Anti-Terrorism Bill (No. 2) 2005

Date Introduced:  3 November 2005

House:  House of Representatives

Portfolio:  Attorney-General

Commencement:  Sections 1 to 4, Schedule 2, Schedule 9, items 3, 4, and 7 and Schedule 10, items 1–25, 29–32 commence on the day the Act receives Royal Assent.  Schedule 1, item 23, Schedules 3 to 6, and Schedule 10, items 26–28 commence on the day after Royal Assent. Schedules 7 and 8 commence on the 28th day after the Act receives Royal Assent.  Schedule 9, items 1–2, 6, 8–9 and 14–15, 18–24 commence on a single date to be fixed by proclamation. If any of the provisions do not commence within 12 months from the day the Act receives Royal Assent, they commence on the first day after the end of that period. Schedule 1, item 22, Schedule 9, item 5, item 10, items 12–13 commence on a single date to be fixed by proclamation. If any of the provisions do not commence within 6 months from the day the Act receives Royal Assent, they commence on the first day after the end of that period.

Purpose

The Bill would introduce the following measures:

A 10-year sunset clause on was agreed to by the Council of Australian Governments (COAG) at its meeting of 27 September 2005:

Leaders also agreed that COAG would review the new laws after five years and that they would sunset after 10 years.

The Bill applies the sunset clause only to preventative detention and control orders, and police stop and search powers (Schedules 4 and 5), not to other parts of the Bill. 

The COAG will review Schedules 1, 3, 4 and 5 after five years, without a Parliamentary inquiry, but the report must be tabled if given to the Attorney-General.  There is no requirement that it be given to the Attorney-General.

The Attorney-General makes an annual report to Parliament and the Bill is subject to the usual oversight of the Commonwealth Ombudsman and Inspector-General of Intelligence and Security. 

Background

Australia’s legislative responses to terrorism since 2001

Before the September 2001 attacks on the World Trade Centre and the Pentagon, the Commonwealth had various legislative provisions related to terrorism, but no anti-terrorism legislation as such. Of the states and territories, only the Northern Territory had an offence of committing a terrorist act.

After 11 September 2001, the government reviewed its current legislation, and in accordance with United Nations Resolution 1373 resolved to introduce specific anti-terrorism legislation. In 2002 a package of five Bills was introduced and, after Senate Committee scrutiny, was passed later that year.⁽¹⁾  Also in 2002, the Criminal Code Regulations were made, listing proscribed or banned terrorist organisations.

Since 2002, a number of further amendments have been made to existing legislation, and some major new initiatives have been introduced, such as the Maritime Transport and Offshore Facilities Security Act 2003, which established a maritime security regulatory framework.

In November 2003, the ASIO Legislation Amendment Bill 2003 (which became Act No. 143, 2003) was introduced. It expanded the capacity of ASIO to exercise its powers for questioning and detaining persons who have information important to the gathering of intelligence in relation to a terrorism offence.

A comprehensive chronology of Commonwealth anti-terrorism legislative measures passed since 2001 may be found in the Parliamentary Library’s Criminal Law Internet Resource Guide at: http://www.aph.gov.au/library/intguide/law/terrorism.htm.

For constitutional reasons, the Commonwealth sought and received a referral of power from the state governments in order to ensure comprehensive national coverage of the legislation.⁽²⁾  Under that agreement, any amendment to Part 5.3 of the Criminal Code Act 1995 requires the consent of at least four States (section 100.8).  Some state and territory governments since 2001 have also amended their legislation in an attempt to increase police powers of investigation into terrorist offences. A list of current state and territory terrorism-related legislation may be found at http://www.aph.gov.au/library/intguide/law/crimlaw.htm#terrstate.

The Parliamentary Library also regularly updates a Law Internet Resource Guide, compiled by Roy Jordan, which features the key existing terrorism legislation, a chronology and commentary.  A list of further reading is featured at the end of this Digest.

The origins and evolution of the Bill

On 8 September 2005, Prime Minister John Howard announced a number of proposed changes to Australia’s counter-terrorism laws with the aim of enabling Australia to ‘better deter, prevent, detect and prosecute acts of terrorism’.⁽³⁾ Drawing on overseas experience, particularly the London bombings in July 2005, the Prime Minister declared that the reforms ‘will ensure Australia’s counter-terrorism legislative regime remains at the forefront of international efforts to counter the global threat of terrorism’.

State and territory leaders unanimously agreed to the proposed changes at the 27 September COAG meeting, with the detail of the major amendments to be settled through the National Counter-Terrorism Committee by the end of October to enable the implementation of the new measures. At a press conference following the conclusion of the COAG meeting, the Prime Minister said that ‘as a result of the decisions taken today, we are in a stronger and better position to give peace of mind to the Australian community’.

An early ‘draft-in-confidence’ version of the Anti-Terrorism Bill 2005 (as the Anti-Terrorism Bill (No. 2) 2005 was then called) was released (against the wishes of the Commonwealth) by ACT Chief Minister Jon Stanhope on 14 October. Much of the public and political debate on the Bill dates from this time. The Bill has gone through some significant changes since, particularly relating to the control and preventative detention orders provisions in Schedule 4. For example:

On 3 November 2005, the Senate referred the provisions of the Anti-Terrorism Bill (No. 2) 2005 to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 28 November 2005.

The Parliamentary Library has prepared a compilation of references in an E-brief reflecting the reaction to the proposed counter-terrorism measures and the outcomes of the COAG meeting.

