and declared void ab initio pursuant to subsection 104.14(6) of the Criminal Code on the grounds that, at the time of making the interim control order, there were no grounds on which to make the order.

251. As the existence of a valid control order is a condition for the issuing of a control order warrant, the likely effect of a court declaring an interim control order void ab initio pursuant to subsection 104.14(6) of the Criminal Code would be that any control order warrants predicated on that control order would also likely be void ab initio.

252. It is a fundamental principle of the Australian legal system that courts have a discretion as to whether or not to admit information as evidence into proceedings, irrespective of the manner in which the information was obtained. As an example, the Bunning v Cross [6] discretion places the onus on the accused to prove misconduct in obtaining certain evidence and to justify the exclusion of the evidence. This principle is expanded on in Commonwealth statute, [7] where there is an onus on the party seeking admission of certain evidence to satisfy the court that the desirability of admitting the evidence outweighs the undesirability of admitting it, given the manner in which it was obtained. This fundamental principle reflects the need to balance the public interest in the full availability of relevant information in the administration of justice against competing public interests, and demonstrates the role the court plays in determining admissibility of evidence.

253. However, the TIA Act departs from these fundamental principles, by imposing strict prohibitions on when material under those Acts may be used, communicated or admitted into evidence. [8] Under the TIA Act, it is a criminal offence for a person to deal in information obtained under these Acts for any purpose, unless the dealing is expressly permitted under one or more of the enumerated and exhaustive exceptions to the general prohibition. This prohibition expressly overrides the discretion of the judiciary, both at common law and under the Evidence Act, to admit information into evidence where the public interest in admitting the evidence outweighs the undesirability of admitting it, given the manner in which it was obtained. There is also a risk that the prohibition might be interpreted, either by a court considering the matter after the fact, or by an agency considering the question in extremis, to override the general defence to criminal responsibility under the Criminal Code.

254. For this reason, the amendment does not infringe on the right to a fair trial and fair hearing as protected by article 14 of the ICCPR. 'Equality of arms' requires that each party be afforded a reasonable opportunity to present their case under the conditions that do not place them at a substantial disadvantage vis-à-vis another party. [9] This principle essentially denotes equal procedural ability to state the case. This amendment does not engage the 'equality of arms' principle. This is because the amendment does not derogate from, or abridge, existing procedural rights of parties to litigation and would not result in actual disadvantage or other unfairness to the defendant. That is, the amendment does not impact upon opportunities to adduce or challenge evidence or present arguments on the matters at issue. [10]

255. Accordingly, the provisions are a reasonable and proportionate limitation on the right to a fair trial and fair hearing in article 14 of the ICCPR.

The right to privacy under Article 17 of the ICCPR

256. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence. This right may be subject to permissible limitations where those limitations are provided by law and are non-arbitrary. In order for limitations not to be arbitrary, they must be aimed at a legitimate objective and be reasonable, necessary and proportionate to that objective.

257. To justify a limitation of human rights, a legitimate objective must address a pressing or substantial concern and not simply seek an outcome that is desirable or convenient. The Bill is intended to enhance law enforcement agencies' abilities to prevent, detect and investigate acts of terrorism. Terrorism is a significant threat to national security and public safety for a variety of reasons. Firstly, politically motivated, violent acts can indiscriminately threaten the lives and physical safety of Australian citizens. This can perpetuate a climate of fear which is socially divisive, threatening the cohesiveness of Australian society.

258. The current threat environment has meant that terrorism has become a substantial concern for law enforcement agencies and Australian society more generally. The nature of terrorism itself is changing with smaller groups or lone actors engaging in short-term, low-complexity attack plans, reducing the warning time for attacks. From a counter-terrorism perspective, the number of persons of concern in Australia is substantially higher than at any point historically, and is expected to increase substantially if, and when, foreign fighters from the Syrian conflict return. The prevention of terrorist acts and the evolving nature of the threat justify proportionate limitations on selected human rights to support the protection of the broader community.

259. The trigger for limitations on privacy through the authorisation of interception will be the issue of a control order, issued by an independent authority in limited circumscribed circumstances. The control order regime addresses the challenge posed by terrorism and hostile activity in foreign countries by mitigating the threat posed by specific, high-risk individuals. The use of interception to monitor those subject to control orders will support monitoring of compliance with conditions imposed, and better mitigate the risk of terrorism and involvement in foreign conflicts. If a person subject to a control order perceives there is little likelihood of breaches being detected, there is little incentive for them to comply with the terms of the order, and the specific preventative effect of a control order is potentially undermined.

260. Under the current law, agencies have limited means to monitor a person's compliance with a control order, and to detect planning and preparatory acts for a terrorist act or hostile activity overseas. At present, agencies are often limited to physical surveillance, which is ineffective in many cases and is exceptionally difficult to scale due to its resource-intensive nature.

261. The amendments will allow law enforcement officers to apply to an issuing authority for a warrant for the purposes of monitoring a person subject to a control order, to prevent or protect the public from terrorism or prevent a person from assisting hostile activity in a foreign country. Consistent with the existing framework for investigative warrants, agencies will be able to apply for telecommunications service warrants (A-party and B-party) and named person warrants in strictly limited circumstances. An interception warrant may also authorise access to stored communications and telecommunications data associated with the service or device.

