House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Mark Dreyfus QC MP)

GENERAL OUTLINE

1. This Bill would extend for 12 months the following Australian Federal Police (AFP) counter-terrorism powers that are scheduled to sunset on 7 December 2022:

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the stop, search and seizure powers in Division 3A of Part IAA of the Crimes Act 1914 (Crimes Act)

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the control order regime in Division 104 of the Criminal Code Act 1995 (Criminal Code), and

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the preventative detention order regime in Division 105 of the Criminal Code.

FINANCIAL IMPACT

2. The amendments in this Bill would 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

Counter-Terrorism Legislation Amendment (AFP Powers and Other Matters) Bill 2022

1. 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

2. This Bill would extend for 12 months (until 7 December 2023) the sunsetting dates for stop, search and seizure powers, control orders and preventative detention orders.

3. Australia's current 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. These powers are critical to support Australia's counter-terrorism framework, ensuring there are appropriate tools to protect the community from terrorism risks.

4. Division 3A of the Crimes Act creates a power for the Minister to declare an area a prescribed security zone. Once declared, police have increased powers within the zone, designed specifically to reduce the risk of a terrorist attack or assist the response to a terrorist attack.

5. The control order regime provides for obligations, prohibitions and restrictions to be imposed on a person to protect the public from a terrorist act or to prevent a terrorist act. The regime can only be used with ministerial consent.

6. The preventative detention order scheme provides for a person to be taken into custody and detained for up to 24 hours for an interim order or up to 48 hours for a confirmed order to prevent a terrorist act from occurring, or preserve evidence of, or relating to, a recent terrorist act.

Human rights implications

7. The Bill engages the following rights:

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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)

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

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

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the right to protection against arbitrary and unlawful interference with one's privacy or home in Article 17 of the ICCPR

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

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

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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

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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).

Stop, search and seize powers

8. 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)).

9. 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 they consider that the declaration would assist in preventing a terrorist act occurring, or in responding to a terrorist act (subsection 3UJ(1)).

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

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it is necessary to search the premises for a thing and to seize the thing if they find it there, in order to prevent the thing that is on the premises from being used in connection with a terrorism offence, and

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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.

11. The application of section 3UEA of the Crimes Act is not limited to Commonwealth places or prescribed security zones.

12. Police powers under Division 3A of Part IAA of the Crimes Act achieve the legitimate purpose of protecting Australia's national security, including in particular, preventing and responding to terrorist acts.

Extending the operation of Division 3A of Part IAA

13. Division 3A of Part IAA of the Crimes Act will sunset on 7 December 2022. The Bill would extend the operation of the Division by 12 months, until 7 December 2023.

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

The right to protection against arbitrary and unlawful interference with one's privacy or home in Article 17 of the ICCPR

15. Article 17 of the ICCPR provides that no one shall be subject to arbitrary or unlawful interference with their privacy.

16. In relation to police powers in Division 3A of the Crimes Act, 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 engage rights under Article 17.

17. 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 of the Crimes Act contains safeguards to ensure that police cannot exercise these powers in an arbitrary way:

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with the exception of section 3UEA, the powers in Division 3A can only be exercised in the narrow geographical area of a Commonwealth place

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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

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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)

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the exercise of the AFP's powers is subject to review by the Commonwealth Ombudsman

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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 Independent National Security Legislation Monitor (INSLM) and the Parliamentary Joint Committee on Intelligence and Security (PJCIS)

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an annual report on the exercise of Division 3A powers must be tabled in Parliament, and

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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

18. 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.

Control orders

19. The control order regime in Division 104 of the Criminal Code allows an issuing court to impose obligations, prohibitions and restrictions on a person for the purposes of:

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protecting the public from a terrorist act

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preventing the provision of support for, or the facilitation of, a terrorist act, and

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preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country.

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

21. Subject to the consent of the Minister, 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) of the Criminal Code 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) of the Criminal Code).

22. The conditions that may be imposed on a controlee are outlined in subsection 104.5(3) of the Criminal Code. 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).

23. 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) of the Criminal Code). 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.

24. 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.

