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Senate

Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Bill 2021

Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable Michaelia Cash)

GENERAL OUTLINE

1. This Bill will extend for a further three years the declared areas provisions in sections 119.2 and 119.3 of the Criminal Code Act 1995 (Criminal Code) that are scheduled to sunset on 7 September 2021. This Bill will also make amendments to the Intelligence Services Act 2001 (Intelligence Services Act) to provide that the Parliamentary Joint Committee on Intelligence and Security (PJCIS) may review the operation, effectiveness and proportionality of the declared areas provisions prior to their new sunset date.

2. In extending these critical counter-terrorism provisions, the Bill will implement the Government's response to the recommendations of the recent PJCIS review of these provisions. The PJCIS report was tabled on 25 February 2021.

3. The Bill will also extend for a further 15 months the following Australian Federal Police (AFP) powers that are also scheduled to sunset on 7 September 2021:

·
the control order regime in Division 104 of the Criminal Code
·
the preventative detention order regime in Division 105 of the Criminal Code, and
·
the stop, search and seizure powers in Division 3A of Part IAA of the Crimes Act 1914 (Crimes Act).

4. The Bill will also amend the Independent National Security Legislation Monitor Act 2010 (INSLM Act) to extend the reporting date for the Independent National Security Legislation Monitor's (INSLM's) review of Division 105A of the Criminal Code to as soon as practicable after 7 December 2021.

5. Division 105A provides for continuing detention orders for high risk terrorist offenders. The new reporting date will enable the INSLM to engage in interstate consultations which were disrupted by COVID-19 travel restrictions, and provide a greater body of evidence to review the practical operation of Division 105A.

FINANCIAL IMPACT

6. The amendments in this Bill will have no financial impact on Government expenditure or revenue.

Statement of Compatibility with Human Rights

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

ounter-Terrorism Legislation Amendment (Sunsetting and Other Measures) Bill 2021

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

Overview of the Bill

8. Amendments to the Criminal Code will:

·
extend the operation of the declared areas provisions at section 119.2 and 119.3 for a further three years
·
extend the operation of the control order regime in Division 104 for a further 15 months, and
·
extend the operation of the preventative detention orders regime in Division 105 for a further 15 months.

9. Amendments to the Intelligence Services Act will provide that the PJCIS may review the operation, effectiveness and proportionality of the declared areas provisions (sections 119.2 and 119.3 of the Criminal Code) prior to their new sunset date.

10. Amendments to the Crimes Act will extend the operation of the stop, search and seizure powers in Division 3A of Part IAA for a further 15 months.

11. Amendments to the INSLM Act will provide that the INSLM's review of Division 105A of the Criminal Code must be completed as soon as practicable after 7 December 2021 (5 years after the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent).

Human rights implications

12. This Bill engages the following rights:

·
the right to freedom from arbitrary detention and arrest, and the right to liberty and security of the person in Article 9 of the International Covenant on Civil and Political Rights (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 the presumption of innocence in Article 14 of the ICCPR
·
the right to protection against arbitrary and unlawful interference with one's privacy or home in Article 17 of the ICCPR
·
the right to freedom of association in Article 22 of the ICCPR
·
the right to freedom of expression in Article 19 of the ICCPR
·
the prohibition on cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR and Articles 2 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and
·
the right of the child to have the child's 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).

13. The amendment to the INSLM Act does not engage any applicable rights or freedoms as the amendment is procedural in natural.

SCHEDULE 1 - AMENDMENTS

Current threat environment

14. The current terrorism threat environment continues to be highly relevant in considering the reasonableness, necessity and proportionality of the measures contained in this Bill.

15. Australia's National Terrorism Threat Level is 'probable'. This means there is credible intelligence assessed by Australia's security agencies indicating that individuals and groups have the intent and capability to conduct a terrorist act in Australia.

16. As at 13 July 2021, since the threat level was raised to 'probable' in September 2014:

·
136 people have been charged as a result of 64 counter-terrorism related operations around Australia
·
there have been nine attacks and 21 major counter-terrorism disruption operations in response to potential attack planning in Australia
·
around 120 Australians (or former Australians) who have travelled to Syria or Iraq are believed to have died, and
·
around 50 people have returned to Australia after traveling to Syria or Iraq having joinined groups involved in conflict.

17. Since 2012:

·
around 230 Australians (or former Australians) have travelled to Syria or Iraq to fight with or support violent extremist groups involved in conflict, and
·
around 250 Australian passports have been cancelled or refused in relation to the Syria/ or Iraq conflict.

18. As at 13 July 2021, around 65 Australians (and former Australians) in Syria or Iraq have fought with, or were otherwise associated with religiously motivated violent extremist groups which remain in the region.

Foreign incursions and recruitment: declared areas

19. Section 119.2 of the Criminal Code makes it an offence to enter or remain in an area declared by the Minister for Foreign Affairs. The offence carries a penalty of up to ten years' imprisonment.

20. The offence does not prevent a person from travelling overseas, including to a declared area, for a legitimate purpose. An individual will not contravene the declared areas offence if he or she has entered or remained in the declared area solely for one or more of the following legitimate purposes, as set out in subsection 119.2(3):

·
providing aid of a humanitarian nature
·
satisfying an obligation to appear before a court or other body exercising judicial power
·
performing an official duty for the Commonwealth, a State or a Territory
·
performing an official duty for the government of a foreign country or the government of part of a foreign country (including service in the armed forces of the government of a foreign country), where that performance would not be a violation of the law of the Commonwealth, a State or a Territory
·
performing an official duty for:

i.
the United Nations, or an agency of the United Nations; or
ii.
the International Committee of the Red Cross

·
making a news report of events in the area, where the person is working in a professional capacity as a journalist or is assisting another person working in a professional capacity as a journalist
·
making a bona fide visit to a family member
·
any other purpose prescribed by the regulations.

