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2016 - 2017 - 2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COUNTER-TERRORISM LEGISLATION AMENDMENT BILL (NO. 1) 2018
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, the Honourable Christian Porter MP)
COUNTER-TERRORISM LEGISLATION AMENDMENT BILL (NO. 1) 2018
GENERAL OUTLINE
1. The Counter-Terrorism Legislation Amendment Bill (No. 1) 2018 (Bill) extends the
operation of a range of critical counter-terrorism provisions in the Criminal Code, the Crimes
Act 1914 (Crimes Act) and the Australian Security Intelligence Organisation Act 1979
(ASIO Act) to ensure that law enforcement and security agencies continue to have access to
these provisions to respond to the ongoing threat of terrorist activities in Australia.
2. The Bill will extend for a further three years the following regimes which are
scheduled to sunset on 7 September 2018 (the counter-terrorism provisions):
the control order regime in Division 104 of the Criminal Code
the preventative detention order (PDO) regime in Division 105 of the Criminal
Code
the declared areas provisions in sections 119.2 and 119.3 of the Criminal Code,
and
the stop, search and seize powers in Division 3A of Part IAA of the Crimes Act.
3. In extending these critical counter-terrorism provisions, the Bill will also implement
the Government's response to the recommendations of the Parliamentary Joint Committee on
Intelligence and Security (PJCIS) and the Independent National Security Legislation Monitor
(INSLM) following their recent reviews of these provisions.
4. On 1 March 2018, the PJCIS tabled two separate reports into the counter-terrorism
provisions: a review into police stop, search and seize powers, the control order regime and
the PDO regime (PJCIS Powers Report), and a report into the declared areas provisions
(PJCIS Declared Areas Report).
5. On 16 October 2017, three separate reports of the INSLM were tabled: the review of
the declared areas provisions, the review of Divisions 104 and 105 of the Criminal Code
(including the interoperability of the control order regime with the continuing detention order
(CDO) regime in Division 105A of the Criminal Code), and the review of Division 3A of
Part IAA of the Crimes Act (2017 INSLM Review).
6. The Bill will also extend the operation of the Australian Security Intelligence
Organisation's (ASIO) questioning, and questioning and detention powers in Division 3 of
Part III of the ASIO Act for a further 12 months.
7. Finally, the Bill will make a minor amendment to Part 5.3 of the Criminal Code to
reflect the new division of responsibilities between the Attorney-General and the Australian
Federal Police (AFP) Minister (in practice, the Minister for Home Affairs) following the
establishment of the new Home Affairs portfolio. The amendment will reflect the role of the
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Attorney-General and the AFP Minister in the protection of sensitive information under the
CDO regime in Division 105A of the Criminal Code.
FINANCIAL IMPACT
8. The amendments in this Bill will have no financial impact on Government
expenditure or revenue.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Counter-Terrorism Legislation Amendment Bill (No. 1) 2018
9. 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.
10. Below is a short summary of the changes to each of the relevant Acts.
Administrative Decisions (Judicial Review) Act 1977
11. The Bill amends the Administrative Decisions (Judicial Review) Act 1977
(ADJR Act) to exclude from review under that Act the decision of a senior Australian Federal
Police (AFP) member in relation to consent for the purposes of applications to vary interim
control orders.
Criminal Code Act 1995
12. The amendments to the Criminal Code include:
extending the operation of the control order regime in Division 104 for a further
three years
allowing an issuing court to vary an interim control order where there is
agreement to a variation between the AFP and the subject of the control order
(controlee)
clarifying the evidential weight that the issuing court must give to an original
request for an interim control order during the confirmation proceedings
extending the minimum period between the date the interim control order is made,
and the date of the confirmation proceedings, from 72 hours to seven days
inserting a requirement that the issuing court cannot make cost orders against the
controlee except in limited circumstances where the controlee has acted
unreasonably in conducting the control order proceedings
extending the operation of the preventative detention order (PDO) regime in
Division 105 for a further three years
introducing a requirement that a senior AFP member must notify the PJCIS, as
soon as reasonably practicable, after an initial or continued PDO is made, and
after a prohibited contact order (PCO) is made
extending the operation of the declared areas provisions in sections 119.2 and
119.3 for a further three years
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creating an exception to the declared areas offence for individuals performing an
official duty for the International Committee of the Red Cross (ICRC)
amending the declared areas provisions to allow the Minister for Foreign Affairs
to revoke a declaration at any time prior to the expiry of the declaration, when he
or she considers the declaration is no longer necessary
amending the declared areas provisions to allow the PJCIS to review a declaration
at any time during which the declaration is in effect and to table a report in the
Houses of Parliament following its review, and
making minor amendments to the provisions related to the protection of sensitive
information in continuing detention order (CDO) proceedings to reflect the
division of responsibilities between the Attorney-General and the AFP Minister
(in practice, the Minister for Home Affairs) following the establishment of the
Home Affairs portfolio.
Crimes Act 1914
13. The amendments to the Crimes Act include:
extending the operation of stop, search and seize powers in Division 3A of
Part IAA for a further three years
introducing a requirement that the Commissioner of the AFP must provide the
Minister, the INSLM and the PJCIS with a copy of a report into the exercise of
powers under Division 3A of Part IAA as soon as practicable after those powers
are exercised, and
introducing a requirement that the responsible Minister must report annually to
Parliament on the exercise of any powers under Division 3A.
Australian Security Intelligence Organisation Act 1979
14. The Bill amends the ASIO Act to extend the operation of Division 3 of Part III to
provide for the continuation of the questioning and questioning and detention warrant regime
for a further 12 months.
Intelligence Services Act 2001
15. The amendments to the Intelligence Services Act 2001 (IS Act) include:
inserting a requirement for the PJCIS to review the operation, effectiveness and
implications of the control order regime, the PDO regime and the declared areas
provisions in the Criminal Code, and the stop, search and seize powers in the
Crimes Act ahead of their future sunset date, and
introducing a new oversight role for the PJCIS to monitor and review the
performance by the AFP of its functions under Division 3A of Part IAA of the
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Crimes Act, and the basis of the Minister's declaration of a prescribed security
zone under section 3UJ of the Crimes Act.
Human rights implications
Measures that engage human rights
16. This Bill engages the following rights:
the right to freedom from arbitrary detention and arrest, and the right to liberty
and security of the person in Article 9 of the International Covenant on Civil and
Political Rights (ICCPR)
the right to freedom of movement in Article 12 of the ICCPR
the right to a fair trial, the right to minimum guarantees in criminal proceedings
and the presumption of innocence in Article 14 of the ICCPR
the right to protection against arbitrary and unlawful interferences with one's
privacy or home in Article 17 of the ICCPR
the right to freedom of association in Article 22 of the ICCPR
the right to freedom of expression in Article 19 of the ICCPR
the prohibition on cruel, inhuman or degrading treatment or punishment in
Article 7 of the ICCPR and Articles 2 and 16 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and
the right of the child to have their best interests as a primary consideration by
courts of law, administrative authorities or legislative bodies in Article 3 of the
Convention on the Rights of the Child (CRC).
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SCHEDULE 1--AMENDMENTS
Current threat environment
17. The current terrorism threat environment is highly relevant in considering the
necessity and proportionality of the measures contained in this Bill.
18. In September 2014, Australia's National Terrorism Threat Level was raised to
'probable'. This means there is credible intelligence assessed by Australia's security agencies
indicating that individuals and groups continue to possess the intent and capability to conduct
a terrorist act in Australia.
19. Since the raising of the threat level in September 2014:
85 people have been charged as a result of 37 counter-terrorism related operations
around Australia
there have been six attacks and 14 major counter-terrorism disruption operations
in response to potential attack planning in Australia
around 220 people in Australia are being investigated for actively providing
support to terrorist groups involved in the Syria/Iraq conflict, including through
funding and facilitation, or seeking to travel to join these groups
around 110 Australians are currently in Syria and Iraq and have fought for or
otherwise supported Islamic extremist groups
at least 70, and possibly as many as 90 Australians have been killed as a result of
their involvement in the conflict
around 40 people have returned to Australia after traveling to Syria/Iraq and
joining groups involved in the conflict, and
since 2012, around 235 Australian passports have been cancelled or refused in
relation to the Syria/Iraq conflict.
