Bills Digest no. 80 2015–16
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Cat Barker, Foreign Affairs, Defence and Security Section
Jonathan Mills and Jaan Murphy, Law and Bills Digest Section
15 February 2016
Contents
The
Bills Digest at a glance
Purpose and structure of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Amendments relating to control orders (Schedules 2,
3, 4 and 15)
Monitoring, protective and preventative powers when a
person is subject to a control order (Schedules 8, 9 and 10)
Offence of advocating genocide (Schedule 11)
Preventative detention orders (Schedules 5
and 6)
Other provisions
Concluding comments
Appendix : Summary of powers exercisable under proposed
Part IAAB of the Crimes Act as inserted by Schedule 8 of the Bill
Date introduced: 12
November 2015
House: Senate
Portfolio: Attorney-General
Commencement: 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 Counter-Terrorism Legislation
Amendment Bill (No. 1) 2015 (the Bill) is the fifth Bill to be introduced
since mid-2014 in a series of reforms to national security and
counter-terrorism laws. The Government states the Bill would address issues
that have come to light through recent counter-terrorism investigations and
operational activity.
Many of the proposed amendments relate to control
orders. Key amendments relating to control orders include:
- lowering
the minimum age at which a control order may be imposed from 16 to
14 years of age (Schedule 2)
- where
a person is required under a control order to wear a tracking device, requiring
the court to impose a specific set of additional requirements on the person
that is designed to ensure the device remains in good working order (Schedule 3)
- introducing
new ‘monitoring powers’ that would allow police to use entry, search and
seizure, telecommunications interception and surveillance device powers in
relation to a person subject to a control order to monitor their compliance
with the order and prevent terrorist related conduct (Schedules 8, 9
and 10)
- allowing
courts to consider information that is not disclosed to the person subject to a
control order or their representative for security reasons, in control order
proceedings (Schedule 15).
Key issues for debate relating to the proposed amendments
to the control order regime include:
- whether
lowering the minimum age is justified, reasonable and appropriate
- the
adequacy and appropriateness of the additional safeguards introduced alongside
the reduced minimum age, including the proposed scheme for court-appointed advocates
- the
appropriateness of providing police access to coercive powers normally
restricted to investigations or monitoring compliance with regulatory schemes
for broader preventative and protective purposes, and whether the associated
thresholds are adequate
- whether
the proposed monitoring powers are accompanied by sufficient safeguards and
accountability mechanisms and
- the
impact of restricting access to information in control order proceedings on
procedural fairness, and whether additional safeguards such as a system of
security-cleared ‘special advocates’ should be considered.
Schedule 11 of the Bill would introduce a new
offence of advocating genocide. Stakeholders have questioned the need
for the offence, which would appear to overlap with several existing offences,
and raised concerns about the potential for the offence to limit legitimate
discussions of genocide related topics.
Other measures in the Bill include amending the threshold
for imposing a preventative detention order by redefining when a
terrorist attack is considered imminent (Schedule 5); amending how
thresholds relating to the application and issue of delayed notification
search warrants apply (Schedule 14); amending the definition of
advocating the doing of a terrorist act for the purpose of refusing
classification to a publication, film or computer game (Schedule 13);
allowing the Australian Security Intelligence Organisation to provide security
assessments directly to state and territory governments and authorities (Schedule 12);
and allowing taxation officers to disclose protected taxation information
to Australian Government agencies for national security-related purposes (Schedule 17).
Recent reforms to Australia’s already strong legislative
framework for protecting national security and countering terrorism have
included new and expanded offences, additional and broader powers for law
enforcement and intelligence agencies, and new grounds on which dual nationals
may lose their Australian citizenship. It is important for the measures
proposed in the Bill to be considered in the broader context of both continually
evolving national security threats and the cumulative impacts of the most
recent series of reforms on personal freedoms, privacy, court processes and
social cohesion.