21. Subsection 119.2(4) provides additional exceptions for serving with the armed forces of the government of a foreign country or any other armed force if a relevant declaration covers the person and circumstances of that service.

22. The declared areas provisions support the legitimate objectives of protecting Australia's national security interests, deterring Australians from travelling to dangerous conflict areas where listed terrorist organisations are engaged in hostile activity, and protecting children by discouraging their parents and guardians from taking them to declared areas.

23. There are two pressing and substantial concerns with Australians travelling to these areas of conflict. The first concern is that Australians who enter or remain in conflict areas put their own lives at risk. This concern also extends to children who have been taken to declared areas by their parents or guardians. The second is that foreign conflicts provide a significant opportunity for Australians to develop the capability and ambition to undertake terrorist attacks.

24. The declared areas provisions in section 119.2 will sunset on 7 September 2021. The Bill extends the operation of section 119.2 by a further three years, until 7 September 2024. This implements Recommendation 1 of the 2021 PJCIS Review of 'Declared Areas' Provisions. The Committee was disinclined to allow these provisions to sunset at a time of possible economic and security fallout from COVID-19 and when international borders might be reopening.

25. In March 2015, the Minister for Foreign Affairs made declarations under section 119.3 in respect of al-Raqqa Province in Syria and Mosul District, Ninewa Province in Iraq. The Minister for Foreign Affairs revoked the declaration in respect of al-Raqqa Province on 27 November 2017. The Minister renewed the declaration for Mosul District on 2 March 2018, before finally revoking it on 19 December 2019. There are currently no declared areas.

26. Outlined below are the rights that are likely to be engaged by extending the operation of the declared areas provisions.

Freedom of movement in Article 12 of the ICCPR

27. Article 12 of the ICCPR provides that persons lawfully within the territory of a State shall have the right to freedom of movement within that State. Section 119.2 restricts this right by making it an offence to enter or remain in a declared area without a legitimate purpose.

28. The ICCPR permits limitations on the right to freedom of movement where restrictions are provided by law and are necessary to achieve a legitimate objective, such as the protection of national security interests. Consistent with Article 12, the declared areas offence limits the right to freedom of movement to achieve the legitimate objective of discouraging travel to areas in which listed terrorist organisations are known to be engaging in hostile activities. Individuals travelling to these locations may return to Australia with increased capabilities to commit terrorist acts domestically, and inspire others to do the same.

29. There are a number of safeguards and procedures which ensure that any limitation on the right to freedom of movement is reasonable, necessary and proportionate to the aim of supporting this legitimate objective of protecting Australia's national security .

30. Firstly, the legitimate purpose exceptions in subsection 119.2(3) ensure that individuals are permitted to enter, or remain, in declared areas in specified circumstances. The legitimate purpose exceptions encompass common purposes for wanting to travel to a declared area, such as providing aid of a humanitarian nature, undertaking official duties for the Government or the United Nations, making news reports in the area while working in a professional capacity as a journalist, and visiting a family member. Further legitimate purposes can be prescribed by regulation if required.

31. The Minister for Foreign Affairs must revoke a declaration if he or she is no longer satisfied that a listed terrorist organisation is engaging in hostile activity in the area. The Minister for Foreign Affairs may also revoke a declaration at any time prior to the expiry of the declaration, when he or she considers that the declaration is no longer necessary or desirable. This may arise in circumstances where, for example, the Minister is still satisfied that a listed terrorist organisation is engaging in hostile activity in a declared area, but the extent of hostile activity has significantly reduced. This ensures that limitations on the right to freedom of movement are proportionate and operate for no longer than necessary in order to achieve the legitimate objective of preventing Australians from travelling to conflict zones where listed terrorist organisations are known to be engaging in hostile activities.

32. Under subsections 119.3(7) and (8), the PJCIS is able to review a declaration before the end of the period during which the declaration may be disallowed under section 42 of the Legislation Act 2003, and at any time during which the declaration is in effect. The PJCIS reports their comments and recommendation to each House of Parliament. The PJCIS's ability to monitor a declaration on an ongoing basis ensures that the declaration, and therefore any limitation on the freedom of movement, is reasonable, necessary and proportionate.

33. Accordingly, the continuation of the declared areas provisions for a further three years does not limit the right to freedom of movement in Article 12 of the ICCPR, except to the extent that it is reasonable, necessary and proportionate to achieving the legitimate objectives identified above. The legitimate purpose exceptions, requirement for the Minister for Foreign Affairs to revoke a declaration if he or she is no longer satisfied of the legislative criteria, and PJCIS oversight provide additional safeguards. These ensure that there is an appropriate balance between individual rights and freedoms, and the need to protect Australia from threats of terrorism.

Procedural guarantees under Article 14 of the ICCPR

34. Article 14 protects a person's right to a fair and public hearing by a competent, independent and impartial tribunal established by law, and the right to be presumed innocent until proved guilty according to law. The declared areas provisions engage this right by providing that a defendant bears an evidential burden should they wish to rely on any exception listed in subsection 119.2(3) above.

35. The declared areas offence operates so that the defendant bears no burden of proof unless they seek to raise facts constituting a defence. Should the defendant choose to rely on any of the exceptions in subsection 119.2(3), they bear an evidential burden to adduce or point to evidence that suggests a reasonable possibility that their travel was for a legitimate purpose or purposes. The prosecution retains the legal burden and must disprove any legitimate purpose defence raised beyond a reasonable doubt, in addition to proving elements of the offence. It is appropriate for an evidential burden of proof to be placed on a defendant where the facts in relation to the defence, being their individual motivation for entering or remaining in a declared area, are peculiarly within their knowledge.

