Bills Digest no. 48,
2016–17
PDF version [741KB]
Monica Biddington
Law and Bills Digest Section
29
November 2016
Contents
Purpose of the Bill
Structure of the Bill
Background
Constitutional issues
Policy background
Committee consideration
Parliamentary Joint Committee on
Intelligence and Security
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
The offender must pose an
‘unacceptable risk’
The proposed continuing detention
order’s interaction with the control order scheme
Role of ‘relevant experts’
Human rights implications
Unlawful deprivation of liberty
Retrospective punishment for the same
conduct?
Key provisions
Schedule 1
Schedule 2
Concluding comments. 20
Date introduced: 15
September 2016
House: Senate
Portfolio: Attorney-General
Commencement: Schedule
1 will commence on a day fixed by Proclamation, or six months following
Royal Assent, whichever is the sooner. Schedule 2 will generally commence
at the same time as the provisions in Schedule 1, contingent on the
commencement of Schedule 9 of the Counter-Terrorism Legislation Amendment
Act (No. 1) 2016. The reader is advised to refer to specific detail in
the Commencement information at Section 2 of the Bill. The Digest
discusses the contingent amendments under key provisions.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at November 2016.
Purpose of
the Bill
The purpose of the Criminal Code Amendment (High Risk
Terrorist Offenders) Bill 2016 (the Bill) is to amend the Criminal Code Act
1995 to establish a scheme for the continuing detention of terrorist offenders[1]
who are considered to pose an unacceptable risk of committing certain serious
terrorism offences if released into the community at the end of their custodial
sentence. The scheme will establish a Continuing Detention Order, made by
application to the Supreme Court of a state or territory.
Structure
of the Bill
The Bill contains two Schedules.
Schedule 1 will make amendments to the Criminal
Code Act 1995 (Cth) (Criminal Code) to establish the continuing
detention order scheme.
Schedule 2 will amend the Surveillance Devices Act
2004 (Cth) and the Telecommunications (Interception and Access) Act 1979
to facilitate the admission of evidence in proceedings relating to applications
for continuing detention orders made under the proposed new Division 105A of
the Criminal Code.
Part 2 of Schedule 2 inserts some contingent
amendments, relating to the passage of the Counter-Terrorism Legislation
Amendment Bill (No. 1) 2016.
Background
This Bill is the one of a number of Government national
security related Bills before the Parliament in late 2016. The Government has
introduced and the Parliament has passed a number of significant national
security and counter-terrorism related reforms since mid-2014 in response to
the changing nature of security threats including terrorism and the need to
enhance operational and investigative capability.[2]
The earliest announcement of a post-sentence preventative
detention scheme in Australia was on
10 December 2015, when the Council of Australian Governments (COAG) agreed,
under the agenda item of Countering Violent Extremism, to task the
Australia-New Zealand Counter-Terrorism Committee (ANZCTC) to develop a nationally
consistent post-sentence preventative detention scheme to enable a continuing
period of imprisonment for high risk terrorist offenders.[3]
On 1 April 2016, COAG announced that it reached an agreement to establish
a scheme that would allow the continued detention of convicted terrorists past
their sentence end date in certain circumstances. At that meeting:
First Ministers supported the development of a nationally
consistent post sentence preventative detention scheme, with appropriate
protections, that covers high risk terrorist offenders. They agreed that the
Commonwealth would draft legislation, to be introduced as soon as practicable,
following consultation with states.
COAG agreed, in-principle, to the NSW model as the basis for
a strengthened nationally consistent pre-charge detention scheme for terrorism
suspects, with the ACT reserving its position. NSW will introduce the
legislation and consult with other jurisdictions.[4]
Following the re-election of the Coalition Government, the
Prime Minister and the Attorney-General announced on 25 July 2016 the
Government’s intention to introduce post-sentence detention legislation in the
new Parliament as soon as practicable.[5]
On 5 August 2016, the Attorney-General announced that all
Australian Attorneys-General had met and reached an in-principle agreement to
the proposed scheme.[6]
Further detail on the scheme was provided in the meeting communique from this
date, outlining that the Commonwealth, state and territory Attorneys-General:
a) Agreed in principle, subject to consideration by
their respective Cabinets, with the Commonwealth’s proposed legislation to
amend Part 5.3 of the Criminal Code Act 1995 (Cth).
b) Noted that the Commonwealth will seek formal
approval for the proposed amendments from State and Territory Premiers and
Chief Ministers in accordance with the Intergovernmental Agreement on
Counter-Terrorism Laws.[7]
c) Noted that the legislation, after introduction by
the Commonwealth Attorney-General, will be subject to further review and report
by the Commonwealth Parliamentary Joint Committee on Intelligence and Security.
d) Subject to the foregoing, agreed to work together
to ensure the successful implementation of the proposed scheme within their
jurisdictions. Matters to be discussed will include resourcing, operational
matters and appropriate oversight.[8]
In the second reading speech at the time of
the Bill’s introduction, the Attorney-General stated that ‘jurisdictions have
now agreed to the provisions of the Bill’.[9]
A continuing detention order can be
explained as one which, when put in place by the Court, will commit an offender
to incarceration for a specified time period. The continuing detention order
may apply to any person convicted of specified terrorism and terrorism-related
offences, including foreign incursions and recruitment. The person needs to be
serving a prison sentence or already subject to a continuing detention order or
an interim detention order. As part of its consideration, the Court may appoint
one or more relevant experts to conduct an assessment and provide a report on
the risk of the offender committing a serious Part 5.3 (terrorism) offence if
released into the community.
Constitutional issues
Chapter III validity
The Bill presents some potential incompatibility with
requirements prescribed in Chapter III of the Constitution. This Bills Digest
is unable to conclude whether or not the Bill is constitutionally valid,
however the following issues are flagged as issues for consideration:
- whether
preventative detention is a non-judicial function that cannot be vested in a
Chapter III court[10]
- whether a person can be validly detained for the risk of future
criminal acts, rather than as a punishment for previous criminal acts — this
point of debate is valid for both the scheme proposed in the Bill as well as
the existing Preventative Detention Order regime, which has also not yet been considered
by the High Court[11]
- whether the proposed scheme is valid in so far as it results in
the incarceration of people following the issue of an order that may be
considered to lack fair process, particularly because the person who is the
subject of the continuing detention order is not able to respond to all evidence
that a court might consider
- apparent limitations on the ability of the court to consider alternatives
to continuing detention.[12]
At the time the details of the proposal were announced, in
July 2016, the Attorney-General stated that he was ‘reasonably confident’ that
the proposed legislation would ‘survive a High Court challenge.’[13]
The Attorney‑General also stated that ‘the analogous legislation dealing
with sex offenders was the subject of a High Court challenge in a case called Fardon’s
case and its validity was upheld.’[14]
However, in legal terms, the case is not clear authority for a Commonwealth
continuing detention order regime as that case was about the validity of a
State Act to prescribe continuing detention orders for sex offenders. The
circumstances are different with regards to a Commonwealth law, and Justices
Callinan and Heydon touched on this in the aforementioned case of Fardon:
Federal judicial power is not identical with State judicial
power. Although the test, whether, if the State enactment were a federal
enactment, it would infringe Ch III of the Constitution, is a useful one, it is
not the exclusive test of validity. It is possible that a State legislative
conferral of power which, if it were federal legislation, would infringe Ch III
of the Constitution, may nonetheless be valid. Not everything by way of
decision-making denied to a federal judge is denied to a judge of a State. So
long as the State court, in applying legislation, is not called upon to act and
decide, effectively as the alter ego of the legislature or the executive, so
long as it is to undertake a genuine adjudicative process and so long as its integrity
and independence as a court are not compromised, then the legislation in
question will not infringe Ch III of the Constitution.[15]
Professor Andrew Lynch offered the following comment in
2008:
Fardon gave no clear answer to the broader question of
whether the ability to detain on the basis of what a person might do rather
than what they have done is judicial in nature... Gummow and Kirby JJ (the latter
in dissent) suggested that had the Act been passed by the Commonwealth it would
have offended Chapter III. While accepting the existence of exceptional cases,
Gummow J insisted that Chapter III ensured that ‘the involuntary detention of a
citizen in custody by the state is permissible only as a consequential step in
the adjudication of criminal guilt of that citizen for past acts.[16]
The question for resolution in Fardon was whether
the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) was
incompatible with Chapter III of the Constitution insofar as the Supreme
Court of Queensland holds federal jurisdiction. Explicitly, the High Court was
asked to consider the ‘Kable’ principle regarding the conferral of federal jurisdiction
on State courts.[17]
To use the Fardon case as a precedent that the proposed Bill will be
constitutionally sound is flawed for a number of issues flagged above. However,
in a broad sense:
... together, the cases of Kable and Fardon indicate
that the constitutional validity of a preventive detention scheme involving
courts hinges not only on whether a key aspect of decisional independence has
been usurped (through ad hominem legislation[18]),
but also on the compliance of the scheme with basic aspects of fair and
ordinary judicial process.[19]
Further, in a joint submission to the Parliamentary Joint
Committee on Intelligence and Security’s (PJCIS) inquiry into the Bill, Drs
Ananian-Welsh, McGarrity, Tulich and Professor Williams noted that the Fardon
case demonstrates that ‘the constitutional validity of a post-sentence
detention scheme turns on its adherence to certain aspects of procedural
fairness’.[20]
The proposed Bill is not definitively constitutionally sound
and the PJCIS noted concerns about a federal
post-sentence detention scheme, recommending that the Government obtain legal
advice from the
Solicitor-General, or equivalent, on the final form of the Bill
(recommendation 1).[21]
The other issues for consideration flagged above relating to the broader issues
of fair and ordinary judicial process are discussed further in this Bill Digest
under human rights implications.