20. Following detailed consideration of the threat environment based on advice from law
enforcement and security agencies, in the 2017 INSLM Review, the INSLM concluded that
the threat of a terrorist act will remain a significant factor in the Australian security landscape
for the foreseeable future.
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Part 1--Control orders and preventative detention orders
Control Orders
21. The control order regime in Division 104 of the Criminal Code allows an issuing
court (a Federal Circuit Court or a Federal Court) to impose obligations, prohibitions and
restrictions on a person for the purposes of:
protecting the public from a terrorist act
preventing the provision of support for, or the facilitation of, a terrorist act, and
preventing the provision of support for, or the facilitation of, the engagement in a
hostile activity in a foreign country.
22. The control order process consists of two stages: the interim control order and the
confirmed control order.
23. Subject to the consent of the Minister for Home Affairs, a senior member of the AFP
can apply to an issuing court for an interim control order. The issuing court may make the
interim control order if it is satisfied 'on the balance of probabilities' that the requirements
outlined in paragraphs 104.4(1)(a) to 104.4(1)(c) of the Criminal Code have been met and
that each of the obligations, prohibitions and restrictions imposed by the control order are
'reasonably necessary, and reasonably appropriate and adapted' to meet the purposes set out
above (paragraph 104.4(1)(d)).
24. The conditions that may be imposed on a controlee are outlined in
subsection 104.5(3). These include a prohibition or restriction on the controlee being at
specified areas or places, a prohibition or restriction on leaving Australia, a requirement that
the controlee remain at specified premises between specified times of the day but no more
than 12 hours within any 24 hours, a requirement that the person wear a tracking device, and
a prohibition or restriction on the person accessing or using specified forms of
telecommunication or other technology (including the internet).
25. An interim control order is subject to confirmation by the court as soon as practicable,
but at least 72 hours after the interim control order is made (subsection 104.5(1B)). A
confirmation hearing is a contested hearing where an issuing court considers the need for a
control order and the conditions imposed by the order. In determining whether to confirm the
interim control order, the issuing court must take into account the original request for the
interim control order and the evidence adduced and submissions made by the parties to the
proceeding. Following a confirmation hearing, the issuing court can confirm (with or without
variation) the interim control order, revoke the interim control order, or declare the interim
control order void.
26. A control order can last up to 12 months (or three months if the person is aged
between 14 and 17) from the day after the interim control order is made, and successive
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orders may be issued. A control order cannot be made in relation to a person who is under the
age of 14.
Extending the operation of the control order regime in Division 104
27. The control order regime in Division 104 of the Criminal Code sunsets on
7 September 2018. The Bill extends the operation of the control order regime by a further
three years, until 7 September 2021. This implements Recommendation 5 of the PJCIS
Powers Report. The control order regime is an important law enforcement power that
continues to be vital in light of the enduring nature of the terrorist threat facing Australia.
28. The control order regime has been used judiciously to date - as at May 2018, only six
control orders have been made since the introduction of the regime in 2005. As noted in the
PJCIS Powers Report, 'rather than indicating that control orders are not necessary, the
Committee considers that the limited use of the provisions reflects the AFP's position that, in
circumstances where there is enough evidence to formally charge and prosecute a person, the
AFP will take this approach over seeking the imposition of a control order'.1
29. The control order regime achieves the legitimate objective of preventing serious
threats to Australia's national security interests, including in particular, preventing terrorist
acts. In the current national security landscape, it is critical that law enforcement agencies
have access to preventative powers such as control orders to proactively keep the Australian
community safe. The control order regime contains numerous safeguards that ensure that the
regime continues to be reasonable, necessary and proportionate. These safeguards include:
the Minister for Home Affairs must consent to a senior AFP member making an
interim control order application to an issuing court (section 104.2)
a control order can only be made by an independent judicial authority (the Federal
Circuit Court or the Federal Court)
the issuing court must be satisfied on the balance of probabilities that each of the
obligations, prohibitions and restrictions imposed on the controlee are reasonably
necessary, and reasonably appropriate and adapted to achieving the purpose of the
control order (paragraph 104.4(2)(d))
when the issuing court is considering whether each of the obligations, prohibitions
and restrictions are reasonably necessary, and reasonably appropriate and adapted,
the issuing court must take into account the impact of the conditions on the person's
circumstances (including the person's financial and personal circumstances)
(paragraph 104.4(2)(c))
1
Parliamentary Joint Committee on Intelligence and Security (February 2018) Review of police stop, search and
seizure powers, the control order regime and the preventative detention order regime, paragraph 3.56 (page 54).
9
where an issuing court is considering imposing obligations, prohibitions and
restrictions on a young person between the age of 14 and 17, the issuing court must
take into account as a primary consideration, the best interests of the young person,
and as a paramount consideration, the objects of the control order regime, and the
impact of the conditions on the young person's circumstances (including the young
person's financial and personal circumstances) (subsection 104.4(2))
the court must appoint a lawyer to act for a young person aged between the age of
14 and 17 in control order proceedings if the person does not have a lawyer acting
for them, unless the proceedings are ex parte or if the person has previously refused
a lawyer (subsections 104.28(4) and (5))
the controlee has the ability to apply to have a control order varied, revoked or
declared void as soon as the they are notified that an order is confirmed (section
104.18)
a control order can only last up to 12 months from the day the interim control order
is made, and only three months in the case of young persons between the age of 14
and 17, and
annual reports must be tabled in Parliament on a range of matters relating to the
operation of the regime, including outlining the number of control orders sought
and the number of control orders made, confirmed, revoked and declared void
(section 104.29).
30. Outlined below are the key rights that are likely to be engaged by the continuation of
the control order regime. Any further rights that are engaged, and in any way limited, are in
pursuit of the legitimate objective of protecting Australia's national security interests,
including in particular, preventing terrorist acts, and represent reasonable, necessary and
proportionate limitations on individual freedoms that are subject to the full suite of
safeguards outlined in paragraph 29.
Freedom of movement in Article 12 of the ICCPR
31. Article 12 of the ICCPR provides that persons lawfully within the territory of a State
shall have the right to freedom of movement within that State. The control order regime
engages the right to freedom of movement as it allows a court to impose prohibitions and
restrictions requiring that the controlee not be at specified areas or places (paragraph
104.5(3(a)), requiring that they not leave Australia, or requiring that they remain at specified
premises between specified times each day, or on specified days, but for no more than 12
hours within any 24 hours.
32. The ICCPR permits limitations on the right to freedom of movement where
restrictions are provided by law and are necessary to achieve a legitimate objective, such as
the protection of national security. Consistent with Article 12, the control order regime is
10
aimed at achieving the legitimate objective of preventing serious threats to Australia's
national security interests, including in particular, preventing terrorist acts. The control order
regime is also comprehensively prescribed by law. Division 104 outlines the process through
which the AFP may seek a control order, the threshold that must be met before an issuing
court can make a control order, and the process for contesting, varying and revoking a control
order.
33. Any restrictions on the right to freedom of movement under a control order are
reasonable, necessary and proportionate. This is guaranteed by the threshold that the issuing
court must be satisfied is met before making a control order. For example, where the AFP
seeks a control order because it may substantially assist in the prevention of a terrorist act, the
issuing court must be satisfied on the balance of probabilities that the control order will
achieve this objective, and that each of the obligations, prohibitions and restrictions imposed
on the individual are reasonably necessary, and reasonably appropriate and adapted for the
purpose of protecting the public from a terrorist act. The issuing court must also have regard
to the impact of the obligations, prohibitions and restrictions on the person's circumstances
(including the person's financial and personal circumstances). The controlee is also entitled
to apply to the issuing court to vary or revoke the control order at any time after the
confirmation of the interim control order. A control order can last for up to a maximum of 12
months, or three months in the case of young persons between the age of 14 and 17.
34. Accordingly, while the control order regime may restrict the right to freedom of
movement, it does so to achieve the legitimate purpose of protecting Australia's national
security, and does so in a manner that is reasonable and proportionate.