Passage of Anti-Terrorism Bill 2005

On 2 November 2005, a short Anti-Terrorism Bill 2005 was introduced into Parliament. The provisions in that Bill originally formed part of the much larger Anti-Terrorism Bill (No. 2) 2005—the relevant provisions were extracted and formed into a separate piece of legislation after the Prime Minister announced on 2 November that ‘the immediate passage of [the Anti-Terrorism Bill 2005] would strengthen the capacity of law enforcement agencies to effectively respond to [a specific terrorist] threat’.⁽⁴⁾  The Anti-Terrorism Bill was passed by the House of Representatives on 2 November and by the Senate the following day. For further information on this Bill, see the Bills Digest.⁽⁵⁾

UK anti-terrorism legislation

Prime Minister John Howard stated on 8 September 2005 that some of the proposed measures were based on UK legislation. Further detail on measures such as preventative detention and control orders can be found on the UK Home Office Terrorism website (includes reviews of terrorism legislation).

A good summary of the evolution of current and proposed UK anti-terrorism legislation is contained in the UK House of Commons Parliamentary Library paper on the Terrorism Bill 2005-06. That Bill was introduced into the UK Parliament in October 2005, partly because ‘concerns were expressed by the police and others about whether current legislation was adequate to deal with the threat facing the UK’.⁽⁶⁾ The full text of the Report by the Independent Reviewer Lord Carlile of Berriew, QC, on Proposals by Her Majesty’s Government for Changes to the Laws Against Terrorism, is available in an article published by The Times online on 12 October 2005.⁽⁷⁾

At the same time as the Terrorism Bill 2005-06 was introduced, the UK’s Foreign and Commonwealth Office released a research paper comparing counter-terrorism legislation and practice across ten countries, which included seven European nations, the US, Canada and Australia.⁽⁸⁾

See also the report by Mr Alvaro Gil-Robles, European Commissioner for Human Rights, on his visit to the United Kingdom, 4–12 November 2004.⁽⁹⁾

Commentary by non-government parties

For general commentary, refer to E-Brief: ‘Proposals to further strengthen Australia’s counter-terrorism laws’—online only, issued 6 October 2005, updated weekly.

Australian Labor Party

In his speech in the second reading debate of the Bill, the ALP spokesperson for Homeland Security, Arch Bevis, foreshadowed a number of proposed amendments to the Bill. They included:⁽¹⁰⁾

Australian Democrats

The Australian Democrats have concerns about the proposed new police powers, detention powers, use of control orders, and that people are not informed about why they are being detained. They consider the Government already has all the powers required to apprehend, arrest and prosecute terrorists.⁽¹¹⁾

The Australian Democrats are also concerned about media reporting of ASIO’s security concerns in relation to 700-800 Muslims in Australia, and that the Government’s new laws actively target Muslims. The Democrats label this as follows:

To target Muslims will only increase apprehension and alienation amongst Muslims in Australia and those who support them. It is blatant political and public discrimination. Senator Bartlett said…

Not all attacks on democracy involve violence, but they can still cause enormous damage and can be very hard to repair. Once governments get hold of extra power and freedoms are taken away, they are very hard to regain.⁽¹²⁾

They also have concerns over the suggestions that some parts of the Bill are inconsistent with fundamental rights and freedoms, particularly rights under the International Covenant on Civil and Political Rights 1966 (ICCPR). They insist that no real case has been made that the new laws are necessary or indeed will be effective in combating terrorism. They contend that there is more of a danger to ordinary Australians by curtailing fundamental rights.⁽¹³⁾

Australian Greens

The Australian Greens are concerned that the Federal Government and all the state and territory governments are cooperating to overturn fundamental human rights in the name of fighting terrorism. They contend that rights relating to a fair trial, the presumption of innocence, the right to silence, and protection from detention without charge, are all under threat: ‘National security and the threat of terrorism have been used as a justification for an enormous transfer of power from the people and the parliament to executive government.’⁽¹⁴⁾ The Greens have criticised Labor’s (in the Greens’ words) ‘flip-flop’ approach in opposing and then agreeing to the proposals.⁽¹⁵⁾

Main provisions

Review of anti-terrorism laws

Clause 4 refers to a review of the amendments made by Schedules 1, 3, 4 and 5 after five years.

Subclause 4(1) notes that the COAG agreed on 27 September 2005 to undertake this review. It was also agreed that ‘certain State laws’ would also be reviewed.

Subclause 4(2) provides that if a copy of a report of this review is made available to the Attorney-General, he or she must cause a copy of the report to be laid before each House of Parliament within 15 sitting days after the report is received.

This clause ensures that the COAG agreement to a five-year review of these new laws is enshrined in the legislation. It also ensures that any report on the review of these new laws will be made public.⁽¹⁶⁾

Schedule 1—Definition of terrorist organisation etc.  Amendment of Crimes (Foreign Incursions and Recruitment) Act 1978, Criminal Code Act 1995 and Customs Act 1901

The existing proscription process and the effect of proscription

Section 102.1 of the Criminal Code Act 1995 (the Criminal Code) sets out the process for proscribing a terrorist organisation.  The 18 organisations currently proscribed are set out in regulation 4 of the Criminal Code Regulations 2002.

If the Minister is satisfied that an organisation is engaged in terrorist activity, then the Governor-General can make a regulation proscribing that organisation (the regulation is made following a briefing of the Leader of the Opposition). This pathway to proscription was introduced following an amendment to the Criminal Code by the Criminal Code Amendment (Terrorist Organisations) Act 2004.

Under subsection 102.1(3) of the Criminal Code, the regulations cease to have effect on their second anniversary but can be renewed.

Subclause 3.4(3) of the Inter–Governmental Agreement on Counterterrorism Laws states that the Commonwealth will provide the states and territories with the ‘text of the proposed regulation and will use its best endeavours to give the other parties reasonable time to consider and to comment on the proposed regulation’.

Section 102.1A provides that the Parliamentary Joint Committee on ASIO, ASIS and DSD (the PJCAAD) may review a regulation specifying an organisation as a terrorist organisation for the purposes of paragraph (b) of the definition of terrorist organisation in section 102.1 of the Criminal Code and report the Committee’s comments to each house of the Parliament before the end of the applicable disallowance period. The Committee will review the operation, effectiveness and implications of the listing provisions in section 102.1 of the Criminal Code in 2007.