State and Territory Referral of Power
For an explanation of the state referral of power relating
to terrorism and terrorist organisations, see the Bills
Digest[22]
on the Criminal Code Amendment (Terrorism) Bill 2002. In the second
reading speech on the Bill, the Attorney-General Senator George Brandis stated:
... the Commonwealth considers that the new framework has a
sound constitutional foundation. Out of an abundance of caution, however, I
have asked my State counter-parts to enact amendments to existing referrals of power relating to Part 5.3 of the
Criminal Code to make explicit that State support extends to the
post-sentence preventative detention regime.[23]
Following the introduction of the Bill on 15 September
2016, state and territory Attorneys-General agreed at the Law, Crime and
Community Safety Council meeting on 21 October 2016 that states and territories
should:
(a) amend
their referral legislation to make it clear that the referrals extend to the
proposed post-sentence preventative detention regime; and
(b) enact these amendments as a matter of urgency.[24]
However, there may be some complexities in amending the
referral legislation, with some definitional issues around the power to
legislate with respect to ‘the matter of terrorist acts’ and ‘actions relating
to terrorist acts’. The offences in proposed paragraph 105A.3(1)(a)
extend beyond those in Part 5.3 of the Criminal Code to which the
existing referral relates. The Government has not provided further detail about
the status of any negotiations with the states about the required amendments to
their referral legislation.
Policy
background
The main catalyst for this Bill is to take action to ensure
community safety taking into account the changing nature of terrorism.[25]
The incarceration of terrorism offenders from more than ten years ago is due to
end from 2019 onwards and there may be evidence presented to a court that
demonstrates that there are continued and varied risks that a terrorist
offender poses once he is released back into the community.[26]
Note, though, that the Government has made it clear that this Bill is not being
introduced because any particular offender or group of offenders is soon to be
released.[27]
Secondly, Prime Minister Malcolm Turnbull is advocating for changes
and greater diligence in
the wake of atrocities overseas in Orlando, United States and Nice, France.[28]
In this regard, there is arguably a culture of fear in Australia’s response to
terrorism, with a tendency towards a legislative response in an attempt to
constrain and deter terrorist activity.[29]
Anti-terrorism and related national security legislation has often been enacted
with a lesser evidence-base than might ordinarily be preferred.[30]
The need for continued detention for terrorist offenders is not yet explicitly
established and may be based on a fear of the possibility that the person will
reoffend in a similar manner. However, it has also been acknowledged in
academic circles that the ‘consequences of releasing a terrorist offender who
remains radicalised (defined as a commitment to an extremist, political or
religious ideology) is a real threat to counter-terrorism efforts.’[31]
Further, an Australian example of a former convict returning to terrorism is
Khaled Sharrouf, who was imprisoned following a failed terrorist plot in 2005.
In 2013, he used his brother’s passport to leave Australia and has resurfaced
in Iraq and Syria, fighting with the terrorist group, Islamic State. Two of the
offenders who were plotting with Sharrouf, Ezzit Raad and Amer Haddara, have
also travelled to fight in Syria and Lebanon, where they are reported to be
trying to recruit Australian fighters.[32]
Additionally, the Australian Government has been working
with state and territory governments to prevent violent extremism and
discourage radicalisation. An important part of countering violent extremism is
to:
... work with state and territory governments to develop and
implement programmes to rehabilitate people imprisoned for terrorism related
offences, as well as prevent the radicalisation of other prisoners.[33]
The Bill contains some provisions that may assist to
prevent the radicalisation of other prisoners, for example by requiring that
the offender who is subject to a continuing detention order must not be
accommodated or detained in the same area or unit of the prison as other
prisoners unless it is reasonably necessary for prescribed purposes; proposed
subsection 105A.4(2) refers.
In his second reading speech the Attorney-General stated
that a majority of states and territories, as well as international
counterparts including the United Kingdom and New Zealand have enacted
post-sentence preventative detention regimes dealing with high risk sex and/or
violent offenders.[34]
The policy to establish some sort of post-sentence detention regime for
terrorist offenders has evolved from the focus on prison rehabilitation and
post-sentence monitoring:
With the passage of time and the release or pending release
of convicted or suspected terrorists, the urgency began to shift somewhat from
instant security to what happens after release. Signs that some former
Guantanamo Bay prisoners had returned to terrorist activity triggered concerns
about recidivism and the role of terrorism detention policies in post release
violent extremism.
In response, policy makers and scholars embarked on a quest
for “good practices” in rehabilitation and reintegration ... In 2012, the Global
Counter Terrorism Forum (GCTF), a multilateral cooperation between twenty-nine
UN countries and the EU, formally adopted the “Rome Memorandum on Good
Practices for Rehabilitation and Reintegration of Violent Extremist Offenders”
(henceforth Rome Memorandum), which identifies a series of guiding principles
that can potentially serve as the foundation for states’ policies.[35]
The Australian Government has taken the view that the
existing monitoring mechanisms of control orders and preventive detention
orders may be insufficient because ‘... there may be some circumstances where,
even with controls placed upon them, the risk an offender presents to the
community is simply too great for them to be released from prison.’[36]
The continuing detention order for terrorism offences is unprecedented and
raises constitutional issues that require further consideration. The Bill also
raises specific concerns that a number of stakeholders have addressed through
submissions to the Parliamentary Joint Committee on Intelligence and Security’s
inquiry into the Bill. These are discussed under Key Issues and Provisions
below.
Committee
consideration
Parliamentary
Joint Committee on Intelligence and Security
The Bill was referred to the Parliamentary Joint Committee
on Intelligence and Security (PJCIS) for inquiry and the Committee reported on
4 November 2016. Details of the inquiry and the report are at the
inquiry homepage.[37]
The PJCIS recognised that the provisions of the Bill are
‘extraordinary’.[38]
However, the Committee accepted that ‘a scheme for the post-sentence detention
of terrorist offenders who continue to pose an unacceptable risk to the
community will be an important part of Australia’s multifaceted response to the
terrorist threat.’[39]
The Committee therefore focused its attention on the laws being appropriately
targeted and having adequate safeguards to ensure their proportionality.[40]
In making 24 recommendations, the Committee recommended that following the
implementation of the recommendations made in its report, the Bill be passed.[41]
Key recommendations include:
- that the Government obtains legal advice from the
Solicitor-General, or equivalent, on the final form of the Bill (recommendation
1)
- amending proposed section 105A.3 to remove from the scope of
offences covered by the Bill, the offences in Subdivision B of Division 80 of
the Criminal Code, which refers to treason (recommendation 2)
-
amending the Explanatory Memorandum to provide greater clarity to
the definition of ‘relevant expert’ which should include examples of persons
who may potentially fall within the category ‘any other expert’ at item (d) of
the definition (recommendation 7)
- for the avoidance of doubt, the Government should amend Division
104 of the Criminal Code to make explicit that a control order
can be applied for and obtained while an individual is in prison, but that the
controls imposed by that order would not apply until the person is released
(recommendation 16[42])
and
- inserting a clause into the Bill for the continuing detention
order scheme to sunset after ten years (recommendation 18)
- amending the Intelligence Services Act
2001 to require the PJCIS to complete a review of the
continuing detention order regime at Division 105A of the Criminal Code six years
after passage of the Bill (recommendation 19)
- amending the Bill to require the Independent National
Security Legislation Monitor to complete a review of the continuing detention
regime at Division 105A of the Criminal Code five years after
passage of the Bill (recommendation 20).[43]
A notable recommendation for the purposes of parliamentary
debate is recommendation 22, which recommends that the Attorney-General provide
the Committee with a clear development and implementation plan that includes
timeframes to assist detailed consideration of the Bill and that this plan
should be provided prior to the second reading debate in the Senate.[44]
The Bill has been scheduled for debate in the final sitting week for 2016. At
the time of the publication of this Digest, the Government has not provided a
response to the PJCIS report or provided an implementation plan.