Freedom from arbitrary detention and arrest under Article 9 of the ICCPR
35. Article 9 of the ICCPR provides that no-one shall be subjected to arbitrary arrest or
detention or deprived of their liberty except on such grounds and in accordance with such
procedure as are established by law. One of the conditions that an issuing court may impose
under the control order regime is the requirement that the person remain at specified premises
between specified times each day, or on specified days, but for no more than 12 hours within
any 24 hours (paragraph 104.5(3)(c)).
36. Article 9 regulates, rather than prohibits, detention. Only detention that is 'arbitrary'
is prohibited. The United Nations Human Rights Committee has stated that 'arbitrariness'
includes the elements of inappropriateness, injustice and a lack of predictability. Arrest or
detention must be reasonable and necessary in all circumstances with reference to the
recurrence of crime, interference with evidence or the prevention of flight. Detention is not
considered arbitrary where it is reasonable, necessary and proportionate to achieving a
legitimate objective. The legitimate objective of the control order regime is to protect
Australia's national security interests, including in particular, preventing terrorist acts. The
condition under paragraph 104.5(3)(c) is not arbitrary and is consistent with Article 9 because
it is ordered by a court and justified on the basis of compelling reasons.
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37. Each of the safeguards to the control order regime outlined in paragraph 27 above, are
examples of features designed to ensure that the condition under paragraph 104.5(3)(c) is
only applied where it is not arbitrary. In particular, the issuing court must be satisfied of
specified criteria before making a control order, and approving each of the proposed
obligations, prohibitions or restrictions. The issuing court must be satisfied on the balance of
probabilities that each of the obligations, prohibitions and restrictions to be imposed are
reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting
the public from a terrorist act. In determining this, the court must have regard to the impact of
the obligation, prohibition or restriction on the person's circumstances (including their
financial and personal circumstances).
38. Accordingly, this condition does not constitute 'arbitrary' detention. It therefore
complies with in Article 9 of the ICCPR.
Freedom of association in Article 22 of the ICCPR
39. Article 22 of the ICCPR provides that everyone shall have the right to freedom of
association with others. The control order regime may limit this right where the issuing court
imposes a condition that prohibits or restricts a controlee's communication or association
with certain individuals (paragraph 104.5(3)(e)). Article 22(2) provides that there may be
limitations placed on the right to freedom of association where those limitations are
prescribed by law and are in the interests of national security.
40. A potential limitation on freedom of association under the control order regime is
aimed at achieving the legitimate objective of preventing serious threats to Australia's
national security interests, including in particular, preventing terrorist acts. An issuing court
will only approve the imposition of a condition limiting a controlee's freedom of association
if the prohibition or restriction on the controlee's communication with another specified
individual would substantially assist in achieving the objects of the Division, including
preventing a terrorist act. The limitation on the freedom of association under the control order
regime is comprehensively prescribed by law. Division 104 outlines the process through
which the AFP may seek a control order, the threshold that must be met before an issuing
court can make a control order, and the process for contesting, varying and revoking a control
order.
41. Any limitation of the right to freedom of association under a control order is
reasonable, necessary and proportionate. The issuing court must be satisfied on the balance of
probabilities that the restriction on association is reasonably necessary, and reasonably
appropriate and adapted for the purpose of preventing a terrorist act. In determining this, the
issuing court must also have regard to the impact of the condition on the controlee's
circumstances, including their financial and personal circumstances. The controlee also has
the ability to seek to remove or vary the condition even after the interim control order has
been confirmed. Furthermore, a control order can only last for up to a maximum of
12 months, or three months in the case of young persons between the age of 14 and 17.
12
42. Accordingly, while the control order regime may limit the right to freedom of
association, it is done for the legitimate purpose of protecting Australia's national security.
The limitation is prescribed by law and represents a reasonable and proportionate means of
achieving the legitimate objective.
Right of the child to have their best interests as a primary consideration by courts of law,
administrative authorities or legislative bodies in Article 3 of the CRC
43. Article 3 of the CRC requires that the best interests of the child shall be a primary
consideration in all actions concerning social welfare institutions, courts of law,
administrative authorities or legislative bodies. The rights of the child before a court of law
are engaged because a control order may be obtained in relation to persons as young as
14 years of age.
44. The imposition of a control order on a young person is expected to be used only in
rare circumstances, when it is required to prevent a young person from being involved in a
terrorist act. It is an unfortunate reality that children have been involved in terrorism incidents
and convicted of terrorism offences in Australia.
45. Paragraph 104.4(1)(d) of the Criminal Code requires that before imposing a control
on a person the court must be satisfied on the balance of probabilities that the control is
reasonably necessary, and reasonably appropriate and adapted to protecting the public from a
terrorist act. When considering whether a particular obligation, prohibition or restriction is
reasonably necessary, and reasonably appropriate and adapted, the issuing court, in relation to
young persons aged between 14 and 17, is required to consider the 'best interests' of the
young person. In determining what is in a young person's 'best interest', subsection
104.4(2A) provides that the issuing court must take into account:
the age, maturity, sex and background (including lifestyle, culture and traditions) of
the person
the physical and mental health of the person
the benefit to the person of having a meaningful relationship with their family and
friends
the right of the person to receive an education
the right of the person to practise their religion, and
any other matter the court considers relevant.
46. Other rights in relation to the young person, as set out in the CRC, are expressly
recognised by subsection 104.4(2A), including the right of the child to education (Article 28)
and to practise their religion (Articles 14 and 30). Noting the open-ended nature of the
matters the issuing court can consider, subsection 104.4(2A) can also allow the issuing court
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to consider other rights in the CRC, such as the right to health care (Article 24), and the right
to not be separated from their parents against their will (Article 9).
47. The issuing court is required to consider the best interests of the young person as a
'primary consideration', but the 'paramount consideration' is achieving the objects of the
control order regime, which is to ensure the safety and security of the community. Noting the
significant consequences that can result from the commission of a terrorist act, it is
appropriate that in the hierarchy of matters to be considered by the issuing court, the
legitimate objective of protecting Australia's national security, including in particular,
preventing terrorist acts, should be the 'paramount' consideration of the issuing court.
48. In addition to each of the safeguards outlined in paragraph 27, above, and the
requirement to consider the 'best interests' of the young person as a 'primary consideration',
the control order regime also includes the following safeguards targeted at ensuring the needs
of a young person are met:
reasonable steps must be taken to serve the interim control order, variations of a
control order, a revocation of a control order or the confirmation of the interim
control order on at least one parent or guardian of the young person, and
if a young person does not have a lawyer to act for them in relation to a control
order proceeding, the court must appoint a lawyer for the young person, unless
where the proceedings are ex parte or the young person has previously refused a
lawyer.
49. Accordingly, the control order regime protects the best interests of the child and
complies with Article 3 of the CRC.
Extending the minimum duration of time between the interim control order and the
confirmation proceeding
50. The Bill increases the minimum duration of time between the making of an interim
control order, which is generally made on an ex parte basis, and the confirmation proceeding.
Currently, when making an interim control order, the issuing court must specify the day on
which the confirmation proceeding will occur (paragraph 104.5(1)(e)). Subsection 104.5(1A)
provides that the date specified by the issuing court must be as soon as practicable, but at
least 72 hours, after the interim control order is made. Current subsection 104.5(1B) enables
the issuing court to take into consideration the time required by both parties to prepare when
setting the date for the confirmation proceeding. The Bill amends subsection 104.5(1A) to
extend the minimum duration of time between the making of the interim control order and the
confirmation proceeding from 72 hours to seven days. This implements Recommendation 9
of the PJCIS Powers Report.
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Procedural guarantees under Article 14 of the ICCPR
51. Article 14(3)(c) provides that everyone should be entitled to a trial without delay.
While a control order proceeding is a civil proceeding, the requirements of Article 14 may
apply because the breach of control order conditions can result in criminal sanctions.
Accordingly, it is appropriate that the guarantees under Article 14 apply to control order
proceedings. Extending the minimum duration of time between the making of an interim
control order and the confirmation hearing from 72 hours to seven days may limit the
controlee's right to contest their interim control order as soon as practicable.
52. The purpose of the extension of time is to enable both parties to have sufficient time
to prepare for a confirmation proceeding. In practice, confirmation proceedings have
occurred many months after the making of a control order. However, the possibility remains
under subsection 104.5(1B) that the issuing court can set a confirmation proceeding 72 hours
after the making of an interim control order.
