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Senate

Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014

Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014

Revised Explanatory Memorandum - Extracts Only

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

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE SENATE TO THE BILL AS INTRODUCED AND SUPERSEDES THE REPLACEMENT EXPLANATORY MEMORANDUM TABLED IN THE SENATE

Statement of compatibility with human rights

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014

6. 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

7. The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (the Bill) makes a range of amendments to a number of Acts, primarily the Crimes (Foreign Incursions and Recruitment) Act 1978, the Criminal Code Act 1995, the Crimes Act 1914, the Australian Security Intelligence Organisation 1979, the Independent National Security Legislation Monitor Act 2010, the Intelligence Services Act 2001, the Telecommunications (Interception and Access) Act 1979, the Australian Passports Act 2005, the Foreign Passports (Law Enforcement and Security) Act 2005, the Terrorism Insurance Act 2003, the Customs Act 1901, the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, the Migration Act 1958, the Foreign Evidence Act 1994, the A New Tax System (Family Assistance) Act 1999, the Paid Parental Leave Act 2010, the Social Security Act 1991 and the Social Security (Administration) Act 1999. It also makes consequential amendments to the Administrative Decisions (Judicial Review) Act 1977, the Sea Installations Act 1987, the National Health Security Act 2007, the Proceeds of Crime Act 2001, and the AusCheck Act 2007.

8. The Bill implements the Government's responses to the evolving national security landscape and in particular, the threat posed by Australians engaging in, and returning from, conflicts in foreign States. The latter category of persons, collectively referred to as 'foreign fighters', may have fought alongside listed terrorist organisations in overseas conflicts and return to Australia with enhanced terrorism capabilities and ideological commitment. This heightens the likelihood of the commission of terrorist acts on Australian soil.

9. The reforms introduce substantive changes to the criminal law regime in respect of terrorism offences. Cumulatively, they enhance the capabilities of Australia's law enforcement and intelligence agencies to respond proactively and effectively to the threats posed by foreign fighters to Australia and its national security interests.

10. These reforms, in part, draw on the work undertaken by various independent bodies. The INSLM has to date prepared four annual reports which have reviewed the operation, effectiveness and implications of Australia's counter-terrorism and national security legislation to ensure that it is operating effectively and appropriately. Of particular relevance for the purposes of the Bill are the recommendations made by the INSLM regarding the foreign fighter threat in his fourth annual report (released on 28 March 2014) and other specific recommendations contained in the second annual report (released on 20 December 2012). The Bill also builds upon the work of COAG which undertook a comprehensive review of Australia's counter-terrorism legislation. The COAG Review was tabled in Parliament by the Attorney-General on 14 March 2013.

11. The Bill incorporates amendments made following the consideration of the Parliamentary Joint Committee on Intelligence and Security's Advisory Report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (the Report of the Parliamentary Joint Committee on Intelligence and Security). Many of these amendments introduce additional accountability measures and further strengthen safeguards in relation to the provisions of the Bill.

Overview of measures

12. Outlined below is a brief summary of the substantive changes to each of the relevant Acts. Consequential and minor amendments which do not engage human rights have not been addressed in this section.

Schedule 1 - main counter-terrorism amendments

Administrative Decisions (Judicial Review) Act 1977

13. The Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) is being amended to include decisions in respect of the suspension of Australian travel documents and 14-day seizure of foreign travel documents as decisions to which the Act does not apply.

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

14. The amendments to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) include:

•: enhancing the ability of the Australian Transaction Reports and Analysis Centre (AUSTRAC) to share information obtained under section 49, and
•: listing the Attorney-General's Department (AGD) as a 'designated agency' under section 5.

Crimes Act 1914

17. The amendments to the Crimes Act 1914 (Crimes Act) include:

•: introducing a delayed notification search warrant scheme for terrorism offences
•: extending the operation of the powers in relation to terrorist acts and terrorism offences in Part IAA, Division 3A until 7 September 2018
•: lowering the legal threshold for arrest of a person without a warrant for terrorism offences and the new 'advocating terrorism' offence to 'suspects on reasonable grounds'
•: amending the definition of 'terrorism offence' so that it applies to offences against Part 4 of the Charter of the United Nations Act 1945 (UN Charter Act), Part 5 to the extent that it relates to the Charter of the United Nations (Sanctions-Al Qaida) Regulations 2008, and offences against Subdivision B of Division 80 of the Criminal Code, and
•: amending the requirement regarding the power to obtain documents such that a person must comply with the notice on a day at least 14 days after the notice is given, or in appropriate circumstances, 3 days after the notice is given.

Criminal Code Act 1995

18. Amendments to the Criminal Code Act 1995 (Criminal Code Act) include:

•: limiting the defence of humanitarian aid for the offence of treason to instances where the person did the act for the sole purpose of providing humanitarian aid
•: creating a new offence of 'advocating terrorism'
•: authorising the Attorney-General to add, remove or alter the alias of a terrorist organisation by declaration, where the Attorney-General is satisfied that the alias or aliases are those of the listed terrorist organisation
•: amending the terrorist organisation listing provision to provide that the 'advocates' limb includes the promotion and encouragement of terrorist acts, in addition to praise of the doing of a terrorist act
•: amending the terrorist organisation training offences so that they include an offence of intentionally participating in training provided to or from a terrorist organisation
•: extending the control order regime in Division 104 until 7 September 2018
•: expanding the criteria for issuing control orders to apply to persons who have engaged in armed hostilities in a foreign State
•: expanding the criteria for issuing control orders to apply to persons convicted of a terrorism related offence in Australia or overseas (but only where conduct relevant to the foreign conviction would be a terrorism offence if engaged in in Australia)
•: amending the criteria for issuing control orders on the basis that a person has trained with or received training from a terrorist organisation to include participating in training provided to or from a terrorist organisation
•: amending the threshold for an Australian Federal Police (AFP) applicant to request a control order by amending the threshold in subparagraph 104.2(2)(a) to 'suspects on reasonable grounds'
•: introducing a requirement that an AFP member serving an interim control order must advise the person that appeal and review rights are available in relation to the order
•: including an indicative maximum curfew period of 12 hours within a 24 hour period for the control order condition to direct a person to remain at specified premises between specified times each day, or on specified days
•: extending the preventative detention order (PDO) regime in Division 105 until 7 September 2018
•: enabling applications for initial PDOs and prohibited contact orders to be made verbally and electronically in urgent circumstances
•: enabling PDOs to be made in respect of a person whose full name is not known, but who is able to be identified as the intended subject of the order
•: amending the issuing criteria for PDOs to make the state of mind of the AFP applicant 'suspect, on reasonable grounds' instead of 'reasonable grounds to suspect', and
•: amending the issuing criteria for PDOs such that a person must be satisfied that it is 'reasonably necessary' as opposed to 'necessary' to detain the subject to preserve evidence of, or relating to, the terrorist act.

Crimes (Foreign Incursions and Recruitment) Act 1978 and new Part 5.5 of the Criminal Code

19. The amendments to the Crimes (Foreign Incursions and Recruitment) Act 1978 (Foreign Incursions Act) and equivalent provisions in Part 5.5 of the Criminal Code include:

•: repealing the Foreign Incursions Act and re-enacting its provisions to Part 5.5 of the Criminal Code
•: amending the definition of 'recruit' to ensure consistency with Part 5.3 (Terrorism) of the Criminal Code
•: removing the requirement that the prosecution must prove that a person intended to engage in a hostile activity in a particular foreign country, rather than in any foreign country
•: aligning the penalties for foreign incursions offences with the penalties for terrorism offences under Part 5.3 of the Criminal Code
•: limiting the exception to the offence of preparing for an incursion into a foreign State to provide humanitarian aid to instances where the person did the act for the sole purpose of providing humanitarian aid
•: replacing the phrase 'engaging in armed hostilities in the foreign State' by inserting a cross-reference to the conduct contained in the definition of 'terrorist act' in section 100.1 of the Criminal Code and constraining it to conduct that would be a 'serious offence' if undertaken within Australia
•: aligning the wording in the foreign incursions regime regarding causing fear of suffering death or personal injury with the wording adopted in subsection 100.1(1) of the Criminal Code concerning intimidation of the public or a section of the public, and
•: creating a new offence of entering a 'declared area' in which a terrorist organisation is engaging in hostile activity.

Schedule 2 - Stopping welfare payments

A New Tax System (Family Assistance) Act 1999

26. A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) is being amended to provide for the cancellation of family assistance for individuals on security grounds.

Schedule 3 - Customs' detention power

Customs Act 1901

29. The Customs Act 1901 (Customs Act) is being amended to overcome vulnerabilities in the detention power of Customs.

Schedule 6 - Identifying persons entering or leaving Australia through advanced passenger processing

Schedule 1 - main counter-terrorism amendments

Part 1 - Amendments

Crimes Act 1914

Section 3-definition of terrorism offence

83. The definition of 'terrorism offence' in section 3 will be expanded so that it applies to:

•: offences against Part 4 of the UN Charter Act and Part 5 of that Act insofar as it relates to the Charter of United Nations (Sanctions-Al Qaida) Regulations 2008
•: Part 5.5 of the Criminal Code, and
•: Subdivision B of Division 80 of the Criminal Code.

84. The importance of a consistent definition of terrorism offence, and the offences which should be included in such a definition, has been noted by the INSLM in his third and fourth annual reports. The practical implication of this amendment is that the provisions in the Crimes Act concerning regulating access to bail before conviction and the imposition of non-parole periods in sentencing of persons convicted of terrorism offences; search, information gathering and arrest powers affecting persons suspected of terrorism offences; the provisions for investigating terrorism offences and the questioning and detention of persons arrested for terrorism offences will consequently apply to the relevant UN Charter Act offences and Criminal Code offences captured by the definition.

85. Section 15AA regulates access to bail before conviction for persons charged with certain offences. Amending the definition of 'terrorism offence' will result in a broader range of offences being offences to which bail will not be granted except in exceptional circumstances. This amendment implements a recommendation from the INSLM's fourth annual report.

86. The amendment to the definition of 'terrorism offences' will also mean that subsection 19AG(1) in respect of non-parole periods applies to a broader range of offences. This will result in the court having to fix a non-parole period of at least three-quarters of the sentence. This amendment implements a recommendation from the INSLM's fourth annual report.

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

87. The amendment engages the limitation on the freedom from arbitrary detention under Article 9 of the ICCPR. In respect of the access to bail before conviction in section 15AA, the denial of bail in limited circumstances is in accordance with procedures that are established by law and cannot be considered arbitrary. The refusal to provide bail to a person charged with, or convicted of, a terrorism offence is intended to recognise the unique and serious threat posed to the Australian public by those alleged to have been involved in terrorism-related activities. The high risk presented by individuals charged with terrorism offences justifies a refusal to grant bail except in exceptional circumstances.

88. Section 15AA is sufficiently mindful of human rights obligations by facilitating the exercise of judicial discretion. Section 15AA recognises the importance of not providing a blanket presumption against bail, even in respect of terrorism offences. Accordingly, subsection 15AA(1) states that bail may still be granted where there are 'exceptional circumstances'. As such, this amendment does not indiscriminately deprive one of their right to freedom from arbitrary detention or arrest. It applies to serious offences such as terrorism and provides safeguards that demonstrate the measure is reasonable, necessary and proportionate in responding to the threat posed by those charged with terrorism offences.

89. The impact of this amendment on the non-parole periods regime may also engage the limitation on the freedom from arbitrary arrest or detention. However, the non-parole periods regime is established clearly by law and does not provide decision-makers with unfettered discretion such that the application of section 19AG could be considered inappropriate, unjust or unpredictable.

90. This amendment achieves the legitimate objective of protecting Australia and its national security interests. Non-parole periods are fixed only for serious crimes such as terrorism offences, treachery and offences against Divisions 80 (treason and urging violence) and 91 (offences relating to espionage and similar activities) of the Criminal Code. The policy rationale is that individuals convicted of terrorism offences should not be released into the community sooner than absolutely required on the basis they have committed serious offences that have endangered public safety.

91. This amendment does not infringe upon an individual's right to freedom from arbitrary detention or arrest. It is a reasonable, necessary and proportionate measure in responding to the continued threat presented by those who have committed serious terrorism related crimes.