36. The declared areas offence in section 119.2 does not reverse the onus of proof or limit the presumption of innocence. To the extent that the offence limits Article 14 of the ICCPR, that limitation is reasonable, necessary and proportionate to achieve the legitimate objective of protecting Australia's national security. The offence achieves this objective by discouraging Australians from travelling to conflict zones and countering the threat of foreign fighters returning to Australia from areas where the Minister for Foreign Affairs is satisfied that a listed terrorist organisation is engaging in hostile activities. The 2017 INSLM Review into declared areas also considered that the declared areas offence is not inconsistent with the rights protected under Article 14 of the ICCPR.

Control orders

37. The control order regime in Division 104 of the Criminal Code allows an issuing court (the Federal Court of Australia or the Federal Circuit Court of Australia) to impose obligations, prohibitions and restrictions on a person for the purposes of:

·
protecting the public from a terrorist act
·
preventing the provision of support for, or the facilitation of, a terrorist act, and
·
preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country.

38. The control order process consists of two stages: the interim control order and the confirmed control order.

39. Subject to the consent of the Minister for Home Affairs, a senior member of the AFP can apply to an issuing court for an interim control order. The issuing court may make the interim control order if it is satisfied 'on the balance of probabilities' that the requirements outlined in paragraphs 104.4(1)(a) to 104.4(1)(c) have been met and that each of the obligations, prohibitions and restrictions imposed by the control order are 'reasonably necessary, and reasonably appropriate and adapted' to meet the purposes set out above (paragraph 104.4(1)(d)).

40. The conditions that may be imposed on a controlee are outlined in subsection 104.5(3). These include a prohibition or restriction on the controlee being at specified areas or places, a prohibition or restriction on leaving Australia, a requirement that the controlee remain at specified premises between specified times of the day but no more than 12 hours within any 24 hours, a requirement that the person wear a tracking device, and a prohibition or restriction on the person accessing or using specified forms of telecommunication or other technology (including the internet).

41. An interim control order is subject to confirmation by the court as soon as practicable, but at least seven days after the interim control order is made (subsection 104.5(1A)). An interim control order is subject to a confirmation hearing where the issuing court considers the ongoing need for the control order and the conditions imposed by the order. In determining whether to confirm the interim control order, the issuing court must take into account the original request for the interim control order, and the evidence adduced and submissions made by the parties to the proceeding. Following a confirmation hearing, the issuing court can confirm (with or without variation) the interim control order, revoke the interim control order, or declare the interim control order void.

42. A control order can last up to 12 months (or three months if the person is aged between 14 and 17) from the day after the interim control order is made, and successive orders may be issued. A control order cannot be made in relation to a person who is under the age of 14.

Extending the operation of the control order regime in Division 104

43. The control order regime in Division 104 sunsets on 7 September 2021. The Bill extends the operation of the control order regime by a further 15 months, until 7 December 2022. This will ensure these powers do not sunset prior to tabling of the PJCIS report of its most recent review into AFP powers, and provides time for Government to consider any recommendations the PJCIS may make. The control order regime is an important law enforcement power that continues to be vital in light of the enduring nature of the terrorist threat facing Australia.

44. The control order regime has been used judiciously to date - between September 2014 and 16 July 2021, only 20 control orders were issued. As noted in the 2018 PJCIS Review of the police stop, search and seizure powers, the control order regime and the preventative detention order regime report (the 2018 PJCIS AFP Powers report), 'rather than indicating that control orders are not necessary, the Committee considers that the limited use of the provisions reflects the AFP's position that, in circumstances where there is enough evidence to formally charge and prosecute a person, the AFP will take this approach over seeking the imposition of a control order'.

45. The control order regime achieves the legitimate objective of protecting Australia's national security interests, including preventing terrorist acts. In the current threat environment, it is critical that law enforcement agencies have access to preventative powers such as control orders to proactively keep the Australian community safe. The control order regime contains safeguards that ensure the regime is reasonable, necessary and proportionate. These safeguards include:

·
the Minister for Home Affairs must consent to a senior AFP member making an interim control order application to an issuing court (section 104.2)
·
a control order can only be issued by an independent judicial authority (the Federal Court of Australia or the Federal Circuit Court of Australia)
·
the issuing court must be satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions imposed on the controlee are reasonably necessary, and reasonably appropriate and adapted to achieving the purpose of the control order (paragraph 104.4(2)(d))
·
when the issuing court is considering whether each of the obligations, prohibitions and restrictions are reasonably necessary, and reasonably appropriate and adapted, the issuing court must take into account the impact of the conditions on the person's circumstances (including the person's financial and personal circumstances) (paragraph 104.4(2)(c))
·
when an issuing court is considering imposing obligations, prohibitions and restrictions on a young person between the age of 14 and 17, the issuing court must take into account the best interests of the young person (as a primary consideration), the objects of the control order regime (as a paramount consideration), and the impact of the conditions on the young person's circumstances, including the young person's financial and personal circumstances (as an additional consideration) (subsection 104.4(2))
·
the issuing court must appoint a lawyer to act for a young person aged between the age of 14 and 17 in control order proceedings if the person does not have a lawyer acting for them, unless the proceedings are ex parte or if the person has previously refused a lawyer (subsections 104.28(4) and (5))
·
the controlee may apply to vary an interim control order (section 104.11A)
·
the controlee may apply to vary, revoke or declare void a control order as soon as the they are notified that the issuing court has confirmed an order (section 104.18)
·
a control order can only last up to 12 months from the day the interim control order is made, and only three months in the case of young persons between the age of 14 and 17, and
·
the AFP Minister must table in Parliament an annual report about matters relating to the operation of the regime, including outlining the number of control orders sought and the number of control orders made, confirmed, revoked and declared void (section 104.29).

