BILLS DIGEST NO. 50, 2014–15              19 November 2014

Counter-Terrorism Legislation Amendment Bill (No. 1) 2014

Cat Barker
Foreign Affairs, Defence and Security Section 

Date introduced: 29 October 2014

House:  Senate

Portfolio: Attorney-General

Commencement: Sections 1–3 will commence on the day of Royal Assent, Schedule 1 on the 28th day after Royal Assent and Schedule 2 the day after Royal Assent.

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 ComLaw website.

The Bills Digest at a glance

•       The Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 (the Bill) is the third Bill to be introduced since mid-2014 in a series of reforms to national security and counter-terrorism laws. As with the earlier amendments, the Government is seeking to have the Bill passed quickly, which has provided limited opportunity for public and Parliamentary scrutiny.

•       The scope of this Bill is narrower than the previous two, but some of the measures it contains are significant and warrant close scrutiny.

•       The amendments in the Bill have been proposed in the context of two specific circumstances:

–      experience with the control order regime in recent domestic counter-terrorism operations and

–      the deployment of the Defence Force to Iraq to undertake operations against ISIL (Islamic State in the Levant, also known by several other titles).

•       Schedule 1 of the Bill would amend the control order regime, including by:

–      expanding the grounds on which control orders can be sought, made and varied

–      expanding the purposes of the regime and

–      allowing all of the obligations, prohibitions and restrictions proposed for inclusion in a control order to be justified and considered together instead of individually.

•       Legislation passed in October 2014 added an additional three grounds on which control orders could be made. The amendments in the Bill represent a more fundamental change because they would expand not just the grounds on which an order may be made, but also the underlying purposes of the control order regime. The consequential expanded remit of the control order regime would parallel the extended reach of the terrorism and foreign incursions offence regimes, which include a range of ‘preparatory’ and ‘supporting’ offences.

•       In the case of the offence regimes, a broader range of conduct is criminalised, but a person is still subject to the usual criminal justice processes of arrest, charge and prosecution, and will only be penalised if the prosecution proves all the elements of the offence to the criminal standard. That is not the case with the control order regime, where orders are sought on the basis of suspicion on reasonable grounds and made on the basis of a court being satisfied of relevant matters to the civil standard of the balance of probabilities.

•       Stakeholders have raised concerns with the amendments to the control order regime, particularly in relation to the breadth and lack of clarity of the proposed expansions, as well as reiterating concerns about whether the control order regime should be retained at all in light of the recommendations of independent reviews.

•       Schedule 1 would also make an amendment to allow the Parliamentary Joint Committee on Intelligence and Security to review and report on amendments to terrorist organisation regulations to add aliases or remove former names of organisations, as recommended by that Committee.

•       Schedule 2 of the Bill would explicitly include provision of assistance to the Australian Defence Force in support of military operations and cooperation with the Defence Force on intelligence matters as a function of the Australian Secret Intelligence Service (ASIS). Stakeholders have raised concerns that this could facilitate targeting of Australians fighting with terrorist organisations, though that may already take place under the current legislative framework. The Government has made contradictory statements on the need for this amendment and provided limited justification.

•       It would also allow ministerial authorisations to be given for ASIS to undertake activities in relation to one or more members of a class of Australian persons in performing the function of supporting the Defence Force in military operations. The Bill does not make provision for how narrowly a class of Australians must be circumscribed. Clearer parameters around the permitted breadth of authorisations should be considered.

•       Finally, Schedule 2 would expand provisions for emergency authorisations of certain ASIS, Australian Signals Directorate (ASD) and Australian Geospatial-Intelligence Organisation (AGO) activities. Proposed amendments to an existing provision to allow ministers to make such authorisations orally appear sound. However, proposed amendments to allow agency heads to authorise activities when none of those ministers are readily available or contactable would represent a significant shift in the accountability framework that applies to those agencies. While it is likely that agency heads would rarely exercise the power, careful consideration should be given to whether it is ever appropriate for someone other than a minister to make such authorisations.

Purpose and structure of the Bill

The Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 (the Bill) is presented in two Schedules. The purpose of Schedule 1 is to amend the Criminal Code Act 1995 (Criminal Code) to:

•       amend the control order regime, including by expanding the purposes of the regime and the grounds on which control orders may be made and

•       allow the Parliamentary Joint Committee on Intelligence and Security (PJCIS) to review and report on amendments to terrorist organisation regulations to add aliases or remove former names of organisations.

The purpose of Schedule 2 is to amend the Intelligence Services Act 2001 (ISA) to:

•       amend the functions of the Australian Secret Intelligence Service (ASIS) to explicitly include providing assistance to the Australian Defence Force (Defence Force) in support of military operations and cooperation with the Defence Force on intelligence matters

•       expand provisions for emergency authorisations of ASIS, Australian Signals Directorate (ASD) and Australian Geospatial-Intelligence Organisation (AGO) activities and

•       allow ministerial authorisations to be given for ASIS to undertake activities in relation to one or more members of a class of Australian persons in certain circumstances.

Background

The Bill is the third to be introduced since mid-2014 in a series of reforms to national security and counter-terrorism laws. The Bill for the National Security Legislation Amendment Act (No. 1) 2014 was introduced on 16 July 2014 and passed on 1 October 2014.[1] The Act contains several measures to update the powers of the Australian Security Intelligence Organisation (ASIO) and ASIS, mainly to respond to recommendations of a 2013 PJCIS report on potential national security reforms. The Bill for the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Foreign Fighters Act) was introduced on 24 September 2014 and passed on 30 October 2014.[2] The Foreign Fighters Act made extensive amendments to several existing Commonwealth Acts, primarily aimed at addressing the increased threat of terrorism posed by Australians engaging in, and returning from, conflicts in foreign States. This included amendments to the Criminal Code to include three additional grounds on which control orders may be made and to expand one of the existing grounds. The new grounds related to engaging in a hostile activity in a foreign country and conviction in Australia or overseas of an offence relating to terrorism, a terrorist organisation or a terrorist act.[3]

Unlike the previous two Bills, and a Bill to establish a mandatory telecommunications data retention scheme introduced the following day, the measures in the Bill had not been announced by the Government in advance.[4] Media reports indicate that the Government wanted to include at least some of the Bill as amendments to the Foreign Fighters Bill, but that the Opposition insisted the provisions be introduced as a separate Bill and referred to the PJCIS.[5]

The scope of this Bill is narrower than the previous two, but the measures it contains—particularly the proposed expansions to the control order regime and provisions allowing the heads of ASIS, ASD and AGO to authorise activities in place of ministers in emergency circumstances—are significant and warrant close scrutiny. The amendments in the Bill have been proposed in the context of two specific circumstances:

•       experience with the control order regime in recent domestic counter-terrorism operations and

•       the deployment of the Defence Force to Iraq to undertake operations against ISIL (Islamic State in the Levant, also known as Islamic State, ISIS and Daesh).

Domestic counter-terrorism operations

The Explanatory Memorandum states that the proposed amendments to the control order regime in Schedule 1 of the Bill were developed to address ‘operational issues’ identified following recent counter-terrorism raids.[6]

Police undertook several well-publicised counter-terrorism operations throughout September and October 2014. The largest occurred in Sydney where, on 18 September 2014, over 800 officers from the Australian Federal Police (AFP) and the NSW Police Force executed 25 search warrants across several suburbs as part of an investigation of a group of people allegedly preparing to carry out random, violent attacks against Australian individuals.[7] Sixteen people were detained, including three men detained under preventative detention orders, and two men were charged with offences.[8] One man was charged with conspiracy to commit a terrorist act with several others, including Mohammed Ali Baryalei, who is reported to be the most senior Australian member of ISIL.[9] A second was charged with firearms offences.[10]

Operations conducted by the Brisbane Joint Counter Terrorism Team (JCTT) in September and October 2014 resulted in terrorism-related charges against two men allegedly involved in recruiting, facilitating and funding people to travel to Syria to fight with Jabhat al-Nusra.[11] A man was also charged with terrorism financing offences following the execution of seven search warrants by the Melbourne JCTT.[12]

Defence Force deployment to Iraq

On 7 August 2014, the President of the United States of America authorised two US operations in Iraq, one involving targeted airstrikes against ISIL and another aimed at saving thousands of Iraqi civilians stranded on Mount Sinjar.[13] The US initiated airstrikes the following day.[14] Several other nations have since joined US-led operations, including the United Kingdom, Canada and France.[15]

On 14 September, the Prime Minister announced that Australia would contribute to coalition efforts against ISIL in Iraq in response to a formal request from the US Government. The announcement stated that Australia was ‘not deploying combat troops but contributing to international efforts to prevent the humanitarian crisis from deepening’ and that Australia’s participation would ‘support international efforts to prevent the spread of ISIL, roll back its gains and alleviate suffering in Iraq’.[16]