The purpose of the Counter-Terrorism Legislation Amendment
Bill (No. 1) 2015 (the Bill) is to:
- amend
the Criminal Code Act 1995 (Criminal Code) to:
- expand
the control order regime, including by lowering the minimum age at which a
control order may be imposed from 16 to 14 years of age (Schedules 2,
3, 4 and 7)
- modify
the preventative detention order regime, including by amending the threshold
for imposing a preventative detention order (Schedules 5, 6 and
7)
- introduce
a new offence of advocating genocide (Schedule 11) and
- include
additional exemptions relating to legal representation for certain terrorist
organisation offences (Schedule 1)[1]
- amend
the Crimes Act 1914 (Schedule 8), Telecommunications
(Interception and Access) Act 1979 (Schedule 9) and Surveillance
Devices Act 2004 (Schedule 10) to introduce new monitoring
powers in relation to persons subject to control orders[2]
- amend
the Australian Security Intelligence Organisation Act 1979 and the Administrative
Appeals Tribunal Act 1975 to allow the Australian Security Intelligence
Organisation (ASIO) to provide security assessments directly to state and
territory governments and authorities (Schedule 12)[3]
- amend
the Classification (Publications, Films and Computer Games) Act 1995 (Classification Act)
to amend the definition of advocating the doing of a terrorist act (for the
purpose of refusing classification) to be the same as the definition in the Criminal
Code (Schedule 13)[4]
- amend
the Crimes Act to amend how thresholds relating to the application and
issue of delayed notification search warrants apply (Schedule 14)
- amend
the National Security Information (Criminal and Civil Proceedings) Act 2004
(NSI Act) and the Public Interest Disclosure Act 2013 to allow
courts in control order proceedings to consider information that is not
disclosed to the controlee or their representative for security reasons (Schedule 15)[5]
- amend
the NSI Act to provide that orders made by a court under that Act in
relevant security related circumstances will override any disclosure
requirements provided by the regulations (Schedule 16) and
- amend
the Taxation Administration Act 1953 to allow taxation officers to
disclose protected taxation information to Australian Government agencies for national
security-related purposes (Schedule 17).[6]
The Bill is the latest in a series of national security
and counter-terrorism laws introduced since mid-2014. Previous reforms have
included new and expanded offences, additional and broader powers for law
enforcement and intelligence agencies, and new grounds on which dual nationals
may lose their Australian citizenship.[7]
In his second reading speech, the Attorney-General stated
that the measures in this Bill ‘reflect lessons learned from recent
counter-terrorism investigations and operational activity’.[8]
On 12 September 2014, Australia raised its terror
threat level from medium to high.[9]
In November 2015, the revised National Terrorism Threat Advisory System altered
this to ‘probable’, meaning there is credible intelligence indicating
individuals or groups have both the intent and capability to conduct an attack.[10]
Since the threat level was raised, there has been the stabbing of two police
officers in Melbourne (September 2014), the Martin Place siege
(December 2014) and the murder of a police accountant in Parramatta
(October 2015).[11]
Over the same period, the Australian Federal Police (AFP) and state police have
conducted ten counter-terrorism operations, resulting in over 30 people
being charged with terrorism and other offences.[12]
ASIO was managing around 400 high priority counter-terrorism investigations as
at June 2015, compared to around 200 in June 2014.[13]
At the time of the Bill’s introduction, estimates
indicated there were around 110 Australians fighting or engaged with terrorist
groups in Iraq and Syria and 190 providing support or facilitation from
Australia, and that at least 41 Australians had lost their lives in the
conflict.[14]
As at July 2015, around 30 Australians had returned from the conflict,
none of whom had since been ‘involved in activities of security concern’ or
convicted for terrorism-related offences.[15]
As at December 2015, 145 Australian passports had been cancelled, 26
suspended and 22 refused to prevent Australians travelling to Iraq and Syria to
take part in the conflict.[16]
The increase in operational activity has meant that agencies
are gaining experience with powers that have been available since 2005, but were
rarely used, or not used at all, until recently. Four control orders were
issued in the twelve months from December 2014 to December 2015,
having previously been used only twice—once in 2006 and once in 2007.[17]
Preventative detention orders (PDOs) were used for the first time in
September 2014 as part of Operation Appleby. Three men were detained under
PDOs issued under NSW law on 18 September 2014 and released the next
day, reportedly without charge.[18]
In April 2015, an 18 year old was detained for several days
under a PDO issued under Victorian law in relation to his alleged involvement in
