House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)

NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

154. This clause provides for the short title of the Act to be the Counter-Terrorism Legislation Amendment Act (No. 1) 2018.

Clause 2 - Commencement

155. This clause provides for the commencement of each provision in the Bill, as set out in the table.

156. Table item 1 in subclause 2(1) provides that the whole of the Act will commence on the day after the Act receives the Royal Assent.

Clause 3 - Schedules

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 Each Act specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule.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

Schedule 1 - Amendments

Part 1 - Control orders and preventative detention orders

Administrative Decisions (Judicial Review) Act 1977

Item 1 - After paragraph (dab) of Schedule 1

158. Item 1 inserts new paragraph (daba) in Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). Schedule 1 of the ADJR Act sets out the classes of decisions to which the Act does not apply. The effect of new paragraph (daba) of Schedule 1 is that the decisions of senior AFP members to provide or refuse consent to vary interim control orders under new section 104.11A of the Criminal Code will not be reviewable under the ADJR Act.

159. In its 2012 report Federal Judicial Review in Australia, the Administrative Law Council outlined a number of justifications as to why exempting a decision from review under the ADJR Act may be appropriate. One such justification is that review under the ADJR Act has the potential to fragment or frustrate another legal process that is already under way. The prospect of ADJR Act review of the decision of a senior AFP member would fragment the confirmation proceeding process.

160. In this case, it is appropriate to exclude from ADJR Act review the decision of the senior AFP member to provide or refuse consent to vary an interim control order. As set out in item 3, the ability to vary an interim control order is designed to provide flexibility for both the AFP and the controlee to agree to minor and uncontroversial changes to the original terms of an interim control order. More substantial changes to the interim control order proceeding should be litigated at the confirmation hearing, the date for which is set in the terms of the interim control order. At the confirmation proceeding, both the AFP and the controlee (and their legal representative) can contest the necessity of the control order, and of each of the obligations, prohibitions and restrictions the interim control order imposes. Following a contested confirmation hearing, the issuing court may confirm the interim control order (with or without variation), revoke the interim control order, or declare the order void.

161. The exclusion of decisions by senior AFP members under new section 104.11A from ADJR Act review does not prevent those decisions from being judicially reviewed under paragraph 75(v) of the Constitution.

Criminal Code Act 1995

Item 2 - Subsection 104.5(1A) of the Criminal Code

162. Item 2 amends existing subsection 104.5(1A) of the Criminal Code to provide that the court issuing the interim control order must specify a date for the confirmation proceeding as soon as practicable, but at least seven days, after the interim control order is made. Existing subsection 104.5(1A) provides that the court must specify a date for the confirmation proceeding as soon as practicable, but at least 72 hours, after the interim control order is made. The extension of time from 72 hours to seven days implements Recommendation 9 of the PJCIS Powers Report.

163. Existing subsection 104.5(1B) sets out the factors that the issuing court must take into account in specifying the date of the confirmation proceeding. These are:

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that the persons mentioned in subsection 104.14(1) (being the parties and their legal representatives, other AFP members, and the Queensland Public Interest Monitor) may need to prepare in order to adduce evidence or make submissions to the court in relation to the confirmation of the order

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if the person to whom the order relates is detained in custody - any other matter relating to the person's detention that the court considers relevant, and

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any other matters the court considers relevant.

164. Confirmation proceedings have to date occurred many months after the making of an interim control order. However, under existing subsection 104.5(1A), it remains open to the issuing court to set the confirmation date only 72 hours after the making of an interim control order. This would leave both parties potentially unprepared to make detailed submissions to the court at the confirmation proceeding.

165. To mitigate this risk, the AFP may delay the seeking of an interim control order against an individual until such time as it is prepared for a confirmation proceeding 72 hours after the making of an interim control order. This delay would undermine the purpose of the control order regime. This regime is preventative, and is designed to address the threat of individuals committing terrorist acts. Delays in seeking an interim control order by the AFP may put the community at risk of a terrorist act occurring.

166. While it is important that the controlee is provided an opportunity to have their interim control order contested as soon as practicable, the PJCIS Powers Report noted that this must be balanced against the need to ensure the AFP can seek an interim control order as soon as possible when there is an identifiable risk to the community that cannot be mitigated in any other way.

167. To minimise the effect of extending the minimum time between the making of an interim control order and the confirmation proceeding from 72 hours to seven days, and account for the current delay between the making of an interim control order and the confirmation proceeding, the Bill also introduces the ability for the issuing court to vary the terms of an interim control order where there is consent between the AFP and the controlee (see item 3).

Item 3 - After Subdivision C of Division 104 of the Criminal Code

168. Item 3 inserts new section 104.11A in new Subdivision CA which enables a court to vary the terms of an interim control order where there is agreement between a senior AFP member and the controlee. New section 104.11A implements Recommendation 8 of the PJCIS Powers Report and the recommendation of the 2017 INSLM Review.

169. It was originally envisioned that any variations to the interim control order would be made in the confirmation proceeding, and at any point following the confirmation proceeding (sections 104.18 and 104.19). This was premised on the expectation that confirmation proceedings would shortly follow the making of an interim control order. However, in practice, confirmation proceedings have occurred some months after the making of an interim control order. The 2017 INSLM Review noted that 'this delay is largely due to the time required to prepare for, and participate in, confirmation proceedings'. During this intervening period, there is no ability for either party to vary an interim control order, including where the personal circumstances of the controlee change. New section 104.11A addresses this limitation by enabling a court to vary by consent the terms of an interim control order.