Around 600 personnel have since been deployed in support of Operation OKRA—approximately 400 assigned to the Air Task Group (ATG) and approximately 200 to the Special Operations Task Group (SOTG).[17] The ATG has been operating in Iraq since October and, as at 5 November 2014, had flown 144 sorties ‘providing close air support and air interdiction for the Iraqi Security Forces as well as deliberate and dynamic targeting of ISIL command and control facilities, military equipment, transport vehicles, as well as logistics and training compounds’.[18] The SOTG has been in the Middle East since September but was only able to enter Iraq in November once visas were approved by the Iraqi bureaucracy.[19] The SOTG will act as military advisers assisting Iraqi and other security forces.[20]

One of the measures in Schedule 2 of the Bill is an amendment to the functions of ASIS to explicitly include providing assistance to the Defence Force in support of military operations and cooperation on intelligence matters. In the first ever speech by a head of ASIS in July 2012, Nick Warner spoke about ASIS’s support for Defence Force operations since the early 2000s, and indicated he expected close cooperation to continue:

Starting with the Iraq war, support for the Australian Defence Force in military combat operations has become an important task for ASIS. We have a major commitment in Afghanistan, and this will remain as long as the ADF is deployed there.

Our work in support of the ADF ranges from force protection reporting at the tactical level through to strategic level reporting on the Taliban leadership.

ASIS reporting has been instrumental in saving the lives of Australian soldiers and civilians (including kidnap victims), and in enabling operations conducted by Australian Special Forces.

The ASIS personnel deployed with the ADF have developed strong bonds, and it’s difficult to see a situation in the future where the ADF would deploy without ASIS alongside.[21]

Given that ASIS has been assisting the Defence Force in military operations for some years already under the current legislative provisions, the need, or any specific circumstances leading to the Government proposing this amendment, is not clear from publicly available sources.

Committee consideration

The Bill has been referred to the PJCIS for inquiry and report by 20 November 2014 to facilitate debate and passage of the Bill in the final sitting weeks of 2014. Details of the inquiry are at the inquiry homepage.[22]

As at the time of publication of this Digest, the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights had not reported on the Bill.

Policy position of non-government parties/independents

The Shadow Attorney-General, Mark Dreyfus, commented briefly on the Bill in an interview the day it was introduced, but did not say whether the Australian Labor Party would support it or not:

The second reading speech explains a little bit about what measures are there. Clearly, that’s going to be the subject of close examination by Labor and close examination by the Intelligence Committee and I hope members of the public because it does raise some questions, some of which have been touched on in the media today about the sharing of information between ASIS and the defence forces.[23]

Senator David Leyonhjelm of the Liberal Democratic Party supports the proposed amendment to ASIS’s functions to make clear its role in assisting and cooperating with the Defence Force. However, he does not support amendments to allow the heads of ASIS, ASD and AGO to authorise activities in place of ministers in emergency situations, and expressed concern that the time between the giving of an oral authorisation (by a minister or agency head) and the making of a written record may allow ‘considerable fudging’ of the relevant record.[24]

Senator Leyonhjelm also has concerns about the proposed new grounds for control orders. In particular that the provisions are ‘vaguely drafted’ and could potentially be used against persons who publicly endorse the activities of extremist groups where that support would fall short of incitement.[25]

As at the time of publication of this Digest, the Australian Greens, Palmer United Party and other independents did not appear to have made specific comments on the Bill publicly in the short time since its introduction.

Position of major interest groups

The views of major interest groups, in particular law groups and legal experts, civil liberties and human rights organisations and the Inspector-General for Intelligence and Security (IGIS), are set out in their submissions and evidence to the PJCIS’s inquiry into the Bill.

As with the previous two national security-related Bills, a number of stakeholders expressed concern at the short time allowed for public and Parliamentary scrutiny of the Bill in addition to raising issues about particular provisions.[26] A summary is provided below, with stakeholder views also incorporated into the ‘Key issues and provisions’ section of this Digest.

Control orders

Many of the submissions to the PJCIS raise concerns with the proposed amendments to the control order (CO) regime, with the Australian Human Rights Commission (AHRC), the Law Council of Australia (LCA), Gilbert + Tobin Centre for Public Law (Gilbert + Tobin), Amnesty International, and the New South Wales Council for Civil Liberties (NSW CCL) and Muslim Legal Network (NSW) explicitly recommending against their passage.[27] The main focus of those organisations’ concerns is the proposed expansion of the purposes of the CO regime and the grounds on which COs may be made, including the lack of clarity around what would constitute ‘support’ for or ‘facilitation’ of a terrorist act or engagement in hostile activities.[28] Most of them also objected to amendments to enable obligations, prohibitions and restrictions proposed under a CO to be justified and considered together instead of separately, given the extent to which they may restrict a person’s liberty.[29] The Australian Privacy Foundation also criticised those amendments, arguing that bureaucratic convenience should not be privileged over a proper assessment of proportionality.[30]

Associate Professor Greg Carne (University of New England School of Law), the NSW CCL and the Muslim Legal Network (NSW) also raise broader concerns that the amendments to the CO regime could leave it more vulnerable to challenge on constitutional grounds. In particular, Mr Carne argues that only requiring the court to consider the obligations, prohibitions and restrictions proposed under a CO as a whole shifts the CO regime further towards an Executive mechanism.[31] NSW CCL and Muslim Legal Network (NSW) submit that the Bill should be referred to the Senate Standing Committee on Legal and Constitutional Affairs for report before being considered by the PJCIS.[32]

Gilbert + Tobin and Amnesty International reiterated their ongoing opposition to the CO regime being retained at all, particularly in light of the Independent National Security Legislation Monitor’s recommendation for its repeal and recommendations for the inclusion of significantly greater safeguards made by a Council of Australian Governments review.[33]

ASIS assistance to and cooperation with the Australian Defence Force

As noted above, the Bill would amend the functions of ASIS to explicitly include providing assistance to the Defence Force in support of military operations and cooperation on intelligence matters. The potential for this amendment to facilitate ‘targeted killings’ of Australians fighting with terrorist or insurgent groups was raised as a concern by Gilbert + Tobin and NSW CCL and Muslim Legal Network (NSW), particularly in the context of the relatively large number of Australians currently involved with those groups in Iraq and Syria.[34] The LCA considered this amendment to be ‘relatively minor’ and noted the continued application of existing safeguards and accountability mechanisms.[35]

Authorisations and agreements relating to classes of Australian persons

The LCA recommends that amendments enabling ministerial authorisations and agreements to be made in relation to classes of Australian persons should not be passed, arguing that they are inconsistent with the principle of equality before the law and traditional rule of law and criminal justice principles.[36] If they remain in the Bill, the LCA recommends several amendments, including setting out the types of classes permitted, which ‘should be carefully and narrowly defined’.[37]

The IGIS has indicated that ASIS will need to develop systems to clearly record the individual Australians in relation to whom it has conducted activities under a ministerial authorisation that applies to a class of Australian persons to facilitate proper oversight.[38]

Emergency authorisations for ASIS, ASD and AGO activities

NSW CCL and Muslim Legal Network (NSW) and Australian Lawyers for Human Rights are of the view that provisions enabling a small number of ministers, other than those responsible for ASIS, ASD or AGO, to make emergency authorisations should be sufficient to address such circumstances, and that it is not appropriate to extend that power to agency heads.[39] The LCA also opposes that proposed amendment, and suggested the alternative of additional senior cabinet ministers being able to make emergency authorisations instead.[40]

The Australian Privacy Foundation is concerned about amendments that would allow ministers to make emergency authorisations orally instead of in writing, regardless of the requirement for those authorisations to subsequently be recorded in writing.[41] The LCA does not object in principle to authorisations being made orally, but suggested the inclusion of additional safeguards to ensure that power is exercised in an accountable manner.[42]

Financial implications

The Bill will not have a financial impact.

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.[43]

The Statement of Compatibility recognises that amendments to the control order regime in Schedule 1 of the Bill engage and limit the:

•       right to freedom of movement in Article 12 of the International Covenant on Civil and Political Rights (ICCPR)

•       right to freedom of association in Article 22 of the ICCPR

•       right to privacy in Article 17 of the ICCPR

•       right to freedom of expression in Article 19(2) of the ICCPR

•       right to freedom from arbitrary detention and arrest in Article 9 of the ICCPR

•       right to work in Article 6 of the International Covenant on Economic, Social and Cultural Rights and

•       right to a fair trial in Article 14 of the ICCPR.