the ANZAC Day plot. The PDO was revoked when he was charged with a terrorism
offence.[19]
The prosecution for that charge was dropped in August 2015, but the man
remains subject to a control order issued in September 2015 and was
sentenced to a 12 month good behaviour bond without conviction for weapons
offences in November 2015.[20]
The Attorney-General also noted the Bill would give effect
to ‘a number of recommendations from the Council of Australian Governments [COAG]
Review of Counter-Terrorism Legislation’.[21]
However, the extent to which recommendations from that review are reflected in
the Bill is minimal. Schedules 1 and 4 will partially implement
recommendations 20 and 28 respectively, as outlined in the ‘Other provisions’
and ‘Control orders’ (see ‘Issuing court’) sections of this Digest below. COAG
released its response to the COAG Review in October 2014.[22]
Of the 44 recommendations relevant to Commonwealth legislation, 15 were
supported (five of which were for no change), four were supported in part, and
six were supported in principle.[23]
While some recommendations were addressed through the Counter-Terrorism
Legislation Amendment (Foreign Fighters) Act 2014 (Foreign Fighters Act), several of the recommendations supported or partially
supported would remain outstanding if this Bill is passed.[24]
Parliamentary Joint Committee on
Intelligence and Security
The Bill has been referred to the Parliamentary Joint
Committee on Intelligence and Security (PJCIS) for inquiry and report by 15 February 2016.
Details of the inquiry are at the inquiry
homepage.[25]
Senate Standing Committee for the
Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
(Scrutiny of Bills Committee) raised concerns in relation to Schedule 2
(control orders for people 14 to 17 years of age), Schedule 5
(preventative detention orders), Schedules 8–10 (monitoring powers
for persons subject to control orders), Schedule 11 (offence of
advocating genocide), Schedule 14 (amendments to delayed
notification search warrants), Schedule 15 (restricting access to
national security information in control order proceedings) and Schedule 17
(disclosure of protected tax information).[26]
Among the key concerns it raised were:
- the
impact of proposed restrictions on access to national security information
in control order proceedings on access to natural justice, including the right
to a fair hearing, and the potential need for further safeguards in these
situations [27]
- the
operation of the proposed court-appointed advocate scheme for minors subject to
control orders, including how independence will be secured in practice,
and in what circumstances an advocate should be permitted to disclose
information contrary to a child’s wishes[28]
- in
relation to preventative detention orders, the proposed shift in the
test that applies to when a terrorist attack is considered imminent ‘from an
expectation that an attack will occur to a conclusion about the capability for
an attack to be carried out’[29]
and
- the
ability to use things seized, information obtained or a document produced under
the proposed monitoring powers for persons subject to control orders in
certain circumstances where the relevant interim control order has been
declared void by a court.[30]
The Scrutiny of Bills Committee also included general
comments on the appropriateness of extending the control order regime before
the Independent National Security Legislation Monitor (INSLM) has completed a
current inquiry into safeguards ‘attaching to the control order regime’, and on
the significant impact the proposed expansion of telecommunication interception
and surveillance device powers may have on personal rights and liberties.[31]
The INSLM has since completed an interim report on control order safeguards, as
noted in the ‘Position of major interest groups’ section below.
As at the time of writing this Digest, the Opposition did
not appear to have publicly stated its support or otherwise for the measures in
the Bill. However, it had indicated its continued willingness to work with the
Government on proposed national security measures through the Parliamentary committee
process.[32]
In October 2015, ahead of the Bill’s introduction,
the Australian Greens questioned the need to lower the minimum age at which
control orders may be imposed and called on the Government to provide evidence
to support its proposal.[33]
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.
In addition, on 5 February 2016, the Attorney-General released
an interim report by the INSLM on his inquiry into the safeguards that attach
to control orders.[34]
The report addresses only whether security-cleared ‘special advocates’ should
be introduced to participate in control order proceedings—an issue of
particular relevance in the context of proposed amendments in Schedule 15
to how national security information is dealt with in those proceedings.[35]
The INSLM also commented in the report on lowering the minimum age for control
orders and the proposed monitoring powers.
A summary is provided below, with stakeholder views also
incorporated into the analysis of the Bill’s Schedules where relevant.