46. Outlined below are the key rights that are likely to be engaged by the continuation of the control order regime. Any further rights that are engaged by the continuation of the control order regime are engaged for the legitimate objective of protecting Australia's national security interests, including preventing terrorist acts. Any limitations on these rights represent reasonable, necessary and proportionate limitations on individual freedoms that are subject to the full suite of safeguards outlined in paragraph 41.

Freedom of movement in Article 12 of the ICCPR

47. Article 12 of the ICCPR provides that persons lawfully within the territory of a State shall have the right to freedom of movement within that State. The control order regime engages the right to freedom of movement as it allows a court to impose prohibitions and restrictions requiring that the controlee not be at specified areas or places (paragraph 104.5(3)(a)), requiring that they not leave Australia (paragraph 104.5(3)(b)), or requiring that they remain at specified premises between specified times each day, or on specified days, but for no more than 12 hours within any 24 hours (paragraph 104.5(3)(c)).

48. The ICCPR permits limitations on the right to freedom of movement where restrictions are provided by law and are necessary to achieve a legitimate objective, such as the protection of national security. Consistent with Article 12, the control order regime is aimed at achieving the legitimate objective of protecting Australia's national security interests, including preventing terrorist acts. The control order regime is also comprehensively prescribed by law. Division 104 provides for the process through which the AFP must seek a control order, the threshold that must be met before an issuing court can issue a control order, and the process for contesting, varying and revoking a control order.

49. Any limitations on the right to freedom of movement imposed by a control order are reasonable, necessary and proportionate. This is guaranteed by the threshold that the issuing court must be satisfied is met before it issues a control order. For example, where the AFP seeks a control order because it may substantially assist in the prevention of a terrorist act, the issuing court must be satisfied on the balance of probabilities that the control order will achieve this objective, and that each of the obligations, prohibitions and restrictions imposed on the individual are reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act. The issuing court must also have regard to the impact of the obligations, prohibitions and restrictions on the person's circumstances (including the person's financial and personal circumstances). The controlee is also entitled to apply to the issuing court to vary or revoke the control order at any time after the confirmation of the interim control order. A control order can last for up to a maximum of 12 months, or three months in the case of young persons between the age of 14 and 17.

50. Accordingly, while the control order regime may limit the right to freedom of movement, any limitation is for the legitimate purpose of protecting Australia's national security, and is reasonable and proportionate.

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

51. 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. One of the conditions that an issuing court may impose under the control order regime is the requirement that the person remain at specified premises between specified times each day, or on specified days, but for no more than 12 hours within any 24 hours (paragraph 104.5(3)(c)).

52. Article 9 regulates, rather than prohibits, detention. Only detention that is 'arbitrary' is prohibited. The United Nations Human Rights Committee has stated that 'arbitrariness' includes the elements of inappropriateness, injustice and a lack of predictability. 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. Detention is not considered arbitrary where it is reasonable, necessary and proportionate to achieving a legitimate objective. The legitimate objective of the control order regime is to protect Australia's national security interests, including preventing terrorist acts. The condition under paragraph 104.5(3)(c) is not arbitrary and is consistent with Article 9 because it is imposed by a court and justified on the basis of compelling reasons.

53. Each of the safeguards outlined in paragraph 419 are designed to ensure that the application of the condition under paragraph 104.5(3)(c) will not result in arbitrary detention. In particular, the issuing court must be satisfied of specified criteria before making a control order, and approve each of the proposed obligations, prohibitions or restrictions. The issuing court must be satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed are reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act. In determining this, the court must have regard to the impact of the obligation, prohibition or restriction on the person's circumstances (including their financial and personal circumstances).

54. Accordingly, restrictions and prohibitions imposed by the control order regime are not 'arbitrary' detention. It therefore complies with in Article 9 of the ICCPR.

Freedom of association in Article 22 of the ICCPR

55. Article 22 of the ICCPR provides that everyone shall have the right to freedom of association with others. The control order regime may limit this right where the issuing court imposes a condition that prohibits or restricts a controlee's communication or association with certain individuals (paragraph 104.5(3)(e)). Article 22(2) provides that there may be limitations placed on the right to freedom of association where those limitations are prescribed by law and are in the interests of national security.

56. The potential limitation of freedom of association by the control order regime is aimed at achieving the legitimate objective of protecting Australia's national security interests, including preventing terrorist acts. The issuing court may only limit a controlee's freedom of association by prohibiting or restricting the controlee's association with specified individuals and only if the prohibition or restriction would substantially assist in achieving the objects of the Division, including preventing a terrorist act. Any limitation on the freedom of association by the control order regime is comprehensively prescribed by law. Division 104 provides for the process through which the AFP must seek a control order, the threshold that must be met before an issuing court can issue a control order, and the process for contesting, varying and revoking a control order.

57. Any limitation of the right to freedom of association by a control order is reasonable, necessary and proportionate. The issuing court must be satisfied on the balance of probabilities that the restriction on association is reasonably necessary, and reasonably appropriate and adapted for the purpose of preventing a terrorist act. In determining this, the issuing court must also have regard to the impact of the condition on the controlee's circumstances, including their financial and personal circumstances. The controlee also has the ability to seek to remove or vary the condition both before and after the interim control order has been confirmed. Furthermore, a control order can only last for up to a maximum of 12 months, or three months in the case of young persons between the age of 14 and 17.