The PJCAAD noted in its Annual Report 2004–05 that the definition of a terrorist organisation in the Act was very broad, and sought to understand how the Director-General of Security and the Attorney-General decided which organisations should be proscribed.⁽¹⁷⁾

Proposed amendments

Item 9 of Schedule 1 inserts a new definition, ‘advocate’, into subsection 102.1(1) of the Criminal Code:

(1A) In this Division, an organisation advocates the doing of a terrorist act if:

This definition of advocating a terrorist act is important because it will constitute a new ground on which a regulation can be made banning an organisation. 

Item 10 repeals Subsection 102.1(2) of the Criminal Code and substitutes:

Terrorist organisation regulations

(2) Before the Governor-General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in this section, the Minister must be satisfied on reasonable grounds that the organisation:

‘Organisation’ is defined at existing subsection 100.1(1) of the Criminal Code. It mentions a body corporate or an unincorporated body whether or not the body is based outside Australia, consists of persons who are not Australian citizens or is part of a larger organisation.  It is not clear from the amendments whether or under what circumstances direct praise by a member of an organisation would be treated as direct praise by the organisation.

In the same subsection, a ‘terrorist act’ is defined as an action or threat of action, such as causing death or serious harm, that is done with the intention of advocating a political, religious or ideological cause, and done with the intention of coercing government or a section of the public.  Serious harm can include a disruption to electronic systems as well as harm to people.

The Explanatory Memorandum states that ‘the advocacy would need to be about such an act, not generalised support of a cause’:

An important point made by the Explanatory Memorandum is that advocacy alone does not create an offence:

However, once an organisation is listed, then the offences in section 102 flow from that listing.

Note that paragraph 102.1(2)(a) reflects a change from ‘the’ terrorist act to ‘a’ terrorist act.

Item 11 and Item 16 correspondingly amend the cessation and de-listing provisions, to add the advocating ground.

Items 3 to 5 repeal the definition of Hamas organisation, Hizballah organisation and Lashkar-e-Tayyiba organisation in subsection 102.1(1). These three organisations are now listed as terrorist organisations under separate Regulations under the Criminal Code Amendment Regulations 2005. Item 8 similarly repeals paragraphs (c), (d) and (e) from the definition of terrorist organisation in subsection 102.1(1).  Item 13 repeals subsections 102.1(7)–(16), which deal with the making of regulations with respect to the Hamas organisation, Hizballah organisation and Lashkar-e-Tayyiba organisation under subsections 102.1(1)(c)–(e). 

The Explanatory Memorandum states that item 6 is an ‘interpretative amendment’ to the existing definition of terrorist organisation in section 102.1 of the Criminal Code.⁽²⁰⁾  This item provides that, when determining whether an organisation satisfies the definition of a terrorist organisation, it is not necessary to prove that the organisation is preparing, planning, assisting in or fostering ‘the’ particular terrorist act. It will be sufficient if the prosecution can show the organisation is preparing, planning, assisting in or fostering ‘a’ terrorist act.

Item 21 inserts clause 106.2 which saves any regulations made before the commencement of the section.

Item 22 inserts a clause 106.3 which provides that the amendments made by Schedule 1 to the Anti-Terrorism Act 2005 apply to offences committed whether before or after the commencement of this section. The Explanatory Memorandum states:

It is arguable that the amendment constitutes a substantive expansion of the present offences, not just a clarification.  In other words, conduct which was not criminalised before may be now.  In this case, legislation which seeks to criminalise conduct in a retrospective manner must do so in clear terms.⁽²²⁾

Schedule 2—Technical amendments to Criminal Code Act 1995

Schedule 2 makes amendments to renumber Division 104 of Part 5.4 of the Criminal Code (Harming Australians) as Division 115. 

Schedule 3—Financing terrorism.  Amendment of Criminal Code Act 1995 and Financial Transaction Reports Act 1988

The Explanatory Memorandum makes this statement about the amendments proposed in Schedule 3:

An extensive background to the existing offences of financing terrorist organisations can be found in an earlier Bills Digest.⁽²⁴⁾

Existing subsections 102.6(1) and (2) of the Criminal Code make it an offence to receive funds from, or make funds available to, a terrorist organisation, whether directly or indirectly. ‘Terrorist organisation’ is defined in section 102.1 of the Criminal Code. ‘Funds’ are broadly defined in section 100.1 of the Criminal Code, and cover property and assets of every kind.

The difference between the two subsections is in the mental aspect of the offences.  Subsection 102.6(1) deals with the situation where the offender knows the organisation is a terrorist organisation. The provision carries the maximum penalty of 25 years imprisonment.  Subsection 102.6(2) deals with the situation where the offender is reckless as to whether the organisation is a terrorist organisation, and has a maximum penalty of 15 years imprisonment.

‘Knowledge’ and ‘recklessness’ are defined in sections 5.3 and 5.4 respectively of the Criminal Code.  Persons have knowledge of a circumstance (in this case that an organisation is a terrorist organisation) if they are aware that the circumstance exists or will exist in the ordinary course of events. Persons are reckless with respect to a circumstance if:

Item 1 of Schedule 3 amends subsections 102.6(1) and (2), creating the additional offence of collecting funds for, or on behalf of, an organisation, whether directly or indirectly.  The offence is committed whether the person knows the organisation to be a terrorist organisation (102.6(1)(a)) or is reckless as to whether it is a terrorist organisation (102.6(2)(a)). The maximum penalties for the offences under subsections 102.6(1) and (2) will not change.

Existing subsection 103.1(1) of the Criminal Code makes it an offence to provide or collect funds, and be reckless as to whether those funds will be used to facilitate or engage in a terrorist act.  The offence is committed even if the terrorist act does not occur (subsection 103.1(2)).  The penalty for the offence is life imprisonment. 