25. 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 keep the Australian community safe from those who pose a terrorism risk.

Extending the operation of the control order regime

26. The control order regime in Division 104 of the Criminal Code will sunset on 7 December 2022. The Bill would extend the operation of the Division by 12 months, until 7 December 2023.

27. The control order regime contains safeguards that ensure the regime is reasonable, necessary and proportionate. These safeguards include:

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the Minister must consent to a senior AFP member making an interim control order application to an issuing court (section 104.2)

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a control order can only be issued by an independent judicial authority

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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))

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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))

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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))

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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))

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the controlee may apply to vary an interim control order (section 104.11A)

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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)

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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

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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).

28. Outlined below are the key rights that are likely to be directly engaged by the continuation of the control order regime.

The right to freedom from arbitrary detention and arrest, and the right to liberty and security of the person in Article 9 of the ICCPR

29. 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.

30. The control order regime engages this right as 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) of the Criminal Code).

31. 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.

32. 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) of the Criminal Code is not arbitrary and is consistent with Article 9 because it is imposed by a court and justified on the basis of compelling reasons. Each of the safeguards outlined in paragraph 27 are designed to ensure that the application of the condition under paragraph 104.5(3)(c) of the Criminal Code 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).

33. Accordingly, restrictions and prohibitions imposed by the control order regime are not arbitrary detention. The regime therefore complies with Article 9 of the ICCPR.

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

34. 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) of the Criminal Code), requiring that they not leave Australia (paragraph 104.5(3)(b) of the Criminal Code), 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) of the Criminal Code).

35. 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.

36. Any limitations on the right to freedom of movement imposed by a control order are reasonable, necessary and proportionate. This is embedded in the legislation by requiring the issuing court to be satisfied that the thresholds in paragraphs 104.4(2)(d) and 104.4(2)(c) described above are met before issuing an 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.

37. 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.

Procedural guarantees under Article 14 of the ICCPR

38. 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.

39. 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.

40. 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.

41. 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.

42. 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.

43. 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.

44. 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.

The right to freedom of association in Article 22 of the ICCPR

45. Article 22 of the ICCPR provides that everyone shall have the right to freedom of association with others. 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.

46. The control order regime engages the right under Article 22 as a it allows a court to impose prohibitions and restrictions on a controlee communicating or associating with specified individuals (paragraph 104.5(3)(e) of the Criminal Code). However, any limitation on this right 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 if the prohibition or restriction would substantially assist in achieving the objects of Division 104 of the Criminal Code, including preventing a terrorist act.

47. Any limitation on the freedom of association by the control order regime is comprehensively prescribed by law. Division 104 of the Criminal Code 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.

48. 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.

49. 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.

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 CRC

50. 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. This Bill engages the rights of the child before a court of law because a control order may be obtained in relation to a person as young as 14 years of age.

51. The control order regime may engage the right under Article 3 as a control order may be issued by the court 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.

52. Paragraph 104.4(1)(d) of the Criminal Code 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:

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the age, maturity, sex and background (including lifestyle, culture and traditions) of the person

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the physical and mental health of the person

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the benefit to the person of having a meaningful relationship with their family and friends

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the right of the person to receive an education

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the right of the person to practise their religion, and

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any other matter the court considers relevant.

53. 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).

54. 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.

55. In addition to each of the safeguards outlined in paragraph 27 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:

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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

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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.

56. Accordingly, the control order regime appropriately considers the best interests of the child and complies with Article 3 of the CRC.

Preventative detention orders

57. A preventative detention order (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.

58. A PDO can only be issued by an issuing authority upon application by an AFP member. An issuing authority is appointed in writing by the Attorney-General and may include:

a.

a person who is a judge of a State or Territory Court; or

b.

a person who is a Judge of the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2); or

c.

a person who has served as a judge in one or more superior courts for a period of 5 years and no longer holds a commission as a judge of a superior court, or

d.

a person who:

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holds an appointment to the Administrative Appeals Tribunal as President or Deputy President, and

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is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory; and

iii.

has been enrolled for at least 5 years.