Prohibition against the retrospective operation of criminal laws in Article 15 of the ICCPR

92. Article 15 of the ICCPR provides that a penalty heavier than the one that was applicable at the time when the criminal offence is committed cannot be imposed on a person. The application provision for this amendment provides that the amendments to the definition of terrorism offence in subsection 15AA (1) apply in relation to any terrorism offence, whether the offence occurs before, on or after commencement of this item.

93. The application provision will not impose a heavier penalty on a person who has committed such an offence before the commencement of the amendments and is convicted and sentenced after their commencement. The application provision does not allow for any increased maximum penalties, for example offences in new Part 5.5 of the Criminal Code, to apply retrospectively. Therefore penalties heavier than the one that was applicable at the time the criminal offence was committed cannot be imposed.

94. A person who has committed such an offence before the commencement of the amendments and is convicted and sentenced after their commencement will not be subject to heavier penalties but will be subject to a fixed non-parole period of at least three-quarters of the sentence. This amendment does not breach the prohibition against the retrospective operation of criminal laws as the penalty to be imposed cannot be heavier than the one that was applicable at the time.

Extending the operation of powers under Part IAA, Division 3A

95. Part IAA of Division 3A relates to police powers in respect of terrorist acts and terrorism offences. This Division is due to sunset on 15 December 2015. The COAG Review recommended that if the search and seizure powers were to be renewed, the sunset period should be five years, and the relevant legislation should (excepting the machinery provisions), cease to exist after this period. This Bill extends the operation of this Division until 7 September 2018. The sunset period has been extended in recognition of the fact that the terrorist threat remains an ongoing and real phenomenon. This amendment ensures that law enforcement agencies continue to have the necessary counter-terrorism powers to prevent and disrupt terrorist activity.

Right to freedom from arbitrary or unlawful interference with privacy in Article 17 of the ICCPR, right to security of the person in Article 9 of the ICCPR, right to freedom from cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR and the CAT

96. To the extent that Part IAA, Division 3A relates to search and seize powers and entry into premises powers, the regime limits an individual's right to protection against arbitrary and unlawful interferences with privacy and their home. Lawful interference with the right to privacy will be permitted, provided it is not arbitrary.

97. The interference with the right to privacy is proportionate to and limited to the obtaining of relevant information in respect of terrorist acts and terrorism offences. The powers provided by the Division are subject to appropriate limitations which ensure that the use of power is reasonable and necessary. In respect of stopping and searching powers, a police officer may only use this power where a terrorism-related item is believed to be present. A terrorism-related item means a thing that the police officer conducting a search under section 3UD reasonably suspects may be used in a terrorist act, is connected with the preparation for, or the engagement of a person in a terrorist act or is evidence of, or relating to, a terrorist act (section 3UA).

98. In respect of the power of emergency entry into premises without a warrant, the power may only be exercised if the police officer 'suspects, on reasonable grounds' that a thing on the premises is being used in connection with a terrorism offence and that there is a 'serious and imminent threat to a person's life, health or safety' (subsection 3UEA(1)). Moreover, a condition of notification is required within 24 hours of entry to the occupier of the premises (subsection 3UEA(7)). A seizure notice must also be provided where items are seized under sections 3UE or 3UEA within 7 days after the day on which the thing was seized.

99. These measures ensure that any incursions into an individual's right to privacy are reasonable, necessary and proportionate. They require law enforcement officials to be satisfied of thresholds that mean that the powers cannot be used in an arbitrary fashion and that their level of intrusiveness is no more than necessary to achieve a legitimate objective. The legitimate objective advanced by Part IAA, Division 3A is to assist law enforcement officers prevent serious threats to Australia's national security interests. The potentially intrusive nature of the powers under Part IAA, Division 3A is balanced by its use in respect of only terrorism offences, which constitute the gravest threats to safety of Australians.

100. Article 9 of the ICCPR requires States to provide reasonable and appropriate measures, within the scope of those available to public authorities, to protect a person's physical security. Article 7 of the ICCPR guarantees that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In carrying out a search under Division 3A a police officer must not use more force, or subject the person to greater indignity, than is reasonable and necessary to conduct the search. In conducting the search a person must not be detained for longer than is reasonably necessary. Moreover, the use of reasonable force is only in respect of terrorism offences and only considered a measure of last resort in order to conduct searches.

101. Accordingly, the right to security of the person is limited only to the extent that it is reasonable, necessary and proportionate to achieve the legitimate objectives of Division 3A of Part IAA.

Lowering of the arrest threshold

102. The Bill inserts a new section 3WA to provide that a constable may, without a warrant, arrest a person for a terrorism offence or an offence against section 80.2C of the Criminal Code where the constable 'suspects on reasonable grounds' that the person has committed or is committing a terrorism offence or an offence against section 80.2C and that proceedings by summons would not achieve one or more specified purposes. A constable means 'a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory' (section 3 of the Crimes Act).

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

103. 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.

104. This amendment reduces the threshold for arrest in relation to terrorism offences to 'suspects on reasonable grounds'. This amendment to the threshold is established by law and the requirements for such an arrest are clearly outlined in section 3WA. Its use is appropriate, justifiable and sufficiently predictable in its operation as it does not confer unfettered discretion on a constable to utilise powers of arrest in an arbitrary manner.

105. The requirement of 'suspects on reasonable grounds' requires something more than 'a mere idle wondering' and must have a 'positive feeling of actual apprehension or mistrust, amounting to a 'slight opinion''. This indicates that arrest, even under the lower threshold of 'suspicion', is not arbitrary and clear legal standards exist around the necessary mental state required.

106. In his fourth annual report, the INSLM recommended the threshold of 'suspects', noting that the power has a proactive and preventative focus and is of use in a terrorism-related context. An arrest threshold based on suspicion is not a new concept in Australian law and is used in a number of Australian jurisdictions. The arrest threshold in the United Kingdom is 'reasonable grounds for suspecting', a position which is consistent with the European Convention on Human Rights. Lowering the arrest threshold will allow police to intervene and disrupt terrorist activities and the advocating of terrorism at an earlier point that would be possible where the threshold is 'reasonable grounds to believe'.

107. Accordingly, this amendment is a reasonable, necessary and proportionate measure in relation to offences that constitute grave threats to Australia and its national security interests.

Power to obtain documents

108. In order to enhance the efficacy of the power to obtain documents relating to serious terrorism offences in section 3ZQN, the INSLM recommended that an amendment be inserted to provide for compliance with the notice to produce the documents within 14 days. The INSLM considered that this would ensure the power operates as an effective investigatory power. This amendment also overcomes an anomaly where an individual is required to comply with a notice to produce documents within 14 days after the day on which the notice is given for serious non-terrorism offences, but for serious terrorism offences no such time limit is specified.

Right to freedom from arbitrary or unlawful interference with privacy in Article 17 of the ICCPR

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

110. Section 3ZQN applies where an authorised AFP officer considers on reasonable grounds that a person has documents relevant to, and will assist, the investigation of a serious terrorism offence. The officer can give the person a written notice requiring the person to produce documents as soon as practicable covering the matters identified in section 3ZQP that are in the possession (or control) of the person. The types of matters covered in section 3ZQP include documents relating to bank accounts held, whether a specified person travelled or will travel between specified dates or specified locations, whether assets have been transferred to or from a specified persons between specified dates etc. These documents relate to matters that if disclosed could result in an infringement of the right to privacy.

111. Article 17 of the ICCPR accords everyone the right to protection against arbitrary or unlawful interference with their privacy, family, home or correspondence. Lawful interference with the right to privacy will be permitted provided it is not arbitrary and in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. This amendment requires individuals to provide personal documents. However, it is not arbitrary as it has been clearly prescribed by law and the power to obtain documents must be exercised in accordance with the requirements and safeguards contained in the section.

112. This amendment applies to serious terrorism offences which constitute a grave risk to Australia and its national security interests. The regime itself provides important safeguards which ensure the application of these powers are not arbitrary. The power to obtain documents can only be used when the authorised AFP officer considers on reasonable grounds that such documents will be relevant to, and will assist, the investigation of a serious terrorism offence. Furthermore, the only documents that can be obtained are those in the possession or under the control of the person. This amendment states that a notice to produce documents must specify the date by which a person must comply with the notice, being a day at least 14 days after giving the notice or in urgent circumstances, 3 days after the giving of the notice. This provides a reasonable time within which an individual can compile and provide the documents requested.

113. This amendment does not constitute an arbitrary or unlawful incursion into a person's right to privacy. To the extent that there is a restriction on an individual's right to privacy, there are number of important internal safeguards built into the regime to ensure any interference is reasonable, necessary and proportionate.

Delayed notification search warrants scheme for terrorism offences

114. Part IAAA will introduce a delayed notification search warrant (delayed notification search warrant) scheme into Part IAA of the Crimes Act. The existing search warrant provisions in Part IAA of the Crimes Act require the officer executing the warrant to provide a copy of the warrant to the occupier of the premises and allow them to observe the search. The amendments proposed by Part IAAA will enable the AFP (defined in this Part as the 'authorising agency') to conduct searches of a warrant premises without the occupier's knowledge and without notifying the occupier of the premises at the time the warrant is executed. Notice of the search will be required to be given to the occupier of a searched premise at a later date, generally within six months.

115. The delayed notification search warrant scheme will provide the AFP with warrant powers similar to those currently available under Part IAA, with the added ability to exercise those powers covertly. This includes the power to impersonate a person where reasonably necessary to execute the warrant. This is intended to be utilised to allay the suspicion of other residents of the area. In addition, the executing officer or a person assisting is empowered to leave a warrant premise temporarily and subsequently re-enter to continue the execution of the warrant in certain instances where, for example, the occupier returns home and the covert nature of the warrant is at risk. The executing officer or a person assisting is also able to enter the main premise via an adjoining premises, if this is expressly specified in the warrant, where it is required to avoid comprising the prevention or investigation of the relevant offences. This power is limited to accessing the warrant premise and does not allow for the search and seizure of things in that adjoining premise. Notice is to be given to the occupier of an adjoining premises entered to gain access to the main premise at a later date, generally within six months.

116. The ability of federal law enforcement officers to conduct a delayed notification search warrant is critical to enable covert investigation of terrorism offences. Operational experience has shown that the individuals and groups who commit such offences are highly resilient to other investigative methods and pose significant threats to the Australian community. The value of a adopting a delayed notification search warrant scheme for terrorism offences was also recognised in the INSLM's fourth annual report.

117. A delayed notification search warrant will only be used in limited operational situations and will be subject to a number of safeguards to balance the legitimate interests of the Commonwealth in preventing terrorism with the need to protect human rights.

Right to freedom from arbitrary or unlawful interference with privacy in Article 17 of the ICCPR, right to life in Article 6 of the ICCPR, right to freedom from cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR and the CAT

118. Article 17 of the ICCPR accords everyone the right to protection against arbitrary or unlawful interference with their privacy, family, home or correspondence. Accordingly, lawful interference with the right to privacy will be permitted, provided it is not arbitrary. The term 'unlawful' means no interference can take place except in cases authorised by law. The use of the term 'arbitrary' means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted 'reasonableness' to imply that any limitation must be proportionate and necessary in the circumstances.

119. The delayed notification search warrant scheme limits the right to privacy by enabling law enforcement officers to enter a warrant premises, including a suspect's home or place of work, without the knowledge or consent of the occupier. The limitation, however, serves the legitimate aim of assisting the AFP to effectively prevent or investigate Commonwealth terrorism offences. This is because allowing for an occupier to be notified of a search warrant sometime after the warrant was executed or otherwise granted provides the AFP with the opportunity to gather evidence, identify additional suspects and locate further relevant premises and evidence while keeping the existence of an ongoing investigation confidential.

120. Without this power, there is a risk, particularly in relation to terrorist organisations, that the occupier will alert his or her criminal associates to police interest in their activities and that evidence will be destroyed or removed, jeopardising the success of a law enforcement operation. A delayed notification search warrant will therefore provide the AFP with a significant tactical advantage, enabling AFP officers to conduct further investigations without a suspect being aware of their interest. This will achieve the legitimate objectives of increasing the opportunity for successful investigations of terrorism offences and enhancing the ability of the AFP to gather information about planned operations with a view to preventing a terrorism offence from being committed.

121. The delayed notification search warrant scheme will only be utilised in limited circumstances where it is reasonable and proportionate to do so and will be subject to a number of safeguards, including a two-step authorisation process, rigorous reporting requirements and oversight by the Commonwealth Ombudsman, to ensure that the powers cannot be used arbitrarily to limit an individual's right to privacy.