170. New section 104.11A is designed to facilitate variations to an interim control order that are minor and uncontroversial. More substantive changes to the terms of an interim control order should be properly litigated at the confirmation proceeding.

171. New subsection 104.11A(1) provides that either the controlee or a senior AFP member may apply to an issuing court to vary the terms of an interim control order. A 'senior AFP member' is defined in section 100.1 of the Criminal Code to mean the Commissioner of the AFP, a Deputy Commissioner of the AFP, or an AFP member of or above the rank of Superintendent.

172. The note to new subsection 104.11A(1) provides an example of the kind of changes to an interim control order that new section 104.11A is designed to facilitate. For example, a variation may be sought by either a senior AFP member or the controlee, with the consent of the opposing party, to vary the terms of an interim control order to reflect a change in the mobile telephone number of the controlee. This may be relevant where the controlee is subject to a prohibition or restriction under paragraph 104.5(3)(f) on using a specified form of telecommunication or other technology. Other examples include amending existing conditions for the purposes of facilitating the change of residential arrangements of the controlee where appropriate, or changes in the educational or employment arrangements of a controlee.

173. New subsection 104.11A(2) outlines the three criteria of which the issuing court must be satisfied before it can vary the terms of an interim control order.

174. First, new paragraph 104.11A(2)(a) provides that the issuing court must be satisfied that written consent to the variation has been given by the other party.

175. Secondly, new paragraph 104.11A(2)(b) provides that the court must be satisfied that the variation request does not involve adding any obligations, prohibitions or restrictions to the interim control order. This is an important safeguard to ensure that a variation to an interim control order does not impose additional obligations, prohibitions and restrictions listed under subsection 104.5(3) on the controlee. Such changes are more appropriately addressed at the confirmation proceeding. New section 104.11A is designed to allow for variation through amending existing conditions in the interim control order such as to facilitate the change of residential arrangements, or changes in the educational or employment arrangements of a controlee, where appropriate. In exceptional circumstances, it may also permit the senior AFP member and controlee to consent to the removal of an existing obligation, prohibition or restriction.

176. Thirdly, new paragraph 104.11A(2)(c) provides that the issuing court must be satisfied that the variation is appropriate in the circumstances. While both parties must agree to a variation before the issuing court can consider it, it is appropriate that the issuing court be given the final authority to determine whether the proposed variation, however minor, is appropriate in the circumstances.

177. If an issuing court is satisfied that each of the three criteria has been met, it may vary an interim control order.

178. New subsection 104.11A(3) provides that a variation either commences when the issuing court makes the order, or at a later time that the issuing court orders. It is appropriate that the court be given the flexibility to determine when the variation should commence. In some circumstances, it is suitable that a variation should commence at a later date, such as the date when an individual is likely to change residential addresses or commence new employment arrangements.

Item 4 - Subsection 104.14(3) of the Criminal Code

179. Item 4 is consequential upon item 5. It amends subsection 104.14(3) to set out the relationship with new subsection 104.14(3A) in item 5.

Item 5 - After subsection 104.14(3) of the Criminal Code

180. Item 5 inserts new subsection 104.14(3A) which is intended to clarify the evidential weight that is to be given to the original interim control order request when the issuing court is considering taking an action in a confirmation proceeding under section 104.14. New subsection 104.14(3A) implements a recommendation of the 2017 INSLM Review, and Recommendation 7 of the PJCIS Powers Report.

181. An interim control order proceeding, unlike a confirmation proceeding, is an interlocutory proceeding (section 104.28A). This means that the interim control order application may contain hearsay evidence. In contrast, a confirmation proceeding is an ordinary civil court proceeding to which the rules of evidence in the Evidence Act 1995 (Evidence Act) apply.

182. Subsection 104.14(3) provides that at the confirmation hearing, in determining whether to revoke, confirm or declare void an interim control order, an issuing court must consider:

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the original request for an interim control order, and

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any evidence adduced, and any submissions made, under subsection 104.14(1) by the controlee, their legal representative, the senior AFP member who requested the interim control order, or other members of the AFP.

183. At present, the only way the issuing court can consider the original interim control order request is if the AFP introduces that request as evidence. That evidence can then be subject to challenge, as not all the material contained in the interim control order request may necessarily comply with the rules of evidence. This creates delays in confirmation proceedings because the evidential weight to be given to the original interim control order request is unclear.

184. To avoid delays and uncertainty in confirmation proceedings, the 2017 INSLM Review recommended that:

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the interim control order request need not be tendered as evidence of its contents, and

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instead, the issuing court may take judicial notice of the fact that an original request in particular terms was made, but is only to act on evidence received in accordance with the Evidence Act.

185. New paragraph 104.14(3A)(a) provides that in confirmation proceedings, the issuing court must take judicial notice of the fact that the original request for the interim control order was made in particular terms. This avoids the AFP having to adduce the original interim control order request as evidence to meet the requirements of paragraph 104.14(3)(a), only to have parts of the interim control order request subsequently challenged by the controlee.