58. Accordingly, while the control order regime may limit the right to freedom of association, any limitation is for the legitimate purpose of protecting Australia's national security interests. Any limitation is prescribed by law and represents a reasonable and proportionate means of achieving the legitimate objective.

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

59. Article 3 of the CRC requires that the best interests of the child shall be a primary consideration in all actions concerning social welfare institutions, courts of law, administrative authorities or legislative bodies. The rights of the child before a court of law are engaged because a control order may be obtained in relation to a person as young as 14 years of age.

60. A control order is expected to be issued in respect of a young person only in the rare circumstance that it is required to prevent the young person from being involved in a terrorist act. It is an unfortunate reality that children have been involved in terrorism incidents and convicted of terrorism offences in Australia.

61. Paragraph 104.4(1)(d) requires that before issuing a control order in respect of a person the court must be satisfied on the balance of probabilities that the control order is reasonably necessary, and reasonably appropriate and adapted to protecting the public from a terrorist act. When considering these matters in relation to a young person aged between 14 and 17, the issuing court is required to consider the 'best interests' of the young person as a 'primary consideration'. In determining what is in a young person's 'best interests', subsection 104.4(2A) provides that the issuing 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.

62. Other rights of the young person set out in the CRC are expressly recognised by subsection 104.4(2A), including the right of the child to education (Article 28) and to practise their religion (Articles 14 and 30). The issuing court may also consider other rights in the CRC, such as the right to health care (Article 24), and the right to not be separated from their parents against their will (Article 9) because of the open-ended nature of the matters the issuing court can consider under subsection 104.4(2A).

63. The issuing court is required to consider the 'best interests' of the young person as a 'primary consideration', but the 'paramount consideration' is achieving the objects of the control order regime. Noting the grave consequences that can result from a terrorist act, it is appropriate that in the hierarchy of matters to be considered by the issuing court, the objects of the control order regime, including protecting the public from a terrorist act, should be the 'paramount' consideration of the issuing court.

64. In addition to each of the safeguards outlined in paragraph 419 above, and the requirement to consider the 'best interests' of the young person as a 'primary consideration', the control order regime also includes the following safeguards targeted at ensuring the needs of a young person are met:

·
reasonable steps must be taken to serve the interim control order, variations of a control order, a revocation of a control order or the confirmation of the interim control order on at least one parent or guardian of the young person, and
·
if a young person does not have a lawyer to act for them in relation to a control order proceeding, the court must appoint a lawyer for the young person, unless the proceedings are ex parte or the young person has previously refused a lawyer.

65. Accordingly, the control order regime protects the best interests of the child and complies with Article 3 of the CRC.

Procedural guarantees under Article 14 of the ICCPR

66. Article 14(3)(c) provides that everyone should be entitled to a trial without delay. While a control order proceeding is a civil proceeding, the requirements of Article 14 may apply because the breach of control order conditions can result in criminal sanctions. Accordingly, it is appropriate that the guarantees under Article 14 apply to control order proceedings. The minimum duration of time between the making of an interim control order and the confirmation hearing of seven days may limit the controlee's right to contest their interim control order as soon as practicable.

67. The purpose of this time is to enable both parties to have sufficient time to prepare for a confirmation proceeding. In practice, confirmation proceedings have occurred many months after the making of a control order. However, the possibility remains under subsection 104.5(1B) that the issuing court can set a confirmation proceeding seven days after the making of an interim control order. The seven day period allows the controlee greater time to prepare for the confirmation proceeding, which may be time consuming and highly complex. This period also allows the AFP to seek an interim control order as soon as it is necessary, without the risk it will be unprepared for a confirmation proceeding seven days after the making of an interim control order.

68. If confirmation proceedings were required to occur immediately after an interim control order was obtained, the AFP could potentially mitigate any risk of not being prepared for the confirmation hearing by delaying obtaining the interim control order. However, such a delay could undermine the preventative purpose of the control order regime and increase the risk to the Australian community.

69. The seven day period between the making of an interim control order and confirmation is appropriate, and a reasonable and proportionate means of achieving the legitimate objective of protecting the community from a terrorist act. This period appropriately balances the need of the AFP to address threats to Australia's national security, while also ensuring that both parties are adequately prepared for a confirmation proceeding.

70. Article 14 also provides that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

71. The Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) provides that a senior AFP member's decision in relation to consent for the purpose of an application to vary an interim control orders is excluded from judicial review. The Administrative Review Council's 2012 Federal Judicial Review in Australia report outlines a number of justifications as to why exempting decisions from review under the ADJR Act may be appropriate. One such justification is that review under the ADJR Act has the potential to fragment or frustrate another legal process which is already under way. The prospect of ADJR Act review of the decision of a senior AFP member would fragment the confirmation proceeding, a date for which has already been set.

72. The exclusion of the decision of a senior AFP member from review under the ADJR Act does not prevent the decision being judicially reviewed under paragraph 75(v) of the Constitution. Accordingly, while the decision of a senior AFP member is excluded from ADJR Act review, the procedural guarantees provided under Article 14 are not restricted as the controlee can contest the need for a control order and its conditions during the confirmation proceeding, and seek review of the decision of a senior AFP member under section 75(v) of the Constitution.

Preventative detention orders (PDO)

73. A PDO under Division 105 of the Criminal Code allows a person to be taken into custody for up to 48 hours for the purposes of either preventing a terrorist attack that is capable of being carried out, and could occur within the next 14 days, or preserving evidence of, or relating to, a recent terrorist act. There are two types of PDOs: initial PDOs, which can last up to 24 hours, and continued PDOs, which can extend detention by a further 24 hours.