The Statement of Compatibility states that the Government does not consider Schedule 2 of the Bill to engage any human rights ‘on the basis that the provisions are directed to clarifying and streamlining—without reducing safeguards—the procedural arrangements that enable ISA agencies to undertake activities’.[44] However, it recognises that arguments to the contrary could be made, and accordingly provides information on how those amendments interact with the right to protection against arbitrary and unlawful interferences with privacy and reputation and the right to an effective remedy in Articles 17 and 2 of the ICCPR respectively.

The Government considers that the Bill is compatible with the relevant human rights and freedoms.

As noted above, the PJCHR had not reported on the Bill as at the time of publication of this Digest. NSW CCL and Muslim Legal Network (NSW) submit that the Bill should not be considered by the PJCIS before it has had the opportunity to consider the PJCHR’s report on the Bill.[45]

Key issues and provisions

Schedule 1: control orders

The purpose of the control order (CO) regime in Division 104 of the Criminal Code is ‘to allow obligations, prohibitions and restrictions to be imposed on a person … for the purpose of protecting the public from a terrorist act’.[46] The key amendments to the CO regime proposed in Schedule 1 of the Bill would expand the purposes of the CO regime and the grounds on which COs may be sought, made and varied.

As noted in the Background section, the Government states that these amendments were developed to address operational issues identified following recent counter-terrorism raids. While some of the proposed amendments would fall into that category, amendments to expand the purposes underpinning the regime go well beyond the sort of minor administrative amendments such terminology tends to suggest.

Expansion of the purposes of the CO regime and grounds for COs

Currently the only purpose for which a control order may be made is to protect the public from a terrorist act. Item 6 would repeal and replace section 104.1 of the Criminal Code to include two new purposes. In addition to protecting the public from a terrorist act, orders would be available for the purposes of:

•       preventing the provision of support for, or the facilitation of, a terrorist act and

•       preventing the provision of support for, or the facilitation of the engagement in, a hostile activity in a foreign country.

The terms ‘terrorist act’ and ‘engage in a hostile activity’ are defined in section 100.1 of the Criminal Code.[47]

Subsection 104.2 sets out the grounds on which the Attorney-General’s consent to request an interim CO may be sought. As amended by the Foreign Fighters Act, the current grounds are that a senior AFP member:

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

(b)              suspects on reasonable grounds that the person has:

(i)                            provided training to, received training from or participated in training with a listed terrorist organisation; or
(ii)              engaged in a hostile activity in a foreign country; or
(iii)              been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or
(iv)              been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914).

Item 7 would insert proposed paragraphs 104.2(2)(c) and (d), which would provide two new grounds on which consent to requesting a CO may be sought, mirroring the proposed additional purposes of the CO regime, namely if a senior AFP member:

(c)              suspects on reasonable grounds that the order in the terms to be requested would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or

(d)              suspects on reasonable grounds that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country.

Item 25 would make equivalent amendments to subsection 104.23 (1), which relates to applications to vary a CO.

Subsection 104.4(1) sets out the criteria that must be met before an issuing court may make an interim CO. Paragraph 104.4(1)(c) concerns the court’s satisfaction, on the balance of probabilities, that one of the grounds on which an order may be made is met. Item 11 would insert proposed subparagraphs 104.1(c)(vi) and (vii) to provide the additional grounds that:

•       making the order would substantially assist in preventing the provision of support for, or facilitation of, a terrorist act or

•       the person in relation to whom a CO is sought has provided support for, or otherwise facilitated, the engagement in a hostile activity in a foreign country.

Paragraph 104.4(1)(d) concerns the court’s satisfaction, on the balance of probabilities, that the obligations, prohibitions and restrictions to be imposed under a CO are reasonably necessary, and reasonably appropriate and adapted, to the purpose of the CO regime. Item 12 would make amendments mirroring item 6, expanding the purposes to include preventing the provision of support for, or the facilitation of, either a terrorist act or the engagement in a hostile activity in a foreign country. Item 28 would make equivalent amendments to subsection 104.24(1), which relates to an issuing court’s variation of a CO.

Comment

As noted earlier in this Digest, the grounds on which COs may be made were recently expanded by the Foreign Fighters Act. The amendments in the Bill would represent a more fundamental change because they would expand not just the grounds on which a CO may be made, but also the purposes of the CO regime.

The consequential expanded remit of the CO regime would parallel the extended reach of the terrorism and foreign incursions offence regimes, which include a range of ‘preparatory’ and ‘supporting’ offences (such as sections 101.4 (‘possessing things connected with terrorist acts’) and 102.7 (‘providing support for a terrorist organisation’) of the Criminal Code and the preparations and recruiting offences in new Division 119 of the Criminal Code).

However, due to the nature of the CO regime as a preventative mechanism, its expansion in this way could be said to be more significant. In the case of the offence regime, a broader range of conduct is criminalised, but a person is still subject to the usual criminal justice processes of arrest, charge and prosecution, and will only be penalised if the prosecution proves all the elements of the offence to the criminal standard. That is not the case with the CO regime, where COs are sought on the basis of suspicion on reasonable grounds and made on the basis of a court being satisfied of relevant matters to the civil standard of the balance of probabilities.

The situation is compounded by the lack of clarity in relation to what constitutes ‘support’ for or ‘facilitation’ of a terrorist act or engagement in hostile activities in a foreign country, given neither term is defined. The LCA, Gilbert + Tobin, Amnesty International, and NSW CCL and Muslim Legal Network (NSW) argue that the lack of clarity could mean that control orders would be available for a wider range of conduct than would be appropriate, such as controversial street preaching, activities on social media or at community or religious meetings, or assistance to relatives that was provided without the intent that it facilitate terrorist or hostile activities.[48] Gilbert + Tobin suggest that if the amendment is to proceed, it could be improved by linking the grounds to prevention of specific criminal offences such as providing funding or support to a terrorist organisation.[49]

The AFP’s submission to the PJCIS argues that preventing or disrupting critical support that enables terrorist acts and foreign incursions to occur is as important as preventing or disrupting direct engagement in those activities.[50] In terms of the preventative purpose of the CO regime, this argument is sound and the scenarios provided in the AFP’s submission help to make the case for extending the grounds on which an order may be made. However, it may be possible to still achieve that aim with a more targeted expansion of the CO regime. As Gilbert + Tobin indicate, the Bill would have the effect that ‘preventing support and facilitation would become ends in themselves—regardless of whether doing so is likely to prevent a future terrorist act’.[51]

A more targeted approach could involve expanding the grounds on which an order may be made either without the accompanying expansion of the purposes of the regime, or with a more limited expansion under which a CO could be made for the purpose of:

•       protecting the public from a terrorist act or

•       preventing engagement in a hostile activity in a foreign country.

That would have the effect of allowing a CO to be made to prevent support or facilitation of a terrorist act or engagement in a hostile activity, but only where the obligations, prohibitions and restrictions that would be imposed are reasonably necessary, and reasonably appropriate and adapted, for the ultimate purpose of preventing a terrorist act or hostile activity.

Proposed obligations, prohibitions and restrictions

The means by which COs operate is the particular obligations, prohibitions and restrictions imposed on a person subject to a CO (those that may be imposed are set out in subsection 104.5(3)). The current provisions require that:

•       a senior AFP member provide an explanation as to why each of the obligations, prohibitions and restrictions should be imposed on a person, and any facts he or she is aware of as to why any of them should not be imposed and

•       before making a CO, an issuing court be satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed is reasonably necessary, and reasonably appropriate and adapted to the purpose of the CO.

Those requirements apply to applications for consent and issue of COs (sections 104.2 and 104.3), making of COs (section 104.4) and applications for and making of variations to COs (sections 104.23 and 104.24).

The Explanatory Memorandum for the Anti-Terrorism Bill (No. 2) 2005 (the Bill for the Act that established the CO regime) stated:

The more onerous an obligation or stringent a prohibition or requirement, the greater the burden on the AFP member to satisfy the issuing court that the particular obligation, prohibition or restriction sought to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.[52]

Items 9, 12, 13, and 26–29 would amend sections 104.3, 104.4, 104.23 and 104.24 to lessen the justification and satisfaction required so that:

•       senior AFP members are required only to justify the obligations, prohibitions and restrictions as a whole, rather than individually and

•       issuing courts are required only to be satisfied that the CO is reasonably necessary, and reasonably appropriate and adapted, rather than each individual obligation, prohibition and restriction.

The court would still have discretion to not include one or more proposed obligations, prohibitions and restrictions in an order it makes, confirms or varies.