Senate Standing Committee for the Scrutiny of Bills
In its report, the Senate Standing Committee for the
Scrutiny of Bills notes that the Explanatory Memorandum argues that the
‘inversion of fundamental principles proposed by this Bill is justified on the
basis that the rationale for detention is non-punitive. Rather, it is
suggested, the Bill has a protective purpose.’[45]
The Committee concluded that ‘where the trigger for the assessment of whether
or not a person poses an unacceptable risk to the community is prior conviction
for an offence, the protective purposes cannot be clearly separated from the
functioning of the criminal justice system.’[46]
The Committee sought further justification from the Attorney-General of a
number of issues.[47]
In its Report of 9 November 2016, the Committee reported that it had not
received a response from the Attorney-General by the 27 October 2016 deadline.[48]
Policy
position of non-government parties/independents
Shadow Attorney-General, Mark Dreyfus, reportedly said in
July 2016, prior to the legislation’s introduction:
... the legislation would need strict checks and balances
before the Opposition would consider supporting the legislation. "I'm
encouraged by the approach taken by the Government so far on proposed national
post-sentence detention legislation," Mr Dreyfus said. "It's likely
to be a controversial measure in many quarters and a careful approach is
necessary, in particular I note the Government's insistence that post-sentence
detention orders would be made the subject of court review and of course also
subject to periodic review as the Prime Minister made clear ..."[49]
On 30 October 2016, it was reported that Labor had
confirmed that it will support the laws with agreed amendments to ensure there
is no delay.[50]
Other Parliamentarians have not yet confirmed their
position publicly on this Bill.
Position of
major interest groups
The Law Council of Australia (LCA) made a submission and
gave evidence to the PJCIS Inquiry into the Bill, broadly recommending ‘that
the Bill be amended to improve consistency with rule of law principles and the
integrity of the judicial process’.[51]
The LCA made some specific recommendations including:
-
that a maximum prescribed term of ongoing detention should be set
out in the Bill; alternatively there should be a limit on the number of
successive orders that can be made[52]
...
- that the Committee should inquire into the proposed risk
assessment methodology to be employed and be satisfied that it has been
sufficiently validated in the case of terrorist offenders[53]
and
-
that the Bill should be amended to include provisions allowing
the Court to order funding for the respondent’s reasonable legal expenses,
should the respondent not be in a position to self-fund.[54]
The Law Council argued that post-sentence preventive
detention also sits outside the normal criminal justice framework:
‘It confronts, if not
contravenes, a range of common law principles and human rights protections by
virtue of:
- the
application of the rules of evidence and procedure for civil matters to
detention, without ordinary means of testing contested evidence;
- detention
being based on preventing expected future behaviour, rather than as a
punishment for past offending proven in a Court;
-
ongoing
detention contrary to the principle of finality
- the
reality that detainees will serve their continued detention in high risk
security conditions
- the
reality of what can be seen as double punishment for the same conduct; and
- retrospectivity
of criminal laws applicable to offenders sentenced before the regime proposed
by the Bill was in place ...[55]
The Australian Human Rights Commission (AHRC) provided a
lengthy submission to the PJCIS Inquiry into the Bill which focused on whether
there is a sufficient evidence base for the proposed scheme, as well as making
recommendations to improve the operation of the scheme to ‘achieve better human
rights outcomes if the Committee decides that the Bill should be passed’.[56]
The AHRC acknowledges that there are elements in the Bill which attempt to
create a scheme ‘that is not arbitrary and that is reasonable and proportionate
to the purpose of ensuring community safety’.[57]
Thirteen detailed recommendations follow and of particular interest not flagged
elsewhere in this Digest are:
Recommendation 2
The Commission recommends that the offence in section 119.2 of the Criminal
Code (Entering, or remaining in, declared areas) be excluded from the scope
of the definition of a ‘terrorist offender’ in proposed section 105A.3(1)(a).
The Commission seeks further justification of its
inclusion given that these offences do not ‘give rise to an inference that a
person poses a risk to community safety’:[58]
Recommendation 3
The Commission recommends that further consideration be given to whether the
offences in paragraphs 119.7(2) and (3) of the Criminal Code (Publishing
recruitment advertisements) should be included within the scope of the
definition of a ‘terrorist offender’ in proposed s 105A.3(1)(a). If these
offences are to be so included, their inclusion should be appropriately
justified in the Explanatory Memorandum accompanying the Bill.[59]
...
Recommendation 10
The Commission recommends that the Committee seek advice from the
Attorney-General’s Department about whether legal aid will be available for
offenders against whom application for continuing detention orders are made.[60]
The Commission considers that, given an application for a
continuing detention order has the potential to result in a further period of
detention, it is appropriate that most, if not all, of the due process
protections in Article 14(3) of the International Covenant on Civil and
Political Rights apply, in particular legal representation:[61]
Recommendation 12
The Commission recommends that the Bill include a provision requiring a court
sentencing a person in relation to an offence to which the Bill applies to warn
the person about the operation of the continuing detention order regime.
Recommendation 13
The Commission recommends that the Bill include provision for a statutory
review of its provisions after three years.[62]
Other key stakeholder submissions that were made publicly
available by the Committee included Civil Liberties Australia, which does not
support the Bill, saying:
To imprison a person who has committed no crime on the basis
solely of opinion on possible future behaviour constitutes arbitrary
imprisonment. Such measures therefore contravene universally accepted
(including by Australia) standards of human rights as set out in the International
Covenant on Civil and Political Rights.
More to the point, such treatment should be anathema to our
system of justice and our long-standing traditions of the rule of law. We are
staggered that the Explanatory Memorandum accompanying the Bill lightly
dismisses these fundamental issues through appeals to “public safety”. It is
the hallmark of tyrannical regimes to cite “public safety” in order to lock
people away who have committed no crimes.[63]
Another noteworthy submission
from legal academics also did not support the Bill in its present form, saying
that post-sentence detention can only ever be justified if:
- a
mechanism exists to accurately assess the level of risk that a convicted
terrorist poses upon his or her release and
- effective
rehabilitation programs are available for convicted terrorists in gaol.[64]
The Committee’s report did acknowledge and address the
concerns of the submitters and noted in its concluding comments:
Unlike previous threats to national security, our community
is threatened not by enemy combatants from a foreign military power, but by a
small number of persons within our community who, with ideological zeal, seek
to undertake terrorist activities and do harm not only to Australian security
and defence authorities, but to innocent civilians going about their lives.
There have been examples both in Australia and overseas of persons under the
influence of terrorist organisations who are willing to go to any lengths, and
use any means, to commit acts of extreme violence against their own community ...
The Committee therefore accepts that there is a need, subject to strict
safeguards, for courts to have extraordinary powers to minimise the risk of
such persons carrying out their aims ... In examining the Bill and the evidence
provided by participants in the inquiry, the Committee has recommended a number
of amendments to both enhance the regime’s integrity and safeguards, and to
improve its effectiveness.[65]
Financial
implications
The Explanatory Memorandum states that the amendments in
the Bill have little or no financial impact on Government expenditure or
revenue.[66]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[67]
Parliamentary
Joint Committee on Human Rights
On 11 October 2016 and 9 November 2016, the Parliamentary
Committee on Humans Rights (PJCHR) provided its reports which included scrutiny
of this Bill.[68]
In particular, the PJCHR noted that the proposal to detain an individual on the
basis of future risk of offending is a serious measure for a state to take.[69]
The PJCHR focused its comments on the compatibility of the Bill with the right
to be free from arbitrary detention, as prescribed under Article 9 of the International
Covenant on Civil and Political Rights (ICCPR). However,
acknowledging the need to have compelling reasons arising from the gravity of
the crimes committed and the likelihood of the detainee’s committing similar
crimes in the future, the Committee questions whether the proposed scheme is
necessary and proportionate, and not arbitrary within the meaning of Article 9.[70]
The PJCHR went into detail about existing preventative
detention regimes in Queensland and NSW, which were found by the United Nations
Human Rights Committee (UNHRC) to be incompatible with the right to be free
from arbitrary detention. In particular, the PJCHR questions the adequacy of
the safeguards proposed in the Bill, seeking further advice from the
Attorney-General on the following questions:
- what
types of less restrictive measures may be considered by the court
- what options might be available to the court to assess or make
orders in relation to the provision of less restrictive alternatives and
- whether the Attorney-General will consider whether there are less
restrictive alternatives in deciding whether to make an application for a
continuing detention order.[71]
Other matters
raised by the PJCHR to which further consideration by the Attorney-General was
sought include:
- amending the Bill to provide for a criminal standard of proof (as
currently is the case under the Dangerous Sexual Offenders Act 2006 (WA),
section 40)
- establish
a Risk Management Monitor to assist in addressing concerns regarding
assessments of future 'unacceptable risk'
- that
the Bill be amended to only apply to new offenders, to assist in addressing
concerns regarding the application of retrospective criminal laws (article 15
of the ICCPR) and
- that
the Bill be amended to ensure the availability of rehabilitation programs to
offenders that may be subject to the continuing detention order regime.[72]
Key issues
and provisions
The Bill proposes to insert the
continuing detention order scheme as a new Division 105A in Part 5.3 of the Criminal
Code (item 1 of Schedule 1 to the Bill).