186. New paragraph 104.14(3A)(b) provides that the issuing court can only take action based on evidence adduced, and submissions made, under subsection 104.14(1) in relation to revoking, confirming or declaring void the interim control order. The effect of this paragraph is to only allow the issuing court to consider evidence admissible under the Evidence Act, when making a decision under section 104.14. Those aspects of the original interim control order request on which the AFP seeks to rely must be adduced under subsection 104.14(1) and must comply with the rules of evidence. Based on the evidence adduced by both parties under subsection 104.14(1), the issuing court can determine the appropriate action to take in the confirmation proceeding.

Item 6 - After section 104.28A of the Criminal Code

187. Item 6 inserts new section 104.28AA which sets out limitations on the issuing court's ability to make cost orders in control order proceedings. In the 2017 INSLM Review, the INSLM recommended that controlees should not be required to pay for the costs of the AFP in control order proceedings. Item 6 implements this recommendation in principle, subject to the caveat that in exceptional circumstances, the AFP may seek costs to the extent of any unreasonable conduct by the controlee.

188. New subsection 104.28AA(1) provides that in control order proceedings, including proceedings to vary or revoke a control order, the issuing court must not make an order for costs against the controlee. This is subject to new subsection 104.28AA(2).

189. New subsection 104.28AA(2) provides that if the issuing court is satisfied that the controlee has acted unreasonably in the conduct of the proceedings, it may order costs against the controlee to the extent of the unreasonable conduct. Examples of unreasonable conduct could include causing unnecessary delays to proceedings and not narrowing the issues in contention. Such conduct could result in the AFP incurring significant additional costs. In such circumstances, it may be appropriate for the issuing court to make a cost order against the controlee, to the extent of the unreasonable conduct.

190. Nothing in new section 104.28AA is intended to prevent the controlee seeking costs against the AFP.

Item 7 - Subsections 104.32(1) and (2) of the Criminal Code

191. Item 7 extends the operation of the control order regime by a further three years. It implements Recommendation 5 of the PJCIS Powers Report.

192. Item 7 amends subsection 104.32(1) to provide that a control order that is in force at the end of 7 September 2021 ceases to be in force at that time.

193. Item 7 also amends subsection 104.32(2) to provide that a control order cannot be requested, made or confirmed after 7 September 2021.

Item 8 - At the end of subsection 105.8(8) of the Criminal Code

194. Item 8 inserts new paragraph 105.8(8)(d) which provides for the PJCIS to be notified following the making of an initial PDO. This increases the PJCIS's oversight of the making of an initial PDO, and implements Recommendation 13 of the PJCIS Powers Report as it relates to initial PDOs.

195. Currently, subsection 105.8(8) requires a senior AFP member to notify the Commonwealth Ombudsman in writing as soon as reasonably practicable after an initial PDO is made, and when the person is taken into custody under the initial PDO. Item 8 inserts new paragraph 105.8(8)(d) which requires the senior AFP member to also notify the PJCIS in writing of the making of an initial PDO as soon as reasonably practicable after the order is made.

196. Recommendation 13 also requires the AFP to brief the PJCIS on the making of a PDO if requested. No legislative amendment is required to give effect to this aspect of Recommendation 13 as the PJCIS already has the authority to monitor and review the AFP's performance of its functions under Part 5.3 of the Criminal Code under existing paragraph 29(1)(baa) of the Intelligence Services Act 2001 (IS Act).

Item 9 - At the end of subsection 105.12(8) of the Criminal Code

197. Item 9 inserts new paragraph 105.12(8)(d) which provides for the PJCIS to be notified following the making of a continued PDO. This increases the PJCIS's oversight of the making of a continued PDO, and implements Recommendation 13 of the PJCIS Powers Report as it relates to continued PDOs.

198. Currently, subsection 105.12(8) requires a senior AFP member to notify the Commonwealth Ombudsman in writing as soon as reasonably practicable after a continued PDO is made. Item 9 inserts new paragraph 105.12(8)(d) which requires the senior AFP member to also notify the PJCIS in writing of the making of an continued PDO as soon as reasonably practicable after the order is made.

Item 10 - At the end of subsections 105.15(6) and 105.16(6) of the Criminal Code

199. Item 10 inserts new paragraphs 105.15(6)(c) and 105.16(6)(c) to enhance the PJCIS's oversight of the prohibited contact order (PCO) regime in Division 105 of the Criminal Code. Item 10 requires the senior AFP member to notify the PJCIS in writing as soon as practicable after the making of a PCO. This is consistent with, and complements, Recommendation 13 of the PJCIS Powers Report.

200. A PCO may be sought against an individual in relation to whom a PDO is being sought (section 105.15), or an individual in relation to whom a PDO is already in force (section 105.16). The effect of a PCO is to limit an individual's ability to communicate with certain individuals. The purposes for which a PCO can be sought include: to avoid a risk to action being taken to prevent a terrorist act occurring, to prevent serious harm to a person, and to prevent interference with the gathering of information about a terrorist act or the preparation for, or the planning of, a terrorist act. The criteria for obtaining a PCO are set out in subsection 105.14A(4).