122. Part IAAA clearly identifies that the delayed notification search warrant may only be applied for and authorised in relation to Commonwealth terrorism offences, with a maximum penalty of imprisonment of seven years or more. This penalty threshold is consistent with that which applies to telecommunications interception warrants and is higher than the threshold for other Commonwealth covert schemes, such as surveillance devices and controlled operations, which are both available in respect of offences with maximum penalties of imprisonment of three years or more. Accordingly, a seven year threshold is considered to be sufficiently high for making an application for and issuing of a delayed notification search warrant, ensuring that these warrants will only be used in the investigation of the most serious terrorism offences.

123. Furthermore, an application for a delayed notification search warrant will be subject to a two-step authorisation process to ensure that a warrant is subject to prior scrutiny both internally by the AFP and by an independent person before it is authorised. An officer must first obtain internal authorisation from the Commissioner (or their delegate) of the AFP (defined in the Schedule as the 'chief officer'). If the AFP Commissioner authorises the application, the officer may then apply to an eligible issuing officer for approval. An eligible issuing officer includes a Judge of the Federal Court of Australia, or of the Supreme Court of a State or Territory, who consents to be nominated to act as an eligible Judge for this purpose. An eligible issuing officer also includes a Deputy President or a full-time senior member of the Administrative Appeals Tribunal (AAT).

124. There is strong precedent in Commonwealth legislation for extending eligibility to act as an issuing officer for instruments relating to covert police powers to members of the AAT. AAT members are already eligible to act as issuing officers for the purposes of surveillance device warrants, telecommunications interception warrants, stored communication warrants, and for extending controlled operation authorisations. There are also strong operational reasons for including AAT members within the categories of eligible issuing officers for delayed notification search warrants to assist in urgent operational contexts, or where operations are being conducted in remote areas.

125. To issue the delayed notification search warrant, both the AFP Commissioner and the eligible issuing officer will need to be satisfied that:

•: there are reasonable grounds to suspect that one or more eligible offences have been, are being, are about to be or likely to be committed
•: entry to and search of the premises will substantially assist in the prevention of, or investigation into, those offences, and
•: there are reasonable grounds to believe that it is necessary for the entry and search of the premises to be conducted without the knowledge of any occupier of the premises.

126. In addition, the eligible issuing officer must have regard to a number of key factors, including:

•: the extent to which the exercise of the power under the warrant would assist the investigation into the offences to which the application for the warrant relates
•: the existence of alternative means of obtaining the evidence or information sought to be obtained
•: the extent to which the privacy of any person is likely to be affected
•: the nature and seriousness of the relevant offences to which the application for the warrant relates
•: any conditions to which the warrant should be subject
•: whether allowing entry to an adjoining premises is reasonably necessary, and
•: the outcome of any previous application in respect of the premises for a delayed notification search warrant or a search warrant under Division 2 of Part IAA of the Crimes Act, so far as this is known to the eligible issuing officer.

127. The above will ensure that a delayed notification search warrant is not authorised where it is not appropriate to do so, for example, where there would be a disproportionate impact on the occupier's privacy or there is a more appropriate means of obtaining the evidence or information sought.

128. The delayed notification search warrant that is issued must clearly specify, amongst other details: the name of the applicant; the address of the warrant premises; the offence to which the warrant relates; the kinds of things that may be searched for, seized, copied, photographed, recorded, marked, tagged, operated, printed, tested or sampled; whether the warrant authorises a thing to be placed in substitution for a thing seized under the warrant and whether the warrant authorises the re-entry of the warrant premises to return anything to the warrant premises, or to retrieve anything substituted at the warrant premises.

129. As a safeguard, section 2H of Subdivision C prohibits the making of false or misleading statement in an application for delayed notification search warrant with a penalty of imprisonment for two years.

130. Part IAAA also contains measures to ensure than an occupier receives notification that a warrant has been authorised and/or executed as soon as practicable without jeopardising the investigation. A delayed notification search warrant must be executed within 30 days of issue, with notice to be given within six months of execution. An extension of time may be granted on more than one occasion, provided that the extension is not by more than six months at a time and it does not cause notice of the search to be given more than 12 months after the date the warrant was issued. An extension beyond 12 months may be provided where the Minister has issued a certificate approving an application for extension and the issuing officer is satisfied that there are reasonable grounds for granting such an extension. This recognises that, in limited circumstances, investigations may be lengthy and early notification would compromise operational outcomes. Each extension can be for no more than six months.

131. Part IAAA will also impose rigorous reporting requirements on executing officers and the AFP Commissioner, to ensure that delayed notification search warrant are authorised and executed in accordance with the provisions of Part IAAA. This includes requirements for executing officers to provide written reports to the AFP Commissioner as soon as practicable after the warrant is executed. The AFP Commissioner must also report on each delayed notification search warrant applied for and issued to the Minister each financial year, with the report to be tabled in Parliament within set time limits. The Ombudsman will be required to inspect the records of the AFP at least once every six months to determine the extent of compliance with the scheme. Accordingly, the AFP will be required to keep detailed records of all delayed notification search warrant that have been issued and/or applied for by that agency. The Ombudsman is given a range of powers to assist in its oversight role, including the power to enter agency premises and require staff members of the agency to provide further information as required. This reporting function would also include the power to comment on the annual report that the AFP would need to prepare on their use of these warrants, which must also be tabled. The Ombudsman will be required to give a written report on its inspections to the Minister at six monthly intervals, which must be tabled in both Houses of Parliament within set time limits.

132. Finally, evidence obtained under a delayed notification search warrant will be subject to the normal rules of criminal procedure (including evidential burdens and rules of admissibility under the Evidence Act 1995 (the Evidence Act)). Courts will retain their current discretion under the Evidence Act and the common law to admit or exclude any illegally or improperly obtained evidence if any of the provisions relating to the issue and execution of a delayed notification search warrant are not complied with.

133. A delayed notification search warrant may also authorise law enforcement officers to covertly enter neighbouring premises to gain access to target premises. Although the exercise of this power can limit the right to privacy of the occupiers of those premises, this power is necessary to assist Part IAAA in achieving its legitimate law enforcement aims and is subject to a number of safeguards which will ensure it is a reasonable and proportionate means of achieving these aims.

134. In particular, this power is limited to authorising entry onto neighbouring premises for the purpose of obtaining access to the target premises and cannot authorise the search of the neighbouring premises for evidence. Access to neighbouring premises will only be permissible where it is specifically authorised by the warrant, and will require the issuing officer considering the warrant application to be satisfied that entry to the neighbouring premises is reasonably necessary to avoid compromising the investigation. An occupier of the neighbouring premises will be required to be notified in the same manner as the occupier of the main premises, and law enforcement officers will be subject to the same reporting and oversight requirements in relation to the neighbouring premises as for target premises. As above, if any of these requirements are not complied with, the courts will retain their discretion under the Evidence Act to admit or exclude any illegally or improperly obtained evidence. Accordingly, although Part IAAA will impact the right to privacy, the limitation will be reasonable, necessary and proportionate to achieve the legitimate aim of improving the effectiveness of investigations of Commonwealth terrorism offences.

135. The power to seize and/or move items away from premises for examination and processing will also limit the right to privacy under Article 17. This power is intended to allow the AFP to deal more effectively with specific items, including electronic equipment such as laptop computers and smartphones, located during searches to support the legitimate purpose of investigating and preventing terrorism offences.

136. This power will remain subject to significant safeguards that ensure these powers are used in accordance with the right to protection against arbitrary and unlawful interference with privacy. This includes the threshold that, for a thing to be moved for examination or processing, the eligible officer must suspect on reasonable grounds that the thing contains or constitutes a thing that may be seized under the warrant and that it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance. This item will be returned when the AFP Commissioner is satisfied that it is no longer required and, although unlikely, if there is any damage during this process, compensation will be available. For an item to be retained or forfeited, the eligible issuing officer, on application by an eligible officer from the AFP, would need to be satisfied that there are reasonable grounds to suspect that if the thing is returned to the owner, it is likely to be used in the commission of a terrorist act, offence, or a serious offence within the meaning of Part IAA. Details of those items seized and/or moved will be recorded as part of the delayed notification search warrant process and, in turn, in reports provided to the Ombudsman and to the Minister by the AFP.

137. Accordingly, to the extent that this power may affect a person's right to protection against arbitrary and unlawful interference with their privacy, these effects are reasonable, necessary and proportionate in achieving the intended outcome of Part IAAA.

138. Article 6(1) of the ICCPR guarantees every human being the inherent right to life, stating that no one shall be arbitrarily deprived of his or her life. Article 7 of the ICCPR guarantees that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Part IAAA potentially engages these two rights by allowing for the use of force in the execution of delayed notification search warrant. Importantly, the power to use force against a person or a thing, whether at the main or adjoining premise, is limited to where necessary and reasonable in the circumstances.

139. It is not anticipated that any powers to use force against persons would be required to be exercised during the execution of a delayed notification search warrant. However, it is possible that an executing officer may be required to use force against persons or things in exceptional and unforeseen circumstances. For example, an officer may need to break a lock to access a compartment in a premises, or possibly restrain a person who unexpectedly enters onto premises and seeks to obstruct the execution of a delayed notification search warrant. Compensation is available for damage to electronic equipment where insufficient care was exercised in the operation of the equipment.

140. Additionally, the law enforcement officers that will be empowered to use force against a person under Part IAAA are trained and authorised to do so under AFP Act. Accordingly, any potential limitation on Article 6 or 7 of the ICCPR imposed by Part IAAA would be reasonable, necessary and proportionate.

141. Part IAAA is compatible with human rights as, to the extent that it may limit human rights, it serves a reasonable and proportionate means of achieving the legitimate objective of improving the ability of the AFP to prevent and investigate Commonwealth terrorism offences.

Criminal Code Act 1995

Humanitarian exception for treason

142. The Bill amends subsection 80.1AA(6) to alter the humanitarian aid defence so that it is applicable only where conduct is undertaken for the sole purpose of providing humanitarian aid. This reflects other humanitarian aid defences in paragraph 102.8(4)(c) and 390.3(6) of the Criminal Code. This ensures that the underlying policy objectives of the relevant offence is not compromised and that persons who engage in treasonous conduct cannot point to a single act, possibly part of a broader conduct, to enliven the defence. It will also ensure, in an appropriately limited manner, that humanitarian aid can continue to be used as a defence.

143. The human rights considerations set out below in respect of the humanitarian aid exception to foreign incursions offences will be equally applicable in this instance.

New offence of 'advocating terrorism'

144. The Bill introduces the offence 'advocating terrorism' in Subdivision C of Division 80 of the Criminal Code. A person commits an offence if they intentionally counsel, promote, encourage or urge the doing of a terrorist act or the commission of a terrorism offence and the person is reckless as to whether another person will engage in a terrorist act or commit a terrorist offence. 'Terrorist act' has the same meaning as in section 100.1 of the Criminal Code and 'terrorism offence' has the same meaning as in subsection 3(1) of the Crimes Act. The offence carries a maximum penalty of five years' imprisonment.

Freedom of expression in Article 19(2) of the ICCPR, freedom from cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR and CAT

145. Article 19(2) provides that everyone has the right to freedom of expression. However, Article 19(3) provides that the freedom of expression may be limited if it is necessary to achieve a legitimate purpose, such as it is necessary in the interests of national security. The restriction on free expression is justified on the basis that advocating the commission of a terrorist act or terrorism offence is conduct which jeopardises the security of Australia, the personal safety of its population and its national security interests. This is because of the severe nature of actions which are defined as 'terrorist acts' in section 100.1. Terrorist acts constitute the gravest threats to the welfare of Australians as they include causing serious physical harm or death, damaging property, creating a serious risk to the health or safety of the public and interfering with electronic systems. It is reasonable that such conduct should not be advocated and that reasonable steps should be taken to discourage behaviour that promotes such actions.

146. Importantly, deterring the advocating of such acts, which can at its most serious include causing a person's death, promotes the rights of others (in accordance with Article 19(3)(a)). In this instance, this may include protecting other people's right to life in Article 6 of the ICCPR.