53. To mitigate the risk of not being prepared for a confirmation proceeding, the AFP
may delay obtaining an interim control order until such time as it is prepared for a
confirmation proceeding immediately afterwards. This delay would undermine the
preventative purpose of the control order regime and would increase the risk to the Australian
community.
54. The potential limitation on a controlee's right to contest their interim control order as
soon as possible is justified on the basis that the amendment seeks to achieve the legitimate
objective of preventing serious threats to Australia's national security interests, including in
particular, preventing terrorist acts. The amendment allows the AFP to seek an interim
control order as soon as it is necessary, without the risk it will be unprepared for a
confirmation proceeding 72 hours after the making of an interim control order. The extension
of time may also allow the controlee greater time to prepare for the confirmation proceeding,
which may be time consuming and highly complex.
55. The PJCIS Powers Report considered that the extension of time between the making
of an interim control order and confirmation proceeding from 72 hours to seven days was
appropriate, and a reasonable and proportionate means of achieving the legitimate objective
of protecting the community from a terrorist act. The extension of time balances
appropriately the need of AFP to address threats to Australia's national security, while also
ensuring that both parties are adequately prepared for a confirmation proceeding.
Varying the terms of an interim control order / exclusion from ADJR Act review
56. The Bill inserts new section 104.11A which enables the court to vary the terms of an
interim control order where both the controlee and a senior AFP member consent to the
variation. The issuing court may approve the variation if it considers the variation is
appropriate in the circumstances. This amendment implements a recommendation of the 2017
INSLM Review, and Recommendation 8 of the PJCIS Powers Report.
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57. This measure is an additional safeguard in the control order regime. It allows both
parties to make minor and uncontroversial changes to the terms of an interim control order
prior to a confirmation proceeding, such as amending a relevant condition to account for a
change to the mobile phone number of the controlee, or a change in the controlee's residential
or employment arrangements. New paragraph 104.11A(2)(b) does not allow a variation to
include additional obligations, prohibitions or restrictions to the interim control order.
58. The Bill also amends the ADJR Act to make the decision of the senior AFP member
in relation to consent for the purposes of applications for varying an interim control order
exempt from review under the ADJR Act. This may engage the procedural guarantees under
Article 14 of the ICCPR.
Procedural guarantees under Article 14 of the ICCPR
59. Article 14 provides that everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law. Furthermore, Article
14(3)(c) provides that everyone should be entitled to a fair trial without delay. While the
procedural guarantees under Article 14 arise in the context of criminal prosecutions, these
rights may also be engaged in relation to civil matters such as control orders where criminal
penalties may arise for breach of its conditions.
60. The exclusion of the decision of a senior AFP member from ADJR Act review is
appropriate in the circumstances. In its 2012 report Federal Judicial Review in Australia, the
Administrative Review Council outlined a number of justifications as to why exempting
decisions from review under the ADJR Act may be appropriate. One such justification is that
review under the ADJR Act has the potential to fragment or frustrate another legal process
which is already under way. The prospect of ADJR Act review of the decision of a senior
AFP member would fragment the confirmation proceeding, a date for which has already been
set.
61. The purpose of the new variation to the interim control order provisions is to
accommodate minor and uncontroversial changes to the interim control order. More
substantive changes to the interim control order should be litigated at the confirmation
proceeding. At the confirmation hearing, both parties can contest the necessity of the control
order, as well as the need for each of the obligations, prohibitions and restrictions.
62. The exclusion of the decision of a senior AFP member from review under the ADJR
Act does not prevent the decision being judicially reviewed under paragraph 75(v) of the
Constitution. Accordingly, while the Bill excludes the decision of a senior AFP member from
ADJR Act review, the procedural guarantees provided under Article 14 are not restricted as
the controlee can contest the need for a control order and its conditions during the
confirmation proceeding, and seek review of the decision of a senior AFP member under
section 75(v) of the Constitution.
16
Preventative detention orders
63. A PDO under Division 105 of the Criminal Code allows a person to be taken into
custody for up to 48 hours for the purposes of either preventing a terrorist attack that is
capable of being carried out, and could occur within the next 14 days, or preserving evidence
of, or relating to, a recent terrorist act. There are two types of PDOs: initial PDOs, which can
last up to 24 hours, and continued PDOs, which can extend detention by a further 24 hours.
64. An 'issuing authority' for the purposes of an initial PDO is a senior AFP member.
Issuing authorities for the purposes of a continued PDO are outlined in section 105.2, and
include a judge of a state or territory Supreme Court and a judge of the Federal Court or
Federal Circuit Court, acting in their personal capacity.
65. The key elements of the PDO regime are:
the AFP applicant and the issuing authority must be satisfied of three matters: the
terrorist act is capable of being carried out and could occur within the next 14 days,
the making of the order would substantially assist in preventing a terrorist act
occurring, and detaining 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
a prohibited contact order (PCO) 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, or to avoid other specified risks outlined in subsection
105.14A(4), and
the key review mechanisms include: the detainee's right to apply, on expiration of
the order, to the Security Appeals Divisions of the Administrative Appeals Tribunal
(AAT) to seek merits review of the decision to make or extend an order, and the
17
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.
Extending the operation of the PDO regime
66. The PDO regime in Division 105 of the Criminal Code sunsets on 7 September 2018.
The Bill extends the operation of the PDO regime by a further three years, until
7 September 2021. This implements Recommendation 11 of the PJCIS Powers Review.
67. The PDO regime supports the legitimate objective of preventing serious threats to
Australia's national security and, in particular, preventing terrorist acts. In recent years, there
has been an increase in the threat of smaller-scale, opportunistic attacks by lone actors. Law
enforcement agencies have had less time to respond to these kinds of attacks than other
terrorist plots. In these circumstances, PDOs are a proportionate and necessary measure that
enable police to disrupt terrorist activity at an early stage.
68. To date, no Commonwealth PDOs have been issued since the commencement of the
regime in 2005. This reflects the policy intent that these orders should be invoked only in
limited circumstances where traditional investigative powers available to law enforcement
agencies are inadequate to respond to a terrorist threat.
69. In his 2017 Review, the INSLM concluded that 'in view of the nature and extent of
current terrorist threats, I find that a preventative detention regime in terms of div 105 is
necessary and proportionate to that threat. There is also adequate protection of individual
rights'.2 The PJCIS Powers Report also concluded that in the current threat environment, the
PDO regime should be continued to ensure that the AFP is empowered to respond to a range
of possible threats to the community.3
70. The Bill also introduces additional reporting requirements under the PDO regime to
increase transparency and independent oversight of the regime. The Bill inserts new
requirements in subsections 105.8(8) and 105.12(8) which require a senior AFP member to
notify the PJCIS in writing as soon as practicable after the making of an initial and continued
PDO. This implements Recommendation 13 of the PJCIS Powers Report. The Bill also
inserts new requirements in subsections 105.15(6) and 105.16(6) which require a senior AFP
member to notify the PJCIS in writing as soon as practicable after the making of a PCO.
71. These measures increase PJCIS oversight of the PDO regime as a whole, and adds to
the existing function of the PJCIS to monitor and review the performance by the AFP of its
functions under Part 5.3 of the Criminal Code (paragraph 29(1)(baa) of the IS Act).
2
Independent National Security Legislation Monitor (September 2017) Review of Divisions 104 and 105 of the
Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative
Detention Orders, paragraph 10.13 (page 80).
3
Parliamentary Joint Committee on Intelligence and Security (February 2018) Review of police stop, search and
seizure powers, the control order regime and the preventative detention order regime, paragraph 4.80
(page 103).
18
72. Outlined below are the rights that are likely to be engaged by extending the operation
of the PDO regime.
Freedom from arbitrary arrest or detention in Article 9(1) of the ICCPR
73. Article 9(1) of the ICCPR provides that no one shall be subjected to arbitrary arrest or
detention, or be deprived of their liberty except on such grounds and in accordance with such
procedures as are established by law. The PDO regime engages these rights as it authorises
the detention of an individual for up to 48 hours without charge.