Control orders
Councils for civil liberties (in a joint submission), the
Law Council of Australia (LCA), Gilbert + Tobin Centre of Public Law (Gilbert +
Tobin), Amnesty International, and the Victorian Bar and Criminal Bar
Association of Victoria (Victorian Bar and CBA) restated their ongoing
opposition to the control order regime as a whole in their submissions to the
PJCIS inquiry into the Bill.[36]
A number of submitters also considered any further changes to the regime should
be deferred until after the INSLM has concluded his current inquiry into
safeguards.[37]
Lowering the minimum age to
14 years old
The proposal to lower the minimum age for control orders attracted
a lot of attention when it was first formally announced in October 2015.[38]
Several Muslim community representatives expressed
concerns that extending control orders to people as young as 14 years of
age could be counterproductive, further alienating already disaffected
teenagers and damaging community-police relations.[39]
Those concerns were shared by the National Children’s Commissioner, who also
considered control orders had the potential to disrupt children’s education and
participation in community life and argued it was preferable to work with
communities to divert children from antisocial pathways.[40]
Similar objections are set out in the submissions of the Muslim Legal Network
(NSW), the Victorian Bar and CBA and councils for civil liberties to the PJCIS
inquiry into the Bill.[41]
The former INSLM, Bret Walker SC, stated that in terms of
an appropriate minimum age, there is no ‘magic number’, but that there was no
evidence on which to reasonably argue that this measure would make Australia
safer.[42]
The LCA and some other legal experts have raised similar questions about the
likely efficacy of the measure.[43]
Professor Greg Barton argued that control orders could
play a legitimate role in diverting young people from a violent extremist path,
but that they could only be effective if used alongside community-based
solutions: ‘Control orders are a temporary measure, not a permanent solution,
and if not used wisely can cause more harm than good. Working with family and
community, however, they may just make a vital difference’. [44]
Levi West considered control orders the ‘least bad’ option compared to
alternatives such as lowering the evidentiary threshold for prosecution, and
their application to some young people an ‘unfortunate necessity’.[45]
Human rights and legal organisations and councils for
civil liberties consider the amendments as introduced do not properly implement
Australia’s obligations under the United Nations Convention on the Rights of
the Child (CRC), including ensuring the interests of the child are a
primary consideration in all proceedings.[46]
While the introduction of court appointed advocates for
minors is intended to operate as a safeguard, some human rights and legal
organisations raised concerns in relation to the proposed scheme, including
that it could adversely impact the child instead of helping to protect his or
her interests.[47]
The INSLM agreed, stating ‘[i]t is not unreasonable’ to see the provisions as
drafted ‘as potentially being an aid to investigation by the authorities’.[48]
Monitoring powers
The Australian Human Rights Commission (AHRC) and the
Muslim Legal Network (NSW) are opposed to the proposed monitoring powers in Schedules 8,
9 and 10. They do not consider persons subject to control
orders should be subject to powers such as entry, search and seizure,
telecommunications interception and surveillance devices in the circumstances
proposed in the Bill.[49]
The Muslim Legal Network (NSW) considers Schedule 8 goes well
beyond monitoring compliance with orders and ‘is clearly designed to operate as
an investigative extension of the control order provisions’.[50]
The INSLM took a similar view, stating ‘[t]he details of the potential
monitoring blur, if not eliminate, the line between monitoring and
investigation’.[51]
The INSLM further considered:
The case for control orders is weakened if control orders are
of little utility without such far reaching surveillance. It is difficult to
imagine such provisions being applied to an accused on bail. The significance
for present purposes is to emphasise the seriousness of the impact upon a
person of the grant of a control order if these changes come into force and the
consequent necessity for proper safeguards of the interests of a potential
controlee.[52]
While not opposing the monitoring powers entirely, the LCA
and Gilbert + Tobin consider the proposed thresholds at which they could be
accessed to be too low and the powers themselves too broad, including in their
potential impact on third parties.[53]
Councils for civil liberties raised similar concerns, and recommended the
provisions not proceed in their current form.[54]
Gilbert + Tobin also considers the amendments could make
it more likely for a court to conceive of the control order regime as punitive
and therefore unconstitutional.[55]
National security information in
control order proceedings
The AHRC, Gilbert + Tobin, the Muslim Legal Network,
Australian Lawyers for Human Rights (ALHR) and the LCA also stated concerns
with Schedule 15. In particular, that withholding information from the
defence in control order proceedings posed a threat to procedural fairness by
not allowing a defendant to rebut allegations or otherwise adequately defend
themselves. [56]
Gilbert + Tobin stated support for the recommendation from
the 2013 COAG Review that ‘(t)he applicant must be given sufficient information
about the allegations ... to enable effective instructions to be given.’[57] Gilbert + Tobin also noted the difficulties
inherent in creating a special advocate system and the fact that the United
Kingdom model has been criticised for not affording fairness.[58]
The LCA recommended that the consideration of a special
advocate regime in the forthcoming report of the INSLM should be taken into
consideration.[59]
The AHRC called for a special advocates system, as well
legal representatives with appropriate security clearance to be permitted to
take part in control order proceedings, and for a legislated minimum standard
of information to be provided to a control order subject in order to permit
allegations to be challenged.[60]
The INSLM, while acknowledging debate in the UK over the
success of the system, also expressed support for a special advocates system.