147. These restrictions on freedom of expression are a reasonable, necessary and proportionate measure in order to protect the public from terrorist acts and the terrorism activities that the relevant terrorism offences are designed to deter. The new offence is an important tool to assist disrupting and preventing the threat posed by foreign fighters. Individuals who have travelled overseas to participate in foreign conflicts often return with radicalised ideologies that includes violent extremism. Advocating terrorism heightens the probability of terrorist acts or the commission of terrorism offences on Australian soil and encourages others to join the fight overseas. The criminalisation of behaviour which encourages terrorist acts or the commission of terrorism offences is a necessary preventative mechanism to limit the influence of those advocating violent extremism and radical ideologies.

148. The existence of a good faith defence in section 80.3 for the offence created by new section 80.2C provides an important safeguard against unreasonable and disproportionate limitations of a person's right to freedom of expression. The good faith defence ensures that the communication of particular ideas intended to encourage public debate are not criminalised by the new section 80.2C. In the context of matters that are likely to pose vexed questions and produce diverse opinion, the protection of free expression that attempts to lawfully procure change, points out matters producing ill-will or hostility between different groups and reports on matters of public interests is vital. The maintenance of the right to freedom of expression, including political communication, ensures that the new offence does not unduly limit discourse which is critical in a representative democracy.

149. This legislative safeguard, taken together with the ordinary rights common to criminal proceedings in Australian courts, provide certainty that human rights guarantees are not disproportionately limited in the pursuit of preventing terrorist acts or the commission of terrorism offences. Accordingly, the limitation on the right to freedom of expression resulting from the offence in new section 80.2C is reasonable, necessary and proportionate.

150. Article 7 of the ICCPR and CAT prohibits conduct which is regarded as cruel, inhuman or degrading treatment. The maximum penalty of five years' imprisonment for the new offence is not so significant that it would constitute cruel, inhuman or degrading treatment or punishment. The maximum penalty of five years' imprisonment is considered a proportionate response given the severity of the potential consequences of encouraging others to engage in terrorist acts or commit terrorism offences. The penalty implements a gradation consistent with established principles of Commonwealth criminal law policy, as documented in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. The Guide suggests that the maximum penalty should aim to provide an effective deterrent to the commission of the offence, and should reflect the seriousness of the offence within the relevant legislative scheme.

151. Furthermore, the Guide provides that a heavier penalty is appropriate where the consequences of an offence are particularly dangerous or damaging. The penalty for the new offence reflects the gravity of the crime and addresses the significant national security threat presented by individuals who advocate the commission of terrorist acts or terrorism offences. Accordingly, the maximum penalty of five years' imprisonment is reasonable, necessary and appropriate and would not constitute cruel, inhuman or degrading treatment or punishment.

Definition of 'terrorist organisation'

152. Currently, 'advocates' the doing of a terrorist act is defined in section 102.1(1A) to mean:

a): the organisation directly or indirectly counsels or urges the doing of a terrorist act; or
b): the organisation directly or indirectly provides instruction on the doing of a terrorist act; or
c): the organisation directly praises the doing of a terrorist act in circumstances where there is a substantial risk that such praise might have the effect of leading a person (regardless of his or her age or any mental impairment that the person might suffer) to engage in a terrorist act.

153. The Bill amends the definition of 'advocates' in subsection 102.1(1A) to provide that the term includes promotes or encourages in addition to counsels or urges the doing of a terrorist act. The effect of this amendment is that where the Minister is satisfied on reasonable grounds that an organisation directly or indirectly counsels, promotes, encourages or urges the doing of a terrorist act the Governor-General may make a regulation listing the organisation as a terrorist organisation.

154. A further amendment to subsection 102.1(2) now states that a 'terrorist act' includes a reference to the doing of a terrorist act even if a terrorist act does not occur, a reference to the doing of a specific terrorist act and a reference to the doing of more than one terrorist act.

155. Human rights do not apply to organisations, only individuals. As this amendment does not impact an individual's freedom of expression, no human rights are engaged in this measure.

Aliases of terrorist organisations

156. This amendment allows the Attorney-General to make a declaration that an alias be added or omitted to a terrorist organisation which is specified by a regulation. The policy rationale for the amendment is to allow a terrorist organisation listing to be kept up-to-date where there are rapid changes to aliases or names by which an organisation is also known, provided that the Attorney-General remains satisfied that the alias is the same entity as the listed organisation. The fluidity with which terrorist organisations form, evolve or adopt new aliases has been recently illustrated in the case of the Islamic State of Iraq and the Levant which changed its name to Islamic State. The efficacy of the terrorist listing regime is dependent on its ability to react efficiently to these changes, especially where terrorist organisations adopt aliases but are otherwise the same entity. The INSLM's fourth annual report recommended the implementation of this measure. This amendment overcomes a practical difficulty in the terrorist listing regime and does not engage any human rights.

Intentionally participating in training provided to or from a terrorist organisation

157. Section 102.5 makes it an offence to intentionally provide training to, or intentionally receive training from a terrorist organisation where the person is reckless to the fact that the organisation is a terrorist organisation. This Bill expands the offence to apply to situations where a person participates in training with a terrorist organisation reckless to the fact that organisation is a terrorist organisation. This is designed to capture circumstances in which there are no formally defined teaching and learning roles in a training session, so that the individual participants are not readily identifiable as either providing or receiving training.

Right to freedom of association in Article 22 of the ICCPR

158. Article 22 of the ICCPR protects the right of all persons to group together voluntarily for a common goal and to form and join an organisation. Article 22(2) provides that this right may be limited for the purpose of national security. This amendment, and more broadly the terrorist organisation listing regime, limits the right of freedom of association to prevent people engaging with and participating in terrorist organisations. Terrorist organisations present a threat to the security of Australia and often seek to harm Australians and our democratic institutions. The statutory definition of a 'terrorist organisation' requires that these bodies directly or indirectly engage in, prepare, plan, assist in or foster the doing of a terrorist act which includes the causing of serious harm to persons or death and serious damage to property. Due to the severity of the danger posed by terrorist organisations, it is reasonable, necessary and proportionate to limit the right of individuals who by their association with a terrorist organisation pose a threat to Australians.

Retention of the control order regime in Division 104

159. The Bill extends the operation of the control order regime until 7 September 2018, following the expiration of the sunset period on 16 December 2015. This implements the Government's response to the COAG Review which recommended the retention of the control order regime with additional safeguards. The control order regime has been retained in recognition of the enduring nature of the terrorist threat and the importance of providing law enforcement agencies with the necessary tools to respond proactively to the evolving nature of the threat presented by those wishing to undertake terrorist acts against Australia.

160. The process through which a control order is obtained pursuant to Division 104 is:

•: a senior AFP member must seek the Attorney-General's consent to request an interim control order on one of two grounds (this Bill expands the number of grounds, which are discussed in greater detail below)
•: once the Attorney-General's consent has been granted, the senior AFP member may request a control order from an issuing court
•: the issuing court may only order an interim control order where it is satisfied on the balance of probabilities that making the order will satisfy the grounds on which the order is requested
•: the issuing court must also be satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the subject of the order is reasonably necessary, and reasonably appropriate and adapted, for the purposes of protecting the public from a terrorist act
•: as soon as practicable (but at least 72 hours after) the issue of an interim control order, the AFP must decide whether to request the court to confirm the control order
•: upon hearing submissions by the AFP, the subject of the control order, his/her lawyer, or in some instances the Queensland public interest monitor, the court may declare the interim control order void, revoke it or confirm it
•: a confirmed control order may last for a period of up to 12 months from the date of the original interim control order, and
•: the AFP or the subject of the control order may request that the court revoke or vary a confirmed control order at any time after it is served upon a person.

161. Control orders are a protective mechanism and constitute an important element of the counter-terrorism strategy. They provide the AFP with a means to request that a court impose obligations, prohibitions and restrictions on a person for the purpose of protecting the public from a terrorist act. The control order regime has been used judiciously to date - at September 2014, two control orders have been issued. This reflects the policy intent that these orders do not act as a substitute for criminal proceedings. Rather they should only be invoked in limited circumstances and are subject to numerous legislative safeguards that preserve the fundamental human rights of a person subject to a control order.

162. The control order regime in Division 104 engages several human rights. Outlined below are the rights that will are likely to be engaged by the continuation of the control orders regime.

Freedom from arbitrary detention and arrest in Article 9 of the ICCPR, right to freedom of movement in Article 12 of the ICCPR, right to a fair trial in Article 14 of the ICCPR, freedom of association in Article 22 of the ICCPR, right to privacy in Article 17 of the ICCPR, right to respect for family in Articles 17 and 23 of the ICCPR, right to freedom of expression in Article 19(2) of the ICCPR, right to work under Article 6 of ICESCR

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

164. The control order regime is comprehensively prescribed by legislation. A person subject to a control order will only have their right to freedom of movement restricted on grounds clearly established by domestic law and on grounds which are in accordance with the requirements of Division 104. As well as being authorised by law, the purpose of the control order regime is to protect the Australian public from a terrorist act. This is because the circumstances in which a control order may be sought, including the expanded grounds proposed by this Bill are: where the order would 'substantially assist in preventing a terrorist act', or where a person has been providing training to or receiving from or participating in training with a listed terrorist organisation, engaging in a hostile activity in a foreign country, been convicted of a terrorism offence in Australia or convicted overseas for an offence that would, if it occurred in Australia, be a terrorism offence within the definition in subsection 3(1) of the Crimes Act.

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

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

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

168. Moreover, the overarching requirement that a court be satisfied that any restriction be 'reasonably necessary' and 'reasonably appropriate and adapted' to protecting the public from a terrorist act prevents indiscriminate and disproportionate intrusions into an individual's freedom of association. Further, in identifying the appropriate restriction, the court is also required to take into account the impact of the restriction on the person's circumstances (subsection 104.4(2)). This additional safeguard ensures that each restriction is tailored to the subject of the control order and that specific circumstances inform the appropriateness of a restriction.

169. In addition to the above, any restriction under paragraph 104.5(3)(e) that prevents a person communicating or associating with specified individuals is limited. Subsection 104.5(4) provides that the matters subsection 102.8(4) of the Criminal Code applies to paragraph 104.5(3)(e) in the same way as that subsection applies to section 102.8 and a person's association. The exceptions under subsection 102.8(4) include an association with a close family member relating to a matter of family or domestic concern, an association in a place used for public religious worship and takes place in the course of practising a religion, an association for the purposes of providing aid of a humanitarian nature or an association for the purpose of providing legal advice or legal representation in connection with certain proceedings as set out in subparagraphs 102.8(4)(d)(i) to (vi).

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

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

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

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

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

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

176. Article 9 of the ICCPR provides that no-one shall be subjected to arbitrary arrest or detention or deprived of their liberty except on such grounds and in accordance with such procedure as are established by law. The impact of the control order regime on this right will be considered separately in respect of the amendment relating to the indicative maximum curfew.

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

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

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

•: the requirement that the control order only come into force when the individual is notified of it (section 104.12)
•: the subject's right to apply for the order to be varied, revoked or declared void as soon as they are notified that an order is confirmed (section 104.18)
•: the subject of the order and their lawyer's right to obtain a copy of the order outlining the reasons for the order (section 104.13), and
•: a court's ability to revoke or vary a confirmed control order on an application made under sections 104.18 or 104.19 (section 104.20).

180. In addition, the control order regime cannot be sought in respect of children under the age of 16. The regime operates in a modified fashion for persons between the age of 16 and 18. Finally, the reporting requirements placed upon the Attorney-General also provide an element of transparency by requiring Parliament to be kept abreast annually on the operation of the control orders regime (section 104.29).

181. The retention of the control order regime engages a variety of human rights. To the extent that such rights are limited, the restrictions are reasonable, necessary and proportionate to achieving the legitimate objective of protecting the public from a terrorist act and not compromising national security interests.

Attorney-General's consent to request an interim control order

182. The Bill amends the threshold for an AFP member seeking a control order under paragraph 104.2(2)(a) from 'considers' to 'suspects'. This amendment means that an AFP applicant can request the Attorney-General's consent for a control order based on a lower degree of certainty as to whether a control order would 'substantially assist in preventing a terrorist act'.

183. Nevertheless, the threshold of 'suspicion' requires:

more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to a "slight opinion", but without sufficient evidence...Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. (Kitto J in Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303 - quoted in George v Rockett (1990) 170 CLR 104).