201. Subsections 105.15(5) and 105.16(6) provide that a senior AFP member must notify the Commonwealth Ombudsman in writing of the making of a PCO. New paragraphs 105.16(5)(c) and 105.16(6)(c) require the senior AFP member to also notify the PJCIS in writing of the making of a PCO. This increases the PJCIS's oversight of the PDO regime as a whole, including the PCO regime.

Item 11 - Subsections 105.53(1) and (2) of the Criminal Code

202. Item 11 extends the operation of the PDO regime by a further three years. This implements Recommendation 11 of the PJCIS Powers Report.

203. Item 11 amends subsection 105.53(1) to provide that a PDO or a PCO that is in force at the end of 7 September 2021 ceases to be in force at that time.

204. Item 11 also amends subsection 105.53(2) to provide that a PDO and a PCO cannot be applied for, or made, after 7 September 2021.

Part 2 - Foreign Incursions and Recruitment: declared areas

Criminal Code Act 1995

Item 12 - Paragraph 119.2(3)(e)

205. Item 12 replaces current paragraph 119.2(3)(e) with a new exception to the declared areas offence in subsection 119.2(1) for individuals performing official duties for the International Committee of the Red Cross (ICRC). This implements in principle Recommendation 2 of the PJCIS Declared Areas Report, which states that section 119.2(3) of the Criminal Code should be amended to make clear that humanitarian work beyond direct aid, including compliance training on the laws of armed conflict, is considered to be a 'legitimate purpose' for entering, or remaining in, a declared area.

206. It is an offence under subsection 119.2(1) for a person to enter, or remain in, an area that has been declared by the Minister for Foreign Affairs. The offence carries a maximum penalty of up to 10 years imprisonment.

207. Subsection 119.2(3) sets out a defence that a person had a legitimate purpose for being in a declared area. Examples of legitimate purposes for entering or remaining in a declared area include providing aid of a humanitarian nature, satisfying an obligation to appear before a court or other body exercising judicial power, and making a bona fide visit to a family member.

208. Current paragraph 119.2(3)(e) provides an exception to the declared areas offence for individuals performing an official duty for the United Nations or an agency of the United Nations. New paragraph 119.2(3)(e) expands the exception to also cover individuals performing official duties for the ICRC.

209. Recommendation 2 of the PJCIS Declared Areas Report has been implemented to the extent that new paragraph 119.3(2)(e)(ii) covers only individuals performing official duties for the ICRC. The ICRC is an independent and neutral organisation that has its role enshrined in international law, including through the Geneva Conventions and their Additional Protocols. It ensures humanitarian protection and assistance for victims of armed conflict, and promotes respect for international humanitarian law (for instance, through activities such as providing training on the laws of armed conflict). As declared areas are likely to be situated in areas of armed conflict, it is appropriate that individuals undertaking official duties for the ICRC have confidence that, in fulfilling their official mandate, they are not contravening the declared areas offence.

210. It is critical that any exception to the declared areas offence be narrowly framed. A broadly framed exception may undermine the effectiveness of the declared areas offence and may be exploited by individuals who use the exception to shield their illegitimate activities. While individuals performing official duties for the ICRC have been specifically exempt from the declared areas offence, other humanitarian aid agencies who provide aid such as food and shelter may continue to rely on the exception in paragraph 119.2(3)(a) which covers the provision of aid of a humanitarian nature.

Item 13 - Subsection 119.2(6) of the Criminal Code

211. Item 13 extends the operation of the declared area offence for a further three years. This implements Recommendation 1 of the PJCIS Declared Areas Report.

212. Item 13 amends subsection 119.2(6) to provide that the offence of entering, or remaining in, a declared area, ceases to have effect at the end of 7 September 2021.

Item 14 - Subsection 119.3(6) of the Criminal Code

213. Item 14 repeals subsection 119.3(6) and replaces it with new subsections 119.3(5A) and 119.3(6). New subsection 119.3(5A) provides that the Minister for Foreign Affairs may revoke a declaration at any time even if he or she remains satisfied that a listed terrorist organisation is continuing to engage in hostile activity in the area. This implements Recommendation 4 of the PJCIS Declared Areas Report.

214. Currently, subsection 119.3(5) provides that the Minister for Foreign Affairs can only revoke a declaration of an area if he or she ceases to be satisfied that a listed terrorist organisation is engaging in hostile activity in the area. The Minister for Foreign Affairs cannot revoke a declaration so long as the criteria for declaring an area under subsection 119.3(1) remains satisfied, even if he or she no longer considers a declaration necessary or desirable.

215. As noted in the PJCIS Declared Areas Report, the Minister for Foreign Affairs should be permitted to remove a declaration in circumstances where the legislative criteria for a declaration remain satisfied, but other non-legislative factors suggest that maintaining the declaration is no longer necessary or desirable. These factors include the operational benefits of declaring the area, a reduction in the extent of hostile activities being undertaken in the area, and the impact on Australia's foreign relations.

216. New subsection 119.3(6) amends the existing subsection to reflect the insertion of new subsection 119.3(5A). It provides that, for the avoidance of doubt, if a declaration for an area has been revoked under subsection 119.3(5) or new subsection 119.3(5A), the revocation does not prevent the area from being subsequently declared under subsection 119.3(1) if the Minister for Foreign Affairs becomes, or remains, satisfied that a listed terrorist organisation is engaging in hostile activities in the area.