The INSLM Report recommended that amendments relating to special court orders
for control order proceedings should not come into force until a system of
special advocates had been established for the control order regime. [61]
Other measures
Preventative detention orders
Some stakeholders raised concerns about the proposed
change to when a terrorist act is considered to be imminent for the purposes of
the preventative detention order (PDO) regime. The amendment in Schedule 5
is characterised in the Explanatory Memorandum as clarifying the threshold that
must be met.[62]
However the AHRC, LCA and councils for civil liberties consider it would lower
the threshold in such a way as to make PDOs available in a much broader range
of circumstances, taking the scheme beyond the purpose for which it was
enacted.[63]
Gilbert + Tobin continues to object to the PDO regime as a
whole, but does not oppose this amendment.[64]
Offence of advocating genocide
Some stakeholders raised concerns that the offence of
advocating genocide proposed in Schedule 11 may infringe on free speech
and could limit legitimate discussions of related topics. Submissions also
pointed out that several existing related offences appeared to adequately
criminalise the behaviour and it was not clear what benefit the new offence
would provide.[65]
Stakeholders also noted that the threshold required for
proving the offence was inappropriately low, particularly as the person need
not intend that the genocide be committed, and should be in line with those for
incitement and urging violence.[66]
Classification of publications
The LCA, Blueprint for Free Speech and councils for civil
liberties raised concerns with the proposal to amend the definition of
advocating the doing of a terrorist act in the Classification Act (for
the purpose of refusing classification) to be the same as the current, broader definition
in the Criminal Code. Concerns centred on the potential for the more expansive
definition to limit freedom of expression by also restricting legitimate
discussion of the issues. Blueprint for Free Speech also questioned whether the
change would have the desired impact on public safety and the LCA suggested
that if the offence is to remain, it ought to be consistent with a revised,
narrower definition in the Criminal Code.[67]
The Explanatory Memorandum states that the Bill will not
have a financial impact.[68]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s
compatibility with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of that Act. The Government
considers that the Bill is compatible.[69]
However, the Bill’s compatibility with those human rights and freedoms has been
questioned by the Parliamentary Joint Committee on Human Rights (as per below)
and several human rights organisations (as per ‘Position of major interest
groups’ above).