Comment

The Explanatory Memorandum recognises that these changes will ‘reduce the burden’ on a senior AFP member, but does not explain why they are considered necessary and appropriate. [53] AFP’s submission to the PJCIS explains that ‘each condition or obligation is interdependent and builds on the others’.[54] This is demonstrated in an example set out in the submission of the Attorney-General’s Department (AGD):

… the AFP may propose controls on person A that he (i) not associate with person B, (ii) not associate with person C, and (iii) not attend a certain location frequented by persons B and C. The explanation of these requested controls is that persons A, B and C are believed to be involved in a recruiting syndicate.[55]

Nonetheless, the obligations, prohibitions and restrictions that can be (and have been) imposed on a person under a CO, including curfew requirements, prohibitions on being in certain places or contacting certain people and regular reporting to police, may have a significant impact on a person’s daily life.[56] As recognised in the Statement of Compatibility for the Bill, such conditions limit the exercise of basic human rights and freedoms.[57] Several stakeholders have expressed concern that these amendments would weaken the proportionality test to be applied by a court, and by extension the court’s role in the CO regime.[58] Mr Carne submits that these amendments subtly shift the balance of the CO regime further toward the Executive interest.[59] Particularly when it is also proposed to expand the purposes and grounds for making COs, it seems appropriate to continue to require that consideration be given to each individual obligation, prohibition and restriction proposed separately. As the LCA submits, that requirement is an important safeguard against imposition of disproportionate infringements of a person’s liberty.[60] It may be the case that the proposed amendments would have little impact in practice on an issuing court’s consideration of those obligations, prohibitions and restrictions. However, if that were intended, it is not clear why the amendments would be proposed in the first place.

Schedule 2: intelligence agencies

ASIS assistance to the Australian Defence Force

ASIS’ functions have a statutory basis in section 6 of the ISA. Under subsection 6(1) ASIS’s functions are:

(a)  to obtain, in accordance with the Government’s requirements, intelligence about the capabilities, intentions or activities of people or organisations outside Australia; and

(b)  to communicate, in accordance with the Government’s requirements, such intelligence; and

(c)  to conduct counter-intelligence activities; and

(d)  to liaise with intelligence or security services, or other authorities, of other countries; and

(da)  to co-operate with and assist bodies referred to in section 13A [Commonwealth and state authorities] in accordance with that section; and

(db)  to undertake activities in accordance with section 13B [activities in relation to ASIO]; and

(e)  to undertake such other activities as the responsible Minister directs relating to the capabilities, intentions or activities of people or organisations outside Australia.[61]

Subsection 6(7) states that in performing its functions ‘ASIS is not prevented from providing assistance to Commonwealth authorities, including the Defence Force in support of military operations, and to State authorities’.

Item 1 of Schedule 2 of the Bill would insert proposed paragraph 6(1)(ba) to explicitly include provision of assistance to the Defence Force in support of military operations and cooperation with the Defence Force on intelligence matters among ASIS’s functions. Accordingly, item 2 would remove the specific reference to assisting the Defence Force from subsection 6(7).

Assistance to the Defence Force in support of military operations and cooperation with the Defence Force on intelligence matters has been listed among the functions of ASD since 2005 and of AGO since 2011.[62] The same Act that inserted that function for ASD inserted subsection 6(7) in relation to ASIS. The Explanatory Memorandum did not provide the rationale behind the different approaches taken at that time.[63] However, it may have been related to the fact that ASD and AGO fall within the Defence portfolio, while ASIS falls under Foreign Affairs and Trade.

Issue: purposes of ASIS assistance to the Defence Force

While the Attorney-General referred in his second reading speech to collection of intelligence on Australians known or suspected to be engaged in hostilities in Iraq, particularly with IS, the justification provided in that speech and in the Explanatory Memorandum focuses primarily on the potential for intelligence collected by ASIS to save the lives of Australian soldiers and civilians.[64] However, intelligence ASIS shares with the Defence Force would also be drawn on in planning for military operations, including identification of potential targets. Where Australians are fighting with IS or other terrorist or insurgent groups, military operations involving Australian forces or foreign forces with whom they are cooperating could result in the death or capture of those Australians. The potential for this amendment to facilitate ‘targeted killings’ of Australians fighting with terrorist or insurgent groups was raised as a concern by Gilbert + Tobin and NSW CCL and Muslim Legal Network (NSW) in their submissions to the PJCIS and has received attention in the media.[65]

The Minister for Foreign Affairs reportedly declined to directly answer questions about whether the purpose of ASIS sharing intelligence with the Defence Force was to target Australian foreign fighters when she appeared at the National Press Club the day the Bill was introduced.[66] However, the Prime Minister warned that Australians fighting with terrorist groups faced potential dangers shortly after the Government announced its military commitment in Iraq:

Now, if they are killed in conflict, they know the risks, they took their chances. They broke Australian law. They are doing something which is a very serious offence under Australian law and I say again to any Australian who might be thinking of travelling to the Middle East to join in terrorist activity: don’t. It is very dangerous. It is wrong. It is against God. It is against religion. It is against our common humanity … and it may well become much more dangerous because of the presence of Australian forces.[67]

At least 70 Australians are estimated to be fighting with terrorist and insurgent groups in Iraq and Syria, and around another 100 supporting them from Australia.[68] An update on Australian operations in Iraq was provided on 5 November 2014. Asked whether any of the deaths of 15 Australians reportedly killed while fighting with ISIL might have been the result of Australian airstrikes, Chief of Joint Operations, Vice Admiral David Johnston, answered ‘I’ve got no knowledge that would indicate that any of our airstrikes have resulted in the deaths of any Australians fighting with ISIL’. [69] However, when asked whether nationality would be a consideration in Defence Force operations targeting ISIL, he said it would not, confirming that Australians fighting with ISIL would be legitimate targets.[70]

The appropriateness of ASIS-gathered intelligence shared with the Defence Force being used against Australians fighting with terrorist and insurgent groups is likely to be debated in the context of this Bill. However, there is no apparent bar to this occurring under the ISA as it currently stands. ASIS’s submission states that it currently relies on its functions under paragraphs 6(1)(a)(b) and (e) in combination with subsection 6(7) (these provisions are all set out in the description of the amendment above).[71]

Issue: need for the amendment

The Explanatory Memorandum provides two contradictory statements about this amendment. First, it states that while ASIS provided valuable support to the Defence Force in Afghanistan, ‘differences in the circumstances in Iraq mean that reliance on existing provisions of the ISA in relation to the functions of ASIS … is likely to severely limit ASIS’s ability to provide such assistance in a timely way’ (emphasis added).[72] However, the Statement of Compatibility states ‘the amendments do not expand the functions of ASIS … as reflected in subsection 6(7), ASIS is already able to undertake such activities under its existing functions’.[73]

It is possible the amendment may be related to Australia’s cooperation with coalition allies in the Iraq conflict. The section of the Explanatory Memorandum on ministerial authorisations relating to classes of Australian persons, which may be made only in the context of ASIS providing assistance to the Defence Force in support of military operations, states ‘any support to foreign authorities could only arise in the context of support to the ADF’.[74] News Corporation media has reported that in mid-October, the head of ASIS ‘made a secret mission’ to Baghdad ‘in part to resolve intelligence-sharing arrangements between Australian and US spies operating in the region which had become “frustrated”. A senior intelligence source said that there had been concerns raised over the sharing of intelligence for “strike targets”’.[75]

In the absence of a clearer explanation of the need for this amendment, it may be difficult for the Parliament to determine its appropriateness.

Ministerial authorisations relating to classes of Australian persons

The ISA contains specific authorisation requirements relating to the production of intelligence on an Australian person and activities that will, or would be likely to, have a direct effect on an Australian person. Section 8 requires the ministers responsible for ASIS, AGO and ASD to each issue written directions to the heads of those agencies that require the agency to obtain a ministerial authorisation under section 9 before undertaking those activities.[76] All authorisations made under section 9 require the relevant minister to be satisfied of a number of matters as set out in subsection 9(1). Subsection 9(1A) sets out additional requirements that must be met before a minister authorises:

•       an activity or series of activities that would include production of intelligence on an Australian person or

•       an activity or series of activities undertaken by ASIS under paragraph 6(1)(e) that would, or would be likely to, have a direct effect on an Australian person (paragraph 6(1)(e) allows the responsible minister to direct ASIS to undertake activities relating to the capabilities, intentions or activities of people or organisations outside Australia, outside its set functions).

In particular:

•       under paragraph 9(1A)(a), the minister must be satisfied that the Australian person concerned is, or is likely to be involved in one or more listed activities (these include, for example, acting for or on behalf of a foreign power or activities that are or are likely to be a threat to ‘security’[77]) and

•       under paragraph 9(1A)(b), if the Australian person is, or is likely to be, involved in activities that are or are likely to be a threat to security, the minister must obtain the agreement of the minister responsible for ASIO (the ASIO Minister).