262. The amendments establish a number of safeguards to ensure that any interference with privacy is for a legitimate objective and implemented in a proportionate manner. Agencies are required to apply for telecommunications service, named person and B-party warrants in strictly limited circumstances. Likewise, the warrant can only be issued once a number of thresholds are met. It is mandatory that the judge or nominated AAT member take particular circumstances into account before determining whether to issue the warrant. Agencies are not automatically entitled to receive control order warrants in relation to persons who are subject to control orders.

263. First, the judge or nominated AAT member must have regard to whether the privacy of any person would be likely to be interfered with by intercepting, under a warrant, communication made to or from the telecommunications service. The judge or AAT member must also have regard to how much the information obtained may be likely to assist in connection with:

protecting the public from a terrorist act
preventing the provision of support for, or the facilitation of, a terrorist act
preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country, or
determining whether the control order, or any succeeding control order, has been, or is being, complied with.

264. Even where the issuing authority is satisfied that the use of telecommunications interception would be likely to assist in connection with one or more of the above purposes, the issuing authority is not required to issue a control order warrant. The decision to issue a control order monitoring warrant is discretionary, and may only be taken after the issuing authority has had regard to a range of competing public interests, including:

how much the privacy of any person would be likely to be interfered with by interception under a warrant communications made to or from the service;
how much the information obtained under interception would be likely to assist in connection with one or more of the above purposes;
to what extent methods to achieve one or more of the above purposes have been used, or are available to the agency;
how much the use of such methods would be likely to assist in connection with one or more of the above purposes;
how much the use of such methods would be likely to prejudice an agency achieving one or more of the above purposes whether because of delay or for any other reason;
whether interception under a warrant communications made to or from the service would be likely to have the least interference with any person's privacy; and
the possibility that the person subject to the control order:

has engaged, is engaging, or will engage, in a terrorist ac
has provided, is providing, or will provide, support for a terrorist act
has facilitated, is facilitating, or will facilitate, a terrorist act
has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country
has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country
has contravened, is contravening, or will contravene, the control order, or
will contravene a succeeding control order.

265. The requirement to 'have regard to' the above matters requires the issuing authority to give those matters a proper, genuine and realistic consideration, and amounts to a requirement for the issuing authority to consider both the necessity for the control order warrant (including the likelihood that the person has engaged in, is engaging in, or will engage in conduct that is sought to be detected and prevented by the warrant, and the likely value of the information that is sought to be obtained, in light of any previous control order warrants issued in relation to the person) and the proportionality of issuing the control order warrant (including the likely degree of interference with the privacy of the person subject to the control order and any third parties, and the availability of alternative, less intrusive methods).

266. The issuing authority must not issue a B-Party warrant where a control order is in force in relation to another person unless he or she is satisfied that the agency has exhausted all other practicable methods, or it would not otherwise be possible to intercept a telecommunications service used or likely to be used by the person subject to the control order.

267. The Bill will enable state and territory agencies to use or communicate lawfully intercepted information in relation to their respective PDO regimes. PDOs can be used by national security and law enforcement agencies to prevent a terrorist act. Interception at the early stages of a counter-terrorism investigation can underpin applications for PDOs, which in turn can disrupt an attack.

268. The amendments also ensure that an officer or staff member of a state or territory agency who previously communicated, made use of, or made a record of lawfully intercepted information for a purpose that would now be covered by the amendment above would be taken not to have contravened the prohibition on communicating lawfully intercepted information. This will ensure that any officers who have in good faith used or communicated lawfully intercepted information for a purpose connected with state and territory PDO legislation are not liable for a breach of the TIA Act.

269. The amendments will also introduce new deferred reporting arrangements which will permit the chief officer of an agency to delay public reporting on the use of interception in relation to a control order in certain circumstances. Due to the small number of control orders which are issued, immediate reporting of any warrants for interception may enable an individual to determine whether they are the subject of interception. If a person knows, or suspects that there is an interception warrant in place, they are more likely to be able to modify their behaviour to defeat those lawful surveillance efforts. Also, if a person knows or suspects that their communications are not being monitored, the deterrence value of the control order is limited to the extent that the person believes they can engage in proscribed activity without risk of detection. Deferred reporting balances the public interest in timely and transparent reporting with the need to preserve the effectiveness of control orders to prevent individuals from committing terrorist acts.

270. The Bill will place strict controls on the decision to defer public reporting, reflecting the significant public interest in transparency in relation to the use of exceptional, covert powers. First, the decision to defer public reporting may only be made by the Minister, on the advice of the chief officer of the relevant agency. Second, the chief officer and the Minister must each be satisfied that publicly reporting particular information could be reasonably expected to enable a reasonable person to determine that particular surveillance measures are likely to be, or not to be in force at the time he or she makes his or her decision (which will generally be at different times, given the time taken to prepare the Minister's report based on all agencies' input). Third, where public reporting is deferred in relation to particular information, the chief officer of the relevant agency will be required to reconsider his or her decision each year. Fourth, documentary records must be kept in relation to each such decision. Fifth, each such decision is subject to independent oversight by an Ombudsman.