Proposed subsection 105A.(3)(1) provides that a
continuing detention order may be made in relation to a person (the terrorist
offender) if:
(a) the person has been convicted of:
(i) an
offence against Subdivision A of Division 72 of the Criminal Code (international
terrorist activities using explosive or lethal devices); or
(ii) an offence against Subdivision B of
Division 80 (treason); or
(iii) a serious Part 5.3 offence; or
(iv) an offence against Part 5.5 (foreign
incursions and recruitment); and
(b) either:
(i) the person is detained in custody and
serving a sentence of imprisonment for the offence; or
(ii) a continuing detention order or interim
detention order is in force in relation to the person; and
(c) if subparagraph (b)(i) applies – the person will be at
least 18 years old when the sentence ends.
Application of the Bill to treason offences
The Law Council of Australia recommended that the Bill
should not apply to a person convicted of Subdivision B of Division 80 of the Criminal
Code treason offences, absent any underlying rationale for the extension.[73]
The PJCIS also recommended the removal of the treason offences from the scope
of the Bill.[74]
The treason offences are captured by the
definition of 'terrorism offence' in section 3 of the Crimes Act 1914,
which is the provision on which proposed paragraph
105A.3(1)(a) is based.[75]
Both definitions capture an 'offence against Subdivision B of Division 80 of
the Criminal Code (treason)'. As well as the principal offence of
treason, this Subdivision also includes 'materially assisting enemies at war
with the Commonwealth' and 'assisting countries etc. engaged in armed
hostilities against the [Australian Defence Force] ADF' under section 80.1AA.
With the current fight against ISIS, it
is possible that Australians who materially assist this enemy could be charged
with the offence in Division 80 and sentenced to a maximum period of life
imprisonment. However, the technicalities around definitions of 'engaging in a
war with the Commonwealth' and who the 'enemy' is (declared by Proclamation),
would likely result in lower prospects of successful prosecution than might
exist under the terrorism laws in Part 5.3.
While the existing definition does seem
to be legally sound, by basing it on the Crimes Act definition, there
may be some argument to say the net has been cast wide in terms of defining who
may be subject to a continuing detention order. The AHRC noted in its
submission that the declared areas offence in section 119.2 of the Criminal
Code and the offence of publishing recruitment advertisements in
subsections 119.7(2) and (3) are questionable inclusions in this definition for
the purposes of the CDO regime even though they fall under Part 5.3 of the
Criminal Code.[76]
These offences do not require the critical element of intention which means
that if the person publishes an advertisement and the person is reckless as to
the facts that doing so is for the purpose of recruiting persons to serve in or
with an armed force in a foreign country, they can be found guilty of an
offence. Further justification for their inclusion in this Bill, where there
are serious long-term consequences for an offender, should be sought.
The
offender must pose an ‘unacceptable risk’
To issue a continuing detention order, the court must be
satisfied, to a high degree of probability on the basis of admissible evidence,
that the offender poses an unacceptable risk of committing a serious terrorism
offence against Part 5.3 of the Criminal Code (which carries a maximum
penalty of at least seven years’ imprisonment) if the offender was released
into the community. The Court must also be satisfied that there is no other
less restrictive measure that would be effective in preventing the unacceptable
risk, such as a control order (proposed section 105A.7). The lack of
definition of ‘unacceptable risk’ is justified in the Explanatory Memorandum as
a matter to be left ‘open to the Court to apply flexibly on an individual
basis’.[77]
This is a significant departure from a similar type of order—albeit lasting for
a shorter time—the preventative detention order. The criteria for a
preventative detention order are that the AFP suspects on reasonable grounds
that a terrorist act may occur and that issuing the order would substantially assist in preventing a terrorist act occurring; section
105.4(4) of the Criminal Code. In its submission to the PJCIS’
Inquiry into the Bill, the Law Council of Australia submitted that the
unacceptable risk test is not appropriate in the case of terrorist offences for
a number of reasons; in particular noting that the ‘concept of risk is too
fluid and ... may be very subjective. The qualifier – “unacceptable” – does
little or nothing to change that high level of subjectivity.’[78]
The Parliament may wish to consider giving greater clarity over what might be ‘unacceptable
risk’ by way of a list of criteria or a further guidance for the Court to
consider.
Rule of evidence to apply
The PJCIS addressed this issue in part by recommending
that proposed section 105A.8 be amended to make clear that the rules of
evidence apply to the matters the Court is required to have regard to in its
decision as to whether the terrorist offender poses an unacceptable risk of
committing a terrorism offence if released into the community.[79]
Risk Assessment
The AHRC submitted that ‘for any system of preventative
detention to be justifiable, it must be possible to make robust predictions
about the likelihood of future risk.’[80]
The AHRC expressed concern that the Bill as currently drafted does little to
ensure that relevant experts are appropriately qualified and that their
assessments of risk make use of best practice methodology, and went so far as
to recommend the establishment of an independent Risk Management Body
(recommendation 5) to develop, amongst other things, best practice risk
assessment and risk management processes, guidelines and standards.[81]
ANU Associate Professor Dr Mark Nolan provided a detailed
submission that recommended against aspects of this proposal in its current
form based on a number of factors, including the ‘absence of appropriate
rehabilitation (deradicalisation or disengagement) and through care programming
in Australian prisons (or any other future places of detention) for offenders
charged with and/or serving time for terrorist offences.’[82]
Most importantly in relation to this aspect of the Bill, Dr Nolan emphasised
that the lack of terrorism-specific and expert assessment tools may result in
decisions based on groups and classes of offenders ‘rather than on the
psychological orientations towards reoffending and the criminogenic thinking of
a particular individual prison[er] incarcerated for a relevant terrorism
offence.’[83]
The
proposed continuing detention order’s interaction with the control order scheme
Division 104 of the Criminal Code outlines the
control order regime. A control order is issued by a court and can limit a
person’s movements, communications, ownership or use of certain things, activities
or access to certain technology including the internet, with the aim to prevent
a terrorist act from occurring. A person can be subject to a control order if
it would substantially help prevent a terrorist attack or the person has:
trained or participated in training with a listed terrorist organisation, or
engaged in a hostile activity in a foreign country, or has been convicted of
terrorism or specified terrorism-related offences.[84]
The control order regime is premised on an assumption that the persons who may
pose a terrorist risk are already in the community. Currently, Division 104 of
the Criminal Code requires the AFP to apply first for an interim control
order (so that the conditions can apply for the full duration of the order). It
is unclear whether the legislation would support the Australian Federal Police
commencing control order proceedings at the time of considering a continuing
detention order.[85] Amendments would need to be considered
carefully here as the issuing courts are different for control orders and the
proposed continuing detention orders:
... [U]nder the [Criminal Code Amendment (High
Risk Terrorist Offenders) Bill, the Court will not be able to make a control
order as an alternative to a continuing detention order. This is because the
two regimes are distinct with different procedural and threshold requirements.
If a Court does not make a continued detention order, the Australian Federal
Police (AFP) will need to consider whether to seek a control order. A
fundamental practical issue will be the timing of seeking a control order.[86]
If this scheme were to commence in the proposed form and an
offender was released from prison and not subject to a continuing detention
order for reasons that the Court is not satisfied that there is an unacceptable
risk to the community if the person is released, the existing control order and
preventative detention order schemes would still be applicable, should the
authorities consider that there is a risk of a terrorist act occurring.
However, further examination is required of the practical difficulties that
might arise at the time the terrorist offender is released from prison. There
are different procedural and threshold requirements for control orders compared
with the proposed continuing detention orders. Further, the swift manner in
which a terrorist act can occur might make it preferable that a control order
be issued while a prisoner is still serving a sentence for terrorism offences,
thus providing an alternative for the court to consider.
The key point made by the Australian
Human Rights Commission is that control orders may only be made by an ‘issuing
court’ (currently the Federal Court, the Family Court or the Federal Circuit
Court) while the Bill proposes that continuing detention orders be made by the
Supreme Court of a state or territory. The fact that different courts are
required to deal with each of these regimes means that if the Supreme Court
decides that it should not make a continuing detention order because a control
order would be more appropriate, a separate application would need to be made
by the Australian Federal Police to a different court in order for a control
order to be made.[87]
The usual burden of proof for imprisoning people for
criminal offences is ‘beyond reasonable doubt’. The Government has considered
this to be too high a threshold for predicting future activity so the civil
standard has been applied here, on the balance of probabilities.