Items 4, 8–11, 16, 17, 22, 26 and 31 will amend sections 8 and 9 and make related amendments to sections 10 and 10A to establish a framework for the minister responsible for ASIS to make authorisations in relation to classes of Australian persons, in addition to individuals, in certain circumstances (‘class authorisations’). The key features of the framework are that class authorisations:

•       may only be made for activities or series of activities to be undertaken by ASIS in the course of providing assistance to the Defence Force in support of military operations (under proposed paragraph 6(1)(ba))—item 4, proposed subparagraphs 8(1)(a)(ia) and (ib)

•       may only be made if the Defence Minister has requested the authorisation in writing—item 8, proposed paragraph 9(1)(d) and

•       may only be made in writing by the minister responsible for ASIS (that is, the proposed updated framework for emergency authorisations does not apply)—proposed paragraphs 9A(1)(a) and 9B(1)(b), inserted by item 18 (discussed separately in the section on emergency authorisations below).

Proposed subsection 9(5), inserted by item 17, would require requests from the Defence Minister to be retained and made available to the IGIS on request.

Proposed subsection 10(2B), inserted by item 26, would provide that the grounds on which the authorisation was given cease to exist if the Defence Force is no longer engaged in any military operations to which the Defence Minister’s request related or if the Defence Minister withdraws the request. This would trigger existing requirements under subsection 10(2A) relating to cancellation of ministerial authorities.

Proposed subsection 10A(3), inserted by item 31, would require the head of ASIS to report on the activities undertaken in accordance with class authorisations as soon as practicable and no later than three months after an authorisation ceased to have effect or was renewed.

Class authorisations will otherwise operate in the same way as other ministerial authorisations in relation to activities impacting on Australian persons.

Comment

The Explanatory Memorandum does not explain why the ability to make authorisations in relation to classes of Australian persons is required or justified. In his second reading speech, the Attorney-General indicated this amendment would ‘facilitate the timely performance by ASIS’ of the function of supporting the Defence Force in military operations.[78] ASIS’s submission to the PJCIS provides an explanation of the operational circumstances giving rise to the proposal for class authorisations, in particular the combination of a relatively large number of Australians fighting with terrorist organisations in Iraq and a ‘swiftly changing operational environment’ in which the Defence Force can act immediately.[79] It provides the following scenario by way of example:

Scenario – Intelligence is received that a previously unidentified Australian member of ISIL plans to imminently undertake a suicide terrorist attack against ADF and other partner elements providing ‘advise and assist’ support to Iraqi security forces at an Iraqi base. The ADF requests ASIS to urgently produce intelligence on the Australian person and that ASIS liaise with approved partner agencies it has responsibility for in order to alert them to the planned attack, noting that this may have a direct effect on the Australian person. Depending on the circumstances, ASIS may be able to immediately undertake some activity to collect intelligence (with agreement from ASIO received in due course) on the Australian person. However, before ASIS could do anything further to alert the approved partner agencies of the planned attack, ASIS would first have to consult with ASIO in order to obtain the agreement of the Attorney-General and then seek a Ministerial Authorisation from the Foreign Minister to produce intelligence and to undertake activities likely to have a direct effect on the Australian person. Even if the Ministers and relevant ASIO staff were readily available, this process would take considerable time when there is an operational need to act quickly to prevent loss of life.[80]

Having a class authorisation and corresponding class agreement (see the following section of this Digest) in place from the beginning of a particular military operation would allow ASIS to provide assistance quickly in time-sensitive situations.

However, the Bill does not make specific provision for how narrowly a class of Australian persons must be circumscribed. While a class of persons fighting with ISIL in Iraq seems reasonably clear, the provisions proposed would have general and indefinite application. Further, the Explanatory Memorandum states that the minister must be satisfied that ‘all persons in the class of Australian persons’ are involved in one or more of the activities listed in paragraph 9(1A)(a).[81] However, no such requirement would be explicit in subsection 9(1A) as amended, which would only require satisfaction in relation to ‘the class of Australian persons’. Consideration should be given to how provision could be made for clearer limits around the permitted breadth of class authorisations so that they do not capture a broader range of persons than intended or create uncertainty for officers relying upon them.

The IGIS stated that it will be important for ASIS to develop systems to clearly record the individual Australians in relation to whom it has conducted activities under a class authorisation, to ensure both proper reporting to ministers and proper application of the Privacy Rules to any intelligence obtained.[82]

The IGIS also pointed out that some military operations in relation to which the Defence Minister might request assistance from ASIS could extend for several years, and that there is no requirement that the request be revisited by the Defence Minister during that time. She states that it is her expectation that ‘even in the absence of any legal requirement to do so, the Defence Minister should be periodically briefed on [ASIS] operations conducted in reliance on such a request’.[83]

Ministerial agreements relating to classes of Australian persons

As noted above, the agreement of the ASIO Minister is required for ministerial authorisations relating to Australian persons who are, or are likely to be, involved in activities that are, or are likely to be, a threat to security.

Item 14 would insert proposed subsections 9(1AA), (1AB) and (1AC) to allow the ASIO Minister to make class agreements. The provisions would not be restricted to agreements relating to class authorisations for ASIS activities as described above. They would apply to ministerial authorisations for ASIS, ASD and AGO activities, and not only to the function of assisting the Defence Force in military operations.

Proposed subsection 9(1AA) would allow the ASIO Minister, in writing, to:

(a)              specify classes of Australian persons who are, or are likely to be, involved in an activity or activities that are, or are likely to be, a threat to security; and

(b)              give his or her agreement in relation to any Australian person in that specified class.

Under proposed subsection 9(1AB), the agreement could relate to an authorisation for an activity or series of activities mentioned in paragraph 8(1)(a) as amended by the Bill (that is, certain activities involving collection of intelligence, or a direct effect (or likely direct effect), on an Australian person or class of Australian persons) and could specify the period during which it has effect.

Proposed subsection 9(1AC) would provide that if a class agreement specifies a period during which it has effect, a ministerial authorisation cannot be made in reliance on the agreement after that period ends.

Where a class agreement is in force, a ministerial authorisation could be made in relation to an individual who falls within it without further approval from the ASIO Minister. A class authorisation as outlined in the section above could also be made in relation to the whole of the class specified in the agreement without further approval from the ASIO Minister.

Comment

As with the proposed class authorisations, the Bill does not make specific provision for how narrowly a class of Australian persons must be circumscribed in a class agreement. The Explanatory Memorandum provides the potential example of ‘a class of Australian persons involved in people smuggling’.[84] This sheds little light on how a class might be specified. As with the class authorisation amendments, consideration should be given to how provision could be made for clearer limits around the permitted breadth of class agreements so that they do not capture a broader range of persons than intended or create uncertainty for officers relying upon them.

Proposed subsection 9(1AC) would ensure new authorisations could not be made in reliance on a class agreement that has expired. However, no provision has been made to prevent an authorisation made in reliance on a class agreement from being renewed under section 10 after such an agreement has expired. An amendment to that effect should be considered.

As noted above, the ASIO Minister may specify a period during which a class agreement has effect. The IGIS states that it is her view that even in the absence of any legal requirement to do so, the ASIO Minister should be periodically briefed on ASIS operations conducted in reliance on a class agreement for which no end date is specified.[85]

Emergency authorisations for ASIS, ASD and AGO activities

Section 9A of the ISA allows ASIS, ASD and AGO to obtain a ministerial authorisation from the Prime Minister, Defence Minister, Foreign Minister or Attorney-General if an emergency situation arises and the minister with responsibility for the agency is not readily available or contactable to consider making the usual authorisation under section 9. These emergency authorisations must be in writing.

Item 18 of Schedule 2 would repeal existing section 9A and insert proposed sections 9A, 9B and 9C in its place. The different mechanisms are outlined separately below, followed by a discussion of the key issues they raise when considered together.

Oral emergency authorisations by ministers

Proposed section 9A would enable an oral authorisation to be given by the relevant minister, the Prime Minister, Defence Minister, Foreign Minister or Attorney-General if an emergency situation arises in which the head of ASIS, ASD or AGO considers it necessary or desirable to undertake an activity or series of activities for which an authorisation is required. It must be given by the relevant minister unless the agency head is satisfied that he or she is not readily available or contactable. Proposed paragraph 9A(1)(a) would exclude activities mentioned in subparagraph 8(1)(a)(ia) or (ib)—these are the ASIS activities for which class authorisations may be made—from the application of the proposed section.