Item 15 - Subsection 119.3(7) of the Criminal Code

217. New subsection 119.3(7) repeals existing subsection (7) and replaces it with new subsections 119.3(7) and (8). New subsection 119.3(8) allows the PJCIS to review a declaration at any time during which the declaration is in effect. This implements a recommendation of the 2017 INSLM Review, which was endorsed by the PJCIS in Recommendation 5 of the PJCIS Declared Areas Report.

218. Current subsection 119.3(7) provides that the PJCIS may review a declaration before the end of the 15 day disallowance period. However, there is currently no express ability in subsection 119.3(7) for the PJCIS to table a report following the completion of its review into a declaration. New subsection 119.3(7) clarifies that the PJCIS may conduct a review of the declaration and report the Committee's comments and recommendations to each House of Parliament before the end of the applicable disallowance period.

219. New subsection 119.3(8) provides that the PJCIS can review a declaration at any time during which the declaration is in effect, and report the Committee's comments and recommendations to each House of the Parliament. This increases the PJCIS's oversight of the declared areas provisions, to ensure they can periodically assess a declaration, and seek advice from relevant departments and agencies about its ongoing need.

Part 3 - Stop, search and seize powers

Crimes Act 1914

Item 16 - After Subdivision C of Division 3A of Part IAA

220. Item 16 inserts new Subdivision CA which introduces reporting requirements for the AFP in relation to their use of stop, search and seize powers under Division 3A of Part IAA of the Crimes Act 1914 (Crimes Act). The new reporting requirements implement Recommendation 2 of the PJCIS Powers Report. Recommendation 2 of the PJCIS Powers Report also required that the AFP brief the PJCIS in relation to the exercise of powers under Division 3A of Part IAA. No legislative amendment is required to give effect to this aspect of Recommendation 2 as the Bill will also provide the PJCIS with the authority to monitor and review the AFP's performance of its functions under Division 3A of Part IAA (see item 19).

221. New section 3UJA also implements in principle a recommendation of the 2017 INSLM Review that there be new reporting requirements (akin to the existing requirements for delayed notification search warrants (DNSW) under Part IAAA of the Crimes Act). The additional reporting requirements in the form of new sections 3UJA and 3UJB allow for independent oversight of the exercise of AFP powers under Division 3A. The reporting requirements associated with the exercise of covert powers under the DNSW regime is not an appropriate model for reporting on the exercise of overt powers under Division 3A of Part IAA of the Crimes Act, given the transparent nature of the exercise of overt powers.

Overview of the powers in Division 3A of Part IAA

222. Division 3A of Part IAA of the Crimes Act allows a police officer to stop, question and search persons, and seize items in a Commonwealth place (such as an airport). Paragraph 3UB(1)(a) provides that to exercise these powers, the police officer must suspect on reasonable grounds that the person may have just committed, might be committing, or might be about to commit, a terrorist act.

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

224. Section 3UEA in Division 3A allows a police officer to enter premises in an emergency without a warrant if the police officer suspects on reasonable grounds that:

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it is necessary to search the premises for a thing to prevent its use in connection with a terrorism offence, and

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it is necessary to exercise the power without a search warrant because there is a serious and imminent threat to a person's life, health or safety.

225. Section 3UEA is not limited in its application to only Commonwealth places or prescribed security zones.

Reporting after powers are exercised

226. New section 3UJA creates new reporting obligations on the AFP following the exercise of powers under Subdivision B. Subdivision B contains each of the key police powers outlined above. There are currently no reporting requirements regarding the AFP's use of powers under Subdivision B of Division 3A of Part IAA.

227. New subsection 3UJA(1) provides that as soon as practicable after the exercise of a power or powers by an AFP police officer (or officers) under Subdivision B in relation to an incident, the Commissioner of the AFP must provide a report about the use of the powers to the Minister (currently the Minister for Home Affairs), the INSLM and the PJCIS. An 'incident' is not defined, but is intended to include an individual incident, or a series of related incidents. The provision is not intended to require reporting during a series of related events which may occur in an individual incident, as this may be an impractical and undesirable diversion of resources from the AFP, who may be responding to a terrorist act.

228. New subsection 3UJA(2) outlines the contents of the report in relation to an incident that is to be provided by the Commissioner of the AFP. New paragraph 3UJA(2)(a) provides that the report must state, in relation to an incident, the number of instances when an AFP police officer (or officers) exercised a power under sections 3UE, 3UEA or 3UF. These sections cover:

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the seizure of terrorism related items and serious offence related items (section 3UE)

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emergency entry to premises without a warrant (section 3UEA), and

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the provision of seizure notices for items seized under section 3UE or 3UEA (section 3UF).

229. It is appropriate that the AFP must report on the number of instances when each of these powers are exercised in an incident. These powers are intrusive law enforcement powers and, under Subdivision B, can be exercised without a warrant. They authorise the deprivation of items from an individual, entry to premises without a search warrant, and the issuing of seizure notices, which may result in the forfeiture of the item to the Commonwealth (subsection 3UF(8)).