Item 2 repeals existing subsection 103.1(3) of the Criminal Code.  Existing subsection 103.1(3) provides that the offence in subsection 103.1(1) is an offence to which the extended geographical jurisdiction Category D applies (see section 15.4 of the Criminal Code and discussion below).

Item 3 inserts subclause 103.2, which deals with conduct similar to the existing subsection 103.1, but explicitly requires that the funds be made available to or collected for, or on behalf of, another person. If the person providing or collecting the funds is reckless as to whether that other person will use the funds to facilitate or engage in a terrorist act, the offence will be made out.

With regards to Item 3, the Explanatory Memorandum states:

Subclause 103.2(2) ensures consistency between this Bill and the amendments made by the Anti-Terrorism Act 2005. The effect of this provision is that as long as the elements of the offence can be proven it does not matter whether:

Subclause 103.2(1) carries a maximum penalty of life imprisonment.

Item 3 also inserts clause 103.3, which provides for the application of extended geographical jurisdiction—category D, as set out in section 15.4 of the Criminal Code—to offences under Division 103 (which includes existing subsection 103.1(1) and subclause 103.2(1)). Category D extended geographical jurisdiction is unrestricted and means that an offence under one of these provisions is committed whether or not the conduct constituting the alleged offence or the result of that conduct occurs in Australia.

Under subsection 16(1A) of the Financial Transaction Reports Act 1988 (the FTR Act), a cash dealer (as defined in subsection 3(1) of that Act) must make a report to AUSTRAC about any transaction it is involved in that it has reasonable grounds to suspect is either:

Currently, paragraph (a) of the definition of ‘financing of terrorism offence’ in subsection 16(6) of the FTR Act includes an offence under section 103.1 of the Criminal Code. Item 4 amends the definition to include offences committed under section 102.6 (Getting funds to, for or from a terrorist organisation) or Division 3 (Financing terrorism).

The proposed reference to Division 3 of the Criminal Code, rather than just section 103.1, ensures that the new terrorist financing offence added to Division 3 by item 3 of this Schedule falls within the definition of ‘financing of terrorism offence’.

Schedule 4—Control orders and preventative detention orders.  Amendment of Criminal Code Act 1995 and Administrative Decisions (Judicial Review) Act 1977

Schedule 4 inserts new Divisions 104 and 105 into the Criminal Code to create control orders and preventative detention orders.

Control orders

Items 1 to 23 insert new definitions into subsection 100.1(1) of the Criminal Code.

Item 24 inserts new Division 104 into the Criminal Code. The object of the Division is ‘to allow obligations, prohibitions, and restrictions to be im•          posed on a person by a control order for the purpose of protecting the public from a terrorist attack’ (clause 104.1).

Interim control orders

Interim control orders may be requested by senior members of the AFP, with the written consent of the Attorney General (clause 104.2).⁽²⁷⁾

The AFP member must:

(a) consider on reasonable grounds that the control order in the terms to be requested would substantially assist in preventing a terrorist act; or

(b) suspect on reasonable grounds that the person has provided training to, or received training from, a listed terrorist organisation.

The AFP can also request an urgent interim control order by telephone, fax or email or in person (new Subdivision C, 104.6 to 104.11), which has to be consented to by the Attorney-General within four hours, and then must come before the court within 24 hours.

It is an offence for the AFP to include information in relation to a control order throughout this Division that is false or misleading (see sections 137.1 and 137.2 of the Criminal Code, which provide for the offences of false or misleading information (section 137.1) and documents (section 137.2)).

Under clause 104.3 the AFP must request the issuing court to make an interim control order.  The definition of issuing court in subsection 100.1(1) is:

(a) the Federal Court of Australia; or

(b) the Family Court of Australia; or

(c) the Federal Magistrates Court.

The court must have the AFP request and any further information it requires. The court must then be satisfied on the balance of probabilities:

(i)                      that making the order would substantially assist in preventing a terrorist act; or

(ii)          that the person has provided training to, or received training from, a listed terrorist organisation.

The court must also be satisfied that the controls sought are reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act (paragraph 104.4(d)).

In deciding this, the court must also take into account the impact of the obligation, prohibition or restriction on the person’s circumstances (including the person’s personal and financial circumstances): subclause 104.4(2). 

The Explanatory Memorandum states:

There are several issues that arise from this process.

If satisfied, the court then issues the interim control order which must contain certain information, such as the restrictions placed on the person, and must specify the court date on which the order will be confirmed, voided or revoked (clause 104.5).  The interim order will also specify a place for the person’s lawyer to pick up a copy of the order and a summary of the grounds (paragraph 104.5(1)(g), and clause 104.13). The person’s lawyer may obtain a copy of the order, but is not explicitly given any right of access to the reasons for the order or to details or the substance of the information on which the order was based.

Clause 104.5(3) provides that a control order can contain the following restrictions:

Subclause 104.5(4) states that the exemptions to the ‘associating with a terrorist’ offence contained in subsection 102.8(4) apply to paragraph (e), which places a prohibition or restriction on the person communicating or associating with specified individuals.  This exemption covers close family members, public religious worship, humanitarian aid and obtaining certain types of legal advice.

Subclause 104.5(5) provides that a person’s right to contact, communicate or associate with the person’s lawyer is not affected by this section, unless the person’s lawyer is specified as a person with whom the person the subject of the control order is not permitted to associate or communicate, as provided in paragraph 104.5(3)(e). The person can then contact any other lawyer. A limitation on access to a lawyer of choice in relation to Division III of the ASIO Act was the subject of much critical comment from the legal profession.⁽²⁹⁾

The Explanatory Memorandum states:

Counselling can only be by consent, as noted.  The Explanatory Memorandum states:

Explanation of order

Interim control order proceedings are issued by a court ex parte – that is, in the absence of the person. The person subject to the order is not informed of the proceedings until after the order is made and served upon him or her.