Proposed subsection 9A(4) would provide that an oral authorisation ceases to have effect when an authorisation is given under section 9, or 48 hours from when the oral authorisation was given, whichever is earlier. Proposed subsection 9A(5) would require a written record of the oral authorisation to be made as soon as practicable (but within 48 hours) and a copy of the record be given to the IGIS within three days of the oral authorisation. The Explanatory Memorandum does not state how the proposed time limit for making a written record was determined. It is not clear why a shorter period, perhaps 24 hours, could not be stipulated.

Item 29 would amend subsection 10A(1), and item 31 would insert proposed subsection 10A(4), to require agency heads to report to the relevant minister on activities undertaken in reliance on an oral authorisation as soon as practicable and within a month of the authorisation ceasing to have effect.

Written emergency authorisations by agency heads

Proposed section 9B would allow a written authorisation to given by the head of ASIS, ASD or AGO if:

•       under proposed subsection 9B(1):

–      he or she considers it necessary or desirable to undertake an activity or a series of activities

–      an authorisation is sought under proposed section 9A and

–      the agency head is satisfied that none of the ministers specified in proposed section 9A are readily available or contactable and

•       under proposed subsection 9B(2), the agency head is satisfied that:

(a)              the facts of the case would justify the relevant responsible Minister giving an authorisation under section 9 because (subject to section 9C) the agency head is satisfied that the conditions in subsections 9(1) and (1A) are met; and

(b)              the responsible Minister would have given the authorisation; and

(c)              if the activity or series of activities is not undertaken before an authorisation is given under section 9 or 9A:

              (i)                            security (within the meaning of the Australian Security Intelligence Organisation Act 1979) will be, or is likely to be, seriously prejudiced; or

              (ii)              there will be, or is likely to be, a serious risk to a person’s safety.

The requirement that an authorisation has been sought under proposed section 9A would exclude activities mentioned in subparagraph 8(1)(a)(ia) or (ib)—these are the ASIS activities for which class authorisations may be made—from the application of the proposed section.

Under proposed subsection 9B(4), an authorisation given by an agency head ceases to have effect at the earliest of the following times:

•       an authorisation for the activity or activities is given under section 9 or 9A

•       it is cancelled by the relevant responsible minister under proposed subsection 9B(8) or

•       48 hours from the time it was given.

Proposed subsections 9B(5) and (6) require written records, including a summary of the facts of the case that the agency head was satisfied justified giving the authorisation, to be given as soon as practicable to the relevant responsible minister (within 48 hours) and the IGIS (within three days).

Proposed subsection 9B(7) requires the relevant responsible minister, as soon as practicable after receiving those documents, to consider whether to cancel the agency head’s authorisation (under proposed subsection 9B(8)) or give a new authorisation under section 9 or proposed section 9A.

Item 29 would amend subsection 10A(1), and item 31 would insert proposed subsection 10A(4), to require agency heads to report to the relevant minister on activities undertaken in reliance on an agency head authorisation as soon as practicable and within a month of the authorisation ceasing to have effect.

The IGIS indicates she anticipates that this power would be exercised in ‘extremely rare’ circumstances and expects that any such authorisations will be scrutinised by her office.[86]

Emergency authorisations where the ASIO Minister is unavailable

As noted above, the agreement of the ASIO Minister is required for ministerial authorisations relating to Australian persons who are, or are likely to be, involved in activities that are, or are likely to be, a threat to security.

Proposed section 9C would provide for two alternatives to that agreement where the head of ASIS, ASD or AGO considers it necessary or desirable to undertake an activity or a series of activities and an emergency authorisation is sought under proposed section 9A or proposed section 9B.

If the agreement of the ASIO Minister would normally be required, but the agency head is satisfied that the ASIO Minister is not readily available or contactable, the agency head may instead seek the agreement of the Director-General of Security. If neither the ASIO Minister nor the Director-General of Security are available, an authorisation may be made without the agreement of either.

Under proposed subsections 9C(4) and (5), if an authorisation is given in accordance with proposed section 9C, the relevant agency head must provide advice as soon as practicable, including whether the Director-General of Security’s agreement was obtained:

•       to the ASIO Minister within 48 hours of the authorisation and

•       to the IGIS within three days of the authorisation.

Issue: shift in accountability for agency actions

Proposed sections 9B and 9C represent a significant shift in the accountability framework that applies to ASIS, ASD and AGO. The system of ministerial authorisations exists because Parliament was of the view that specific ministerial approval should be required before ISA agencies engage in particular activities within the scope of their functions. In the case of ISA agency head authorisations under proposed section 9B, the circumstances in which they are permitted are quite restricted and the requirement to first seek an emergency ministerial authorisation should mean they rarely need to be made. Nonetheless, the threshold question of whether it is ever appropriate for such authorisations to be made by someone other than a minister should attract serious consideration. In their submissions to the PJCIS, Senator Leyonhjelm, the LCA and NSW CCL and Muslim Legal Network (NSW) argue that it is not.[87] Senator Leyonhjelm states (emphasis in original):

… the ‘buck’ has to stop, in my view, with an elected parliamentarian, not an unelected civil servant.

…

… The traditional common law caution regarding authorisations where significant individual rights and liberties … would be affected is important here, and suggests that a regime whereby at least one relevant minister is always contactable should be instituted.[88]

The LCA suggested the alternative of additional senior cabinet ministers (such as the Deputy Prime Minister) being able to make emergency authorisations instead.[89]

Consideration should also be given to the combined effect of proposed sections 9B and 9C, under which a single agency head could him or herself authorise actions that would normally require both authorisation from the minister responsible for the agency and the agreement of the ASIO Minister.

Issue: practical implications where agency head authorisation is cancelled by the minister

As noted above, the relevant minister may, under proposed subsections 9B(7) and (8):

•       cancel an emergency authorisation made by an agency head

•       issue a ministerial authorisation in place of that emergency authorisation or

•       (while this option is not specified in the provisions) let the emergency authorisation run its course, in which case it would cease 48 hours after it was given.

A foreseeable circumstance in which the minister would choose to cancel the authorisation is where he or she determines that such an authorisation should not have been made (that is, the minister would not have made it in the first place, had he or she been available to consider the request). In such circumstances, the appropriate course of action would appear to be the destruction of any intelligence collected in reliance on the emergency authorisation and prevention of its dissemination and use (or at least, any further dissemination and use). The Bill does not require any such actions to be taken.

Issue: time period for providing notice to ministers

Proposed sections 9B and 9C would each require notice of emergency authorisations to the relevant minister as soon as practicable and within 48 hours. The Explanatory Memorandum states that the intention is for notification to occur as soon as possible, unless the first opportunity is not feasible or viable because, for example, if would divert operational resources from actually undertaking activities in accordance with an emergency authorisation.[90] Consideration could be given to whether a shorter period, for example 24 hours, would be more appropriate.

As NSW CCL and Muslim Legal Network (NSW) point out, 48 hours is also the maximum duration for an agency head authorisation made under proposed section 9B. If the relevant minister were notified toward the end of the allowable 48 hour period, the minister would have little opportunity to exercise the powers to cancel the authorisation, detracting from its utility as a safeguard.[91]

Other provisions

Terrorist organisation listings

Section 102.1 of the Criminal Code allows regulations to be made proscribing an organisation as a terrorist organisation. Section 102.1A allows the PJCIS to review those regulations and report comments and recommendations to the Parliament before the end of the disallowance period.

The Foreign Fighters Act inserted section 102.1AA into the Criminal Code to enable the Attorney-General to amend Regulations proscribing terrorist organisations to include an alias for an organisation and/or remove a former name of an organisation. The Attorney-General may make such changes by legislative instrument.

In its report on the Foreign Fighters Bill, the PJCIS recommended that:

•       the Attorney-General notify the PJCIS of any proposed amendments of that type to terrorist organisation Regulations and

•       the PJCIS be given the power to determine whether it wishes to review any such amendments.[92]

Items 1–5 of Schedule 1 of the Bill would amend section 102.1A of the Criminal Code so that the PJCIS has the same power to review and report on legislative instruments made under section 102.1AA as it does Regulations made under section 102.1.

Control orders

Information provided to the Attorney-General and the issuing court

Currently, all the information that will be provided to an issuing court with a request for a CO must also be provided when a senior AFP member seeks the Attorney-General’s consent for a request to be made. Items 8 and 9 of Schedule 1 will amend sections 104.2 (Attorney-General’s consent) and 104.3 (Request to an issuing court) to reduce the information that must be provided when seeking the Attorney-General’s consent to:

•       a draft of the interim CO to be requested

•       any information the senior AFP member has about the person’s age (this is because an order may not be requested if a person is under 16 years of age) and

•       a summary of the grounds on which the order should be made.