230. New paragraph 3UJA(2)(b) provides that the report must state, in relation to the incident, the circumstances in which an AFP police officer (or officers) exercise powers under sections 3UC (the requirement to provide names etc.) or 3UD (the power to stop and search). This is not intended to require the report of the Commissioner of the AFP to outline every instance in relation to an incident where the powers in sections 3UC or 3UD are exercised. In some circumstances, it may not be possible or practical for the AFP to keep track of each instance the powers in sections 3UC or 3UD are exercised without diverting resources away from responding to a terrorist act. For example, in the immediate aftermath of a terrorist act in a Commonwealth place, the AFP may exercise these powers in relation to individuals where there is suspicion on reasonable grounds of their involvement in the terrorist act. Noting the urgency with which the AFP must respond to the terrorist threat, and gather evidence in such a scenario, it would be impractical and undesirable for the AFP to maintain records of each exercise of powers under sections 3UC and 3UD.

231. New subsection 3UJA(3) defines an 'AFP police officer' as a member or a special member of the AFP (within the meaning of the Australian Federal Police Act 1979).

Annual report on the exercise of powers

232. New section 3UJB creates annual reporting requirements for the exercise by the AFP of its powers under Division 3A of Part IAA of the Crimes Act. There are currently no annual reporting requirements regarding the AFP's use of powers under Subdivision B of Division 3A of Part IAA.

233. New subsection 3UJB(1) provides that the Minister must, as soon as practicable after each 30 June, cause to be prepared a report about the exercise of powers under this Division, during the year ended on that 30 June.

234. New subsection 3UJB(2) outlines what the annual report must contain. New paragraph 3UJB(2)(a) requires that the annual report must contain the number of instances when an AFP police officer (or officers) exercised powers under sections 3UE (seizure of terrorism related items or serious offence related items), 3UEA (emergency entry to premises without a warrant) or 3UF (issuing of seizure notices). As noted in relation to section 3UJA, it is appropriate that the number of times that the AFP exercises these intrusive law enforcement powers should be reported to Parliament.

235. New paragraph 3UJB(3)(b) provides that the annual report must contain the number of incidents when an AFP police officer (or officers) exercise powers under sections 3UC or 3UD. As previously noted in relation to section 3UJA, it may not always be possible for the AFP to be aware of how many times the powers under sections 3UC (the requirement to provide names etc) or 3UD (the power to stop and search) are exercised in relation to an incident, such as in the aftermath of a terrorist act in a Commonwealth place, without diverting policing resources from responding to the incident to oversee and record the number of times the individual powers are exercised. Outlining the number of incidents in which the powers under sections 3UC or 3UD are exercised provides Parliament with a clear indication of the extent to which terrorism-related incidents require the AFP to exercise powers under sections 3UC or 3UD.

236. New paragraph 3UJB(3)(c) provides that the annual report must contain the number of applications made under section 3UI for declarations that Commonwealth places are prescribed security zones. New paragraph 3UJB(3)(d) provides that the annual report must contain the number of declarations for prescribed security zones made by the Minister under section 3UJ. Declarations of a prescribed security zone allow the AFP police officer to exercise stop, question, search and seize powers under Subdivision B without requiring the AFP police officer to suspect on reasonable grounds that the person might have just committed, might be committing or might be about to commit, a terrorist act. While the exercise of powers under Subdivision B in prescribed security zones are likely to occur only in genuinely emergency scenarios (such as in relation to a credible terrorist threat to a Commonwealth place), it is appropriate that the annual report state the number of declarations for prescribed security zones sought by the AFP and made by the Minister. This provides transparency and confidence in the judicious use of these extraordinary powers by the AFP and the Minister.

237. New subsection 3UJB(3) provides that the Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is completed. This is consistent with the tabling requirements for annual reports relating to control orders (subsection 104.29(3)) of the Criminal Code) and PDOs (subsection 105.47(3) of the Criminal Code)).

238. Consistent with new subsection 3UJA(3), new subsection 3UJB(3) defines an 'AFP police officer' as a member or a special member of the AFP (within the meaning of the AFP Act).

Item 17 - Subsections 3UK(1), (2) and (3)

239. Item 17 extends the operation of the stop, search and seize powers under Division 3A of Part IAA of the Crimes Act for a further three years. This implements Recommendation 1 of the PJCIS Powers Report.

240. Item 17 amends subsection 3UK(1) to provide that a police officer must not exercise powers or perform functions under Division 3A (other than under section 3UF) after 7 September 2021. It is appropriate that the requirement to provide seizure notices under section 3UF for items seized in searches under sections 3UE and 3UEA continues where these items were seized prior to 7 September 2021.

241. Item 17 amends subsection 3UK(2) to provide that a declaration under section 3UJ that is in force at the end of 7 September 2021 ceases to be in force at that time.

242. Item 17 amends subsection 3UK(3) to provide that a police officer cannot apply for, and the Minister cannot make, a declaration under section 3UJ after 7 September 2021.

Part 4 - Special powers relating to terrorism offences

Australian Security Intelligence Organisation Act 1979

Item 18 - Section 34ZZ

243. Item 18 amends section 34ZZ of the Australian Security Intelligence Organisation Act 1979 (ASIO Act), which provides that Division 3 of Part III ceases to have effect on 7 September 2018. The effect of this item will be to extend the operation of these Division 3 provisions by 12 months to 7 September 2019.