74. The United Nations Human Rights Committee has stated that 'arbitrariness' includes
the elements of inappropriateness, injustice and a lack of predictability. Arrest or detention
must be reasonable and necessary in all circumstances with reference to the recurrence of
crime, interference with evidence or the prevention of flight. Detention will not be arbitrary
where, in all the circumstances, it is appropriate, justifiable, reasonable, necessary and
proportionate to a legitimate end. As set out above, the PDO regime supports the legitimate
objective of preventing serious threats to Australia's national security, including preventing
imminent terrorist acts.
75. The deprivation of liberty, and the arrest and detention of a person who is the subject
of a PDO, are not 'arbitrary', as it operates in accordance with such procedures as established
in Division 105, and its application is clear and predictable. The PDO regime contains
numerous features, which are outlined in paragraph 65, to ensure that a PDO is only
authorised where it is not arbitrary.
76. For example, when applying for a PDO, the AFP member must suspect on reasonable
grounds that the person will engage in a terrorist act, possess a thing connected with the
preparation for, or engagement of a person in, a terrorist act, or that the person has done an
act in preparation for, or planning, a terrorist act. The issuing authority must be satisfied that
there are reasonable grounds to suspect one or more of these matters. In this context, a
'terrorist act' must be one that is capable of being carried out, and could occur, within the
next 14 days (subsection 105.4(5)). Both the AFP member and the issuing authority must also
be satisfied that the making of the PDO would substantially assist in preventing a terrorist act
occurring, and that detaining the person for a specified time under the order is reasonably
necessary to prevent a terrorist act. This sets a high threshold for obtaining a PDO and is one
that is inextricably linked to preventing an imminent terrorist incident.
77. In light of the processes and safeguards outlined above, detention under the PDO
regime is not 'arbitrary' and complies with Article 9 of the ICCPR.
Procedural guarantees under Article 14 of the ICCPR
78. Article 14 of the ICCPR provides fair trial rights and minimum guarantees in criminal
proceedings. These rights may also be engaged in relation to civil matters such as PDOs
where criminal penalties may arise for breach of its conditions.
19
79. The PDO regime upholds Article 14 as it requires AFP members to advise the subject
of a PDO of particular matters, including their right to make representations to the senior
AFP member in relation to the PDO with a view to having the order revoked, the right to
contact a lawyer or a family member, and the right to make complaints to the Commonwealth
Ombudsman. Following the expiration of a PDO, the individual may also seek a remedy from
a federal court in relation to the PDO, or in relation to their treatment whilst under custody
(subsection 105.51(1)). The individual may also apply to the Security Appeals Division of the
AAT for a review of the decision to make an initial or continued PDO (subsection 105.51(5)).
80. Furthermore, section 105.5A provides that where the PDO subject has inadequate
knowledge of the English language or a disability, a police officer must arrange for the
assistance of an interpreter, and must provide the person reasonable assistance to choose a
lawyer and to contact the lawyer.
81. The safeguards contained in the PDO regime uphold the minimum procedural
safeguards guaranteed under Article 14 of the ICCPR.
Freedom from arbitrary and unlawful interference with privacy in Article 17 of the ICCPR
82. Article 17 of the ICCPR provides that no-one shall be subject to arbitrary or unlawful
interference with their privacy. Under section 105.43 of the Criminal Code, a police officer
may use such force as is necessary and reasonable in the circumstances to take identification
material from a person if the police officer believes on reasonable grounds that it is necessary
to do so for the purpose of confirming the person's identity as the person specified in the
PDO. However, the limited interference with privacy is not 'arbitrary' as the process for
obtaining identification material is established by law in a process clearly articulated in
section 105.43.
83. Furthermore, this limited interference with privacy achieves the legitimate objective
of ensuring that the individual is the person specified under the PDO. Failure to properly
identify the intended subject of the PDO could result in the wrong individual being subject to
detention, and the intended subject of the PDO remaining at large in the community. This risk
can be reasonably mitigated by limited interference with the person's right to privacy. In
addition, any material obtained must be destroyed within a period of 12 months after the
material was obtained (so long as any proceedings in respect of the PDO, or the treatment of
a person under a PDO, have not been brought or have concluded).
Freedom of expression in Article 19 of the ICCPR
84. Article 19 of the ICCPR provides that everyone shall have the right to freedom of
expression, including the right to seek, receive, and impart information and ideas of all kind.
This right may be restricted where a PCO is made under sections 105.15 (in relation to a
person against whom a PDO is being sought) and 105.16 (in relation to a person against
whom a PDO is already in force).
20
85. The purpose of a PCO is to prevent an individual from communicating with specified
individuals. The criteria for obtaining a PCO are clearly outlined in section 105.14. A PCO
can be made where it is reasonably necessary for the purposes of achieving specified
objectives, including:
to avoid a risk to action being taken to prevent a terrorist act occurring
to prevent serious harm to a person
to preserve evidence of, or relating to, a terrorist act
to prevent interference with the gathering of information about a terrorist act or the
preparation for or the planning of, a terrorist act, or
to avoid risk to the arrest of a person suspected of having committed an offence
under Part 5.3 of the Criminal Code, taking into custody a person in relation to
whom a PDO is in force, or in relation to whom a PDO is likely to be made, or the
service on a person of a control order.
86. The threshold for making a PCO is targeted towards ensuring the PCO achieves the
legitimate objective of protecting Australia's national security interests, including in
particular, preventing terrorist acts. A threshold for making a PCO is high and is only likely
to be met in scenarios where the failure to restrict communication could result in critical
preventative action not being taken.
87. Accordingly, the making of a PCO does not limit the right to freedom of expression in
Article 19 of the ICCPR, except to the extent that it is reasonable, necessary and
proportionate to achieving the legitimate objective identified above.
Prohibition on cruel, inhuman or degrading treatment or punishment in Article 7 of the
ICCPR and Articles 2 and 16 of the CAT
88. Article 7 of the ICCPR and Articles 2 and 16 of the CAT provides that no one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment. This right is
expressly protected under section 105.33 which states that an individual taken into custody,
or being detained, must be treated with humanity and with respect for human dignity, and
must not be subjected to cruel, inhuman or degrading treatment. Furthermore, the questioning
of a person detained under a PDO is strictly prohibited, except in limited circumstances,
including to ensure the safety and wellbeing of the person being detained (section 105.42).
Accordingly, the PDO regime preserves the right of a PDO subject to be treated with
humanity and dignity under Article 7 of the ICCPR and Articles 2 and 16 of the CAT.
21
Part 2-- Foreign Incursions and recruitment: declared areas
89. Section 119.2 of the Criminal Code makes it an offence to enter or remain in an area
declared by the Minister for Foreign Affairs. The offence carries a penalty of up to ten years
imprisonment.
90. An individual will not contravene the declared areas offence if he or she has entered
or remained in the declared area solely for one or more of the following legitimate purposes,
as set out in subsection 119.2(3):
providing aid of a humanitarian nature
satisfying an obligation to appear before a court or other body exercising judicial
power
performing an official duty for the Commonwealth, a State or a Territory
performing an official duty for the government of a foreign country or the
government of part of a foreign country (including service in the armed forces of
the government of a foreign country), where that performance would not be a
violation of the law of the Commonwealth, a State or a Territory
performing an official duty for the United Nations or an agency of the United
Nations
making a news report of events in the area, where the person is working in a
professional capacity as a journalist or is assisting another person working in a
professional capacity as a journalist
making a bona fide visit to a family member, and
any other purpose prescribed by the regulations.
91. The declared areas provisions support the legitimate objectives of protecting
Australia's national security interests, deterring Australians from travelling to dangerous
conflict areas where listed terrorist organisations are engaged in hostile activity, and
protecting children by discouraging their parents and guardians from taking them to declared
areas. There are two pressing and substantial concerns with Australians travelling to these
conflicts areas. The first concern is that Australians who enter or remain in conflict areas put
their own lives at risk. This concern also extends to children who have been taken to declared
areas by their parents or guardians. The second is that foreign conflicts provide a significant
opportunity for Australians to develop the necessary capability and ambition to undertake
terrorist attacks.