184. The threshold of 'suspicion' is not so low as to allow a control order to be issued arbitrarily or capriciously.

185. The limitations on the human rights identified above, particularly regarding the freedom from arbitrary detention and arrest in Article 9 of the ICCPR, that are likely to flow from amending the threshold may be justified on the basis that the amendment seeks to achieve a legitimate objective, being the promotion of Australia's national security. The threat posed by individuals engaging in and returning from conflicts overseas is novel in its scale. The numbers of Australians now believed to be engaged in foreign conflicts presents a serious security threat to Australia. These individuals are politically or ideologically motivated and there is nothing in their beliefs that would suggest their motivations cease once they leave a foreign country and return to Australia. The amended threshold reflects the view that in the present threat environment, the restriction on the rights identified is justified given the heightened threat posed by foreign fighters.

186. Additionally, the important safeguards of ensuring the control order in fact protects the public from a terrorist act and that any restrictions are 'reasonably necessary, and appropriate and adapted' to this end ensure that the limitations on rights are no more than is reasonable, necessary and proportionate to achieving a legitimate objective.

187. However a person's rights under Article 9 are ultimately protected by section 104.4 and the fact that a court must apply a balance of probabilities test to the evidence produced in support of the issuance of a control order before deciding to issue one.

Requesting an interim control order

188. Paragraph 104.2(2)(b) will be amended to include the following changes:

•

expanding the limb to capture those participating in training with a listed terrorist organisations

•

expanding the limb to capture those engaged in hostile activity in a foreign country , and

•

expanding the limb to capture those:

•: convicted of a terrorism offence in Australia; or
•: convicted overseas for an offence that would, if it occurred in Australia, be a terrorism offence within the definition in subsection 3(1) of the Crimes Act.

189. The impact of these changes is to extend the instances in which a control order may be sought. They will, in particular, apply to those who are suspected of participating in training with terrorist organisations or those engaged in hostile activity in a foreign country. The risk posed by these individuals is that their association with terrorist organisations and engaging in a hostile activity in a foreign country provides them with enhanced capabilities to undertake terrorist acts on Australian soil upon their return. The nature of the restrictions imposed by control orders will be subject to the overarching legislative requirements that includes consideration by the issuing court that any limitation be 'reasonably necessary' and 'reasonably appropriate and adapted' to protecting the public from a terrorist act. As such, it is expected that any limitations will be reasonable, necessary and proportionate to achieve the legitimate objective of preventing those with enhanced terrorist capabilities (as a result of participating in training with terrorist organisations or having engaged in foreign conflicts) from committing terrorist acts on Australian soil.

190. section Article 14 of the ICCPR protects the right to a fair trial and in particular states that no one shall be punished for an offence for which they have already been fully convicted or acquitted in accordance with the law and penal procedure of each country. It may be contended that this right is infringed where control orders are applied to persons who have already been tried and punished for having committed a terrorism offence in Australia or an offence in a foreign country that would, if it occurred in Australia, be a terrorism offence. However, the application of control orders to such individuals is justifiable on two grounds. Firstly, those convicted of terrorism offences and sentenced to a term of imprisonment may not have satisfactorily rehabilitated and may show continued dangerousness. Upon their return into society, they may hold the type of radical political or ideological beliefs that previously inspired them. As such, they still pose a significant security threat to Australia and its national security interests. Secondly, the control order regime does not constitute a criminal penalty as is neither punitive nor retributive. Rather, the regime seeks to protect members of the public from the risk of terrorist acts by placing obligations, prohibitions and restrictions on the controlled person's involvement in activities. Accordingly, this amendment does not further punish those who have been convicted or acquitted in accordance with the law.

Indicative maximum curfew

191. Currently, paragraph 104.5(3)(c) does not indicate a length of time a person may be required to remain at specified premises between specified times each day, or on specified days as part of a control order restriction. The Bill introduces a maximum curfew of twelve hours within a 24-hour period.

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

192. 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. It may be contended that the duration of time for which a subject of a control order may be subjected to could result in a form of detention (by requiring an individual to be in one place for twelve hours).

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

Advising controlled persons of their rights

194. The amendment to paragraph 104.12(1)(b) requires that the AFP member inform the person that he or she has the following legal rights in relation to the interim control order: the right to appeal and review rights in relation to the decision of the issuing court, the person's right to attend court to confirm or declare or revoke the interim control order, the right of the person (or their representatives) to adduce evidence if the interim order is confirmed, the person's right to apply for a variation or revocation if the interim order is confirmed and the person's right (or their representative) to adduce evidence in relation to an application to revoke or vary the control order if it is confirmed. This amendment is supported by the views expressed by the COAG Review in its report on Australia's counter-terrorism legislation.

Right to a fair trial in Article 14 of the ICCPR

195. The subject of a control order has his or her right to a fair trial under Article 14 of the ICCPR promoted by this amendment. The subject of the control order is given the opportunity to be fully alerted of their rights under the control order regime and of the appropriate means of appeal should he or she wish to challenge the application of the control order. The subject of a control order is appropriately informed of the procedures that will allow him or her to protect their own rights, including adducing evidence to support the variation or revocation of a confirmed control order. These measures cumulatively promote an individual's right to a fair trial.

Retention of the preventative detention order regime in Division 105

196. The Bill extends the operation of the PDO regime until 7 September 2018, following the expiration of the sunset period on 16 December 2015. This amendment is intended to recognise the enduring nature of the terrorist threat and the importance of ensuring that law enforcement agencies have the necessary preventative tools to counter imminent and severe national security threats.

197. The key elements of the PDO regime pursuant to Division 105 are:

•: the AFP applicant and the issuing authority must be satisfied of three matters: the terrorist act is imminent (within the next 14 days), the making of the order would 'substantially assist in preventing a terrorist act occurring' and detaining a person is reasonably necessary to prevent a terrorist act occurring
•: there is a limited duration for which a PDO operates, 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 made on an evidence preservation basis, the AFP member and issuing authority must be satisfied that a 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. The issuing authority may authorise a continued PDO after considering afresh the merits of any application and whether the statutory criteria for the order being made is satisfied. The period of time of detention, including any initial periods, must not be greater than 48 hours
•: a prohibited contact order may be sought where it is reasonably necessary to prevent serious harm to a person, to avoid a risk of action being taken to prevent the occurrence of a terrorist act, and to avoid other specified risks, and
•: the key review mechanisms include: the detainee's right to apply, on expiration of the order, to the Security Appeals Divisions of the AAT to seek merits review of the decision to make or extend an order; the detainee's right to bring proceedings in a court on expiration of the order relating to the issuing of the order or their treatment in detention; or limited right to review of a Commonwealth order on grounds available in reviews of state and territory orders.

198. The PDO regime engages several human rights. The restriction on human rights resulting from the continuation of the PDO regime are justifiable on the basis they are in pursuit of achieving a legitimate objective-being the detention of individuals where there are reasonable grounds to suspect they will engage in a terrorist act, possess a thing connected with engaging or preparing for a terrorist act, have done an act in preparation for or planning a terrorist act; or it is necessary to detain the person to preserve evidence relating to a recent terrorist act. To the extent that particular rights have been limited, such limitations are reasonable, necessary and proportionate to achieving this legitimate objective. Outlined below are the human rights implications.

Freedom from arbitrary detention and arrest in Article 9 of the ICCPR, freedom of movement in Article 12 of the ICCPR and right to a fair trial in Article 14 of the ICCPR, right to be treated with humanity and dignity under Article 10 of the ICCPR, freedom from cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR and CAT

199. 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. That means a person can only be subject to a PDO where the grounds for such an order are clearly established in domestic law. The law itself should not be arbitrary and must not be enforced in an arbitrary manner. This means that detention must not only be lawful, but reasonable and necessary in all the circumstances.

200. The PDO regime is not arbitrary as its operation is governed by the legislative framework in Division 105. This ensures that it is only applied for the purposes of preventing an imminent terrorist act occurring or to preserve evidence of, or relating to, a recent terrorist act. The resulting detention from a PDO achieves the legitimate objective of protecting Australia and its national security interests. This is attained by preventing a crime occurring or to preventing interference with evidence relating to a terrorist act. In practice, the AFP has not yet had to rely on the use of a PDO, demonstrating the fact that the PDO regime has not been applied arbitrarily and inappropriately. It is aptly considered an avenue of last resort and only to be applied in the most severe of circumstances. Accordingly, the PDO regime cannot be said to infringe upon an individual's freedom from arbitrary detention or arrest.

201. Article 12 of the ICCPR provides the right to freedom of movement. The legitimate aim to be pursued by limiting the freedom of movement in respect of PDO is the prevention of an imminent terrorist act or the preservation of evidence relating to a recent terrorist act. Nevertheless, the means through which a legitimate objective is achieved must be reasonable, necessary and proportionate.

202. The PDO regime provides sufficient protection against unreasonable and disproportionate limitations of an individual's right to freedom of movement. This is evidenced by the high threshold required to be satisfied when applying for and issuing a PDO. The application for a PDO requires that an AFP member must be satisfied on 'reasonable grounds' that the suspect will engage in a terrorist act, possess a thing related to or done an act in preparation for or planning a terrorist act (paragraph 105.4(4)(a)). Even if this is satisfied, an AFP member must still demonstrate that the PDO will 'substantially assist in preventing a terrorist act occurring' and demonstrate that detention is 'reasonably necessary' for the purpose of preventing a terrorist act (paragraphs 105.4(4)(b) and (c)). Similar requirements exist in respect of application for a PDO for the preservation of evidence of, or relating to, the terrorist act (subsection 105.4(6)). A continued PDO under section 105.12 requires the issuing authority to consider the merits of the application afresh prior to issuing a continued PDO. Each of these requirements limits the instances under which a PDO may be sought and demonstrates that a PDO is applied only when reasonable, necessary and proportionate.

203. Article 17 of the ICCPR provides that no one shall be subject to arbitrary or unlawful interference with their privacy. The PDO regime limits such a right where it allows a police officer by force 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. The restriction on the right to privacy is articulated clearly in section 105.43 and not in any relevant sense arbitrary. Further, identification of a PDO subject is a legitimate objective. The failure to properly identify the intended subject of the PDO could result in the wrong individual being subject to detention. This is a risk that can be reasonably mitigated by limited incursions into one's right to privacy. Any material obtained must be destroyed as soon as practicable after the end of that period. Accordingly, the restriction on the right to privacy is not arbitrary and is a reasonable, necessary and proportionate measure.

204. The PDO regime has important legislative safeguards which preserve a variety of human rights. For instance:

•: Article 7 of the ICCPR and the CAT prohibit conduct which may be considered cruel, inhuman or degrading treatment or punishment. Article 10 of the ICCPR provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the person. These rights are protected by section 105.33 which guarantee that a person detained must be treated with humanity and not be subjected to cruel, inhuman or degrading treatment. A contravention is an offence under section 105.45 which results in two years' imprisonment.
•: Article 37(3) of the CRC guarantees that a child who is deprived of his or her liberty shall be separated from adults unless it is in a child's best interest not to do so. Section 105.33A guarantees this right and creates an offence where a senior AFP officer fails to do so.
•: Article 37(3) of the CRC also protects the rights of the child to maintain contact with his or her family through correspondence and visits, except in exceptional circumstances. Section 105.39 protects the right of a child to have contact with a parent or guardian for a period of two hours a day or such longer period as specified in the PDO (subsection 105.39(5)).
•: Article 14 of the ICCPR provides fair trial rights and minimum guarantees in criminal proceedings. The PDO regime requires that an AFP member advise the person detained under the order of particular matters about the regime, including their right to make representations before a senior AFP member, to contact a lawyer and family members and to make complaints to the Commonwealth Ombudsman. The availability of an interpreter to communicate certain obligatory matters is covered by section 105.5A and further enhances a person's rights under Article 14.

205. The enduring nature of the terrorist threat and the heightened risk posed by returning foreign fighters justifies the continued existence of the PDO regime. In the evolving terrorism landscape, it remains an appropriate preventative mechanism in rare situations where immediate and preventative action is required by Australia's law enforcement agencies.

State of mind of an AFP member-issuing criteria

206. Currently, the issuing and application criteria for a PDO require that the AFP member and the issuing authority be satisfied of the matters in subsections 105.4(4) and 105.4(6). Accordingly, paragraph 105.4(4)(a) requires that both the applicant and the issuing authority must hold the same state of mind in relation to the existence of the matters set out in subparagraphs (i)-(iii). This amendment prescribes a different state of mind for the AFP member who is now required to 'suspect, on reasonable grounds' of one of the matters set out in subparagraphs (i)-(iii). This produces a dual subjective-objective requirement, as opposed to the formerly objective requirement.