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights (PJCHR) limited
its consideration to the most serious human rights issues in Schedule 2
(control orders for people 14 to 17 years of age), Schedule 5
(preventative detention orders), Schedules 8–10 (monitoring powers
for persons subject to control orders) and Schedule 15
(restrictions on access to national security information in control order
proceedings) of the Bill. [70]
The Committee considered there were ‘pervasive shortcomings’ in the Statement
of Compatibility in terms of the justification and reasoning provided for the
proposed measures.[71]
Accordingly, it sought additional justification from the Attorney-General on
whether the limitations on human rights imposed in those Schedules are
reasonable and proportionate and for Schedules 2, 5 and 15,
evidence also of the particular problems the measures are designed to address
and whether there is a rational connection between those problems and the
proposed measures.[72]
In relation to control orders, the PJCHR noted
concerns it had about the proportionality of the control order regime more
broadly before addressing the amendments proposed in the Bill.[73]
The Committee’s key concerns about the amendments to the control order regime were:
- the
lack of detailed explanation as to why terrorism threats posed by 14 to
15 year olds cannot be addressed through existing measures
- the
fact that the interests of the child are not required to be a primary
consideration (as stipulated by the CRC)
- limitations
on young people’s right to liberty, which could potentially extend to
separation from a person’s family or a requirement not to attend a particular
school and
- the
impact of the proposed court-appointed advocate scheme on the rights of
children to be heard in judicial and administrative proceedings.[74]
In relation to the proposed restrictions on access to
national security information in control order proceedings, the PJCHR noted
that the restrictions would limit the right to a fair hearing and sought advice
from the Attorney‑General as to whether there is evidence to show a
genuine need for the changes, particularly whether the existing powers to
redact information or exclude witnesses under the NSI Act and the Criminal
Code are insufficient.[75]
In addition, the PJCHR expressed concerns over the
suitability of excluding a security-cleared legal representative from a hearing
and for allegations to be made without providing sufficient information for the
subject to rebut the allegations.[76]
The PJCHR disagreed with the Government’s assessment that
the proposed amendments to the preventative detention order regime do
not impact the right to freedom from arbitrary detention and arrest, arguing
that they lower rather than clarify the test that applies to when a terrorist
attack is considered imminent.[77]
The PJCHR also sought additional information to assist it in
determining whether limitations on the right to privacy and a fair trial and
hearing resulting from the new monitoring powers proposed in relation to
persons subject to control orders are proportionate.[78]
Control orders have been part of Australian anti-terrorism
legislation since December 2005.[79]
Reforms passed in 2014 expanded both the grounds on which orders may be sought
and the purposes for which they may be granted.[80]
There are now several grounds on which an order may be sought, most of which
relate not to what might be prevented by an order, but to what the police and
the court are satisfied a person has already done (such as having trained with
a terrorist organisation, having engaged in hostile activity in a foreign
country or provided support for someone else to do so).[81]
Further, while the obligations, prohibitions and restrictions to be imposed on
a person under a control order must still serve some protective or preventative
purpose, that now extends to preventing support for, or facilitation of, a
terrorist act or engagement in hostile activity in a foreign country.[82]
The types of obligations, prohibitions and restrictions that may be imposed
under a control order include a curfew at a particular address, wearing of an
electronic tracking device, restrictions on use of telecommunications, prohibitions
or restrictions on associating or communicating with certain people and regular
reporting to police.[83]
Lowering the minimum age for a
control order to 14 years old (Schedule 2)
Currently, a control order may not be applied to anyone
under 16 years of age.[84]
Schedule 2 of the Bill will lower the minimum age at which a
control order may be imposed from 16 to 14 years of age.[85]
Policy position
Australian security intelligence and law enforcement
agencies have advised that terrorist organisations, particularly ISIL, are
targeting propaganda and recruitment activities at a younger audience than was
previously the case.[86]
The Attorney-General told the Senate he had signed warrants under the ASIO
Act in relation to people as young as 14 years of age ‘on more than one
occasion’.[87]
The AFP Commissioner confirmed in October 2015 that a twelve year old boy
was ‘on the police radar’ in relation to possible terrorist activity.[88]
While not previously on the agencies’ radar and therefore not a candidate for a
control order, the shooter who killed NSW Police accountant Curtis Cheng,
Farhad Jabar, was 15 years old.[89]
Another 15 year old was charged with conspiracy to conduct an act in
preparation for a terrorist act on 10 December 2015.[90]
The AFP considers that control orders have a role to play in
diverting young people who are beyond the point where they might be receptive
to voluntary intervention from contact with the formal criminal justice system:
Lower intensity interventions such as voluntary participation
in community-based programs are appropriate where a person is not considered to
pose a risk to public safety. However, as valuable as such programs are, they
are not appropriate when a person is not willing to voluntarily change their
behaviours, and their activities indicate that the person is further down the
path of radicalisation and is at risk of engaging in terrorist activity.