Role of
‘relevant experts’
Proposed section 105A.6 allows the appointment by
the court of a ‘relevant expert’ to conduct an assessment and provide a report
to the court on the offender’s risk of committing a serious Part 5.3 offence if
the offender is released into the community. The court is required, under proposed
section 105A.8, to take into account any report received from a relevant
expert in deciding whether a person poses an unacceptable risk of committing a
serious Part 5.3 offence if released into the community. A ‘relevant expert’ is
defined in proposed section 105A.2 as being any of the following
persons who is competent to assess the risk of a terrorist offender committing
a serious part 5.3 offence if the offender is released into the community:
(a) A person
who is:
(i) registered as a medical practitioner under a law of a State or
Territory; and
(ii) a fellow of the Royal Australian and New Zealand College of
Psychiatrist;
(b) any other
person registered as a medical practitioner under a law of a State or
Territory;
(c) a
person registered as a psychologist under a law of a State or Territory;
(d) any other
expert.
Parties are also permitted to call their own ‘relevant
experts’ under proposed section 105A.14, which may be considered a
safeguard for offenders to ensure procedural fairness.[88]
However it might be difficult practically for courts to be presented with
numerous and different expert views in this context. More detail on the
implementation of this safeguard would be welcome. There is also no explanation
about who might be considered ‘any other expert’ under subsection (d) and
whether this might include non-medical experts such as criminologists or
religious counsellors or teachers. Further, the Law Council of Australia
submitted on the definition of ‘relevant expert’ that ‘the inclusion of ‘any
other expert registered as a medical practitioner under a law of a State or
Territory’ in the definition of ‘relevant expert’ should be removed’.[89]
Human
rights implications
The Government has acknowledged that the Bill engages a
range of human rights and noted that to the extent that it limits some rights,
those limitations are reasonable, necessary and proportionate in achieving a
legitimate objective.[90]
In the Statement of Compatibility with Human Rights, the Government states that
terrorism is a significant threat to national security and public safety.
Politically motivated violent acts can indiscriminately threaten the lives and
physical safety of Australian citizens. This can perpetuate a climate of fear
which is socially divisive, threatening the cohesiveness of Australian society.[91]
This Digest identifies a number of human rights issues
that will affect those subject to a continuing detention order and where there
may still be some debate about their reasonableness and need.
Unlawful
deprivation of liberty
The critical question with this Bill is the extent to which it
is in conflict with Article 9(1) of the International Covenant on Civil and
Political Rights (ICCPR), which provides that a person must be detained
lawfully and that any detention must not be arbitrary, meaning that it must not
be inappropriate or, unjust and must be predictable.[92]
On balancing the objective of community safety, the proposed regime needs to be
proportionate with the infringement on the person’s liberty. The Australian
Human Rights Commission considered this closely and recommended safeguards that
could improve the operation of the scheme to achieve better human rights
outcomes.[93]
Further, the Senate Scrutiny of Bills Committee reported
that the provisions allowing for a terrorist offender to ultimately be treated
and detained in the same manner and in the same area as persons serving prison
sentences appear to undermine the stated non-punitive nature of the scheme.[94]
The Committee has sought the
Attorney-General’s advice as to what the likely conditions of detention would
be for a person under a continuing detention order.
Retrospective
punishment for the same conduct?
The Senate Scrutiny of Bills Committee reported its concerns
about the extent to which ‘the assessment of whether or not a person poses an
unacceptable risk to the community is prior conviction for an offence ... If the
continuing detention is triggered by past offending, then it can plausibly be
characterised as retrospectively imposing additional punishment for that
offence.’[95]
In considering this and other human rights issues, the
Parliamentary Joint Committee on Intelligence and Security acknowledged the
impact that continuing detention orders may have upon civil liberties and noted
that the PJCHR had concluded that ’the number and variety of safeguards in the
Bill may support a finding that the regime is necessary, reasonably and
proportionate’.[96]
Alternatives to a Continued Detention
Order
An alternative to this scheme would be to
adopt a wait-and-see approach and to persist with non-legislative measures to
address the concern that convicted terrorist offenders may reoffend. These
might include promoting disengagement, promoting deradicalisation in prison, changing
cognitive behavioural and attitudinal characteristics of the prisoner by
improving education and employment skills, improve problem solving and critical
thinking and promoting peaceful religious views.[97] More resources directed
into countering violent extremism in the prison environment may lead to better
outcomes than continuing detention orders for convicted terrorist offenders.
However, it is recognised that should this path be pursued and a released terrorist
offender was subsequently involved in a terrorist attack, the community’s
confidence in the Government’s ability to address national security risks would
be compromised.
Key
provisions
Schedule 1
Schedule 1 of the Bill will insert a new Division 105A
- Continuing detention orders into the Criminal Code, the object of
which is to ensure the safety and protection of the community by providing for
the continuing detention of terrorist offenders who pose an unacceptable risk
of committing serious Part 5.3 offences if released into the community (proposed
section 105A.1).
Key definitions in proposed section 105A.2 include:
- continuing
detention order means an order made under subsection 105A.7(1)
- relevant expert means any of the following persons
who is competent to assess the risk of a terrorist offender committing a
serious Part 5.3 offence if the offender is released into the community:
(a) a person
who is:
(i) registered as a medical practitioner under a law of a State or
Territory; and
(ii) a fellow of the Royal Australian and New Zealand College of
Psychiatrists;
(b) any other
person registered as a medical practitioner under a law of a State or
Territory;
(c) a
person registered as a psychologist under a law of a State or Territory;
(d) any other
expert.
- serious Part 5.3 offence means an offence against
this Part, the maximum penalty for which is 7 or more years of imprisonment.
Proposed section 105A.3 outlines the conditions under
which a continuing detention order may be made. A continuing detention order
may be made under proposed section 105A.7 in relation to a person (the terrorist
offender) if the person has been convicted of offences relating to
international terrorist activities using explosives or lethal devices
(Subdivision A of Division 72 of the Criminal Code), treason
(Subdivision B of Division 80), a serious Part 5.3 offence (terrorism) or a
foreign incursions and recruitment offence (Part 5.5) and either the person is
detained in custody and serving a sentence of imprisonment for the offence; or
a continuing detention order or interim detention order is in force in relation
to the person; and, if applicable, the person will be at least 18 years old
when the sentence ends (proposed paragraphs 105A.3(1)(a)–(c)).
The treatment of a terrorist offender in a prison under a
continuing detention order is defined by what they are not. That is, under proposed
subsection 105A.4(1) the person must be treated in a way that is
appropriate to his or her status as a person who is not serving a
sentence of imprisonment, subject to any reasonable requirements necessary to
maintain:
(a) the
management, security or good order of the prison; and
(b) the safe
custody or welfare of the offender or any prisoners; and
(c) the
safety and protection of the community (proposed subsection 105A.4(1)).
Proposed subsection 105A.4(2) outlines that the
terrorist offender must not be accommodated or detained in the same area or
unit of the prison as persons who are in prison for the purpose of serving
sentences of imprisonment unless:
(a) it is
reasonably necessary for the purposes of rehabilitation, treatment, work,
education, general socialisation or other group activities; or
(b) it is
necessary for the security or good order of the prison or the safe custody or
welfare of the offender or prisoners; or
(c) it
is necessary for the safety and protection of the community or
(d) the
offender elects to be so accommodated or detained.
The court process for the making of an application for a
continuing detention order is prescribed by proposed section 105A.5,
requiring the application to be made by the Attorney-General, or a legal
representative of the Attorney-General, to a Supreme Court of a state or territory.
The time in which this can occur is outlined at proposed subsection 105A.5(2):
(2) However, the application may not be made more than 6
months before the end of:
(a) a
sentence of imprisonment referred to in subparagraph 105A.3(1)(b)(i) that the
offender is serving, at the end of which the offender would be required to be
released into the community; or
(b) if a
continuing detention order is in force in relation to the offender – the period
for which the order is in force.
The application is required to include any report or other
document that the applicant intends, at the time of the application, to rely on
in relation to the application; and include information about the offender’s
age; and request that the order be in force for a specified period (proposed
subsection 105A.5(3)) A Note to this paragraph also requires that the period
must not be more than three years as per proposed subsection 105A.7(5).