22
Extending the operation of the declared areas provisions
92. The declared areas provisions in section 119.2 expire on 7 September 2018. The Bill
extends the operation of section 119.2 by a further three years, until 7 September 2021. This
implements Recommendation 1 of the PJCIS Declared Areas Report. In the PJCIS Declared
Areas Report, the Committee expressed full support for measures 'that are taken to prevent
Australians from joining overseas conflicts and to enable strong action to be taken against
such persons who return in order to appropriately manage the threat to the Australian
community.'4 The PJCIS Declared Areas Report concluded that the declared areas provisions
remain necessary and are a proportionate response to the current terrorist threat.5
93. The 2017 INSLM Review also recommended the extension of the declared areas
provisions. In reviewing the declared areas provisions, the 2017 INSLM Review concluded
that the declared areas provisions are consistent with Australia's human rights,
counter-terrorism and international security obligations; contain appropriate safeguards for
protecting the rights of individuals; are proportionate to the current threats of terrorism and to
national security, and are necessary.6
94. In March 2015, the Minister for Foreign Affairs made declarations in respect of
al-Raqqa province in Syria and Mosul district, Ninewa Province in Iraq. The declaration in
respect of al-Raqqa was revoked on 27 November 2017. The Mosul district was re-declared
in March 2018.
95. Outlined below are the rights that are likely to be engaged by extending the operation
of the declared areas provisions.
Freedom of movement in Article 12 of the ICCPR
96. Article 12 of the ICCPR provides that persons lawfully within the territory of a State
shall have the right to freedom of movement within that State. Section 119.2 restricts this
right by making it an offence to enter or remain in a declared area without a legitimate
purpose.
97. The ICCPR permits limitations on the right to freedom of movement where
restrictions are provided by law and are necessary to achieve a legitimate objective, such as
the protection of national security. Consistent with Article 12, the declared areas offence
limits the right to freedom of movement to achieve the legitimate objective of discouraging
travel to areas in which terrorist organisations are known to be engaging in hostile activities.
Individuals travelling to these locations may return to Australia with increased capabilities to
commit terrorist acts domestically, and inspire others to do the same.
4
Parliamentary Joint Committee on Intelligence and Security (February 2018) Review of the 'declared area'
provisions, paragraph 2.35 (page 24).
5
Ibid, paragraph 2.42 (page 25) and 2.80 (page 37).
6
Independent National Security Legislation Monitor (September 2017) Sections 119.2 and 119.3 of the
Criminal Code: Declared Areas, paragraph 9.7 (page 39).
23
98. There are a number of safeguards and procedures which ensure that any limitation on
the right to freedom of movement is reasonable, necessary and proportionate to the aim of
supporting this legitimate objective identified above.
99. Firstly, the legitimate purpose exceptions in subsection 119.2(3) ensure that
individuals are permitted to enter, or remain, in declared areas in specified circumstances.
The legitimate purpose exceptions encompass common purposes for wanting to travel to a
declared area, such as providing aid of a humanitarian nature, undertaking official duties for
the Government or the United Nations, making news reports in the area while working in a
professional capacity as a journalist, and visiting a family member. Further legitimate
purposes can be prescribed by regulation if required.
100. The Bill introduces an additional legitimate purpose for travel to conflict zones, being
for the purpose of performing official duties for the International Committee of the Red Cross
(ICRC). This recognises the enshrined role of the ICRC in international law and the unique,
independent and neutral role they play in conflict zones to provide humanitarian protection
and assistance for victims of armed conflict. This implements in principle Recommendation 2
of the PJCIS Declared Areas Report.
101. Secondly, the Bill will also amend section 119.3 to provide that the Minister for
Foreign Affairs may revoke a declaration at any time prior to the expiry of the declaration,
when he or she considers that the declaration is no longer necessary or desirable. This may
arise in circumstances where, for example, the Minister is still satisfied that a listed terrorist
organisation is engaging in hostile activity in a declared area, but the extent of hostile activity
has significantly reduced. This new provision ensures that limitations on the right to freedom
of movement are proportionate and operate for no longer than necessary in order to achieve
the legitimate objective of preventing Australians from travelling to conflict zones where
listed terrorist organisations are known to be engaging in hostile activities.
102. Finally, the Bill enhances PJCIS oversight of the declared areas provisions. Currently,
subsection 119.3(7) provides that the PJCIS may review a declaration before the end of the
period during which the declaration may be disallowed under section 42 of the Legislation
Act 2003. In accordance with the 2017 INSLM Review, and Recommendation 5 of the PJCIS
Declared Areas Report, the Bill inserts new subsection 119.3(8) which allows the PJCIS to
also 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. The PJCIS's
ability to monitor a declaration on an ongoing basis ensures that the declaration, and therefore
any limitation on the freedom of movement, is reasonable, necessary and proportionate.
103. Accordingly, the continuation of the declared areas provisions for a further three years
does not limit the right to freedom of movement in Article 12 of the ICCPR, except to the
extent that it is reasonable, necessary and proportionate to achieving the legitimate objectives
identified above. The amendments to these provisions contained in the Bill also provide
additional safeguards and oversight measures to ensure that there is an appropriate balance
24
between individual rights and freedoms, and the need to protect Australia from threats of
terrorism.
Procedural guarantees under Article 14 of the ICCPR
104. Article 14 protects a person's right to a fair and public hearing by a competent,
independent and impartial tribunal established by law, and the right to be presumed innocent
until proved guilty according to law. The declared areas provisions engage this right by
providing that a defendant bears an evidential burden should they wish to rely on any
exception listed in section 119.2(3) above.
105. The operation of the declared areas offence is such that the defendant bears no burden
of proof unless they seek to raise facts constituting a defence. Should the defendant choose to
rely on the any of the exceptions in subsection 119.2(3), they bear an evidential burden to
adduce or point to evidence that suggests a reasonable possibility that their travel was for a
legitimate purpose or purposes. The prosecution retains the legal burden and must disprove
any legitimate purpose defence raised beyond a reasonable doubt, in addition to proving
elements of the offence. It is appropriate for an evidential burden of proof to be placed on a
defendant where the facts in relation to the defence, being their individual motivation for
entering or remaining in a declared area, are peculiarly within their knowledge.
106. The declared areas offence 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, that
limitation is reasonable, necessary and proportionate to achieve the legitimate objective of
protecting Australia's national security, including discouraging Australians from travelling to
conflict zones, and countering the threat of foreign fighters returning to Australia from areas
where the Minister for Foreign Affairs is satisfied that a listed terrorist organisation is
engaging in hostile activities. The 2017 INSLM Review also considered that the declared
area offence is not inconsistent with the rights protected under Article 14 of the ICCPR.
25
Part 3--Stop, search and seize powers
Crimes Act 1914
107. Division 3A of Part IAA of the Crimes Act allows a police officer to stop, question
and search persons, and seize items, in a Commonwealth place (such as an airport). These
powers are exercised without a warrant. However, in order to exercise these powers, the
police officer must suspect on reasonable grounds that the person may have just committed,
might be committing, or might be about to commit, a terrorist act (paragraph 3UB(1)(a)).
108. A police officer may also exercise these powers in a prescribed security zone, without
requiring any suspicion on reasonable grounds that the person may have just committed,
might be committing, or might be about to commit, a terrorist act (paragraph 3UB(1)(b)). The
Minister can declare a Commonwealth place to be a prescribed security zone if he or she
considers that the declaration would assist in preventing a terrorist act occurring, or in
responding to a terrorist act (subsection 3UJ(1)).
109. Section 3UEA in Division 3A allows a police officer to enter premises if the police
officer suspects on reasonable grounds that:
it is necessary to search the premises for a thing and to seize the thing if he or she
finds it there, in order to prevent a thing that is on the premise from being used in
connection with a terrorism offence, and
it is necessary to exercise the power without the authority of a search warrant
because there is a serious and imminent threat to a person's life, health or safety.
110. Section 3UEA is not limited in its application to only Commonwealth places or
prescribed security zones.
111. Police powers under Division 3A of Part IAA achieve the legitimate purpose of
protecting Australia's national security, including in particular, preventing and responding to
terrorist acts. As at May 2018, police powers under Division 3A of Part IAA have not been
used.
Extending the operation of Division 3A of Part IAA
112. Division 3A of Part IAA will expire on 7 September 2018. The Bill extends the
operation of Division 3A of Part IAA for a further three years, until 7 September 2021. This
implements Recommendation 1 of the PJCIS Powers Report. The PJCIS Powers Report
noted these powers are expected to be only exercised in 'rare and exceptional circumstances'
and remain necessary, particularly in light of the number of threats against Commonwealth
places that have been disrupted in recent years.7
7
Parliamentary Joint Committee on Intelligence and Security (February 2018) Review of police stop, search and
seizure powers, the control order regime and the preventative detention order regime, paragraph 2.32 (page 17).