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

207. This amendment engages the right to freedom from arbitrary arrest or detention in Article 9 of the ICCPR. It is unlikely that this amendment could be considered 'arbitrary' in any sense as it is clearly articulated in section 105.4 and accordingly, established by law. Despite amending the threshold for an AFP applicant, an important safeguard that remains unchanged is the state of mind required of the issuing authority under section 105.4. Furthermore, the existing safeguards within the PDO regime ensure that the operation of a PDO is not arbitrary and occurs for no longer than is necessary to prevent imminent threats to Australia's national security.

Evidence preservation orders-issuing criteria

208. The Bill provides that a PDO may be sought where it is 'reasonably necessary' to preserve evidence of, or relating to, the terrorist act. The amendment was proposed by the INSLM who considered that from a practical perspective, the 'necessary' requirement alone would prove a difficult threshold to be satisfied of, effectively requiring satisfaction that the destruction or loss of evidence will occur.

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

209. This amendment does not 'arbitrarily' deny an individual their right to freedom from detention and arrest as it is clearly articulated in section 105.4 and accordingly, established by law. Its operation is clear and appropriate and justifiable on the basis that it seeks to achieve a legitimate objective. The legitimate objective in this instance is to allow the AFP to more effectively investigate and gather evidence of, or relating to, terrorist acts. The obtaining of vital evidence assists in the prosecution of those engaging in terrorist acts and provides a strong deterrent for others who may wish to undertake such acts.

Verbal and electronic applications in urgent circumstances

210. The Bill provides for the making and issuing of an initial and extended PDO on an urgent basis by electronic or verbal means. The measure similarly provides for the making and issuing of a prohibited contact order on an urgent basis by electronic means. A new provision will also be included to clarify that an urgent prohibited contact order may be sought in parallel with an application for an urgent initial PDO by electronic means. Urgent application will be permissible only if a senior AFP member considers that it is necessary because of specific urgent circumstances. This amendment does not engage any human rights.

Application of PDO where an individual's full name is not known

211. The Bill will allow a senior AFP member to make an initial PDO by reference to an alias or a description sufficient to identify the person only if after reasonable inquiries have been made and the person's true or full name is not known.

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

212. This amendment does not 'arbitrarily' deny an individual their right to freedom from detention and arrest as it is clearly articulated in section 105.4 and accordingly, established by law. This expansion of the breadth of operation of the PDO regime does not provide decision-makers with unfettered discretion regarding when a PDO will apply.

213. Furthermore, the limitation is justified on the basis that the PDO is applicable only to prevent imminent terrorist acts or to preserve evidence of, or relating to, a terrorist act. These acts pose a threat to Australia and its national security interests. The failure of law enforcement agencies to act proactively and efficiently to prevent such threats could result in threats to the safety of others. The legitimacy of the amendment is further supported by the fact that law enforcement officials will still need to be able to identify the individual who is to be the subject of a PDO to a reasonable level of certainty, for instance, by knowing the individual's identity through a partial name or alias. Given the grave consequences of a failure to prevent imminent terrorist acts, the allowing of a PDO to be issued for individuals whose full names are not known is a reasonable, necessary and proportionate response.

New Part 5.5 (Foreign incursions and recruitment) of the Criminal Code

214. These amendments flow from the repeal of the Foreign Incursions Act and the transfer of its contents to new Part 5.5 of the Criminal Code.

Amendment of the definition of 'recruit'

215. New subsection 117.1(1) of Part 5.5 of the Criminal Code will amend the definition of 'recruit' from 'procure, induce and incite' in subsection 3(1) of the Foreign Incursions Act so that it is consistent with Part 5.3 (Terrorism) of the Criminal Code, being 'induce, incite and encourage'. This amendment will modernise the definition used in relation to foreign incursion and recruitment offences and provide clarity and consistency in relation to the definition of 'recruit' in the Criminal Code. The new definition will include 'encourage' which is not novel as the definition of 'incite' in the Foreign Incursions Act includes 'encourage'. 'Incite' was separately defined in the Foreign Incursions Act as including 'urge, aid and encourage and also includes print or publish any writing that incites, urges, aids or encourages'. On this basis, it is a largely technical amendment.

Right to freedom of expression in Article 19 of the ICCPR

216. Article 19(2) of the ICCPR provides that everyone has the right to freedom of expression, including the freedom to impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media. This includes the freedom to receive and impart information. Article 19(3) provides that this right may be subject to certain restrictions that are established by law and are necessary for the protection of national security.

217. Amending the definition of 'recruit' in relation to foreign incursions, while already an offence, may operate to restrict the free expression of ideas where the expression involves recruiting persons to join organisations acting against the governments of foreign countries or to serve in or with an armed force in a foreign country. Recruiting for a terrorist organisation, including encouraging a person to join, is already a criminal offence under the Criminal Code. Permissibly limiting freedom of expression to prevent individuals undertaking this type of behaviour, in particular, from recruiting individuals to join organisations engaged in hostile activities against foreign governments, is necessary to protect national security by assisting in preventing the recruitment of individuals to take part in violent conflicts overseas.

218. Statistics indicate that a significant number of Australians have already been recruited in Australia and are engaged as foreign fighters in conflicts in Syria and Iraq. When these individuals return to Australia, they often possess enhanced capabilities to undertake terrorist and other acts that could threaten the Australian Government and people in Australia. On this basis, to the extent that amending the definition of 'recruit' engages and limits the right to freedom of expression, such a limitation is necessary in the interests of Australia's national security. It is a reasonable and proportionate measure to discourage the recruitment of Australians in Australia from partaking in foreign conflicts, particularly where terrorist organisations are involved.

Definition of 'engages in a hostile activity'

219. The previously undefined phrase 'engaging in armed hostilities in a foreign State' within the definition of 'engaging in a hostile activity' at paragraph 6(3)(aa) of the Foreign Incursions Act has been substituted with a cross-reference to the conduct contained in the definition of 'terrorist act' in section 100.1 of the Criminal Code and constrained to conduct that would be considered to be a 'serious offence' if undertaken within Australia. 'Serious offence' is separately defined as an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for 2 years or more. This is intended to ensure that a narrow interpretation of impermissible conduct overseas under the foreign incursions regime is not adopted. Accordingly, the broader definition of what amounts to engaging in a hostile activity ensures that conduct, which at its most serious could result in another person's death, is appropriately deterred. This amendment is a technical amendment to provide clarity and does not engage any human rights.

Including 'a section of the public' to align with the Criminal Code

220. The Bill amends subparagraph 6(3)(b) of the Foreign Incursions Act (new subsection 117.1(1) in the Criminal Code) to insert the text 'the public, or a section of the public, in the foreign State' to ensure that conduct otherwise criminalised under the foreign incursions regime, but directed at causing by force or violence a small minority group in a foreign State to be in fear of suffering or death or personal injury, is not excluded.

221. This amendment is consistent with the objectives of the foreign incursions regime and also ensures consistency with the wording of the provisions in section 100.1 of the Criminal Code concerning intimidation of the public or a section of the public. This is consistent with the INSLM's recommendation in the fourth annual report. This amendment is a minor measure and technical in nature and, consequently, does not engage any human rights.

Offences of incursions into foreign countries with the intention to engage in hostile activities

222. New section 119.1 of Part 5.5 of the Criminal Code will replace section 6 of the Foreign Incursions Act. This section was drafted to criminalise engaging in a hostile activity in a foreign country or entering a foreign country with the intent to engage in a hostile activity in that foreign country. The INSLM's fourth annual report and the COAG Review both highlighted that in order to overcome the practical difficulties of proving a particular foreign country was the target destination, the section should be amended to remove the need to prove an intention to engage in hostile activity in a particular foreign country. This will enable intervention by the Commonwealth Director of Public Prosecutions at an 'appropriately preparatory stage' where an individual may be contemplating undertaking incursions in various theatres of violence, but plans to travel to a third country to obtain training, materials or guidance as to his or her ultimate destination. It will also capture a situation where a person enters a foreign country without the intention to engage in hostile activity and then forms an intention to engage in hostile activity in that country.

Right to a fair trial in Article 14 of the ICCPR

223. Article 14 of the ICCPR provides that, in the determination of any criminal charge against a person, that person shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 14 also contains a range of minimum guarantees in criminal proceedings. The amendment addresses practical difficulties that have arisen in prosecuting persons and will enable a broader range of conduct to be captured under the offence provisions. In this regard, the amendment engages the right to a fair trial. However, the inherent safeguards guaranteed by Australian court proceedings and the requirement on the prosecution to discharge the burden of proof by having to make out all the elements of an offence mean that a defendant's right to receive a fair trial has not been limited as a result of this amendment. The new section 119.1 will not apply retrospectively.

Alignment of penalty provisions with the Criminal Code

224. As part of the alignment of the Foreign Incursions Act to the existing provisions of the Criminal Code, the offences under sections 6, 7 and 8 of the CFIRA will be made consistent with the reflecting Criminal Code offences. Accordingly, offences against section 6 of the Foreign Incursions Act (now subsection 119.1(1)) will align with the terrorist act offence at section 101.1 of the Criminal Code with the penalty increased from a maximum period of 20 years' imprisonment to life imprisonment. Offences for preparation for incursions into a foreign country in section 7 of the Foreign Incursions Act (now subsection 119.4(1)) will align the terrorist act preparation offence at section 101.6 of the Criminal Code with the penalty increased from a maximum period of ten years' imprisonment to life imprisonment. Finally, offences of recruitment for foreign incursions in section 8 of the Foreign Incursions Act (now section 119.6) will align with the terrorist organisation recruitment offence at subsection 102.4(1) of the Criminal Code with the penalty increased from a maximum period of seven years' imprisonment to 25 years' imprisonment. These amendments will not operate retrospectively.

Right to freedom from cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR and the CAT, right to freedom from arbitrary detention in Article 9 of the ICCPR

225. Article 7 of the ICCPR and the CAT prohibit conduct which may be considered cruel, inhuman or degrading treatment or punishment ('ill treatment') and can be either physical or mental. The United Nations treaty bodies responsible for overseeing the implementation of these treaties have provided guidance on the sort of treatment that is prohibited. Examples of cruel, inhuman or degrading treatment include unduly prolonged detention that causes mental harm. Punishment may be regarded as degrading if, for instance, it entails a degree of humiliation beyond the level usually involved in punishment. These rights are absolute and cannot be limited in any way. Relatedly, Article 9 of the ICCPR provides that no-one shall be subjected to arbitrary detention or deprived of their liberty except on such grounds and in accordance with such procedure as are established by law.

226. The increased penalties for foreign incursion and recruitment offences are proportionate and reflect the gravity of these offences. Australians engaged in foreign conflicts act to destabilise foreign governments and may be involved in the perpetration of violence, which at its most serious could involve unlawful death or an intention to cause unlawful death. Moreover, those returning from foreign conflicts to Australia may have enhanced capabilities which may be employed to facilitate terrorist or other acts in Australia. To this extent, the penalty provisions reflect the seriousness of the offences and the threat posed to the national security of Australia and people in Australia.

227. Persons charged with these offences will have a fair trial in accordance with Article 14 of the ICCPR. If a person is convicted of one of these offences, the presiding judicial officer will have discretion to impose a penalty that reflects the gravity of the offence taking into account the nature of the conduct and the particular circumstances of the person. Furthermore, the periods of imprisonment do not impose mandatory minimum periods of imprisonment. If convicted, defendants will be sentenced to imprisonment in a State or Territory facility and will not be treated any differently to other prisoners.

228. The penalties are also consistent with the established principles of Commonwealth criminal law policy as set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers by imposing heavier penalties where the consequences of the offence are particularly dangerous or damaging. Accordingly, the increased penalties are proportionate to the seriousness of the offences and will not result in the imposition of periods of imprisonment that would constitute cruel, inhuman or degrading treatment or punishment.

New offence of entering, or remaining in a 'declared area'

229. A new offence will provide that a person commits an offence if the person enters, or remains in, an area in a foreign country and that area is an area declared by the Foreign Affairs Minister. The offence will not operate retrospectively. An area will be declared where the Foreign Affairs Minister is satisfied that a terrorist organisation listed under the Criminal Code is engaging in a hostile activity in that area of the foreign country. A declaration may cover areas in two or more countries if the Minister is satisfied that a listed terrorist organisation is engaging in a hostile activity in each of those areas or throughout the country.

