Monica Biddington, Law
and Bills Digest
Domestic responses to terrorism are increasingly focused on enhancing jurisdictional cooperation between law enforcement agencies and building resilience and social cohesion in the community.
The Government has flagged further legislation to develop and maintain a rigorous national security program with a number of legislative initiatives and review of existing regimes.
Key events in the 44th Parliament
Significant changes were enacted to national
security and counter-terrorism laws during the last parliament, including:
- establishment of a data
- the introduction of a Special Intelligence Operation regime for Australian Security Intelligence Organisation (ASIO)
officers, which allows immunity from prosecution if a crime is committed during
the course of the operation. The regime also introduced a prohibition on the
publication of information about special
intelligence operations (the oft-called ‘journalist’s offence’)
- increases to the powers of ASIO and the Australian Security Intelligence Service
expansion of both the purposes of the control order regime and the grounds on which
orders may be made and
- the introduction of an offence of entering a declared
area in which a terrorist organisation is engaging in hostile activity.
The Government attempted
to abolish the Office of
the Independent National Security Legislation Monitor (INSLM). The repeal Bill
was removed from debate following strong opposition. In December 2014, Roger
Gyles AO QC was appointed to the Office.
Issues for the new Parliament
Australia’s national security legislation is
subject to oversight by multiple independent and parliamentary scrutiny
mechanisms. These include: the INSLM, the Parliamentary Joint Committee on
Intelligence and Security (the PJCIS), the Senate Legal and Constitutional
Affairs Committee, the Senate Foreign Affairs, Defence and Trade Committee, the
Parliamentary Joint Standing Committee on Foreign Affairs and Trade and the Parliamentary
Joint Standing Committee on Treaties.
While there is generally bipartisanship on matters
relating to national security, there is a continued imperative for the detailed
scrutiny, oversight and accountability of the Parliament’s response to national
As part of this, there are also a number of
statutory reviews that will be considered during the life of the 45th
The PJCIS must complete a review of the following counter‑terrorism
and national security legislation by 7 March 2018: questioning and detention powers that arise under Part III of the Australian Security
Intelligence Organisation Act 1979 (ASIO Act), Division 3A of
Part 1AA of the Crimes
Act 1914 (Crimes Act) (terrorism-related stop, search and
seizure powers ), Divisions 104 and 105 of the Criminal Code Act
1995 (control orders and preventative detention orders) and other
provisions of the Criminal Code including sections 119.2 and 119.3
(relating to foreign incursions and recruitment).
accepted a recommendation from the PJCIS’s
report on the Counter-Terrorism Legislation Amendment (Foreign Fighters)
Bill 2014 that the INSLM also review the regime. The INSLM is required
to review the same specified legislation by 7 September
2017. The INSLM is presently conducting a
review of Division 3 of Part III of the ASIO Act (questioning and
detention for terrorism matters), the powers of the Australian Federal Police
under Part IC of the Crimes Act (relating to the investigation of
Commonwealth offences), and the coercive powers of the Australian Criminal
Intelligence Commission. The INSLM has also indicated that he will be
conducting a review of the effectiveness of the legislative changes in
connection with the terrorist threat posed by Australians who may travel to
participate in conflicts abroad.
The PJCIS is required to commence a review of the
data retention regime by 13 April 2019 and to complete a review into the
operation, effectiveness and implications of the revocation of citizenship
provisions in the Australian
Citizenship Act 2007 by 1 December 2019.
In December 2015, COAG agreed to prioritise work to
implement nationally consistent legislation on pre-charge detention, consistent
with recommendations of the Australia-New Zealand Counter-Terrorism
In April 2016 COAG agreed, in principle, to the
NSW model as the basis for a strengthened, nationally consistent, pre-charge
detention scheme for terrorism suspects, with the ACT reserving its position.
NSW will introduce the legislation and consult with other jurisdictions.