271. The Bill allows for the limited use of either lawfully intercepted information or lawfully accessed information obtained under a warrant relating to an interim control order which is subsequently declared void. The information may be used, communicated, recorded or given in evidence in a proceeding when it is necessary to assist in preventing or reducing the risk of the commission of a terrorist act, serious harm to a person, serious damage to property or a purpose connected with a Commonwealth, state or territory PDO regime. Notwithstanding that the underlying order in relation to which the warrant was made is no longer valid, there remains a strong justification for allowing the information be used to prevent significant harm to the public. To provide otherwise would frustrate the protection of the community where communications intercepted in good faith must be relied on to prevent or reduce the commission of a terrorist act or other related serious harm.

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

272. Article 19 of the ICCPR provides that all persons shall have the right to freedom of expression, including the freedom to speak, receive and impart information and ideas of all kinds, through any media of a person's choice. This right may be subject to restrictions for the purposes of national security or public order where such restrictions are provided by law and are necessary.

273. This Bill engages the right to freedom of expression indirectly, to the extent that individuals subject to control orders may suspect that their communications are being intercepted. This suspicion may cause them to restrict their communications, both in terms of content and audience. The nature of the terrorism threat is evolving, with rapid radicalisation and low sophistication attacks resulting in shorter timeframes for agencies to detect and disrupt attacks. Furthermore, returning foreign fighters will necessarily impact the domestic threat environment given their combat and tradecraft experience, and established terrorist networks. This heightened risk justifies any indirect limitation on free speech for a limited number of specific individuals subject to control orders.

The right to an effective remedy in Article 2(3) of the ICCPR

274. Article 2(3) of the ICCPR protects the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR, including the right to have such a remedy determined by the competent judicial, administrative of legislative authorities or by any other competent authority provided for by the legal system of the State. The right to an effective remedy applies notwithstanding that a violation has been committed by persons acting in an official capacity.

275. The right to an effective remedy applies in relation to violations of other ICCPR rights and freedoms. By establishing a new control order monitoring warrant regime, the Bill indirectly creates a risk that a person's right to protection against arbitrary and unlawful interferences with privacy under Article 17 of the ICCPR may be violated where telecommunications are intercepted in connection with a control order, or information obtained under monitoring warrant is used, in a manner that is unlawful. Accordingly, the Bill engages the right to an effective remedy for any such violation of the right to privacy.

276. The Bill engages the right to an effective remedy by providing immunity, including immunity for ancillary conduct, in limited circumstances, for conduct that could otherwise found a criminal charge. The Bill protects persons from criminal liability for acts done, or omitted to be done, in good faith purportedly under the authority of the TIA Act in connection with an interim control order that has subsequently been declared to be void.

277. The scheme is necessary to ensure the effective performance of the statutory functions of law enforcement agencies, by ensuring that law enforcement officers can be confident that they will not face criminal liability for conduct engaged in in good faith:

under a legal authority provided by the TIA Act that is valid at the time the officer engages in the conduct, or
under a legal authority provided by the TIA Act that the officer reasonably believes to be valid at the time officer engages in the conduct.

278. Not providing this immunity would impair law enforcement agencies' capabilities and willingness to ensure a safe and secure Australia. Because a Court may declare an interim control order void ab initio, absent an immunity, law enforcement officers would potentially face retrospective criminal liability for conduct they engaged in, in good faith, in reliance on a legal authority that was valid at the time. The existence of such a risk would create a powerful deterrent for officers to rely on valid legal authorities.

279. The limitation to the right to an effective remedy is limited to the extent that it is reasonable, necessary and proportionate to the objective of facilitating the fulfilment of law enforcement agencies' functions in protecting the public from acts of terrorism, preventing the engagement in hostile activities in foreign countries, and monitoring persons' compliance with control orders. The immunity is limited to conduct engaged in, in good faith, and does not apply if, at that time, the person knew, or ought reasonably to have known, that the interim control order underpinning the legal authority provided by the TIA Act had been declared void. In particular, the Bill also does not immunise law enforcement agencies (which would ordinarily assume vicarious liability for acts done or omitted to be done by their officers) from civil liability for any such conduct; persons may therefore seek civil remedies for damage or harm suffered as a result of any act done, or omitted to be done, under the authority of the TIA Act where that authority was dependent upon the existence of an interim control order that has subsequently been declared void.

280. The Bill and TIA Act otherwise protect the right to an effective remedy. Unlawful interception of, and access to, a communication, and unlawful uses of lawfully intercepted or accessed information, are criminal offences punishable by up to two years' imprisonment. Individuals may also apply to a court for a civil remedy if they suspect that their communications have been unlawfully intercepted or accessed. Conclusion

281. While the Bill engages a range of human rights, it is compatible with human rights because it promotes some rights, and to the extent that it limits some rights, those limitations are reasonable, necessary and proportionate in achieving a legitimate objective.

282.


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