230. The Parliamentary Joint Committee on Intelligence and Security will be able to review any declaration of an area made by the Foreign Affairs Minister before the end of the disallowance period. This additional safeguard ensures appropriate oversight of the declaration process.

231. This offence will not prevent a person from travelling overseas, including to a declared area, for a legitimate purpose or purposes. An individual suspected of entering, or remaining in, a declared area can rely on the offence-specific defence by pointing to evidence of their sole legitimate purpose or purposes for entering, or remaining in, the area. Consistent with the normal rules for criminal prosecutions, the prosecution will then be required to prove that the person was not in the declared area solely for that purpose or purposes beyond reasonable doubt.

232. New subsection 119.2(3) provides that the following conduct will be classed as a legitimate purpose for the purposes of the offence:

a): providing aid of a humanitarian nature;
b): satisfying an obligation to appear before a court or other body exercising judicial power;
c): performing an official duty for the Commonwealth, a State or a Territory;
d): 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;
e): performing an official duty for the United Nations or an agency of the United Nations;
f): 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;
g): making a bona fide visit to a family member;
h): any other purpose prescribed by the regulations.

233. The ability to prescribe other purposes under regulations is an important safeguard in the event other purposes that should be covered by the defence emerge over time. A note at the end of section 119.2 provides that sections 10.1 and 10.3 of the Criminal Code also provide exceptions to subsection 119.2(1) relating to intervening conduct or event and sudden and extraordinary emergency respectively.

234. The legitimate objective of the new offence is to deter Australians from travelling to areas where listed terrorist organisations are engaged in a hostile activity unless they have a legitimate purpose to do so. People who enter, or remain in, a declared area will put their own personal safety at risk. Those that travel to a declared area without a sole legitimate purpose or purposes might engage in a hostile activity with a listed terrorist organisation. These people may return from a declared area with enhanced capabilities which may be employed to facilitate terrorist or other acts in Australia. The new offence will enable the prosecution of people who intentionally enter an area in a foreign country where they know, or are aware of a substantial risk, that the Australian Government has determined that terrorist organisations are engaging in a hostile activity and the person is not able to demonstrate a sole legitimate purpose or purposes for entering, or remaining in, the area. The maximum penalty for this offence is ten years' imprisonment. Reflective of the heightened threat to Australia currently emanating from overseas conflict zones, the offence will be subject to a sunset clause which will expire on 7 September 2018.

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

235. Article 14 of the ICCPR provides the right to fair hearing by a competent, independent and impartial tribunal established by law and Article 14(2) provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. Offences that contain a 'reverse burden', particularly a legal, as opposed to an evidential burden, may limit the presumption of innocence. This includes a situation where the defendant has to provide evidence in relation to an offence-specific defence. This is because a defendant's failure to discharge a legal or evidential burden may permit their conviction despite reasonable doubts as to their guilt.

236. The new offence does not reverse the onus of proof as guilt is not presumed. However, it requires the defendant to provide evidence of a sole legitimate reason for entering a declared area which shifts an evidential burden to the defendant. This requires the defendant to adduce evidence that suggests a reasonable possibility that they have a sole legitimate purpose or purposes for entering the declared area. Once that evidence has been advanced by the defendant, the burden shifts back to the prosecution to disprove that evidence beyond reasonable doubt.

237. The defendant may adduce evidence to justify his or her presence in a declared area on two bases. The first is where the individual is solely there in the course of the person's service in any capacity with the armed forces of the government of a foreign country or any other armed force if a declaration under subsection 119.8(1) covers the person and the circumstances of the person's service in or with the force. The second is where the defendant is in the declared area solely for one or more 'legitimate purposes'. A list of legitimate purposes is outlined in subsection 119.2(3).

238. The new offence under section 119.2 does not reverse the onus of proof or limit the presumption of innocence. To the extent that there is a limitation on Article 14 of the ICCPR, those limitations are reasonable, necessary and proportionate to countering the threat posed to Australia and its national security interests by foreign fighters returning to Australia from areas where the Foreign Affairs Minister is satisfied that a listed terrorist organisation is engaging in a hostile activity.

239. 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 procedures as are established by law. The UN Human Rights Committee has stated that 'arbitrariness' includes the elements of inappropriateness, injustice and a lack of predictability. Arbitrariness can result from a law that is vague and provides for the exercise of powers in a broad range of circumstances that are not sufficiently defined. However, arrest or detention may be considered reasonable and necessary where it is required in the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime. In relation to this offence, arrest, detention or the deprivation of liberty of a convicted person is not 'arbitrary' in the sense that the offence is established by law and its application is clear and predictable. The amendment to Part 5.5 clearly outlines the legislative framework and requirements necessary for a prosecution of the declared areas offence.

240. Article 7 of the ICCPR and CAT prohibits conduct which is regarded as cruel, inhuman or degrading treatment. Whilst the maximum penalty imposed by the offence is ten years imprisonment, the period of imprisonment does not include a mandatory minimum sentence and the presiding judicial officer will have discretion to impose a penalty that reflects the gravity of the offence taking into account the nature of the conduct and the particular circumstances of the defendant. The offence-specific defence of legitimate purpose is also available to the defendant. If convicted, defendants will be sentenced to imprisonment in a State or Territory facility and will not be treated any differently to other prisoners. As such any penalty imposed would not constitute cruel, inhuman or degrading treatment.

241. The penalty implements a gradation consistent with established principles of Commonwealth criminal law policy, as documented in the Guide to Framing Commonwealth offences, Infringement notices and Enforcement Powers. The Guide suggests that the maximum penalty should aim to provide an effective deterrent to the commission of the offence, and should reflect the seriousness of the offence within the relevant legislative scheme.

242. Article 12(1) of the ICCPR provides that everyone lawfully within the territory of a State shall, within the territory, have the right to liberty of movement. Article 12(2) provides that everyone shall also be free to leave any country, including his own. This right also extends to the right of the person to determine the country of destination. These rights can be permissibly limited if the limitations are provided by law and are necessary to advance a legitimate objective. The new offence of declaring certain areas may limit the freedom of movement of persons who wish to travel to declared areas.

243. This limitation is justified on the basis that it achieves the legitimate objective of deterring Australians from travelling to areas where listed terrorist organisations are engaged in a hostile activity unless they have a legitimate purpose to do so. People who enter, or remain in a declared area will put their own personal safety at risk. Those that travel to a declared area without a sole legitimate purpose or purposes may engage in a hostile activity with a listed terrorist organisation. These people may return from a declared area with enhanced capabilities which may be used to facilitate terrorist or other acts in Australia. The radicalisation of these individuals abroad may enhance their ability to spread extremist messages to the Australian community which thereby increases the likelihood of terrorist acts being undertaken on Australian soil. Even with the existence of a legitimate objective, any restriction on the freedom of movement must still be reasonable, necessary and proportionate. Several factors indicate that the restriction achieves an appropriate balance between securing Australia's national security and preserving an individual's civil liberties.

244. The sole legitimate purpose defence provides an appropriate safeguard for individuals who have entered, or remained in, areas that have been declared. Individuals may lead evidence highlighting that their presence in a declared area was for a legitimate purpose and prosecution will be required to discharge its burden of disproving the existence of a legitimate purpose. The legitimate purpose defence captures common reasons for travelling, including the provision of humanitarian aid, undertaking official duty for a government or the United Nations or an agency of the United Nations, making a news report of events in the area by a professional journalist and making a genuine visit to a family member. Moreover, further legitimate purposes may be prescribed by regulations should additional grounds be required. The breadth of the grounds of defence is intended to ensure that legitimate travel is not unduly restricted by the new offence.

245. The new offence also contains safeguards that ensure the declaration process and prosecution processes are rigorous. Firstly, a declaration by the Foreign Affairs Minister requires that he or she be 'satisfied' that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country. As such, a declaration will not be made in an arbitrary manner. The Minister must also arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed declaration. Any declaration will be a disallowable legislative instrument. Secondly, a declaration of the Minister ceases to have effect on the third anniversary of the day on which it takes effect. The Minister is also not prevented from revoking a declaration where he or she ceases to be satisfied that the requisite criteria for declaration are satisfied. Thirdly, the Attorney-General's consent is required prior to the institution of proceedings in respect of offences in relation to the declared area.

246. On this basis, the impact of the new declared area offence on the right to freedom of movement is reasonable, necessary and proportionate in order to achieve the legitimate objective of protecting Australia and its national security interests.

247. Article 15 of the ICCPR imposes a prohibition against the retrospective operation of criminal laws. This right has not been limited by the creation of the new offence. The offence does not apply retrospectively and will only apply from the time of declaration of an area by the Foreign Affairs Minister. Only individuals who then enter or remain in the newly designated area will be subject to prosecution under the new offence.

Humanitarian aid defence

248. Section 7(1B) of the Foreign Incursions Act (new subsections 119.4(7) and 119.5(4) of the Criminal Code) provides a defence in relation to the offence of doing acts preparatory to a foreign incursion where a person does an act related to the provision of aid of a humanitarian nature. This amendment will limit the operation of the defence to instances where the conduct is for the sole purpose of providing humanitarian aid as opposed to one among other purposes. In his fourth annual report, the INSLM recommended that subsection 7(1B) be amended to include an exception for activities that are humanitarian in character and are conducted by or in association with the International Committee of the Red Cross, the UN or its agencies, and agencies contracted or mandated to work with the UN or its agencies. Whilst the INSLM's specific recommendation has not been implemented, the overarching rationale of the INSLM's recommendation, being that a broad humanitarian defence for terrorism offences is not appropriate, has been adopted. This amendment will appropriately limit the operation of the defence whilst ensuring that genuine humanitarian activities do fall within the scope of the offences at new sections 119.4 and 119.5. The amendment will also provide consistency with the operation of other humanitarian aid defences in the Criminal Code such as those at paragraphs 102.8(4)(c)-associating with terrorist organisations and 390.3(6)(b)-associating in support of serious organised criminal activity.

249. The policy rationale underlying the amendment is that the relevant offence under the foreign incursions regime is not compromised by persons who are engaged in armed hostilities in a foreign State who can then point to one small act of humanitarian aid to shield conduct that otherwise contravenes the objective of the offence. Rights to a fair trial in Article 14(1) and to the presumption of innocence in Article 14(2), which provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law, are not limited. Individuals will have access to the humanitarian aid defence where they undertake prohibited acts solely for the purpose of providing humanitarian assistance. Importantly, the prosecution will still need to prove all the elements of the offence before the defendant is convicted. The amendment will not operate retrospectively.

Customs Act 1901

Amendment to the definition of 'terrorist act'

250. The Bill repeals the definition of 'terrorist act' in section 183UA of the Customs Act and substitutes it with a cross-reference to the definition of 'terrorist act' in section 100.1 of the Criminal Code. This is a technical amendment that eliminates the need to constantly update the definition of 'terrorist act' in section 183UA as the definition in the Criminal Code changes. This amendment does not engage any human rights.

SCHEDULE 2 - STOPPING WELFARE PAYMENTS

A New Tax System (Family Assistance) Act 1999 / Paid Parental Leave Act 2010 / Social Security (Administration) Act 1991 / Social Security (Administration) Act 1999 / Administrative Decisions (Judicial Review) Act 1977

Stopping welfare payments

280. This Schedule amends the Family Assistance Act, the PPL Act, the Social Security Act and the Social Security (Administration) Act 1999 (Social Security (Administration) Act) to provide that welfare payments can be cancelled for individuals whose passports have been cancelled or refused, or whose visas have been refused, on national security grounds. This is to ensure that the Government does not support individuals who are fighting or training with extremist groups. It is for the benefit of society's general welfare that individuals engaged in these activities do not continue to receive welfare payments.

281. Currently, welfare payments can only be suspended or cancelled if the individual no longer meets social security eligibility rules, such as participation requirements, and residence or portability qualifications. The new provisions will require the cancellation of a person's welfare payment when the Attorney-General provides a security notice to the Minister for Social Services. The Attorney-General will have discretion to issue a security notice where either:

•: the Foreign Affairs Minister has notified the Attorney-General that the individual has had their application for a passport refused or had their passport cancelled on the basis that the individual would be likely to engage in conduct that might prejudice the security of Australia or a foreign country, or
•: the Immigration Minister has notified the Attorney-General that an individual has had their visa cancelled on security grounds.

