List of Recommendations

Recommendation 1

2.59
The Committee recommends that Division 3A of the Crimes Act 1914 be amended so that:
the Australian Federal Police must notify the Commonwealth Ombudsman, the Independent National Security Legislation Monitor and the Parliamentary Joint Committee on Intelligence and Security of any declaration of a ‘prescribed security zone’ as soon as practicable, but no later than 72 hours after the Minister has made the declaration;
the Minister of Home Affairs must ensure that the PJCIS is given a written statement of reasons for the making of the declaration of a ‘prescribed security zone’ to enable the Committee to perform its function under subparagraph 29(1)(bba)(ii) of the Intelligence Services Act 2001 to monitor and review the basis of the Minister’s declaration of prescribed security zones; and
police officers exercising Division 3A powers to inform a person being stopped and detained for the purpose of a search of their right to make a complaint to the Commonwealth Ombudsman or applicable State or Territory police oversight body or bodies, unless this is not reasonably practicable because of circumstances of urgency.

Recommendation 2

2.62
The Committee recommends that the Crimes Act 1914 be amended to provide a list of particular matters the Minister must consider before declaring a prescribed security zone, including:
the identified impacts on third party rights would be reasonable and proportionate to the purpose of preventing, or responding to, a terrorist act
the availability and effectiveness of alternative powers
an appropriate duration of such a declaration (within the maximum 28 day period)
the impact – and proportionality - of successive declarations

Recommendation 3

2.66
The Committee recommends that the stop, search and seizure powers under Subsections 3UK(1), (2) and (3) of the Crimes Act 1914 be extended to 7 December 2025.

Recommendation 4

2.68
The Committee recommends that the Intelligence Services Act 2001 be amended to provide the Committee with the option to conduct a further review prior to the sunset date into the operation, effectiveness and implications of the stop, search and seizure powers in Division 3A of Part IAA of the Crimes Act 1914

Recommendation 5

2.71
The Committee recommends that the Attorney-General’s Department consider the appropriateness of the implementation of a duty judge system where applications for search warrants could be received and considered on an expedited basis.

Recommendation 6

2.74
The Committee recommends an amendment to section 3UEA of the Crimes Act 1914 requiring any agency that enters premises in accordance with section 3UE to obtain an ex post facto warrant as soon as possible following the use of warrantless entry powers.

Recommendation 7

3.68
The Committee recommends that the control order regime as outlined in Division 104 of the Criminal Code Act 1995 be extended to 7 December 2025.

Recommendation 8

3.71
The Committee recommends that the definition of ‘issuing court’ in the Criminal Code Act 1995 be amended to only the Federal Court of Australia.

Recommendation 9

3.72
The Committee recommends that section 29 of the Intelligence Services Act 2001 be amended to provide that the Parliamentary Joint Committee on Intelligence and Security may commence a review of Division 104 of the Criminal Code Act 1995 prior to the sunset of the provisions.

Recommendation 10

3.76
The Committee recommends that section 104.5(3) of the Criminal Code Act 1995 be amended to align the conditions that can be imposed as part of the control orders regime with proposed Schedule 1, clause 105.7A of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020.

Recommendation 11

3.78
The Committee recommends the Australian Government undertake a review of the range of conditions that could be imposed as part of a control order, and report back to the Parliamentary Joint Committee on Intelligence and Security by July 2022.

Recommendation 12

3.80
The Committee recommends that Division 104 of the Criminal Code Act 1995 be amended to provide that the Australian Federal Police may add conditions with the consent of both parties, provided that:
the consent of the subject of the order is fully informed and he or she has been given every reasonable opportunity to consult with a legal representative; and
consent may be withdrawn by either party at any time.

Recommendation 13

3.84
The Committee recommends that the Attorney-General’s Department:
investigate the cost of providing legal aid for those subject to proceedings under Division 104 of the Criminal Code Act 1995, including continuing detention orders and control orders, on the basis that people subject to the most rights-restrictive powers should receive assistance to ensure adequate representation provided the costs to the Commonwealth are reasonable; and
provide a report to the Parliamentary Joint Committee on Intelligence and Security within the 12 months of the tabling of this report.

Recommendation 14

4.54
The Committee recommends that the preventative detention order regime in Division 105 of the Criminal Code Act 1995 be continued for a period of three years and sunset on 7 December 2025.

Recommendation 15

4.56
The Committee recommends that Division 105 of the Criminal Code Act 1995 be amended to remove:
a member of the Administrative Appeals Tribunal (other than the AAT President or a Deputy President who also holds a commission as a Federal Court Judge); and
a Judge of the Federal Circuit Court.

Recommendation 16

4.60
The Committee recommends that section 29 of the Intelligence Service Act 2001 be amended to provide that the Committee may commence a review the provisions of Division 105 of the Criminal Code Act 1995 prior to the sunset of the provisions.

Recommendation 17

5.79
The Committee recommends that section 29 of the Intelligence Services Act 2001 be amended to provide that the Committee may conduct a further review into the operation, effectiveness and implications of the continuing detention order regime in Division 105A of the Criminal Code Act 1995 prior to the sunset date.

Recommendation 18

5.84
The Committee recommends that the Department of Home Affairs coordinates with relevant State and Territory Departments to source appropriate accommodations to facilitate interim and confirmed continuing detention orders. The Committee recommends coordination with New South Wales on appropriate accommodation should start as soon as possible, noting the number of eligible offenders due to be released in the next five years.

Recommendation 19

5.87
The Committee recommends that the Criminal Code Act 1995 be amended to require public reporting requirements on the use and implementation of Division 105A, including:
details of housing arrangements for individuals subject to a continuing detention order;
use of rehabilitation programs (pre and post-release); and
use of resources; including rehabilitation program costs, legal assistance costs, and costs associated with enforcement.

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About this inquiry

Under section 29(1)(bb)(i)(ii) and (iii) of the Intelligence Services Act 2001, it is a function of the PJCIS to review, by 7 January 2021, the operation, effectiveness and implications of:
• Division 3A of Part IAA of the Crimes Act 1914 (which provides for police powers in relation to terrorism) and any other provision of the Crimes Act 1914 as it relates to that Division; and,
• Divisions 104 and 105 of the Criminal Code (which provide for control orders and preventative detention orders in relation to terrorism) and any other provision of the Criminal Code Act 1995 as it relates to those Divisions.

The Committee is also conducting a review into the operation, effectiveness and implications of Division 105A of the Criminal Code (which provides for continuing detention orders) and any other provision of that Code as far as it relates to that Division.

The PJCIS has commenced these reviews as one inquiry.



Past Public Hearings

01 Dec 2020: Canberra
25 Sep 2020: Canberra