Clause 104.12 sets out the service, explanation and notification procedures.  Subclause (1) states that the order must be served on a person, with a summary of the grounds, as soon as practicable, and at least 48 hours before the court hearing date.  The AFP member must inform the person of the effect of the order, the period it is in force and issues relating to access to a lawyer and the court, the use which may be made of photographs and fingerprints, if relevant, and that it is an offence to contravene the order.  The AFP member must ensure that the person understands the information, taking into account their personal circumstances (age, mental capacity, language skills etc). 

There are significant limitations to this duty to explain the order.  The summary of grounds may not do much more than restate the statutory test.  The Explanatory Memorandum states, for example, that the summary of the grounds could be that the person is alleged to have engaged in training with a specified listed terrorist organisation.⁽³²⁾

It is questionable whether 48 hours is sufficient notice to allow the person to obtain legal representation and to prepare for the hearing.

There does not appear to be a time limit set for how long an interim control order can be in force before a confirmation hearing must take place.

Unlike the equivalent preventative detention provisions, there is no specific reference to an interpreter.  The duty to explain the effect of the order or its duration does not apply if the person makes it ‘impracticable’ for the AFP member to comply (subclause 104.12(3)).  Further, a failure to comply with the obligation to ensure that the person understands the information provided does not make the order ineffective to any extent (subclause 104.12(4)).

Moreover, subclause 104.12(2) provides that the summary of grounds does not have to include information which would be likely to prejudice national security, within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004.  ‘National security’ is defined very widely under section 8 of that Act, which defines it as Australia’s defence, security, international relations or law enforcement interests.  The definition of security is linked to the definition in section 4 of the ASIO Act 1979, which states that security means:

(a)    the protection of, and of the people of, the Commonwealth and the several States and Territories from:

(i)                  espionage;

(ii)                sabotage;

(iii)               politically motivated violence;

(iv)              promotion of communal violence;

(v)                attacks on Australia’s defence system; or

(vi)              acts of foreign interference; whether directed from, or committed within, Australia or not; and

(b)    the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a).

The term international relations means political, military and economic relations with foreign governments and international organisations (s. 9).  The term law enforcement interests include interests in the following:

(a) avoiding disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation, foreign intelligence and security intelligence;

(b) protecting the technologies and methods used to collect, analyse, secure or otherwise deal with, criminal intelligence, foreign intelligence or security intelligence;

(c) the protection and safety of informants and of persons associated with informants;

(d) ensuring that intelligence and law enforcement agencies are not discouraged from giving information to a nation's government and government agencies. (s. 11)

For more information on this Act, readers are referred to the Bills Digest for the National Security Information (Criminal Proceedings) Bill 2004.⁽³³⁾

If the person is a resident of, or present in, Queensland, the AFP must notify in writing the Queensland Public Interest Monitor (subclause 104.12(5))

Confirming an interim control order

Clause 104.14 sets out the court procedure for a confirmation hearing on the day specified in the order (paragraph 104.5(1)(e)).  The people who can give evidence or make submissions are specified under subclause 1: the AFP member who requested the interim order, plus any other AFP member, the person subject to the order, representatives of that person, and if the person is in or a resident of Queensland, the Public Interest Monitor.  Apart from this limitation on people who can be involved, the court has power to control the proceedings. 

In relation to the presence of the Queensland Public Interest Monitor, this appears to create a disparity between the rights of residents of different States and Territories, given that the Commonwealth Ombudsman is not given the same right to appear in these proceedings.⁽³⁴⁾

The court can:

If confirmed, the control order must state all of the information that was in the interim order, including a date when the lawyer can receive a copy of the confirmed order (clause 104.16). The AFP must serve it personally. The order can be in force for 12 months. A person aged 16-17 can only be issued with an order for three months (clause 104.28). Successive orders can be made in relation to the same person for up to 10 years (subclause 104.16(2)) and clause 104.32).

Revocation or variation of a control order

While the person subject to the order may apply to the court to have the order revoked or varied at any time, the person bears the onus of proving the grounds for revocation. Clause 104.18 provides that the person affected must ‘give written notice of … the grounds on which the revocation is sought’ to the court, the AFP Commissioner, and the Queensland Public Interest Monitor if applicable. The people allowed to be present at the court hearing are again limited.

The AFP Commissioner must apply to a court for a revocation if the grounds have ceased to exist, or for a variation if the Commissioner is satisfied the terms should no longer be imposed on that person (clause 104.19).  The Commissioner can also apply to a court for a restriction to be added if he or she is satisfied that this would substantially assist in preventing a terrorist attack.  Subclause 104.20(3) notes that the AFP must serve notice of the variation of the order on the person concerned, but without any requirement to explain. The process is the same as confirming a control order.

The court can revoke, vary or dismiss the application in the same manner as the confirmation proceedings, and the lawyer can obtain a copy of any varied order.

Contravening a control order

Contravening a control order is an offence carrying a maximum penalty of five years imprisonment (clause 104.27).  The person would have to be at least reckless as set out in section 5.4 of the Criminal Code. Persons are reckless with respect to a circumstance if they are aware of a substantial risk that the circumstance exists or will exist, and having regard to the circumstances known to them, it is unjustifiable to take the risk.

Special rules for young people

There is a requirement for the AFP, when seeking an interim order or a variation of the order from a court, to include information known about the person’s age.  This is necessary because an interim control order cannot be requested in relation to a person who is under 16 years of age (see clause 104.28).

A control order can only be granted on a person aged 16–17 for three months.  The Explanatory Memorandum states:

However, successive control orders can be sought on that young person for up to 10 years.