282. The Foreign Affairs Minister and the Immigration Minister will also have a discretion whether to advise the Attorney-General of the passport or visa cancellation.

283. Welfare payments will only be cancelled in circumstances where the receipt of welfare payments was relevant to the assessed security risk posed by the individual and the cancellation of welfare would not adversely impact the requirements of security. This is to ensure that those individuals assessed to be engaged in politically motivated violence overseas, fighting or actively supporting extremist groups are covered. It is not intended that every person whose passport or visa has been cancelled on security grounds would have their welfare payments cancelled, but would occur only in cases where it is appropriate or justified on the grounds of security.

284. Where an individual ceases to be eligible for welfare payments, the Secretary of DSS must cause reasonable steps to be taken to notify the individual of the cessation. In practice, notifying individuals who may be participating in overseas conflicts may not be possible.

Right to social security in Article 9 of the ICESCR

285. Article 9 of the ICESCR recognises the right of everyone to social security, including social insurance. Article 4 of ICESCR provides that countries may subject economic social and cultural rights only to such limitations 'as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society'. The objective of the proposal to cancel welfare is to promote the general welfare of the Australian community by supporting national security and promoting public order. Specifically, the proposal addresses concerns about public monies in the form of social security payments being used by individuals to facilitate or participate in terrorist activities or fund terrorist organisations.

286. Social security payments are made to Australian residents to provide them and their families with a basic but adequate standard of living in Australia. Cancelling welfare payments to individuals of security concern will restrict their right to social security. However, this power will only be available where a person has had their passport cancelled or refused or their visa cancelled on security grounds. Furthermore, the Attorney-General will have the discretion to decide whether the welfare payment should be cancelled. In exercising this discretion it would be appropriate for the Attorney-General to have regard to relevant human rights considerations. In particular, the Attorney-General must have regard to the extent (if any) that any welfare payments of the individual who is the subject of the notice, are being, or may be, used for a purpose that might prejudice the security of Australia or a foreign country, and the likely effect of welfare cancellation on the individual's dependants. To facilitate the Attorney-General's decision, the Attorney-General's Secretary is required to seek advice from the Secretary of the Department of Human Services and inform the Attorney-General of that advice. It is also open to the Attorney-General to have regard to any other matters when considering whether to issue a security notice.

287. CESCR notes that persons who claim violations of their right to social security should have access to effective judicial or other appropriate remedies. The decisions of the Foreign Minister, Immigration Minister and Attorney-General to issue notices will be reviewable under the ADJR Act.

288. Furthermore, given that any decision by the Attorney-General to cancel welfare payments is triggered by the cancellation of a visa or the cancellation of, or refusal to issue an Australia passport, an individual will be able to seek review of the decision to cancel a visa or the cancellation of, or refusal to issue, a passport. This would include merits review under the Administrative Appeals Tribunal Act 1975 (AAT Act) of an adverse security assessment made by ASIO in support of those decisions.

289. The decisions to cancel welfare payments will be subject to judicial review under section 39B of the Judiciary Act 1903 or section 75(v) of the Constitution.

The rights of parents and children in Article 24 of the ICCPR

290. Article 24(1) of the ICCPR provides that 'Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.'

291. Family assistance payments made under the Family Assistance Act are to assist with the cost of raising children and are normally paid to the carer of the child who has responsibility for raising the child. The carer is responsible for using the payment as he or she sees fit to assist in raising the child. If a security notice is issued to an individual who has a child, the individual the subject of the notice would not be eligible to receive family assistance which would impact on their right to protect their child.

292. However, the purpose of the payment is for the child's benefit, to assist with the cost of raising them. Although the individual the subject of the security notice would not be able to claim the family assistance payment, the whole or a part of any amount that would have been payable may instead be paid to a payment nominee of the individual under Part 8B of the Family Assistance Act. This means that the payment may still be able to be used for the individual's family which promotes the rights of parents and children.

293. The Secretary of DSS will not have to take into account the wishes (if any) of the individual in appointing a nominee to receive the payment on the individual's behalf, but instead can appoint a nominee without consulting the individual. In practice it may be very difficult to contact the individual, especially if they are overseas fighting. In these circumstances, the parent is unable to fulfil their responsibilities and duties as a parent. Accordingly, the Secretary would appoint a nominee so that the benefit could still be paid to assist the child. This promotes the rights of the child.

Schedule 3 - customs' detention powers

Customs Act 1901

Customs detention power

294. Customs officers have the power to detain persons suspected of committing a serious Commonwealth offence or a prescribed State or Territory offence under section 219ZJB of the Customs Act. Broadly, the amendments to the detention power in section 219ZJB relate to:

•: extending 'serious Commonwealth offence' to any Commonwealth offence that is punishable upon conviction by imprisonment for a period of 12 months or more
•: expanding the applicability of the detention powers to include where an officer has reasonable grounds to suspect that the person is intending to commit a Commonwealth offence
•: expanding the required timeframe by which an officer must inform the detainee of their right to have a family member or other person notified of their detention from 45 minutes to 2 hours,
•: introducing a new section with a new set of circumstances in which a person may be detained in a designated area that relates to national security or security of a foreign country.

295. Section 219ZJD will also be amended to extend the power to conduct a search of the person where it is to prevent the concealment, loss or destruction of information relating to a threat to national security.

Right to freedom from arbitrary detention in Article 9 of the ICCPR, freedom of movement in Article 12 of the ICCPR, right to freedom from cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR and the CAT, right of persons deprived of liberty to be treated with humanity and dignity in Article 10 of the ICCPR

296. 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 procedures as are established by law.

297. The Customs detention power and the expanded scope of this power under the new amendment are likely to engage the detainee's right to freedom from arbitrary detention. This power now exists in respect of a greater number of offences as a result of its application to any Commonwealth offence that is punishable upon conviction by imprisonment for a period of 12 months or more as opposed to its previously restricted application to only serious Commonwealth offences. It will also apply where there exist reasonable grounds to suspect that the person is intending to commit a Commonwealth offence. The new section will also allow an officer to detain a person where the officer is satisfied that the person is, or is likely to be, involved in activities that are or likely to be a threat to national security.

298. The expanded framework of the Customs detention power is established by law and its use is in accordance with the requirements of section 219ZJB. The new section that provides for detention in respect of those who pose a national security threat also applies only in respect of actions that potentially impact Australia's national security interests. These detention powers are appropriate in that they are applicable in respect of only Commonwealth offences where imprisonment is for a period of twelve months or greater or to national security matters which pose the gravest threats to the welfare of Australians.

299. The enhanced detention powers are part of the targeted response to the threat posed by foreign fighters. A crucial element of the preventative measures undertaken to limit the threat of returning foreign fighters is to prevent Australians leaving Australia to engage in foreign conflicts in the first instance. The detention powers of Customs constitute an important preventative and disruption mechanism. Preventing individuals travelling outside of Australia where their intention is to commit acts of violence in a foreign country assists in preventing terrorists acts overseas and prevents these individuals returning to Australia with greater capabilities to carry out terrorist acts on Australian soil.

300. Accordingly, the expanded detention powers provided by these amendments are not arbitrary or unlawful. They are prescribed by law and their use is confined such that its application is restricted to instances where it is reasonable, necessary and a proportionate response to achieving the legitimate objective of securing Australia's national security.

301. Article 12 of the ICCPR provides that everyone lawfully within the territory of a State shall, within the territory, have the right to liberty of movement. Everyone shall also be free to leave any country, including his own. This right can be permissibly limited if the limitations are provided by law and are necessary to advance a legitimate objective. The proposed amendments will limit the right of an individual to leave Australia or movement in a 'designated place' (defined in section 4 of the Customs Act).

302. The restriction on freedom of movement is permissible on the basis that the primary reason underlying the expanded detention powers is to target individuals thought to be threats to Australia's national security leaving the country. The detention powers of Customs are not indefinite and are subject to significant safeguards including the right in all but the most extreme situations to notify a family member or others of their detention (subsections 219ZJB(5) and (6) and 219JCA (5) and (6)) and the requirement that if the officer detaining the individual ceases to be satisfied of certain matters, they must release the person from custody (subsections 219ZJB(5) and 219ZJCA(4)). Accordingly, the restriction on the freedom of movement is reasonable, necessary and proportionate to achieving the legitimate objective of securing Australia's national security.

303. Article 17 of the ICCPR accords everyone the right to protection against arbitrary or unlawful interference with their privacy, family, home or correspondence. Lawful interference with the right to privacy will be permitted, provided it is not arbitrary. The term 'unlawful' means no interference can take place except as authorised by law and should be reasonable, necessary and proportionate.

304. The new section that provides for detention on the basis of threats to national security or security of a foreign country will also include extend the existing power of an officer to conduct a frisk and ordinary search of the person and a search of the person's clothing and any property within the person's immediate control if the officer believes on reasonable grounds it is necessary to do so for the purpose of preventing concealment, loss or destruction of evidence of, or relating to the offence concerned (paragraph 219ZJD(1)(d)). Current subsection 219ZJD(3) provides that the search must be conducted as soon as practicable after the person is detained and by an officer of the same sex as the detainee. An officer will also have the authority to seize anything the officer has reasonable grounds to believe is a thing with respect to the offence committed, that will afford evidence of the commission of an offence or that was used or intended to be used for the purpose of committing an offence (paragraph 219ZJD(3)(b)). These actions constitute incursions into the right of privacy on an individual detained. They encompass a physical search of the person, of their clothing and items under their control and a seizure of items. Such an incursion is not however unlawful as it will be authorised and applicable in accordance with section 219ZJD.

305. In its application, the frisk and ordinary search power is not arbitrary. Its use will be limited to instances where the individual is considered to be a threat to national security. National security concerns pose among the gravest threats to the welfare of Australians and the consequences of a failure to act can be severe. The destruction or concealment of evidence relating to a national security offence will also be critical in investigating and prosecuting those believed to be involved in activities such as terrorism. The prevention of terrorist acts and the prosecution of those engaged in terrorist activities is an important element of Australia's foreign fighter strategy to prevent and disrupt terrorism in Australia.

306. Moreover, the detention regime has important safeguards that ensure that the human rights of the detainee are appropriately limited to promote national security considerations. Important qualifiers such as 'reasonable grounds to suspect', 'as soon as practicable', 'take all reasonable steps' and 'believes on reasonable grounds' (section 219ZJB) ensure that application of the detention provisions are not arbitrary and subject to certain thresholds which require officers of Customs to consider whether use of the detention powers is appropriate in a given circumstance. Overall, the expanded detention regime under the Customs Act is reasonable, necessary and proportionate to achieving a legitimate objective, being the protection of Australia and its national security interests.

307. Article 10 of the ICCPR provides that all persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the human person. The UN Human Rights Committee stated that this right can be violated if a detainee is subjected to unreasonable restrictions on correspondence with his or her family. This right may be limited because it is proposed to extend the time by which an officer must inform the detainee of their right to have a family member of other person notified of their detention from 45 minutes to 2 hours.

308. However, it is not likely that the extension proposed from 45 minutes to 2 hours constitutes an unreasonable restriction on correspondence with the detainee's family. This increase of time is only in respect of Commonwealth offences which carry imprisonment of twelve months or greater as penalty. The current limit of 45 minutes may not provide Customs officers with sufficient time and opportunity to undertake enquiries once a person is detained.

309. In limited instances, the Customs detention regime allows an officer to refuse notification of a detainee's family or another person in particular circumstances (subsection 219ZJB(7)). It is proposed the current justifications for depriving the detainee of this right be extended to national security. This may be considered an unreasonable restriction on correspondence with the detainee's family.

310. However, the justifications, including national security, represent a reasonable and proportionate restriction on this right. This is because in order to make a decision to not notify a family member, the officer must believe on reasonable grounds that such notification will compromise the processes of law enforcement, endanger the life and safety of any person or compromise national security. These justifications provide reasonable limits on the right to notification. The safeguard provided by the qualifier 'believes on reasonable grounds', ensures that the deprivation of the detainee's right is not arbitrary and given due consideration.

311. The amendments proposed engage the right of detained persons to be treated with humanity and dignity. To the extent that the amendments proposed limit Article 10, the restrictions are reasonable, necessary and proportionate to achieve legitimate objectives such as not compromising national security, compromising law enforcement processes or endangering another's life.

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