26
113. In his 2017 Review, the INSLM also supported the ongoing utility and importance of
the powers under Division 3A of Part IAA despite their limited use. The INSLM 2017
Review ultimately concluded that the stop, search and seize powers in Division 3A of Part
IAA are consistent with Australia's human rights, counter-terrorism and international security
obligations; contain appropriate safeguards for protecting the rights of individuals; are
proportionate to the current threats of terrorism and to national security, and are necessary.
114. Outlined below are the rights that are likely to be engaged by extending the operation
of the declared areas provisions.
Freedom from arbitrary or unlawful interference with one's privacy or home in Article 17
115. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or
unlawful interference with their privacy or home. The ability of police to search and seize
property from an individual (sections 3UD and 3UE), and from premises (section 3UE),
without a warrant, may limit an individual's right to freedom from arbitrary or unlawful
interference with their privacy or home.
116. However, the exercise of these police powers cannot be considered arbitrary because
they are reasonable, necessary and proportionate to achieving the legitimate objective of
protecting Australia's national security, including in particular, preventing and responding to
terrorist acts. Division 3A contains several features to ensure that police can only exercise
these powers where it is not arbitrary:
with the exception of section 3UEA, the powers in Division 3A can only be
exercised in the narrow geographical area of a Commonwealth place
a police officer may only exercise the stop, search and seize powers in a
Commonwealth place where the officer suspects on reasonable grounds that the
person might have just committed, might be committing or might be about to
commit a terrorist act (section 3UB), or where the Minister has made a prescribed
security zone declaration under section 3UJ
the power to enter premises without a warrant can only be exercised where there is
a serious and imminent threat to a person's life, health or safety (section 3UEA),
and
the exercise of the AFP's powers is subject to review by the Commonwealth
Ombudsman.
117. The Bill will also insert additional reporting responsibilities on the AFP's exercise of
these powers. The Bill introduces new section 3UJA which provides that, as soon as
practicable after the AFP exercises powers under Division 3A, the Commissioner of the AFP
must provide a report on the exercise of those powers to the Minister, the INSLM and the
PJCIS. The report must include, in relation to an incident, the number of instances when an
AFP police officer exercised a power under sections 3UE (seizure of terrorism related items
27
and serious offence related items), 3UEA (emergency entry to premises without a warrant)
and 3UF (issuing of seizure notices), and the circumstances in which an AFP officer
exercised powers under sections 3UC (requirement to provide a name etc.) and 3UD
(stopping and searching an individual).
118. Furthermore, the Bill inserts new section 3UJB which requires the tabling of an
annual report on the exercise of Division 3A powers in Parliament. The annual report must
outline the number of instances when AFP officers exercised powers under sections 3UE,
3UEA and 3UF, and the number of incidents when AFP officers exercised powers under
sections 3UC and 3UD. The annual report will also outline the number of applications made
under section 3UI for declarations of a prescribed security zones, and the number of
declarations made under section 3UJ by the Minister.
119. These new reporting requirements implement Recommendation 2 of the PJCIS
Powers Report.
120. The Bill also enables the PJCIS to monitor and review the performance by the AFP of
its functions under Division 3A of Part IAA, and the basis of the Minister's declaration of a
prescribed section zone under 3UJ. This implements Recommendation 3 of the PJCIS Powers
Report.
121. Accordingly, the exercise of police powers under Division 3A of Part IAA does not
constitute 'arbitrary' or 'unlawful' interference with an individual's privacy or home.
Furthermore, in light of the safeguards identified above, any interference with a person's
privacy is proportionate and limited to achieving the legitimate purpose of protecting
Australia's national security, including in particular, preventing and responding to terrorist
acts.
Freedom from cruel, inhuman or degrading treatment or punishment in Article 7 of the
ICCPR and Articles 2 and 16 of the CAT
122. Article 7 of the ICCPR and the Articles 2 and 16 of the CAT guarantees that no one
shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The
exercise of police powers under Division 3A of Part IAA does not subject an individual to
any treatment contrary to Article 7. Subsection 3UD(2) provides that when conducting a
search under section 3UD, a police officer must not use more force, or subject the person to
greater indignity, than is reasonable and necessary in order to conduct the search (subsection
3UD(2)). Division 3A of Part IAA therefore complies with Article 7 of the ICCPR and
Articles 2 and 16 of the CAT.
28
Part 4--Special powers relating to terrorism offences
Australian Security Intelligence Organisation Act 1979
Extending the operation of Division 3 of Part III
123. Currently, section 34ZZ provides that Division 3 of Part III will cease to have effect
on 7 September 2018. The Bill amends this section to provide for the continuation of the
Division for a further 12 months, until 7 September 2019.
124. Division 3 contains ASIO's special powers relating to terrorism offences and, in
particular, ASIO's questioning and questioning and detention powers (the Division 3
powers).
125. Subdivision B of Division 3 sets out the process by which ASIO can obtain a
questioning warrant. A questioning warrant requires a specified person to appear before a
prescribed authority for questioning under the warrant immediately after the person is
notified of the issue of the warrant, or at a time specified in the warrant.
126. Subdivision C of Division 3 sets out the process by which ASIO can obtain a
questioning and detention warrant. This warrant authorises a person to be taken into custody
immediately by a police officer and be brought before a prescribed authority immediately for
questioning under the warrant for a period of time described in subsection 34G(4).
127. The Division 3 powers support the legitimate objective of countering serious threats
to Australia's national security interests and, in particular, preventing terrorist acts.
Extending the operation of the Division 3 powers ensures 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.
128. The Division 3 powers were originally introduced following the 11 September 2001
terrorist attacks in the United States to improve the capacity of intelligence agencies to
identify and counter threats of terrorism in Australia. The current threat environment has
evolved considerably since 11 September 2001 and is steadily worsening. Accordingly, it is
critical that these powers remain available to ASIO, beyond 7 September 2018, pending
consideration of the PJCIS review and 2016 INSLM Report into Certain Questioning and
Detention Powers in Relation to Terrorism.
129. The Parliamentary Joint Committee on Human Rights (PJCHR) has previously stated
that, in the absence of a PJCIS review, it would be unable to conclude the Division 3 powers
are compatible with human rights (19th report of the 44th Parliament, March 2015). The
PJCHR has also stated that such a review would assist it in establishing that the Division 3
powers are rationally connected to a legitimate objective (14th report of the 44th Parliament,
October 2014).
29
Freedom of movement in Article 12 of the ICCPR
130. 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. A questioning warrant
restricts this right to the extent that the issuing of such a warrant requires a specified person
to appear before a prescribed authority for questioning immediately after the person is
notified of the issue of the warrant or at a time specified by the warrant.
131. The limitation on the right to freedom of movement achieves the legitimate objective
of protecting Australia's national security interests, including in particular, preventing
terrorist acts. This is inherent in the requirement for issuing a questioning warrant. In
consenting to a request for the issuing of a warrant, the Attorney-General must be satisfied
that the warrant will 'substantially assist in the collection of intelligence that is important in
relation to a terrorism offence' (paragraph 34E(1)(b)).
132. Questioning warrants significantly enhance ASIO's ability to carry out its function to
'obtain, correlate and evaluate intelligence relevant to security' (subsection 17(1)).
Moreover, terrorism offences constitute serious threats to Australia and its national security
interests.
133. The limitation on the right to freedom of movement is reasonable, necessary and
proportionate. This is based on the safeguards already built into the questioning warrant
framework. The Guidelines issued to the Director-General of ASIO under subsections 8A(1)
and 8A(2) of the ASIO Act provide a safeguard for the appropriate use of ASIO's powers,
including its Division 3 powers. The Guidelines require ASIO to consider the intrusiveness
and proportionality of its avenues for obtaining information:
any method for obtaining information must be proportionate to the gravity of the
threat posed and the probability of its occurrence
inquiries and investigations should be undertaken using as little intrusion into a
person's privacy as is possible, and
wherever possible the least intrusive techniques of information gathering should
be used before resort to the more intrusive techniques (where a threat is assessed
as likely to develop quickly, a greater degree of intrusion may be justified).