The Commonwealth has not stated its positon on this,
nor whether it is considering changes to the detention provisions in Division 2
of Part 1C of the Crimes Act.
Post-sentence detention of convicted terrorists
In April 2016, at a COAG meeting, there was agreement
to establish a regime that would ensure the continued detention of convicted
terrorists past their sentence end date. Attorney-General George Brandis
has said that these laws could be similar to those in some states which keep sex offenders in jail after they have served
their sentence, if they still pose a serious risk to the community. On 5
August 2016, the Attorney-General announced that all Australian Attorneys- General had
reached an in-principle agreement to the proposed scheme. He indicated that
the Government intends to introduce legislation to enact the proposed scheme in
the Commonwealth Criminal Code, and to refer this to the PJCIS for
inquiry and report.
This legislation may raise constitutional issues, particularly with
respect to its compatibility with the judicial power of the Commonwealth in
Chapter III of the Constitution. In Fardon v
Attorney-General (Qld) 2004 the High Court upheld the
validity of state legislation authorising the post-sentence detention of
dangerous sex offenders, but much will depend on an assessment of the
provisions of the particular legislation.
The catalyst for this policy has been twofold.
Firstly, the incarceration of terrorism offenders from more than 10 years ago is
due to end and there may be evidence that could be presented to a court that
demonstrates that there are continued and varied risks that a terrorism
offender poses once released back into the community. Secondly, Prime Minister
Malcolm Turnbull is advocating
for changes and greater
diligence in the wake of atrocities overseas in Orlando,
United States and Nice,
If a regime is introduced to continue a convicted
terrorist’s time in prison, there would need to be safeguards for the
individual, including periodic review and evidence presented to a court that shows
the person continues to pose an unacceptably high risk to the community. The
proposal raises questions around how flexible that period of extended detention
might be and whether penalties for terrorism offences should be increased in
the first instance.
In contrast, the United Kingdom (UK) has a notification regime
where a person who has been released after serving a sentence for terrorism
offences is required to notify police of changes to personal detail and travel
from the previous Parliament
The Government has
confirmed it will be reintroducing national security legislation that
lapsed at the prorogation of Parliament. This includes the Counter-terrorism
Legislation Amendment Bill (No.1) 2015, which, among other things, would
reduce the minimum age at which a control order may be imposed from 14 to
16 years of age. The Transport Security Amendment (Serious
or Organised Crime) Bill 2016 also lapsed at prorogation and is
likely to be reintroduced to enhance the preventive mechanisms in place to target
those who engage in serious or organised crime through the use of aviation and
In the area of telecommunications security, the
Government is further
pursuing the information sharing and obligations between government and
telecommunications carriers and carriage service provides to ‘ensure greater
consistency, transparency and accountability for managing national security
risks across all parts of the telecommunications sector’. The Government will
continue to work to manage risks in this sector of espionage, sabotage and
foreign interference and legislation is anticipated to be presented to the new Parliament.
The Australian Government may also consider
prohibiting the publication of terrorist’s names and images. France is currently
deliberating whether this would deny the terrorists the glorification that
many of them may seek from their acts. Questions of censorship, balanced with
the reporting of facts, would prompt a robust debate in the Australian
See the separate article in this Briefing Book for
further detail on countering terrorism and violent extremism.
M Biddington and C Barker, National Security Legislation Amendment Bill (No.1) 2014, Bills digest, 19, 2014–15, Parliamentary Library, Canberra, 2014
C Barker, J Mills and J Murphy, Counter-Terrorism Legislation Amendment Bill (No.1) 2015, Bills digest, 80, 2015–16, Parliamentary Library, Canberra, 2016.
A Lynch, N McGarrity and G Williams, Inside Australia’s anti-terrorism laws and trials, Sydney, 2015.
G Brandis, Meeting of Attorneys-General on
post-sentence preventative detention
, meeting communique, Canberra, 5 August 2016.
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