Presumably when a court is taking into account the impact of the obligation, prohibition or restriction on the person’s circumstances (including the person’s personal and financial circumstances) under subclause 104.4(2), the age of a young person should be a paramount concern, but this is not specified.  When the AFP are serving an explanation of an order, the person’s age should be taken into account, but a contravention of this section does not render the service ineffective.

The report by the Attorney-General mandated by clause 124.29 (see below) does not have to specify if any orders were granted on young people in the reporting year.

Reporting, notification and sunset clause

Clause 104.29 requires the Attorney-General to prepare a report to Parliament on the operation of control orders annually, and table it within 15 days of completion.

Subclause 104.29(2) provides that the report relating to a year must include:

The Attorney-General must be notified in writing by the AFP Commissioner if control orders are declared void, revoked or varied, and a copy of the varied control order must be provided (clause 104.30).

Clause 104.31 provides that the functions and powers of the Queensland Public Interest Monitor are not affected. 

There is a 10-year sunset clause on this Division under clause 104.32.  Unlike most sunset clauses, which state that the Division will cease to have effect after a period of time, this provision merely states that a control order ceases after 10 years, and a control order cannot be requested, made or confirmed after 10 years.  The Explanatory Memorandum states:

The drafting of this clause arguably makes these provisions easier to revive, by keeping them in the legislation but just rendered inoperative. This may have been done because it would be more responsive to an urgent terrorist threat in the future. The government of the day would only need to pass an amendment deleting clause 104.32, rather than having to pass a new amendment introducing the whole Division again.

Preventative detention

Summary

The Explanatory Memorandum provides the following summary of Division 105:

Clause 105.1 states that the objects of the preventative detention order regime are to enable the AFP to take a person into custody and detain him or her for 48 hours in order to prevent an imminent terrorist attack from occurring; or to preserve evidence of, or relating to, a recent terrorist attack.  The object of the detention is not for extended questioning.

Basis for applying for and making preventative detention orders

New Division 105 sets out two types of preventative detention orders (‘initial preventative detention orders’ and ‘continuing preventative detention orders’) that may be obtained by members of the AFP.

Initial order

Initial preventative detention orders may be granted by a senior member of the AFP, defined in item 21 as AFP members at the rank of superintendent and above under clause 105.8.

To request an interim order (clause 105.4), the AFP officer must be satisfied that:

An order can also be made where a terrorist act has occurred within the last 28 days, the order is necessary to preserve evidence, and detaining the person is reasonably necessary to preserve the evidence.

An application containing information specified in clause 105.7 is then submitted to a senior AFP officer. For the purposes of initial orders, senior AFP officers are the ‘issuing authorities’. It is an offence for the AFP to include information in relation to a control order that is false or misleading (see sections 137.1 and 137.2 of the Criminal Code, which provide for the offences of false or misleading information (section 137.1) and documents (section 137.2)).

There are restrictions on multiple orders applying to one person in relation to the same terrorist attack and on orders under corresponding State laws (clause 105.6). Additionally, there are rules relating to the issuing of a further initial order in relation to a different terrorist act.

The senior AFP member can then issue a written order for up to 24 hours, which takes effect as soon as it is made and lasts for 48 hours if a person has not been taken into custody.  Subclause 105.4(2) requires that the senior AFP member must meet the requirements of subclauses 105.4(4) and (6), in other words they have to be independently satisfied that the grounds have been made out.  The order can be extended, but only until the end of 24 hours after a person was first taken into custody (clause 105.10).

Continued preventative detention order

Continued preventative detention orders may be granted by an issuing authority with respect to a person who is the subject of an initial preventative detention order under clause 105.12.

Subclause 105.2(1) sets out those persons who may be appointed by the Minister to be an issuing authority for continued preventative detention orders. These are:

Subclause 105.2(2) provides that the Minister may not appoint a person unless the person has, in writing, consented to being appointed, and the person has not revoked that consent.  Clause 105.18 provides that authorities have the same immunities as a Justice of the High Court.

The AFP member must provide all the information in relation to the interim order.  The authority must consider the original grounds for detention afresh, plus any information which has become available since the initial order was made.

Representations by detainee not required

A detainee can make representations to the AFP member who oversees the exercise of powers under the order (subclause 105.19(8).  However, the provision does not state that the detainee or their legal representative must be allowed to make representations. 

While a continuing preventative detention order may be issued by judicial officers, they only sit in a personal capacity rather than as a court (note discussion under ‘Constitutional questions’ below in ‘Concluding comments’). Moreover, this is not required for an initial preventative detention order.  In each case, then, there is no court hearing of the issues at the time that the order is issued. 

Duration of a preventative detention order

Preventative detention may be ordered for up to 24 hours in the first instance (subclause 105.8(5).  The initial preventative detention order may then be extended and further extended, although the entire period of detention, as extended, or further extended, is to total 24 hours (subclause 105.10(5)).  A continued preventative detention order may then be issued, and this too may be extended and further extended, although the entire period of detention under the initial preventative detention order and the continued preventative detention order as extended and further extended, is to total 48 hours (subclause 105.12(3) and subclause 105.12(5)).  The states and territories are then to legislate to permit detention from day 3–14.

Taking a person into custody

Subclause 105.19(1) provides that, once the preventative detention order has come into force by being made by an issuing authority, the person who is the subject of the order can be taken into custody and detained by any police officer.

Subclause 105.19(2) provides that a police officer has the same powers and obligations as the police officer would have in the situation of arresting the person for an offence or ensuring that the person remained in custody after being arrested for an offence. However, subclause 105.19(4) provides that this does not apply to the extent that powers and obligations are provided for in this new subdivision, or new Subdivisions D or E.  This would include requirements for the police officer to give their name, the power to enter premises, and the power to conduct frisk and ordinary searches, which are legislated in Subdivision C.

The Explanatory Memorandum states:

This clause replaces the controversial ‘use of force’ provision in the draft Bill that raised questions about ‘shoot to kill’ policies.