The offender must be provided with a copy of the
application, personally, within two business days after the application is made
(proposed subsection 105A.5(4)) however the content is restricted to
that which the Attorney-General is not likely to:
(a) give a
certificate under Subdivision C of Division 2 of Part 3A of the National
Security Information (Criminal and Civil Proceedings) Act 2004;[98]
(civil proceedings certificates, relating to non-disclosure on the grounds that
it may prejudice national security)
(b) seek an
arrangement under section 38B of that Act (relating to the handling of national
security information) ;
(c) make
a claim of public interest immunity
(d) seek an
order of the Court preventing or limiting disclosure of the information (proposed
paragraphs 105A.5(5)(a)-(d))
The Explanatory Memorandum provides an example of how this
provision may be used:
... the Attorney-General may wish to seek suppression orders to
ensure that the information in the application can be protected from release to
the broader public. The provision will enable the
Attorney-General to give a redacted copy of the application to the offender
until the Court has dealt with the suppression order application. It will not
prevent the material that the Attorney-General seeks to rely on in the
application from ultimately being disclosed to the offender.[99]
As discussed under key issues, proposed section 105A.6 relates
to the appointment of and assessment by a relevant expert. The provision
requires that the Court hold a preliminary hearing to determine whether to
appoint one or more relevant experts. The appointed relevant expert must:
(a) conduct an
assessment of the risk of the offender committing a serious Part 5.3 offence if
the offender is released into the community; and
(b) provide a
report of the expert’s assessment to the Court, the Attorney-General and the
offender (proposed subparagraphs 105A.6(4)(a) and (b)).
Proposed subsection 105A.6(6) requires that the Court
must ensure that the effect of subsection (5) (that the offender attend the
assessment) and proposed paragraph 105A.8(b) (that any report received
from a relevant expert and the level of the offender’s participation in the
assessment by the expert will be taken into account by the Court) is explained
to the offender. The Explanatory Memorandum adds that the Court is not required
to explain the effect of these provisions to the offender itself.[100]
Proposed subsection 105A.6(7) outlines what the
report must contain:
(a) the
expert’s assessment of the risk of the offender committing a serious Part 5.3
offence if the offender is released into the community;
(b) reasons
for that assessment;
(c) the
pattern or progression to date of behaviour on the part of the offender in
relation to serious Part 5.3 offences, and an indication of the nature of any
likely future behaviour on his or her part in relation to serious Part 5.3
offences;
(d) efforts
made to date by the offender to address the causes of his or her behaviour in
relation to serious Part 5.3 offences, including whether he or she has actively
participated in any rehabilitation or treatment programs;
(e) if the
offender has participated in any rehabilitation or treatment programs – whether
or not this participation has had a positive effect on him or her;
(f) any
relevant background of the offender, including developmental and social
factors;
(g) factors
that might increase or decrease any risks that have been identified of the
offender committing a serious Part 5.3 offence if the offender is released into
the community;
(h) any other
matters the expert considers relevant.
To make a continuing detention order, the Court needs to be
satisfied to a high degree of probability, on the basis of admissible evidence,
that the offender poses an unacceptable risk of committing a serious Part 5.3
offence if the offender is released into the community; and the Court is
satisfied that there is no less restrictive measure that would be effective in
preventing the unacceptable risk (proposed subsection 105A.7(1)).
The order must specify the period during which it is in
force (which must be no more than three years). The period must be no longer
than the Court is satisfied is reasonably necessary to prevent the unacceptable
risk (proposed subsection 105A.7(5)). More than one continuing detention
order can be made and there is no limit to the number of such orders that can
be made.
With no specified weight given to each criterion, the Court
must have regard to the following matters when deciding whether it is satisfied
to a high degree of probability that the offender poses an unacceptable risk of
committing a serious Part 5.3 offence if released into the community:
- the safety and protection of the community
- the report of any Court appointed expert, and the level of the
offender’s participation in the assessment by the expert
- the results of any other assessment conducted by a relevant
expert of the risk of the offender committing a serious Part 5.3 offence,
and the level of the offender’s participation in any such assessment
- reports prepared by relevant corrective services and other
authorities competent to assess the extent to which the offender can be
reasonably and practically managed in the community
- the offender’s participation in any treatment and rehabilitation
programs
- the offender’s compliance with obligations while on parole for
any offence, or subject to a continuing or interim detention order
- the offender’s criminal history
- views of the sentencing court at the time the relevant sentence
of imprisonment was imposed
- any other information as to the risk of the offender committing a
serious Part 5.3 offence
- and any other matter the court considers relevant [proposed
section 105A.8].
An interim detention order may
also be issued, under proposed section 105A.9. The purpose of an interim
detention order is to ensure that an interim measure can be put in place when
the terrorist offender’s sentence, or existing continuing detention order, will
come to an end before the Court has been able to make a decision on whether to
make the continuing detention order. An interim detention order can be no
longer than 28 days (proposed subsection 105A.9(5)). More than one
interim detention order may be made, but such orders may not be imposed for
more than three months in total (proposed subsection 105A.9(6)).
Subdivision D of proposed Division 105A requires
review of the continuing detention order, either by periodic review or on
application. After review the court must affirm or revoke the order. Proposed
subsection 105A.12(4) provides that the Court may affirm the order if the
Court has had regard to the matters referred to in section 105A.8 and is
satisfied to a high degree of probability, on the basis of admissible evidence,
that the offender poses an unacceptable risk of committing a serious Part 5.3
offence if the offender is released into the community; and the Court is
satisfied that there is no other less restrictive measure, such as a control
order, that would be effective in preventing the unacceptable risk. The Court
is able to reduce the time period of the continuing detention order subject to proposed
subsection 105A.12(7). The Court is required to reduce the term of the
order if it is not satisfied that the period currently set out in the order is
reasonably necessary to prevent the unacceptable risk.
Subdivision E of proposed
Division 105A addresses matters relating to court
proceedings, right of appeal (within 28 days of the decision, or by leave) and
the status of the offender during the time a continuing detention order
application or appeal is being considered and the sentence of imprisonment
ends, or the continuing detention order or the interim detention order ends.
Notably, proposed subsection 105A.13(1) notes that as orders are made in the civil jurisdiction in a state
or territory Supreme Court, the rules of evidence and procedure for civil
proceedings apply. However, there is an exception noted under proposed
subsection 105A.13(2) which will allow the
Court to receive the relevant terrorist offender’s criminal history in
evidence, including prior convictions and findings of guilt in respect of any
offences.
Schedule 2
Parts 1 and 2 of
Schedule 2 contain consequential and contingent amendments.
The consequential amendments include one amendment to the Surveillance
Devices Act 2004 to allow agencies to
use, communicate or give in evidence information obtained using powers in that
Act for purposes related to new Division 105A of the Criminal Code (Schedule
2, Part 1, item 1).[101]
Similarly, the Telecommunications (Interception and Access) Act 1979 (TIA
Act) will be amended by item 2.[102]
The Explanatory Memorandum summarises that these amendments:
... allow for information that was obtained in relation to the
conviction of the original terrorism offence to be adduced in an application to
keep the offender in detention to prevent the commission of a further terrorism
offence.[103]
The consequential amendments include amending definitions
of ‘permitted purposes’, ‘exempt proceeding’ and ‘lawfully accessed
information’ in the TIA Act (items 3–5). Other key consequential
amendments are contained in item 6 allowing an authorised officer in the
AFP to authorise the use or to disclose information or documents obtained under
an 180A or 180B authorisation (relating to existing and prospective information
– enforcement of the criminal law of a foreign country), if it is reasonably
necessary for the purposes of the new Division 105A.
The contingent amendments in Part 2 of Schedule
2 are related to the commencement of Schedule 9 of the Counter-Terrorism
Legislation Amendment Act (No. 1) 2016. It may be that the Government
amends this Part prior to the Parliamentary debate. At the time of publication
of this Digest, the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
had passed the Parliament and is awaiting Royal Assent.[104]
Concluding comments
The policy behind this Bill has broadly been agreed to by
COAG and the Australian Labor Party. Its successful passage depends on the
Parliament’s consideration of the legal detail in the Bill, including the
amendments recommended by the PJCIS. Prior to debate, the Government issued
proposed amendments and a supplementary Explanatory Memorandum. The
supplementary Explanatory Memorandum notes that the proposed amendments
implement Recommendations 2–6, 8,9,11–13 and 15–20 ‘and address issues arising
from further consideration of the Bill since its introduction’.[105]
The Attorney-General’s Department indicated in its
submission to the PJCIS Inquiry, that the Government is considering a number of
possible amendments to the Bill:
- allowing the use and sharing of things seized under Part IAA and
information and documents produced under Division 4B of the Crimes Act 1914 in
relation to continuing detention order proceedings. For example, the possible
amendment would allow any evidence seized during the execution of a search
warrant for terrorism investigations to be used to support an application for,
or proceedings related to, continuing detention orders and
- addressing an oversight to ensure that any terrorist offender
convicted of an offence under the now repealed Crimes (Foreign Incursions
and Recruitment) Act 1978 who is serving a sentence of imprisonment for
that offence may be subject to a continuing detention order.[106]
[1]. A
terrorist offender is a defined term in this Bill, in proposed subsection
105A.3(1) meaning a person who has been convicted of:
(i) an offences against Subdivision A of Division 72 (international
terrorist activities using explosive or lethal devices); or
(ii) an offence against Subdivision B of Division 80 (treason); or
(iii) a serious Part 5.3 offence; or
(iv) an offence against 5.5 (foreign incursions and recruitment) and
is either
detained in custody and serving a sentence of imprisonment for the offence; or
a continuing detention order or interim detention order is in force in relation
to the person; and if imprisoned, the person will be at least 18 years old when
the sentence ends.