The information to be provided to the issuing court will remain unchanged except that details relating to proposed obligations, prohibitions and restrictions need not be provided separately for each obligation, prohibition and restriction (that amendment is discussed separately in the ‘Key issues and provisions’ section of this Digest).

Items 16, 18 and 22 will make consequential amendments to other sections to update cross-references.

The LCA and Mr Carne do not support this proposed amendment.[93] The LCA recommends that if the change is to go ahead, the AFP should at least be required to provide the Attorney-General with a summary of evidence (if any) that may suggest a CO should not be made.[94]

Time limit for obtaining the Attorney-General’s consent for an urgent interim CO

Subdivision C of Division 104 of the Criminal Code makes provision for COs to be sought and made without the Attorney-General’s prior consent in urgent circumstances. Subsection 104.10(1) requires that the Attorney-General’s consent be sought within four hours of the making of such a request. Under subsection 104.10(2), the order ceases to be in force if the Attorney-General refuses consent, or has not given consent within four hours. Item 20 would amend both time limits from four to 12 hours. The Explanatory Memorandum explains that the current limit of four hours may be impractical or even impossible in some circumstances, giving the example of the Attorney-General being uncontactable while in transit between the east and west coasts of Australia.[95] Items 15, 17 and 19 make consequential amendments to notes and a section heading.

NSW CCL and Muslim Legal Network (NSW) oppose this amendment.[96] The AHRC and the LCA both consider an extension of the time limit is reasonable, but suggest a shorter period—eight or six hours respectively—would be more appropriate.[97]

Date on which interim CO will be considered

Under section 104.5, if an issuing court makes an interim CO, it must specify in it a day on which the person to whom it relates may attend court for the court to confirm, void or revoke the order. Subsection 104.5(1A) requires the day to be as soon as practicable, but at least 72 hours, after the interim CO is made. Item 14 will insert new subsection 104.5(1B) to require the issuing court to take into account the time that any of the parties may need to prepare in order to adduce evidence or make submissions in relation to confirmation of the order, and any other matter it considers relevant.

Concluding comments

This is the third Bill to be introduced since mid-2014 dealing with reforms to national security and counter-terrorism laws. As with the earlier amendments, the Government is seeking to have the Bill passed quickly, which has provided limited opportunity for public and Parliamentary scrutiny. The introduction of legislation to establish a mandatory telecommunications data retention scheme the day after the Bill was introduced may also have led to it receiving less attention from stakeholders than it otherwise would have. While the scope of this Bill is narrower than the previous two, the measures it contains—particularly the proposed expansions to the control order regime and provisions allowing the heads of ASIS, ASD and AGO to authorise activities in place of ministers in emergency circumstances—are significant and warrant careful consideration.

The amendments proposed in the Bill have been designed primarily to deal with issues that have arisen in the specific circumstances of the current conflicts in Iraq and Syria, particularly the involvement of Australian citizens with terrorist and insurgent groups (directly or through supporting roles in Australia) and the Defence Force’s deployment to Iraq to assist coalition efforts against ISIL. However, the proposed amendments would apply more broadly—they would amend Acts of general application and would not be subject to a sunset clause. The measures in the Bill need to be considered in that context, with due regard given to whether they have the potential to apply more broadly than intended or in circumstances to which they are not appropriate. Consideration should be given to whether some of the objectives of the Bill could be achieved just as effectively through more targeted amendments that would carry less risk of unintended consequences.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

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[1].              Parliament of Australia, ‘National Security Legislation Amendment Bill (No.1) 2014 homepage’, Australian Parliament website, accessed 6 November 2014; National Security Legislation Amendment Act (No.1) 2014, accessed 6 November 2014.

[2].              Parliament of Australia, ‘Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 homepage’, Australian Parliament website, accessed 6 November 2014; Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Foreign Fighters Act), accessed 6 November 2014.

[3].              For general background on the changing terrorism environment and further information on the Foreign Fighters Act, see C Barker, M Biddington, M Coombs and M Klapdor, Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, Bills digest, 34, 2014–15, Parliamentary Library, Canberra, 17 October 2014, accessed 6 November 2014.

[4].              Parliament of Australia, ‘Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 homepage’, Australian Parliament website, accessed 19 November 2014.

[5].              N Butterfly, ‘Experts look to confirm killing of Aussie jihadist’, The West Australian, 30 October 2014, p. 4, accessed 13 November 2014; D Wroe, ‘Intelligence law to help Defence target jihadists’, The Age, 30 October 2014, p. 8, accessed 13 November 2014; B Billson (Minister for Small Business), Interview with Rafael Epstein and Mark Dreyfus QC, ABC 774 Fight Club, transcript, 29 October 2014, accessed 17 November 2014.

[6].              Explanatory Memorandum, Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 (CT Bill), p. 1, accessed 7 November 2014.

[7].              Australian Federal Police (AFP), 15 people detained as part of major counter terrorism investigation, media release, 18 September 2014, accessed 7 November 2014.

[8].              AFP, Clarification of Operation Appleby numbers, media release, 20 September 2014, accessed 7 November 2014; D Box and P Maley, ‘Three held on secret orders’, The Australian, 20 September 2014, p. 1, accessed 7 November 2014.

[9].              D Box and P Maley, op. cit.; E Partridge et al, ‘Terror raids: 800 police, and only two men charged’, The Sydney Morning Herald, (online edition), 18 September 2014, accessed 7 November 2014.

[10].              Ibid.

[11].              D Box and P Maley, op. cit.; AFP, Two Brisbane men arrested on terrorism-related offences, media release, 10 September 2014, accessed 7 November 2014; AFP, Further charges laid in counter terrorism operation, media release, 17 October 2014, accessed 7 November 2014.

[12].              AFP, Melbourne man charged with terrorism financing, media release, 30 September 2014, accessed 7 November 2014.

[13].              The White House, Statement by the President, [Iraq], media release, 7 August 2014, accessed 7 November 2014.

[14].              D Roberts and S Ackerman, ‘US begins air strikes against Isis targets in Iraq, Pentagon says’, The Guardian, (online edition), 9 August 2014, accessed 7 November 2014.

[15].              J Robbins, ‘MPs support UK air strikes against IS in Iraq’, BBC News, 26 September 2014, accessed 7 November 2014; Canadian Armed Forces, ‘Operation IMPACT’, National Defence and the Canadian Armed Forces website, accessed 7 November 2014; ‘France launches first air strikes on IS in Iraq’, BBC News, 19 September 2014, accessed 7 November 2014.

[16].              T Abbott (Prime Minister), Australian Defence Force contribution to international coalition against ISIL, media release, 14 September 2014, accessed 7 November 2014.

[17].              Department of Defence (Defence), ‘OKRA home’, Defence website, accessed 7 November 2014. Details of the Air Task Group and its operations to date are available on the relevant page of the Defence website.

[18].              Defence, ADF operations in Iraq: RAAF plans and leads attacks on ISIL, media release, 5 November 2014, accessed 7 November 2014.

[19].              A Greene, ‘Australian special forces troops moving into Iraq, Prime Minister Tony Abbott confirms at APEC’, ABC News, updated 11 November 2014, accessed 13 November 2014; P Hartcher and D Wroe, ‘Australian special forces unable to join fight against Islamic State until Iraq issues visas’, The Age, (online edition), 30 October 2014, accessed 14 November 2014.

[20].              Defence ‘Special Operations Task Group (SOTG)’, Defence website, accessed 7 November 2014.

[21].              N Warner (Director-General of ASIS), ‘ASIS at 60’, transcript of address for the Lowy Institute, 19 July 2014, accessed 7 November 2014.

[22].              Parliamentary Joint Committee on Intelligence and Security (PJCIS), ‘Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 ’, Australian Parliament website, accessed 3 November 2014.

[23].              M Dreyfus, in B Billson, op. cit.

[24].              D Leyonhjelm, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, 10 November 2014, accessed 12 November 2014.

[25].              Ibid.

[26].              Amnesty International Australia, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, 7 November 2014; Australian Human Rights Commission (AHRC), Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, 11 November 2014, p. 3; New South Wales Council for Civil Liberties (CCL) and Muslim Legal Network (NSW), Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, n.d., pp. 2–3; Australian Privacy Foundation, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, 10 November 2014; all accessed 12 November 2014.

[27].              AHRC, op. cit., pp. 5–6; Gilbert + Tobin Centre of Public Law, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, 7 November 2014, p. 2, accessed 12 November 2014; Law Council of Australia (LCA), Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, 11 November 2014, p. 4, accessed 17 November 2014; Amnesty International, op. cit.; NSW CCL and Muslim Legal Network (NSW), op. cit., p. 3.