74. The 'issuing authority' for an initial PDO is a senior AFP member. The issuing authorities for a continued PDO are outlined in section 105.2, and include a judge of a state or territory Supreme Court and a judge of the Federal Court of Australia or the Federal Circuit Court of Australia, acting in their personal capacity.

75. The key elements of the PDO regime are:

·
a PDO has a limited duration, being a maximum of 48 hours with the requirement to seek the approval of an issuing authority for an extension beyond the initial 24 hours
·
where a PDO is issued for the purpose of preventing a terrorist act, the AFP applicant and the issuing authority must be satisfied of three matters: the terrorist act is capable of being carried out and could occur within the next 14 days, the making of the order would substantially assist in preventing a terrorist act occurring, and detaining the person is reasonably necessary to prevent a terrorist act occurring
·
where a PDO is issued for the purpose of preserving evidence of a terrorist act, the AFP member and issuing authority must be satisfied that the terrorist act has occurred within the last 28 days, that it is necessary to detain the person to preserve evidence of, or relating to the terrorist act, and that detention is a reasonably necessary step in achieving this outcome
·
an AFP member may apply to an issuing authority for a continued PDO which may only be issued after fresh consideration of the merits of the application and the statutory criteria
·
a prohibited contact order (PCO) may be sought where it is reasonably necessary to prevent serious harm to a person, to avoid a risk to action being taken to prevent the occurrence of a terrorist act, or to avoid other specified risks outlined in subsection 105.14A(4), and
·
the key review mechanisms include: the detainee's right to seek merits review of the decision to make or extend an order in the Security Appeals Divisions of the Administrative Appeals Tribunal (AAT), and the detainee's right to bring proceedings in a court relating to the issuing of the order or their treatment in detention (both rights arise after the order expires).

Extending the operation of the PDO regime

76. The PDO regime in Division 105 of the Criminal Code will sunset on 7 September 2021. The Bill extends the operation of the PDO regime by a further 15 months until 7 December 2022. This will ensure these powers do not sunset prior to the PJCIS tabling the report of its most recent review into AFP powers, and provide time for Government to consider any recommendations the PJCIS may make.

77. The PDO regime supports the legitimate objective of protecting Australia's national security interests, including preventing terrorist acts. In recent years, there has been an increase in the threat of smaller-scale, opportunistic attacks by lone actors. Law enforcement agencies have had less time to respond to these kinds of terrorist threats than other terrorist plots. In these circumstances, PDOs are a proportionate and necessary measure that enable police to disrupt and respond to terrorist activity at an early stage.

78. Since the commencement of the regime in 2005 until 16 July 2021, no Commonwealth PDOs have been issued. This reflects the policy intent that these orders should be invoked only in limited circumstances where traditional investigative powers available to law enforcement agencies are inadequate to respond to a terrorist threat.

79. In his 2017 Review of PDOs, the then INSLM concluded that 'in view of the nature and extent of current terrorist threats, I find that a preventative detention regime in terms of div 105 is necessary and proportionate to that threat. There is also adequate protection of individual rights'. The 2018 PJCIS AFP Powers report also concluded that in the threat environment at the time, the PDO regime should be continued to ensure that the AFP is empowered to respond to a range of possible threats to the community.

80. A number of arrangements provide transparency and independent oversight of the regime. The Intelligence Services Act provides for the PJCIS to monitor and review the performance by the AFP of its functions under Part 5.3 (Terrorism) of the Criminal Code (paragraph 29(1)(baa) of the Intelligence Services Act). The PDO regime is contained in Part 5.3. A senior AFP member must also notify the PJCIS in writing as soon as practicable after the making of an initial and continued PDO, and as soon as practicable after the making of a PCO.

81. Outlined below are the rights that are likely to continue to engaged by the operation of the PDO regime.

Freedom from arbitrary arrest or detention in Article 9(1) of the ICCPR

82. Article 9(1) of the ICCPR provides that no one shall be subjected to arbitrary arrest or detention, or be deprived of their liberty except on such grounds and in accordance with such procedures as are established by law. The PDO regime engages these rights as it authorises the detention of an individual for up to 48 hours without charge.

83. The United Nations Human Rights Committee has stated that 'arbitrariness' includes the elements of inappropriateness, injustice and a lack of predictability. 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. Detention will not be arbitrary where, in all the circumstances, it is appropriate, justifiable, reasonable, necessary and proportionate to a legitimate end. As set out above, the PDO regime supports the legitimate objective of protecting Australia's national security interests, including preventing terrorist acts.

84. Detention of a person who is the subject of a PDO is not 'arbitrary' as the PDO regime operates in accordance with the clear and predictable procedures established by Division 105. The PDO regime contains numerous features, which are outlined in paragraph 719, to ensure that a PDO is only authorised where it is not arbitrary.

85. For example, when applying for a PDO, the AFP member must suspect on reasonable grounds that the person will engage in a terrorist act, possesses a thing connected with the preparation for, or engagement of a person in, a terrorist act, or that the person has done an act in preparation for, or planning, a terrorist act. The issuing authority must be satisfied that there are reasonable grounds to suspect one or more of these matters. In this context, a 'terrorist act' must be one that is capable of being carried out, and could occur, within the next 14 days (subsection 105.4(5)). Both the AFP member and the issuing authority must also be satisfied that the making of the PDO would substantially assist in preventing a terrorist act occurring, and that detaining the person for a specified time under the order is reasonably necessary to prevent a terrorist act. This sets a high threshold for obtaining a PDO and is one that is inextricably linked to preventing a terrorist act.

86. In light of the processes and safeguards outlined above, detention under the PDO regime is not 'arbitrary' and complies with Article 9 of the ICCPR.