Children over 16 years in adult prisons

The AFP can arrange for the person to be detained at a state or territory prison or remand centre under clause 105.27. In light of the strict contact provisions, presumably this detention would be in solitary confinement.  No exception or special provision is made for children aged 16 or over, who may also be held in adult prisons or remand centres under this clause.

Under Article 37 of the Convention on the Rights of the Child, States Parties are obligated to ensure that:

Service and explanation of order

Under clause 105.28 and 105.29, the effect of initial and continued preventative detention orders is to be explained to the person as soon as practicable after he or she is first taken into custody.

Although a failure to comply with this requirement may constitute an offence on the part of the police officer under clause 105.45, a failure to comply does not affect the lawfulness of the person’s detention (subclause 105.31(5)), and the provision does not apply if the person’s actions make it impracticable for the AFP to comply with the section (subclause 105.31(1)). Unlike the situation with control orders, an interpreter must be used if a person is not fluent in English or has a physical disability that affects their comprehension.

Subclause 105.28(2) sets out the matters the AFP must explain. These include the fact that the order has been made, the period of detention, the restrictions that apply to the people that the person may contact, the fact that an application may be made to continue detaining the person, any rights the person has to make a complaint to the Commonwealth Ombudsman or a state or territory authority, or to seek a remedy from a federal court under clause 105.51, in relation to the order or the person’s treatment in connection with the detention under the order, the person’s entitlement to contact a lawyer under clause 105.37, and the name and work telephone number of the senior AFP member who has been nominated under subclause 105.19(5) to oversee the exercise of powers under, and the performance of obligations in relation to, the order. However, the detainee does not need to be told if a prohibited contact order has been made in relation to another person or of the identity of that person (for prohibited contact orders, see below).

Paragraph 105.28(2)(a) requires that the detainee be informed about ‘the fact that the preventative detention order has been made in relation to the person’, but this does not deal with the reasons for which the order was made. Under subclause 105.32(1)(b) a summary of the grounds on which the order is made must also be supplied, but it is unclear how far this summary might go beyond the legislative test, for example, that the order was imposed to prevent an imminent attack or to preserve evidence of a past attack.  Just as for control orders, subclause 105.32(2) provides that paragraph (1)(b) does not require information to be included in the summary if the disclosure of the information is likely to prejudice national security within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004.

Restrictions on access to legal representation

Clause 105.37 deals with the person’s right to contact a lawyer, and the obligation of the police officer detaining the person to give the person assistance to choose a lawyer.

The quality of the reasons given to a person, and the point at which reasons are given, raise concerns, as stated above in relation to control orders.  Restrictions on access to a lawyer, and monitoring of client–lawyer communications, adversely affect the person’s ability to seek and obtain advice.  In practice, the person’s ability to appeal to the Federal Court or lodge a meaningful complaint with the Commonwealth Ombudsman is adversely affected by the lack of reasons for the order or the ‘evidence’ upon which it is based.

Treatment of detainees

The person is to be treated humanely, which is a standard provision now in Commonwealth legislation relating to law enforcement officers (clause 105.33).

The AFP are not permitted to question a person detained under an order (clause 105.42)—it is an offence do so: clause 104.45.  ASIO may however obtain a questioning warrant. Subclauses 105.25(1) and (2) provide that, if a person is being detained under a preventative detention order, and a warrant under section 34D of the ASIO Act is in force in relation to the person, and the police are given a copy of the relevant warrant, the police officer must take such steps as are necessary in order for the person to be dealt with in accordance with that warrant.

The Explanatory Memorandum states:

Interaction between AFP and ASIO warrants

The Explanatory Memorandum gives an example of the interaction between the AFP and ASIO:

Given this likely interaction between the two systems, there are several practical issues that are not resolved in the Bill. One issue yet to be clarified is how the service explanation for the preventative detention order will work with the explanation required for an ASIO 34D warrant.  The AFP are required to tell the person that they can complain to the Commonwealth Ombudsman.  The prescribing authority under section 34E of the ASIO Act must explain to the person that they have a right of complaint to the Ombudsman for any actions by the AFP and to the IGIS for any complaints about ASIO.  It is likely to be very confusing to the person which agency is involved and who they have a right to complain to.

Inspector-General of Intelligence and Security

Under items 14 and 22 of the Intelligence Services Legislation Amendment Bill 2005, which has just been passed by Parliament, the Inspector-General is empowered, after notifying the Director-General of Security, at any reasonable time, to enter any place where a person is being detained under Division 3 of Part III of the ASIO Act for the purposes of an inspection or an inquiry.  The IGIS receives notification ‘as soon as practicable’ of any such warrant.  It may be that the Commonwealth Ombudsman requires the same right of early notification and access to detained persons by the AFP.  The two offices will need a high level of coordination. 

There is also a protocol required to govern the use of the ASIO Division III powers.  The AFP may require a similar protocol for these preventative detention powers, and the two will need to be harmonized.

All contact is restricted while a person is detained by clause 105.34 except for authorised contact set out in the following clauses. Clause 105.35 relates to contacting one person from each category of family, work, flatmate and friends to tell them you are safe but not able to be contacted for the time being.  Clause 105.36 allows a complaint to the Ombudsman.  Clause 105.37 allows contact with a lawyer of their choice for limited purposes unless the lawyer is the subject of a prohibited contact order or cannot be contacted.  In such cases, the police officer detaining the person must give the detainee reasonable assistance in choosing another lawyer and, in doing so, can give priority to security-cleared lawyers. The use of security-cleared lawyers was the subject of controversy and amendment during the passage of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003, which gives ASIO special powers of questioning and detention under warrant.

The Explanatory Memorandum states:

Role of interpreters

Of particular importance to some Australians is clause 105.38. If a person’s permitted communication with a family member or lawyer will occur in a language other than English, it can only occur if it can be effectively monitored by an interpreter. It is not the case that a person must be provided with an interpreter. The Bill requires this to be done only if it is reasonably practicable to do so during the detention period.