[28].              AHRC, op. cit., p. 5; LCA, op. cit., pp. 6–12; Gilbert + Tobin op. cit., pp. 3–5; Amnesty International, op. cit.; NSW CCL and Muslim Legal Network (NSW), op. cit., pp. 5–6.

[29].              AHRC, op. cit., pp. 5–6; LCA, op. cit., pp. 13–14; Gilbert + Tobin, op. cit., p. 4; NSW CCL and Muslim Legal Network (NSW), op. cit., pp. 8–9.

[30].              Australian Privacy Foundation, op. cit.

[31].              G Carne, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, 7 November 2014, p. 5, accessed 13 November 2014.

[32].              NSW CCL and Muslim Legal Network (NSW), op. cit., p. 11.

[33].              Gilbert + Tobin, op. cit., pp. 2, 5; Amnesty International, op. cit. For details of the reviews, see C Barker, Counter-terrorism and national security legislation reviews: a comparative overview, Research paper, 2014–15, Parliamentary Library, Canberra, 7 August 2014, accessed 13 November 2014.

[34].              Gilbert + Tobin, op. cit., p, 1; NSW CCL and Muslim Legal Network (NSW), op. cit., pp. 14–16.

[35].              LCA, op. cit., pp. 15–16.

[36].              Ibid., pp. 17–21.

[37].              Ibid.

[38].              Inspector-General of Intelligence and Security (IGIS), Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, 10 November 2014, p. 5, accessed 14 November 2014.

[39].              NSW CCL and Muslim Legal Network (NSW), op. cit., p. 12; Australian Lawyers for Human Rights, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, 10 November 2014, p. 5, accessed 14 November 2014.

[40].              LCA, op. cit., pp. 24–26.

[41].              Australian Privacy Foundation, op. cit.

[42].              LCA, op. cit., pp. 21–24.

[43].              The Statement of Compatibility with Human Rights can be found at page 4 of the Explanatory Memorandum to the Bill.

[44].              Explanatory Memorandum, CT Bill, op. cit., p. 11.

[45].              NSW CCL and Muslim Legal Network (NSW), op. cit., p. 11.

[46].              Criminal Code Act 1995 (Criminal Code), section 104.1, accessed 3 November 2014.

[47].              Ibid. Amendments made by the Foreign Fighters Act, which inserts a definition of ‘engage in a hostile activity’, had not been incorporated into ComLaw’s consolidated version of the Criminal Code as at the date of publication of this Digest.

[48].              LCA, op. cit., pp. 11–12; Gilbert + Tobin op. cit., pp. 3–4; Amnesty International Australia, op. cit.; NSW CCL and Muslim Legal Network (NSW), op. cit., p. 6.

[49].              Gilbert + Tobin, op. cit., p. 4. Offences for getting funds to, from or for a terrorist organisation, and for providing support to a terrorist organisation, are at sections 102.6 and 102.7 of the Criminal Code respectively.

[50].              AFP, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, November 2014, pp. 2–3, accessed 14 November 2014.

[51].              Gilbert + Tobin op. cit., p. 4.

[52].              Explanatory Memorandum, Anti-Terrorism Bill (No. 2) 2005, p. 21, accessed 4 November 2014.

[53].              Explanatory Memorandum, CT Bill, op. cit., pp. 20–21.

[54].              AFP, Submission to PJCIS, op. cit., p. 5.

[55].              Attorney-General’s Department, , Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, November 2014, p. 7, accessed 14 November 2014.

[56].              The obligations, prohibitions and restrictions imposed under the two COs that have been made are set out in B Walker, Declassified annual report, Australian Government, Independent National Security Legislation Monitor, Canberra, 20 December 2012, pp. 19 and 22–23, accessed 4 November 2014.

[57].              Explanatory Memorandum, CT Bill, op. cit., pp. 6–11.

[58].              AHRC, op., cit., pp. 5–6; LCA, op. cit., pp. 13–14; Gilbert + Tobin, op. cit., p. 4; NSW CCL and Muslim Legal Network (NSW), op. cit., pp. 8–9; G Carne, op. cit., p. 5.

[59].              G Carne, op. cit., p. 5.

[60].              LCA, op. cit., pp. 13–14.

[61].              Intelligence Services Act 2001 (ISA), accessed 4 November 2014.

[62].              Paragraphs 6B(g) and 7(d) of the ISA, inserted by the  Intelligence Services Legislation Amendment Act 2005 and Intelligence Services Legislation Amendment Act 2011, accessed 5 November 2014.

[63].              Revised Explanatory Memorandum, Intelligence Services Legislation Amendment Bill 2005, pp. 6–7 (items 18 and 20), accessed 5 November 2014.

[64].              G Brandis, ‘Second reading speech: Counter-Terrorism Legislation Amendment Bill (No. 1) 2014’, Senate, Debates, 29 October 2014, pp. 62-65, accessed 5 November 2014; Explanatory Memorandum, CT Bill, op. cit., pp. 2, 14.

[65].              Gilbert + Tobin, op. cit., p, 1; NSW CCL and Muslim Legal Network (NSW), op. cit., pp. 14–16; N Butterfly, ‘Experts look to confirm killing of Aussie jihadist’, op. cit.; R Ananian-Welsh, ‘Security bill opens door to targeted killings and broader control orders’, The Conversation, 6 November 2014, accessed 14 November 2014.

[66].              D Wroe, ‘Intelligence law to help Defence target jihadists’, The Age, 30 October 2014, p. 8, accessed 6 November 2014.

[67].              T Abbott in D Hurst, ‘Tony Abbott says Australian forces’ aim is to ‘dislodge’ Isis [sic] from Iraq’, The Guardian, (online edition), 15 September 2014, accessed 6 November 2014.

[68].              J Bishop, ‘Answer to Question without notice: national security’, [Questioner: J Prentice], House of Representatives, Debates, 27 October 2014, accessed 7 November 2014; Australian Defence Force contribution to international coalition against ISIL, op. cit.

[69].              ‘Chief of Joint Operations media round table’ (video), Defence website, 5 November 2014, accessed 7 November 2014.

[70].              Ibid.

[71].              Australian Secret Intelligence Service (ASIS), Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, 13 November 2014, accessed 13 November 2014.

[72].              Explanatory Memorandum, CT Bill, op. cit., p. 2.

[73].              Ibid., p. 11.

[74].              Explanatory Memorandum, CT Bill, op. cit., p. 28.

[75].              S Benson, ‘Jihadist kingpin may be skittled’, Northern Territory News, 30 October 2014, p. 11, accessed 6 November 2014. A similar article appeared in the Daily Telegraph the same day.

[76].              Directions issued under section 8 are not publicly available, but a copy must be given to the IGIS as soon as practicable after they are given: Inspector-General of Intelligence and Security Act 1986, section 32B, accessed 7 November 2014.

[77].              ‘Security’ has the same meaning as in the Australian Security Intelligence Act 1979, in which it is defined to mean ‘(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 (aa) the protection of Australia’s territorial and border integrity from serious threats; 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) or the matter mentioned in paragraph (aa): Australian Security Intelligence Act 1979, section 4, accessed 6 November 2014.

[78].              G Brandis, ‘Second reading speech: Counter-Terrorism Legislation Amendment Bill (No. 1) 2014’, op. cit., p. 63.

[79].              ASIS, op. cit.

[80].              Ibid.

[81].              Explanatory Memorandum, CT Bill, op. cit., p. 28.

[82].              IGIS, op. cit., p. 6.

[83].              Ibid., p. 5.

[84].              Explanatory Memorandum, CT Bill, op. cit., p. 29.

[85].              IGIS, op. cit., p. 5.

[86].              Ibid., p. 6.

[87].              D Leyonhjelm, op. cit.; LCA, op. cit., pp. 24–26; NSW CCL and Muslim Legal Network (NSW), op. cit., pp. 12–14.

[88].              D Leyonhjelm, op. cit.

[89].              LCA, op. cit., pp. 24–26.

[90].              Explanatory Memorandum, CT Bill, op. cit., pp. 36, 38.

[91].              NSW CCL and Muslim Legal Network (NSW), op. cit., p. 13.

[92].              PJCIS, Advisory report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, Australian Parliament, Canberra, October 2014, p. 51 (Recommendation 8), accessed 3 November 2014.

[93].              LCA, op. cit., pp. 12–13; G Carne, op. cit., pp. 3–5.

[94].              LCA, op. cit., p. 13.

[95].              Explanatory Memorandum, CT Bill, op. cit., p. 24.

[96].              NSW CCL and Muslim Legal Network (NSW), op. cit., p. 9.

[97].              AHRC, op. cit., p. 6; LCA, op. cit., pp. 14–15.