244. The amendment will ensure Australia's counter-terrorism capabilities are maintained pending consideration of the PJCIS report reviewing the operation, effectiveness and implications of Division 3. The PJCIS completed its review on 1 March 2018.

245. Intelligence is integral to protecting Australia and Australians from the threat of terrorism, and it is important to ensure that ASIO has the necessary capabilities to perform this function. The threat of terrorism is pervasive and has not abated since the enactment of Division 3 of Part III in 2003. Item 18 reflects the continued need for these powers for the next 12 months, pending consideration of the PJCIS report, and the 2016 INSLM Report into Certain Questioning and Detention Powers in Relation to Terrorism.

246. The powers under Division 3 of Part III are subject to extensive safeguards, which will continue to apply for the 12 month extension of the Division. These include: stringent statutory issuing criteria; the appointment of an independent issuing authority to determine applications (the making of which must be approved by the Attorney-General); the conduct of questioning before an independent prescribed authority; limitations on the duration of warrants and questioning time under warrants; the conferral of rights on persons subject to warrants to contact a lawyer, the Inspector-General of Intelligence and Security (IGIS) or the Commonwealth Ombudsman and to access an interpreter where necessary; the imposition of obligations on persons executing warrants to treat the subject with humanity and respect for dignity; limitations in relation to powers of search (including person searches) and the use of force in the execution of warrants; special rules for young persons who are subject to warrants; specific reporting obligations to the Attorney-General and the IGIS in relation to warrants; the conferral of a specific oversight function on the IGIS under Division 3; the ability of a person subject to a warrant to apply for financial assistance from the Commonwealth; and the application of criminal offences to persons who contravene statutory safeguards under Division 3.

247. Independent reviews of Division 3 of Part III have been undertaken by then INSLM Walker in 2012-14 and then INSLM Gyles in 2016, as well as the predecessor committee to the PJCIS in 2005 (the Parliamentary Joint Committee on ASIO, Australian Secret Intelligence Service and Defence Signals Directorate). These reviews found no evidence of impropriety in the use of these provisions. The IGIS, in undertaking her standing oversight functions, has similarly found no evidence of impropriety or aberrant use.

Part 5 - Review of the exercise of terrorism-related powers

Intelligence Services Act 2001

Item 19 - Paragraph 29(1)(bb)

248. Item 19 amends subsection 29(1) of the IS Act to implement a range of recommendations from the PJCIS Powers Report and the PJCIS Declared Areas Report. This subsection provides that it is a function of the PJCIS to review each of the sunsetting counter-terrorism provisions prior to their future sunset date, as well as expanding its oversight functions to include Division 3A of Part IAA of the Crimes Act.

249. Under existing paragraph 29(1)(bb) of the IS Act, it is a function of the PJCIS to review the counter-terrorism provisions, and ASIO's questioning, and questioning and detention powers, by 7 March 2018. Item 19 repeals existing paragraph 29(1)(bb), as the PJCIS has now completed each of these inquiries, and substitutes it to implement recommendations contained in the PJCIS Powers Report and the PJCIS Declared Areas Report.

250. In accordance with Recommendations 4, 6 and 12 of the PJCIS Powers Report, and Recommendation 1 of the PJCIS Declared Areas Report, new paragraph 29(1)(bb) requires the PJCIS to review, by 7 January 2021, the operation, effectiveness and implications of the following counter-terrorism provisions prior to their sunsetting on 7 September 2021:

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the stop, search and seize powers in Division 3A of Part IAA of the Crimes Act (new subparagraph 29(1)(bb)(i))

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control order and PDO regimes in Divisions 104 and 105 of the Criminal Code (new subparagraph 29(1)(bb)(ii)), and

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declared areas provisions in sections 119.2 and 119.3 of the Criminal Code (new subparagraph 29(1)(bb)(iii)).

251. Item 19 also inserts new paragraph 29(1)(bba) which extends the PJCIS's oversight function to the stop, search and seize powers under Division 3A of Part IAA. This implements Recommendation 3 of the PJCIS Powers Report.

252. New subparagraph 29(1)(bba)(i) requires the PJCIS to monitor and review the performance by the AFP of its functions under Division 3A of Part IAA of the Crimes Act. Enabling the PJCIS to be able to review the AFP's exercise of stop, search and seize powers is consistent with the PJCIS's existing role in monitoring and reviewing the performance by the AFP of its functions under Part 5.3 of the Criminal Code. The PJCIS may be informed in its monitoring and review functions by any reports provided by the Commissioner of the AFP to the PJCIS under new section 3UJA of the Crimes Act which outlines the exercise of powers by the AFP under Division 3A of Part IAA (new section 3UJA, item 16).

253. New subparagraph 29(1)(bba)(ii) enables the PJCIS to monitor and review the basis of the Minister's declarations of prescribed security zones under section 3UJ. It is appropriate that the PJCIS be able to monitor and review the basis of the Minister's declaration to ensure declarations are being made in appropriate circumstances.

254. New paragraph 29(1)(bba) enables the PJCIS to conducts reviews, table reports and seek briefings from relevant departments and agencies in relation to the stop, search and seize powers in Division 3A of Part IAA of the Crimes Act.