Procedural guarantees under Article 14 of the ICCPR

87. Article 14 of the ICCPR provides fair trial rights and minimum guarantees in criminal proceedings. These rights may also be engaged in relation to civil matters such as PDOs where criminal penalties may arise for breach of its conditions.

88. The PDO regime upholds Article 14 as it requires AFP members to advise the subject of a PDO of particular matters, including their right to make representations to the senior AFP member in relation to the PDO with a view to having the order revoked, the right to contact a lawyer or a family member, and the right to make complaints to the Commonwealth Ombudsman. Following the expiration of a PDO, the individual may also seek a remedy from a federal court in relation to the PDO, or in relation to their treatment whilst under custody (subsection 105.51(1)). The individual may also apply to the Security Appeals Division of the AAT for merits review of the decision to make an initial or continued PDO (subsection 105.51(5)).

89. Furthermore, section 105.5A provides that where the PDO subject has inadequate knowledge of the English language or a disability, a police officer must arrange for the assistance of an interpreter, and must provide the person reasonable assistance to choose a lawyer and to contact the lawyer.

90. The safeguards contained in the PDO regime uphold the minimum procedural safeguards guaranteed under Article 14 of the ICCPR.

Freedom from arbitrary and unlawful interference with privacy in Article 17 of the ICCPR

91. Article 17 of the ICCPR provides that no-one shall be subject to arbitrary or unlawful interference with their privacy. Under section 105.43, a police officer may use such force as is necessary and reasonable in the circumstances to take identification material from a person if the police officer believes on reasonable grounds that it is necessary to do so for the purpose of confirming the person's identity as the person specified in the PDO. However, the limited interference with privacy is not 'arbitrary' as the process for obtaining identification material is established by law in a process clearly articulated in section 105.43.

92. Furthermore, this limited interference with privacy achieves the legitimate objective of ensuring that the individual is the person specified under the PDO. Failure to properly identify the intended subject of the PDO could result in the wrong individual being subject to detention, and the intended subject of the PDO remaining at large in the community. This risk can be reasonably mitigated by limited interference with the person's right to privacy. In addition, any material obtained must be destroyed within a period of 12 months after the material was obtained (so long as any proceedings in respect of the PDO, or the treatment of a person under a PDO, have not been brought or have concluded).

Freedom of expression in Article 19 of the ICCPR

93. Article 19 of the ICCPR provides that everyone shall have the right to freedom of expression, including the right to seek, receive, and impart information and ideas of all kinds. This right may be restricted where a PCO is made under sections 105.15 (in relation to a person against whom a PDO is being sought) and 105.16 (in relation to a person against whom a PDO is already in force).

94. The purpose of a PCO is to prevent an individual from communicating with specified individuals. The criteria for obtaining a PCO are clearly outlined in section 105.14A. A PCO can be issued where it is reasonably necessary for the purposes of achieving specified objectives, including:

·
to avoid a risk to action being taken to prevent a terrorist act occurring
·
to prevent serious harm to a person
·
to preserve evidence of, or relating to, a terrorist act
·
to prevent interference with the gathering of information about a terrorist act or the preparation for or the planning of, a terrorist act, or
·
to avoid a risk to the arrest of a person suspected of having committed an offence under Part 5.3 of the Criminal Code, the taking into custody a person in relation to whom a PDO is in force, or in relation to whom a PDO is likely to be made, or the service on a person of a control order.

95. The threshold for issuing a PCO ensures the PCO achieves the legitimate objective of protecting Australia's national security interests, including preventing terrorist acts. The threshold for issuing a PCO is high and is only likely to be met in scenarios where the failure to restrict communication could prevent critical preventative action being taken.

96. Accordingly, the making of a PCO does not limit the right to freedom of expression in Article 19 of the ICCPR, except to the extent that it is reasonable, necessary and proportionate to achieving the legitimate objective of protecting Australia's national security interests.

Prohibition on cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR and Articles 2 and 16 of the CAT

97. Article 7 of the ICCPR and Articles 2 and 16 of the CAT provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. This right is expressly protected under section 105.33 which states that an individual being taken into custody, or being detained, under a PDO must be treated with humanity and with respect for human dignity, and must not be subjected to cruel, inhuman or degrading treatment. Furthermore, the questioning of a person detained under a PDO is strictly prohibited, except in limited circumstances, including to ensure the safety and wellbeing of the person being detained (section 105.42). Accordingly, the PDO regime preserves the right of a PDO subject to be treated with humanity and dignity under Article 7 of the ICCPR and Articles 2 and 16 of the CAT.

Stop, search and seizure powers

98. Division 3A of Part IAA of the Crimes Act allows a police officer to stop, question and search persons, and seize items, in a Commonwealth place (such as an airport). These powers are exercised without a warrant. However, in order to exercise these powers, the police officer must suspect on reasonable grounds that the person may have just committed, might be committing, or might be about to commit, a terrorist act (paragraph 3UB(1)(a)).

99. A police officer may also exercise these powers in a prescribed security zone, without requiring any suspicion on reasonable grounds that the person may have just committed, might be committing, or might be about to commit, a terrorist act (paragraph 3UB(1)(b)). The Minister can declare a Commonwealth place to be a prescribed security zone if he or she considers that the declaration would assist in preventing a terrorist act occurring, or in responding to a terrorist act (subsection 3UJ(1)).

100. Section 3UEA in Division 3A allows a police officer to enter premises if the police officer suspects on reasonable grounds that:

·
it is necessary to search the premises for a thing and to seize the thing if he or she finds it there, in order to prevent the thing that is on the premises from being used in connection with a terrorism offence, and
·
it is necessary to exercise the power without the authority of a search warrant because there is a serious and imminent threat to a person's life, health or safety.