[2]. Other
legislation includes National
Security Legislation Amendment Act (No. 1) 2014, Counter-Terrorism
Legislation Amendment Act (No. 1) 2014, Counter-Terrorism
Legislation Amendment (Foreign Fighters) Act 2014, Counter-Terrorism
Legislation Amendment Bill (No. 1) 2015, Telecommunications
(Interception and Access) Amendment (Data Retention) Act 2015, Counter-Terrorism
Legislation Amendment Bill (No. 1) 2016. Links are to the relevant Bills
Digests.
[3]. Council
of Australian Governments (COAG), Communique,
COAG meeting, Sydney, 11 December 2015. Previously known as the National
Counter-Terrorism Committee, New Zealand became a member in September 2012 and
the Committee’s name was changed to Australia-New Zealand Counter-Terrorism
Committee. Further information about the Committee can be found on the Australian
National Security website.
[4]. COAG,
Communique, COAG meeting,
Canberra, 1 April 2016. As at 27 November 2016, NSW has not introduced the
legislation. The NSW Parliament passed the Crimes (High Risk Offenders)
Amendment Bill 2016 which commenced on 7 June 2016 but this Act makes
provisions with respect to persons convicted of serious violent offences, not
terrorism offences. The NSW Attorney-General noted in her second
reading speech for that Bill that a statutory review of the Crimes (High
Risk Offenders) Act 2006 is now underway, to consider options for better
managing high-risk offenders and whether the factors the Supreme Court is
required to consider in making an order for continuing detention or extended
supervision align with the Act's objectives. That report is due to be completed
by March 2017.
[5]. M
Turnbull (Prime Minister) and G Brandis (Attorney-General), Press
conference, Sydney, transcript, 25 July 2016.
[6]. COAG,
Meeting
of Attorneys-General on post sentence preventative detention: communique,
COAG meeting, Canberra, 5 August 2016.
[7]. COAG,
Agreement on Counter-terrorism
Laws, COAG, 25 June 2004.
[8]. COAG,
Meeting of Attorneys-General on post sentence preventative detention, op.
cit.
[9]. G
Brandis, ‘Second
Reading Speech: Criminal Code Amendment (High Risk Terrorist Offenders) Bill
2016’, Senate, Debates, 15 September 2016, pp. 1029–1036.
[10]. This
is a complex question of constitutional law. For academic consideration, see J
Renwick ‘The constitutional validity of preventative detention’, in A Lynch, E
MacDonald and G Williams, eds, Law
and liberty in the war on terror, Federation Press, Leichardt, 2007; J
Gordon ‘Imprisonment
and the separation of judicial power: a defence of a categorical immunity from
non-criminal detention’, Melbourne University Law Review, 36(1),
2012, pp. 41–103; and P Fairall and W Lacey ‘Preventative
detention and control orders under federal law: the case for a Bill of Rights’,
University of Melbourne Law Review, 31(3), 2007, pp. 1072–1098.
[11]. Preventative
detention orders were issued in September 2014 in New South Wales in what was reported
as the first time these orders were used. P Farrell, ‘Detention
orders obtained before anti-terrorism raids were carried out’, The
Guardian, (online edition), 19 September 2014.
[12]. This
relates to the practical difficulties in the implementation of proposed
subsection 105A.7(1)(c) which provides that the Court is satisfied that
there is no other less restrictive measure that would be effective in
preventing the unacceptable risk, such as a control order. However, this scheme
in its current form does not permit the court to make such a control order as
the alternative.
[13]. Turnbull and Brandis,
Press conference, Sydney, op. cit. In its response to Questions
on Notice asked at a public hearing by the Parliamentary Joint Committee on
Intelligence and Security, the Attorney-General’s Department has stated that
the Department received advice on the constitutional validity of the Bill from
both the Australian Government Solicitor and the Solicitor-General and no
members of the private bar were asked to advise on the Bill (p. 11).
[14]. Brandis,
‘Second Reading Speech: Criminal Code Amendment (High Risk Terrorist Offenders)
Bill 2016’, op. cit., pp. 1029–1036.
[15]. Fardon
v Attorney-General (Qld) (2004) 223 CLR 575, [2004]
HCA 46, per Callinan and Heydon JJ – at 219.
[16]. A Lynch ‘Thomas V Mowbray: Australia’s “War on
terror” reaches the High Court’, Melbourne
University Law Review, 32(3), 2008, p. 37, citing Thomas
v Mowbray (2007) 233 CLR 307, [2007] HCA 33 at paragraphs [30]–[31]
(per Gleeson CJ and pp. 355–358 at paragraphs [111]–[126].
[17]. Kable v Director of Public Prosecutions (NSW)
(1996) 189 CLR 51 [1996] HCA 24.
[18]. Ad hominem legislation is that which is directly targeted to affect
an individual; ‘Ad hominem’, Encyclopaedic Australian Legal Dictionary, LexisNexis
Australia, Chatswood, 2011.
[19]. R
Ananian-Welsh, ‘Preventative
detention orders and the separation of judicial power’, University of
New South Wales Law Journal, 38(2), 2015, p. 756.
[20]. R
Ananaian-Welsh, N McGarrity, T Tulich and G Williams, Submission,
no. 6, to Parliamentary Joint Committee on Intelligence and Security, Inquiry
into the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016,
12 October 2016, p. 6.
[21]. Parliamentary
Joint Committee on Intelligence and Security, Advisory
report on Criminal Code (High Risk Terrorist Offenders) Bill 2016,
Commonwealth of Australia, Canberra, November 2016, p. xi, Recommendation 1.
The Attorney-General’s Department responded to a Question on Notice that the
Australian Government Solicitor and the Solicitor-General had received advice
on the constitutional validity of the Bill, see Footnote 5.
[22]. J
Norberry, Criminal
Code Amendment (Terrorism) Bill 2002, Bills Digest, 89, 2002–03,
Department of the Parliamentary Library, Canberra, 21 January 2003.
[23]. Brandis,
‘Second Reading Speech: Criminal Code Amendment (High Risk Terrorist Offenders)
Bill 2016’, op. cit., pp. 1029–1036.
[24]. Law,
Crime and Community Safety Council (LCCSC), Communique,
LCCSC meeting, Melbourne, 21 October 2016.
[25]. Turnbull and Brandis, Press conference, Sydney, op. cit.
[26]. For
an indication of who has been convicted of terrorism offences under the Criminal
Code, see ‘Attachment D – table of terrorism trials’, source: COAG, Council
of Australian Governments review of counter-terrorism legislation,
COAG, Canberra, 2013, pp. 101–111. The Attorney-General’s Department further
indicated in its submission
that there are 16 convicted terrorist offenders presently serving time in
prison. AGD, Submission,
no. 9, to Parliamentary Joint Committee on Intelligence and
Security, Inquiry into the Criminal Code Amendment (High Risk Terrorist
Offender) Bill 2016, 12 October 2016.
[27]. Turnbull and Brandis, Press conference, Sydney, op. cit.
[28]. Ibid; D Smith, R Luscombe, E Pilkington and A Gumbel,
‘How
the Orlando shooting unfolded: “he came in with the intent of evil”’, The
Guardian, (online edition), 18 June 2016; S Jones, ‘Nice
attack: truck driver named as France mourns 84 killed in Bastille Day atrocity
- as it happened’, The Guardian, (online edition), 16 July 2016.
[29]. G
Williams, ‘A
decade of Australian anti-terror laws’, Melbourne University Law Review,
35(3), 2011, p. 1136.
[30]. T
Legrand, S Bronitt and M Stewart, ‘Evidence of the impact of counter-terrorism
legislation’, in G Lennon and C Walker (Eds), Routledge
Handbook of Law and Terrorism, Routledge, London, 2015, p. 298.
[31]. C
Smith and M Nolan ‘Post-sentence
continued detention of high-risk terrorist offenders in Australia’, Criminal
Law Journal, 40(3), June 2016, p. 163.
[32]. Ibid.,
p. 164.
[33]. AGD,
‘Countering
violent extremism’, AGD website.