59. The key elements of the PDO regime are:

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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

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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

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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

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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

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a prohibited contact order (PCO) may be sought in relation to a person's detention under a PDO 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

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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 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).

60. 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 may be a proportionate and necessary measure that enable police to disrupt and respond to terrorist activity at an early stage.

61. The PDO regime contains safeguards that ensure the regime is reasonable, necessary and proportionate. These safeguards include:

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an issuing authority may only make a PDO if satisfied that there are reasonable grounds to suspect the person will engage in a terrorist act, or possesses a thing connected with the preparation for, or engagement of a person in, a terrorist act, or the person has done an act in preparation for, or planning, a terrorist act (section 105.4)

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the issuing authority must be satisfied that it is reasonably necessary for the person to be detained under the order (section 105.4(6)(c))

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the issuing authority may refuse to make a PDO unless the AFP provides further information at the request of the issuing authority about the grounds on which the order is sought (section 105.4(7))

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a PDO cannot be applied for, or made, in relation to a person who is under 16 years of age (section 105.5(1))

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special assistance must be provided to a person under a PDO if the police officer has reasonable grounds to believe that the person is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency (section 105.5A). This includes arranging for an interpreter and assisting the person to choose and contact a lawyer

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if a person is under an initial PDO, a subsequent one cannot be made for the same period to assist with preventing the same, or a different, terrorist act (section 105.6), this includes if a person is being detained under a corresponding State preventative detention law (sub-sections 105.6(4) - (6)), and

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an initial PDO can only be extended if the issuing authority is satisfied that detaining the person under the order for the period is reasonably necessary (section 105.10).

62. Since the commencement of the regime in 2005, 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.

Extending the operation of the PDO regime

63. The PDO regime in Division 105 of the Criminal Code will sunset on 7 December 2022. The Bill would extend the operation of the Division by 12 months, until 7 December 2023.

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

The right to freedom from arbitrary detention and arrest, and the right to liberty and security of the person in Article 9 of the ICCPR

65. 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.

66. 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.

67. 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 61, to ensure that a PDO is only authorised where it is not arbitrary.

68. 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.

69. 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

70. 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.

71. 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 Administrative Appeals Tribunal (AAT) for merits review of the decision to make an initial or continued PDO (subsection 105.51(5)).

72. 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.

73. The safeguards contained in the PDO regime uphold the minimum procedural safeguards guaranteed under 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

74. 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.

75. 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).

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

76. 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 engaged where 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) of the Criminal Code.

77. 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 of the Criminal Code. 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

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to prevent serious harm to a person

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to preserve evidence of, or relating to, a terrorist act

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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.

78. 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.

79. 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

80. 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.

81. 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).

82. 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.

Conclusion

83. 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 would provide for the short title of the Act to be the Counter-Terrorism Legislation Amendment (AFP Powers and Other Matters) Act 2022 (the Act).

Clause 2 - Commencement

2. This clause would provide for the commencement of each provision in the Act, as set out in the table. Item 1 in the table would provide that the whole of the Act, would commence on the day after the Act receives Royal Assent.

Clause 3 - Schedules

3. This clause would provide that legislation that is specified in a Schedule to this Act would be amended or repealed as set out in the applicable items in the Schedule concerned, and that any other item in a Schedule to this Act would have effect according to its terms.

Schedule 1 - Amendments

Crimes Act 1914

Item 1 - Subsections 3UK(1), (2) and (3)

4. This item would amend subsections 3UK(1), (2) and (3) of the Crimes Act, which would have the effect of extending the operation of the stop, search and seizure powers for 12 months until 7 December 2023.

Criminal Code Act 1995

Item 2 - Subsections 104.32(1) and (2) of the Criminal Code

5. This item would amend subsections 104.32(1) and (2) of the Criminal Code, which would have the effect of extending the operation of the control order regime for 12 months until 7 December 2023.

Item 3 - Subsections 105.53(1) and (2) of the Criminal Code

6. This item would amend subsections 105.53(1) and (2) of the Criminal Code, which would have the effect of extending the operation of the preventative detention order regime for 12 months until 7 December 2023.