101. The application of section 3UEA is not limited to Commonwealth places or prescribed security zones.

102. Police powers under Division 3A of Part IAA achieve the legitimate purpose of protecting Australia's national security, including in particular, preventing and responding to terrorist acts. As at 16 July 2021, police powers under Division 3A of Part IAA have not been used.

Extending the operation of Division 3A of Part IAA

103. Division 3A of Part IAA will sunset on 7 September 2021. The Bill extends the operation of the stop, search and seizure powers regime (police powers) by a further 15 months, until 7 December 2022. This will ensure these powers do not sunset, and provide time for Government to consider any recommendations of the PJCIS' most recent review into AFP powers. The 2018 PJCIS AFP Powers report noted these powers are expected to be only exercised in 'rare and exceptional circumstances' and remain necessary, particularly in light of the number of threats against Commonwealth places that have been disrupted in recent years.

104. In his 2017 Review of police powers, the then INSLM also supported the ongoing utility and importance of these powers despite their limited use. The INSLM's 2017 Review ultimately concluded that the police powers are consistent with Australia's human rights, counter-terrorism and international security obligations, contain appropriate safeguards for protecting the rights of individuals, are proportionate to the current threats of terrorism and to national security, and are necessary.

105. Outlined below are the rights that are likely to be engaged by extending the operation of these provisions.

Freedom from arbitrary or unlawful interference with one's privacy or home in Article 17

106. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy or home. The ability of police to search and seize property from an individual (sections 3UD and 3UE), and from premises (section 3UEA), without a warrant, may limit an individual's right to freedom from arbitrary or unlawful interference with their privacy or home.

107. However, the exercise of these police powers cannot be considered arbitrary because they are reasonable, necessary and proportionate to achieving the legitimate objective of protecting Australia's national security interests, including preventing and responding to terrorist acts. Division 3A contains features to ensure that police cannot exercise these powers in an arbitrary way:

·
with the exception of section 3UEA, the powers in Division 3A can only be exercised in the narrow geographical area of a Commonwealth place
·
a police officer may only exercise the stop, search and seize powers in a Commonwealth place where the officer suspects on reasonable grounds that the person might have just committed, might be committing or might be about to commit a terrorist act (section 3UB), or where the Minister has made a prescribed security zone declaration under section 3UJ
·
the power to enter premises without a warrant can only be exercised where there is a serious and imminent threat to a person's life, health or safety (section 3UEA)
·
the exercise of the AFP's powers is subject to review by the Commonwealth Ombudsman
·
as soon as practicable after the AFP exercises powers under Division 3A, the Commissioner of the AFP must provide a report on the exercise of those powers to the Minister, the INSLM and the PJCIS
·
an annual report on the exercise of Division 3A powers must be tabled in Parliament; and
·
the PJCIS is able to monitor and review the performance by the AFP of its functions under Division 3A, and the basis of the Minister's declaration of a prescribed section zone under 3UJ.

Freedom from cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR and Articles 2 and 16 of the CAT

108. Article 7 of the ICCPR and Articles 2 and 16 of the CAT guarantee that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The exercise of police powers under Division 3A of Part IAA does not subject an individual to treatment contrary to Article 7 of the ICCPR or Articles 2 and 16 of the CAT. Subsection 3UD(2) provides that when conducting a search under section 3UD, a police officer must not use more force, or subject the person to greater indignity, than is reasonable and necessary in order to conduct the search (subsection 3UD(2)). Division 3A of Part IAA therefore complies with Article 7 of the ICCPR and Articles 2 and 16 of the CAT.

Conclusion

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

Notes on Clauses

Preliminary

Clause 1 - Short title

1. This clause provides for the short title of the Act to be the Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Act 2021.

Clause 2 - Commencement

2. This clause provides for the commencement of each provision in the Bill, as set out in the table. Table item 1 provides that the whole of the Act will commence on the day after the Act receives Royal Assent.

Clause 3 - Schedules

3. Each Act specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule. Any other item in a Schedule to this Act has effect according to its terms.

·
Item 1 amends subsection 119.2(6) of the Criminal Code, which has the effect of extending the operation of the declared area provisions for a further three years until 7 September 2024.
·
Items 2, 3 and 4 amend the Intelligence Services Act to provide that the PJCIS may review the operation, effectiveness and proportionality of declared areas provisions (sections 119.2 and 119.3 of the Criminal Code) by 7 January 2024, nine months prior to their new sunset date of 7 September 2024. This will allow the PJCIS to report on the declared areas provisions and Government to consider and implement the PJCIS recommendations as necessary prior to the sunset date.
·
Item 5 amends subsections 104.32(1) and (2) of the Criminal Code, which has the effect of extending the operation of the control order regime for a further 15 months until 7 December 2022.
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Item 6 amends subsections 105.53(1) and (2) of the Criminal Code, which has the effect of extending the operation of the preventative detention order regime for a further 15 months until 7 December 2022.
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Item 7 amends subsections 3UK(1), (2) and (3) of the Crimes Act, which has the effect of extending the operation of the stop, search and seizure powers for a further 15 months until 7 December 2022.
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Item 8 repeals subparagraph 6(1)(a)(ia) of the INSLM Act. This has the effect of removing the INSLM's review of Division 105A of the Criminal Code from the list of reviews that the INSLM may carry out on "his or her own initiative", as the INSLM is required to complete the review.
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Item 9 amends subsection 6(1C) of the INSLM Act, which has the effect of extending the reporting date for the INSLM's review of Division 105A of the Criminal Code from 7 December 2021 (the end of 5 years after the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent), to as soon as practicable after 7 December 2021.


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