[34]. Brandis,
‘Second Reading Speech: Criminal Code Amendment (High Risk Terrorist Offenders)
Bill 2016’, op. cit., p. 1034.
[35]. T
Veldhuis, Prisoner
radicalization and terrorism detention policy: institutionalized fear or
evidence-based policy making?, Routledge, New York, 2016, p. 141.
[36]. Brandis,
‘Second Reading Speech: Criminal Code Amendment (High Risk Terrorist Offenders)
Bill 2016’, op. cit., pp. 1029–1036.
[37]. Parliamentary Joint Committee on Intelligence and Security, ‘Criminal Code Amendment (High Risk Terrorist Offenders Bill 2016’, Inquiry homepage.
[38]. Parliamentary
Joint Committee on Intelligence and Security, Advisory Report
on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, op. cit., p. 125.
[39]. Ibid.,
p. 126, para 4.96.
[40]. Ibid.,
p. 126, para 4.97.
[41]. Ibid.,
Recommendation 24.
[42]. Ibid.,
Recommendation 16 also recommended that the Government consider whether the
existing control order regime could be further improved to most effectively
operate alongside the proposed continuing detention order regime. Any potential
changes should be developed in time to be considered as part of the reviews of
the control order legislation to be completed by the Independent National
Security Legislation Monitor (INSLM) [currently a vacant position] by 7
September 2017 and the Parliamentary Joint Committee on Intelligence and
Security (PJCIS) by 7 March 2018.
[43]. Parliamentary
Joint Committee on Intelligence and Security, Advisory Report
on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, op. cit., pp. xi–xvi.
[44]. Ibid.,
p. 124, para 4.87 (emphasis added).
[45]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 7, 2016, The Senate, 12 October 2016, p. 55.
[46]. Ibid.
[47]. Ibid.
[48]. Senate
Standing Committee for the Scrutiny of Bills, Report,
8, The Senate, 9 November 2016, p.455; Senate Standing Committee for the
Scrutiny of Bills, Report,
9, The Senate, 23 November 2016.
[49]. M
Doran, ‘Terrorists
could be detained indefinitely under Federal Government proposal’, ABC
News, (online edition), 25 July 2016.
[50]. S
Maiden, ‘Leave
them caged: new laws to deny jailed terrorists their freedom’, Sunday
Herald Sun, 30 October 2016, p. 2.
[51]. Law Council of Australia, Submission, no. 4, to Parliamentary Joint Committee on Intelligence and Security, Inquiry
into the Criminal Code Amendment (High Risk Terrorist Offender) Bill 2016,
12 October 2016, p. 6.
[52]. Ibid.,
p. 13.
[53]. Ibid.,
p. 16.
[54]. Ibid.,
p. 18.
[55]. Ibid.,
p. 5.
[56]. Australian
Human Rights Commission, Submission,
no. 8, to Parliamentary Joint Committee on Intelligence and
Security, Inquiry into the Criminal Code Amendment (High Risk Terrorist
Offender) Bill 2016, 12 October 2016, p. 3.
[57]. Ibid.
[58]. Ibid.,
p. 17
[59]. Ibid.,
p. 4.
[60]. Ibid.,
p. 5.
[61]. Ibid., p. 25.
[62]. Ibid.,
p. 6.
[63]. Civil
Liberties Australia, Submission,
no. 2, to Parliamentary Joint Committee on Intelligence and
Security, Inquiry into the Criminal Code Amendment (High Risk Terrorist
Offender) Bill 2016, 10 October 2016, p. 1.
[64]. Ananaian-Welsh
et al, Submission to Parliamentary Joint Committee on Intelligence and
Security, op. cit., p. 1.
[65]. Parliamentary
Joint Committee on Intelligence and Security, Advisory report on the
Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, op.
cit., pp. 125–126.
[66]. Explanatory
Memorandum, Criminal Code Amendment (High Risk Terrorist Offenders) Bill
2016, p. 2.
[67]. The
Statement of Compatibility with Human Rights can be found at pages 3–13 of the Explanatory
Memorandum to the Bill.
[68]. Parliamentary
Joint Committee on Human Rights, Report
7 of 2016, 11 October 2016; and Parliamentary Joint Committee on Human
Rights, Report
8 of 2016, 9 November 2016.
[69]. Parliamentary
Joint Committee on Human Rights, Report 7 of 2016, op. cit., p. 14.
[70]. Ibid.,
p. 15.
[71]. Ibid.,
pp. 19–20.
[72]. Ibid.,
p. 20.
[73]. Law
Council of Australia, Submission to the Parliamentary Joint Committee on
Intelligence and Security, op. cit., p. 19.
[74]. Parliamentary
Joint Committee on Intelligence and Security, Advisory report on the
Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, op.
cit., p. xi, recommendation 2. Note, however, that the text of
the recommendation erroneously refers to ‘section 80(B)’, and should refer to
Subdivision B of Division 80 as per proposed paragraph 105A.3(1)(a)(ii).
[75]. Crimes Act 1914.
[76]. Australian
Human Rights Commission, Submission,
no. 8, to the Parliamentary Joint Committee on Intelligence and Security, Inquiry
into the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016,
12 October 2016, pp. 17–18.
[77]. Explanatory
Memorandum, Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016,
op. cit., p.21.
[78]. Law
Council of Australia, Submission to the Parliamentary Joint Committee on
Intelligence and Security, op. cit., p. 19.
[79]. Parliamentary
Joint Committee on Intelligence and Security, Advisory Report on the
Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, op.
cit., p. xii, recommendation 6.
[80]. Australian
Human Rights Commission, Submission to the Parliamentary Joint Committee on
Intelligence and Security, op. cit., p. 18.
[81]. Ibid.,
p. 5.
[82]. M
Nolan, Submission,
no. 13, to Parliamentary Joint Committee on Intelligence and
Security, Inquiry into the Criminal Code Amendment (High Risk Terrorist
Offender) Bill 2016, 12 October 2016, p.
3–6.
[83]. Ibid.,
p. 8.
[84]. AGD,
‘Control
orders’, AGD website; Also see Division 104 of the Criminal Code.
[85]. D
Wroe, ‘Snag
in plans to hold unreformed terrorists in jail’ Sydney Morning Herald, 15
October 2016, p. 7.
[86]. G Brandis, ‘Appendix C: letter from the Attorney-General dates 13
October 2016’, in Parliamentary Joint Committee on Intelligence and
Security, Advisory
report on Criminal Code (High Risk Terrorist Offenders) Bill 2016,
Commonwealth of Australia, Canberra, November 2016, pp.
135–37.
[87]. Australian
Human Rights Commission, Submission,
no. 8.1, to the Parliamentary Joint Committee on Intelligence and Security, Inquiry
into the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016,
20 October 2016, p. 8.
[88]. The
court is obliged under proposed paragraph 105A.8(c) to have regard to
the results of any other assessment conducted by a relevant expert, in addition
to that of a court appointed expert under proposed section 105A.6.
[89]. Law
Council of Australia, Submission to the Parliamentary Joint Committee on
Intelligence and Security, op. cit., p. 17.
[90]. For
the Statement of Compatibility with Human Rights see the Explanatory
Memorandum, p.13.
[91]. Ibid.,
p. 12.
[92]. International
Covenant on Civil and Political Rights, done in New York on 16 December
1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13
November 1980; Art. 41 came into force for Australia on 28 January 1994). Australian
Human Rights Commission; Australian Human Rights Commission, Submission to the
Parliamentary Joint Committee on Intelligence and Security, op. cit., p.13.
[93]. For
further detail, see the Australian Human Rights Commission’s submission.
[94]. Senate
Standing Committee for the Scrutiny of Bills, Alert digest, 7, 2016, op.
cit., p. 57.
[95]. Ibid.
p. 55.
[96]. Parliamentary
Joint Committee on Intelligence and Security, Advisory Report on the
Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, op.
cit., p. 24.
[97]. Veldhuis,
Prisoner radicalization and terrorism detention policy, op. cit., p.
164.
[98]. National Security
Information (Criminal and Civil Proceedings) Act 2004.
[99]. Explanatory Memorandum, Criminal Code Amendment (High Risk
Terrorist Offenders) Bill 2016, op. cit., p. 20.
[100]. Ibid., p. 21.
[101]. Surveillance
Devices Act 2004.
[102]. Telecommunications
(Interception and Access) Act 1979.
[103]. Explanatory
Memorandum, Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016,
op. cit., p. 27.
[104]. Parliament
of Australia, ‘Counter-Terrorism
Legislation Amendment Bill (No. 1) 2016 homepage’, Australian Parliament
website.
[105]. Supplementary
Explanatory Memorandum, Criminal Code Amendment (High Risk Terrorist Offenders)
Bill 2016, p. 2.
[106]. AGD,
Submission to the Parliamentary Joint Committee on Intelligence and Security, op.
cit., p. 16.
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