Disclosure offences

Clause 105.41 sets out the offences if there is any disclosure of information relating to a preventative detention order, carrying a penalty of five years imprisonment.  These offences relate to unauthorised disclosures made by:

Prohibited disclosures are disclosures that occur while the person is subject to a preventative detention order and that disclose the fact that a preventative detention order has been made, the fact that the subject is being detained or the period for which the subject is detained. In addition, if the discloser is a parent, guardian, lawyer, interpreter or monitor they are also prohibited from disclosing ‘any information’ that they obtain in the course of contact—an extremely wide prohibition given the penalty involved. A similar prohibition—any information that a detainee communicates to a person while being detained—also applies to secondary disclosures under subclause 105.41(6). Secondary disclosers could include journalists.

Prohibited contact orders

In connection with a preventative detention order that is either being sought or currently in force, it is possible to apply to the relevant issuing authority for a prohibited contact order under clause 105.15, if such an order would assist in achieving the objectives of the preventative detention order.  The order provides that the person detained under a preventative detention order is not to contact certain persons, which can include their chosen lawyer. 

The Explanatory Memorandum states:

The AFP is not required to inform the detainee that a prohibited contact order has been made in relation to the person’s detention or the name of a person specified in the prohibited contact order (subclause 105.28(3)). 

Remedies

Although there is provision for a preventative detention order or a prohibited contact order to be revoked by the issuing authority, this procedure can only be initiated by the AFP, and not by the person detained (clause 105.17).  The AFP must apply to the relevant issuing authority to have an order revoked if the grounds cease to exist.

Subclause 105.51(1) provides that a detainee may apply to a court for a remedy in relation to (a) a preventative detention order; or (b) the treatment of a person in connection with the person’s detention under a preventative detention order

Merits review

Clause 105.51 provides that state and territory courts cannot hear a case while the order is in force. While the detainee can apply for merits review by the Administrative Appeals Tribunal (‘AAT’), application for review cannot be made while the order is in force (subclause 105.51(5)).  However, the AAT can determine that the decision to issue the preventative detention order is void and that compensation should be paid (paragraphs 105.51 (7) (a) and (b)).

Judicial review

While the operation of the Administrative Decisions (Judicial Review) Act 1977 is excluded, including decisions by the Attorney-General (subclause 105.51(4) and item 25), the Bill is silent on the question of judicial review while the order is in force.  The original jurisdiction of the High Court under section 75 of the Constitution cannot be ousted. A person could presumably also apply to the Federal Court under section 39B of the Judiciary Act 1903 for injunctive relief.  The Explanatory Memorandum refers rather obliquely to this option.  It is possible therefore that a person could lodge a judicial review action in the Federal Court to gain an injunction, or lodge a prerogative writ in the High Court while the order is in force, then seek merits review, then seek judicial review in a state court.  The interaction between these options is difficult to assess in the abstract.

State and territory courts

Clause 105.52 sets out the interaction between legal proceedings in a state or territory court where there is both a Commonwealth and a state preventative detention order.  A person can apply to a state or territory court only once the order is finished, where the order was in relation to the same terrorist act, and where the person brings proceedings about the state order.  The state court can also give remedies for the Commonwealth detention to promote consistency.

Special rules for young people and those incapable of managing their own affairs

Preventative detention orders may be made in respect of children who are 16 years old or older. There are some allowances made for children and people subject to an ‘incapacity’ to have greater contact with family while in detention under clause 105.39, and restrictions on the taking of DNA evidence under subclause 105.43(4). For instance, under clause 105.39, such a person can in general have contact with two parents or two or more guardians, but not with step-parents who have not adopted their spouse’s children. They are entitled to disclose that they are subject to preventative detention and the period of their detention and they can be visited.

Parents—disclosure offences

On a strict reading of clauses 105.39 and 105.41(3), the parent of a child in detention can commit an offence if they disclose information about the detention to the other parent, if that parent has not yet had direct contact with the child.  This applies even though that parent is eligible to have contact with the child.

Children over 16 in adult prisons

It is not clear where children will be held in detention. C1ause 105.27 suggests that they could be held in adult prisons or remand centres.

The same special rules apply to persons who are incapable of managing their own affairs.

Unlike in the Migration Act 1958 (as recently amended), there is no provision in this Division stating that detention of children should be a last resort.

Reporting, notification and sunset clause

Clause 105.47 requires the Attorney-General to prepare a report to Parliament on the operation of control orders annually and table it within 15 days of completion.

Subclause 105.47(2) provides that the report relating to a year must include:

Clause 105.49 provides that the functions and powers of the Queensland Public Interest Monitor are not affected.

Clause 105.50 provides that legal professional privilege is not affected by the Division. However, communications with the lawyer are monitored both visually and for content. Section 118 of the Evidence Act 1995, which restricts the admission of legal advice into evidence, relates only to confidential communications.  The effect of the preservation of the privilege under these circumstances is uncertain.

There is a 10-year sunset clause on this Division under clause 105.53.  As noted above in relation to the sunset provision on control orders, most sunset clauses state that the Division will cease to have effect after a period of time. This provision states that a preventative detention order ceases after 10 years, and that neither a preventative detention order nor a prohibited contact order can be applied for or made after 10 years.  The Explanatory Memorandum states:

The drafting of this clause arguably makes these provisions easier to revive, by keeping them in the legislation but just rendered inoperative. This may have been done because it would be more responsive to an urgent terrorist threat in the future. The government of the day would only need to pass an amendment deleting clause 104.32 and this clause, rather than having to pass a new amendment introducing the two Divisions again.

Schedule 5—Powers to stop, question and search persons in relation to terrorist acts. Amendment of Crimes Act 1914