Part 6 - Technical amendments

Criminal Code Act 1995

Item 20 - Subsection 105A.5(5) of the Criminal Code

255. Item 20 makes minor amendments to subsection 105A.5(5) to reflect the division of responsibility between the Attorney-General and the AFP Minister (in practice, the Minister for Home Affairs) for the protection of sensitive information in continuing detention order (CDO) proceedings.

256. The Home Affairs and Integrity Agencies Legislation Amendment Act 2018 (HAIA Act) substituted the references to the 'Attorney-General' in Division 105A with 'the AFP Minister'. Accordingly, the HAIA Act provides that, under subsection 105A.5(5), the AFP Minister does not need to include in the copy of the application provided to the terrorist offender any material over which the AFP Minister may take one of the following actions:

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give a certificate under Subdivision C of Division 2 of Part 3A of the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act) (paragraph 105A.5(5)(a)), or seek an arrangement under section 38B of that Act (paragraph 105A.5(5)(b)), or

•

seek an order of the Court preventing or limiting disclosure of the information (paragraph 105A.5(5)(d)).

257. The Attorney-General continues to have responsibility for administering the NSI Act, including providing certificates under Subdivision C of Division 2 of Part 3A, and seeking arrangements under section 38B of the NSI Act. Accordingly, the references to 'the AFP Minister' taking actions in relation to the NSI Act will be amended to reflect the ongoing role of the Attorney-General in relation to that Act. The AFP Minister, as the applicant for a CDO, remains the relevant Minister to seek an order from the court preventing or limiting disclosure of information under paragraph 105A.5(5)(d).

258. Item 20 amends subsection 105A.5(5) by omitting the reference to the 'AFP Minister' and substituting it with a reference to 'a Minister (the decision-maker)'. This amendment ensures that subsection 105A.5(5) reflects the appropriate Minister responsible for taking each of the actions under paragraphs 105A.5(5)(a) to (d). That is, the Attorney-General is the decision-maker for actions taken under the NSI Act in paragraphs 105A.5(5)(a) and (b), and the AFP Minister, as the applicant for a CDO, is the decision-maker in relation to actions taken under paragraph 105A.5(5)(d).

Item 21 - Paragraph 105A.5(6)(a) of the Criminal Code

259. Item 21 is consequential upon item 20. It makes minor amendments to paragraph 105A.5(6)(a) to replace the term 'the AFP Minister' with 'decision-maker'.

Item 22 - Paragraph 105A.5(6)(a) of the Criminal Code

260. Item 22 is consequential upon item 20. It makes a minor amendment to paragraph 105A.5(6)(a) to replace the term 'AFP Minister's' with 'decision-maker's'.

Part 7 - Transitional provisions

Criminal Code Act 1995

Item 23 - At the end of Division 106 of the Criminal Code

261. Item 23 inserts new section 106.9 in the Criminal Code which sets out transitional provisions about how the proposed amendments in the Counter-Terrorism Legislation Amendment Act (No. 1) 2018 (CTLA Act) will apply.

262. New subsection 106.9(1) relates to proposed subsection 104.5(1A) (item 2) which extends the minimum duration of time between the making of an interim control order and the confirmation proceeding from 72 hours to seven days. New subsection 106.9(1) provides that proposed subsection 104.5(1A) applies in relation to an interim control order that is made on or after the day section 106.9 commences (the commencement day), including an interim control order that was requested before the commencement day, but made on or after the commencement day.

263. New subsection 106.9(2) relates to proposed Subdivision CA of Division 104 (item 3), which enables an issuing court to vary the terms of an interim control order. New subsection 106.9(2) provides that proposed Subdivision CA applies in relation to an interim control order made before, on or after the commencement day. It is appropriate that Subdivision CA of Division 104 applies to interim control orders made before the commencement day, as this Subdivision is intended to benefit the controlee, who can seek to vary the terms of an interim control order where appropriate.

264. New subsection 106.9(3) relates to proposed subsection 104.14(3A) (item 5), which clarifies the evidential weight given to the original interim control order request at the confirmation proceeding. New subsection 106.9(3) provides that proposed subsection 104.14(3A) applies in relation to proceedings for the confirmation of an interim control order if the proceedings start on or after the commencement day, and irrespective of whether the original request for the interim control order was made before, on or after the commencement day.

265. New subsection 106.9(4) relates to proposed section 104.28AA (item 6), which sets out limitations on the issuing court's ability to make cost orders in control order proceedings. New subsection 106.9(4) provides that proposed section 104.28AA applies in relation to control order proceedings (including proceedings to vary or revoke a control order) if the proceedings start on or after the commencement day, or if the proceedings have started, but not ended, immediately before the commencement day.

266. New subsection 106.9(5) relates to proposed subsections 119.3(5A) and (6) (item 14), which allow the Minister for Foreign Affairs to revoke a declaration of an area at any time he or she considers it no longer necessary or desirable, and the ability to subsequently declare the area if satisfied of the conditions in subsection 119.3(1). New subsection 106.9(5) provides that proposed subsections 119.3(5A) and (6) apply in relation to declarations of the Minister for Foreign Affairs made before, on or after the commencement day. It is appropriate that these subsections apply in relation to declarations made before the commencement day because they allow the Minister for Foreign Affairs to revoke a declaration if he or she no longer considers it necessary or desirable.