Control orders can play an important role in providing a mechanism to manage
and mitigate the risk posed by an individual where laying charges is not
justified by the evidence available at a particular point in time, and the
person would otherwise be unwilling to take steps to change their behaviour.[91]
The age of criminal responsibility under Australia federal
law is generally set at 14 years of age (though a child aged 10 years or
more may be held criminally responsible if it can be proven that the child knew
his or her conduct was wrong).[92]
Counter-arguments
As noted in the ‘Position of major interest groups’
section above, some stakeholders have questioned the efficacy of control orders
generally, and therefore the expansion of the regime, and cautioned that using
control orders against younger teenagers could be counter-productive.
The PJCHR notes there is some doubt about whether control
orders are an effective tool to begin with, but concedes there have been
‘significant recent developments in the counter-terrorism space’.[93]
Nonetheless, the PJCHR expressed serious concerns about whether the extension
of the scheme to children aged 14 and 15 years is a proportionate response,
rationally connected to a legitimate objective.[94]
In relation to proportionality, it notes the rejection (by the Australian
Government and COAG) of the COAG Review’s recommendation that a court be
required to be satisfied that any obligations, prohibitions and restrictions
‘constitute the least interference with a person’s liberty, privacy or freedom
of movement that is necessary in all the circumstances’.[95]
The PJCHR also questions any justification of extending the regime to 14 and
15 year olds on the basis that it is intended to be rarely used, stating:
... a control order may be granted in circumstances that are
much broader than seeking to stop a terrorist act. In this respect, to
characterise the regime as providing for 'extraordinary measures' does not
reflect the breadth of circumstances in which a control order may be granted,
including that such an order would substantially assist in the prevention of,
the support for, or the facilitation of, a terrorist act. Such support or
facilitation does not need to be direct or critical to the carrying out of the
terrorist act, and the terrorist act does not need to be imminent.[96]
Concerns about the necessity and proportionality of
imposing control orders on young people were also raised in submissions to the
PJCIS by human rights and legal organisations, including the AHRC and the LCA.[97]
Prior to legislative amendments made in 2014, orders could
be made only for the purpose of protecting the public from a terrorist act and
only where a court was satisfied it would substantially assist in preventing a terrorist
act or that the person had provided
training to, or received training from, a listed terrorist organisation.[98] Parliament may wish
to consider whether control orders should be available for younger people only
in those more limited circumstances instead of the much broader range of
circumstances in which they are now available.
Maximum period for control orders
imposed on minors
The only additional protection currently in place for
minors subject to a control order is the maximum time the order may be in effect,
which is three instead of twelve months for persons 16 or 17 years
of age.[99]
A maximum period of three months will continue to apply to control orders
imposed on persons under 18 years of age. As is currently the case, this
does not prevent the making of successive control orders in relation to the
same person.[100]
Councils for civil liberties recommended there be a limit of one successive
control order able to be made against a person under 18 years of age,
while the Muslim Legal Network (NSW) recommended they not be permitted at all
in relation to young people.[101]
AGD responded to those suggestions, stating that ‘[t]he function and purpose of
control orders would be seriously hindered’ if successive orders could not be
made when the relevant thresholds were met.[102]
Court appointed advocates for
minors
The Bill will introduce independent court appointed
advocates for persons 14 to 17 years of age. If a court makes an interim
control order in relation to a person 14 to 17 years of age, it must
appoint a lawyer to be the ‘court appointed advocate’ of that person.[103]
The court must make an order appointing the advocate as soon as practicable after
making an interim control order. As the AHRC points out, this will mean the
advocate has no ability to represent the child’s interests in the initial
decision to make an interim order.[104]
The matters in relation to which a lawyer must be
appointed as the person’s advocate are:
-
the interim control order and
-
any proceedings under Division 104 of the Criminal Code
Act 1995 (Criminal Code) relating to confirmation of the control
order, and if it is confirmed, a variation or revocation of the order.[105]
The court may also make any other orders it
considers appropriate to secure independent advocacy for the person in relation
to the above matters.[106]
The advocate’s role is set out in proposed
subsections 104.28AA(2) and (3). The advocate must form and act
on an independent view of what is in the child’s best interests. While
the advocate must ensure any views expressed by the child are fully put before
an issuing court, the advocate is not the child’s legal representative and is
not obliged to act on the child’s instructions. The appointment of the advocate
does not affect the child’s rights concerning their own legal representation.