134. Under paragraph 34D(4)(c), before issuing a questioning warrant the
Attorney-General must be satisfied that there is in force a written statement of procedures to
be observed in the execution of warrants issued under Division 3 of Part III of the ASIO Act.
Such a statement of procedures was originally tabled in Parliament on 12 August 2003. An
updated version of those procedures, dated 16 October 2006, is currently in effect. This is a
legislative instrument and is publicly available.
135. The statement of procedures sets out procedures to be observed by ASIO and law
enforcement agencies in record-keeping (including video recordings of any questioning),
30
transport and questioning logistics, health and welfare of a subject of a warrant and options
for that subject to make contact with representatives or make complaints about the process.
136. Section 34D sets out the process by which the Director-General of ASIO can seek the
Attorney-General's consent to request the issue of a questioning warrant. The Director-
General must provide the Attorney-General with a request that includes a draft of the warrant
to be requested, a statement of facts and grounds on which the Director-General considers it
is necessary that the warrant be issued, a statement of particulars and outcome of all previous
requests for the issue of a warrant and details about any previous warrants issued in respect of
the subject of the warrant under Division 3.
137. The Attorney-General may only consent to the issuing of a questioning warrant where
he or she is satisfied that there are reasonable grounds for believing that the warrant will
substantially assist in the collection of intelligence that is important in relation to a terrorism
offence.
138. The INSLM observed of the Guidelines and statement of procedures that they
'constitute formidable and reassuring prerequisites for the issue and control of the execution
of a [questioning warrant]'.8
139. To the extent that questioning warrants restrict the right to freedom of movement, the
restriction is reasonable, necessary and proportionate to achieving the legitimate objective of
gathering important intelligence in relation to terrorism offences.
Freedom from arbitrary detention in Article 9 of the ICCPR
140. 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 United Nations Human Rights Committee has
stated that 'arbitrariness' includes the elements of inappropriateness, injustice and a lack of
predictability. Arrest or detention must be reasonable and necessary in all circumstances with
reference to the recurrence of crime, interference with evidence or the prevention of flight. A
questioning and detention warrant may be considered to engage the right to freedom from
arbitrary detention because it allows an individual to be taken into custody by a police officer
and brought before a prescribed authority immediately for questioning for a specific period of
time.
141. While the protection from arbitrary detention is engaged by the Division 3 powers, the
detention permitted under the questioning and detention regime is not 'arbitrary'. It is
governed by the procedures described in Subdivision C of Division 3. The Subdivision sets
out the threshold requirements for applying for and issuing a questioning and detention
warrant, and contains safeguards to ensure that its application is not subject to excessive
discretion or capriciousness by decision-makers.
8
Independent National Security Legislation Monitor (20 December 2012) Declassified Annual Report, page 73.
31
142. The Director-General may seek the Attorney-General's consent to request the issue of
a questioning and detention warrant. Before the Attorney-General consents to the making of a
request by the Director-General for the issue of a questioning and detention warrant, the
Attorney-General must be satisfied that:
there are reasonable grounds for believing that issuing the warrant will substantially
assist the collection of intelligence that is important in relation to a terrorism
offence
that relying on other methods of collecting the intelligence would be ineffective
there is a written statement of procedures in force to be followed in the exercise of
authority under the warrant, and
there are reasonable grounds for believing that, if the person is not immediately
taken into custody and detained, the person:
o may alert a person involved in a terrorism offence that the offence is being
investigated
o may not appear before the prescribed authority, or
o may destroy, damage or alter a record or thing the person may be
requested in accordance with the warrant to produce.
143. In addition, where the person has already been detained under Division 3 in
connection with one or more warrants, the Attorney-General must:
take account of those facts in deciding whether to consent, and
be satisfied that the issue of the warrant is justified by information that is additional
to or materially different from that known to the Director-General at the time the
Attorney-General's consent to request the last of the previous Division 3 warrants
was sought.
144. After receiving such a request from the Director-General, the issuing authority may
issue a questioning and detention warrant if satisfied that there are reasonable grounds for
believing that the warrant will substantially assist the collection of intelligence that is
important in relation to a terrorism offence. The issuing authority must also consider
additional requirements where the person has already been detained under Division 3 in
connection with one or more warrants (s 34G(2)(a)-(b)).
145. In addition to meeting the threshold requirements for a questioning and detention
warrant, Subdivision C contains additional safeguards for questioning and detention warrants,
commensurate with the additional impact on personal liberty (see paragraph 143).
146. Section 34B of the ASIO Act provides for the appointment of prescribed authorities.
Prescribed authorities supervise the execution of a questioning or questioning and detention
warrant and inform the subject of his or her rights under the warrant. They play a critical role
in ensuring that questioning is conducted fairly and with respect for the subject's human
32
rights. The prescribed authority may also make directions about the execution of a warrant
and ensures compliance with its terms and with the law.
147. To be eligible for appointment as a prescribed authority, a person must have served as
a judge in one or more superior courts (the High Court, Federal Court, Family Court, or a
State or Territory Supreme or District Court) for a period of at least 5 years, and no longer
hold a commission as a judge of a superior court. In certain circumstances, a current judge of
a State or Territory Supreme Court or District Court, or a President or Deputy President of
the Administrative Appeals Tribunal, may be appointed.
148. Section 34R of the ASIO Act regulates questioning time. Under section 34R, a
warrant may allow for up to 24 hours of questioning in eight hour blocks. Initial questioning
under a warrant is for eight hours, and this period can be extended twice. Any extension of
the questioning period must be permitted by the prescribed authority. The prescribed
authority must be satisfied that there are reasonable grounds to believe that continuing the
questioning would substantially assist the collection of intelligence and that the questioning is
being conducted appropriately. The prescribed authority may revoke this permission at any
time.
149. Section 34G(4) of the ASIO Act regulates detention time. The period of detention
starts when the person is first brought before a prescribed authority under the warrant and
ends at the first time one of the following events happens:
someone exercising authority under the warrant informs the prescribed authority
before whom the person is appearing for questioning that ASIO does not have any
further request to make of the person
section 34R prohibits anyone exercising authority under the warrant from
questioning the person under the warrant, or
the passage of 168 hours.
150. Section 34S of the ASIO Act further provides that Division 3 of Part III does not
authorise a person to be detained for a continuous period of more than 168 hours (7 days).
Freedom from cruel, inhuman or degrading treatment or punishment in Article 7 of the
ICCPR and Articles 2 and 16 of the CAT
151. In light of the human rights implications of the Division 3 powers, there are explicit
human rights protections included in the Act. Section 34T provides that a person subject to a
warrant issued under Division 3 must be treated with humanity and respect for human
dignity, and must not be subjected to cruel, inhuman or degrading treatment, by anyone
exercising authority under a warrant or enforcing the direction.
152. Accordingly, the continuation of the questioning and questioning and detention
regime for a further 12 months does not result in a diminishing of an individual's right to
33
freedom from arbitrary detention. The detention regime is clearly articulated in the ASIO Act
and is a reasonable, necessary and proportionate measure in order to protect Australia's
national security interests, including in particular, preventing terrorist acts.
Conclusion
153. While the Bill engages a range of human rights, it is compatible with human rights
because to the extent that it limits any rights, those limitations are reasonable, necessary and
proportionate to achieving a legitimate objective.
34
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.
35
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
36
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:
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
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
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).
37
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.
38
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
39
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:
the original request for an interim control order, and
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:
the interim control order request need not be tendered as evidence of its contents,
and
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.
40
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
41
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.
42
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.
43
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
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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
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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.
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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:
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:
the seizure of terrorism related items and serious offence related items (section
3UE)
emergency entry to premises without a warrant (section 3UEA), and
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
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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.
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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.
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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.
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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:
the stop, search and seize powers in Division 3A of Part IAA of the Crimes Act
(new subparagraph 29(1)(bb)(i))
control order and PDO regimes in Divisions 104 and 105 of the Criminal Code
(new subparagraph 29(1)(bb)(ii)), and
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).
52
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.
53
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:
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'.
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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'.
55
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)
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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.
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