The scheme for court appointed advocates for children in
the Bill is entirely separate and distinct from the system of special advocates
recommended by the COAG Review of Counter-Terrorism Legislation in 2013
(Recommendation 30) and supported more recently by the INSLM. The COAG Review
recommended the introduction of special advocates with security clearance who
could have access to national security information not disclosed to the subject
of an order and could advocate on the person’s behalf in closed proceedings
(this is discussed below in the context of proposed changes to the NSI Act).[107]
In contrast, court appointed advocates will receive the same information as the
subject of the control order.
While the scheme for court appointed advocates is intended
to operate as a safeguard, the PJCHR and submitters to the PJCIS inquiry into
the Bill have raised issues in relation to the proposed scheme, including that
it could adversely impact the child instead of helping to protect his or her
interests.
The Explanatory Memorandum states that the independent
advocate scheme is modelled on provisions in the Family Law Act 1975
that enable the appointment of an independent children’s lawyer.[108]
However, as the INSLM, Gilbert + Tobin and the Muslim Legal Network (NSW) point
out, the position of a child in family law proceedings is entirely different to
that of a child the subject of a control order in related proceedings:
Basically, the independent children’s lawyer provides the
child with a voice in proceedings where they would otherwise not have one. By
contrast, an application by the AFP to an issuing court for the making of a
control order over a child is a proceeding in which the child is without doubt
the primary party, confronted by the power of the state.[109]
Two aspects have attracted the greatest criticism for
their potential to hamper the right of a child to be heard in judicial
proceedings, the right to silence and the privilege against self-incrimination:
the advocate is not required to act on the child’s instructions, and may
disclose information to an issuing court against the child’s wishes.[110]
Further, the advocate is not required to consider the child’s maturity and
capacity before acting against his or her wishes.[111]
The AHRC and Gilbert + Tobin have also queried what sort
of qualifications and experience a lawyer would be required to have in order to
be appointed as a child’s advocate in this context, and on what information the
advocate would be basing his or her independent view on what is in the child’s
best interests.[112]
The latter suggests the proposed scheme should be abandoned and replaced with a
requirement for the issuing court to receive evidence directly from a court
appointed child welfare officer.[113]
In a supplementary submission, the Attorney-General’s Department (AGD) indicated
it may be possible to address Gilbert + Tobin’s concerns ‘by amending the
current role of the court appointed advocate and providing that the court may
call for evidence from an expert (such as a child psychologist or community
welfare officer) concerning what is in the best interests of the young person’.[114]
Muslim Legal Network (NSW) recommends the scheme not go
ahead, but that instead there be a requirement for all children capable of
providing instructions to have their own legal representation.[115]
The Scrutiny of Bills Committee sought the
Attorney-General’s advice on how the advocate’s independence will be secured in
practice, and further detail on the intended professional obligations of
advocates. The Committee questioned the lack of detail in the proposed
provisions in those respects.[116]
Consideration of the best interests
of the child
A court imposing an interim control order on a person 14
to 17 years of age will be required to take into account the best
interests of the child when determining whether each proposed obligation,
prohibition or restriction is reasonably necessary and reasonably appropriate
and adapted to the purpose of control order.[117]
This does not mean that an order may only be made if it is in the best
interests of the child. In giving consideration to the best interests of the
child, the court must consider particular rights and characteristics, including
the right to receive an education and the benefit of meaningful relationships
with family and friends, along with any other relevant matter.[118]
The requirement to take account of the child’s best
interests would also be applied to variations that would add further
obligations, prohibitions or restrictions to an existing control order.[119]
The PJCHR has questioned the compatibility of the
provisions with children’s rights, both because the child’s best interests are
not required to be a primary consideration (as per the CRC) and because they
are considered only in the context of the proposed obligations, prohibitions
and restrictions, not the initial determination of whether the order is
necessary.[120]
Those concerns are echoed in submissions to the PJCIS by the AHRC, LCA, Gilbert
+ Tobin, UNICEF Australia, ALHR and councils of civil liberties.[121]
In a supplementary submission, AGD states that the best interests of the child
should not be a consideration in that initial determination, as it would
‘fundamentally change the purpose of the test. This is why the Explanatory
Memorandum referred to the safety and security of the community as the
paramount consideration.’[122]
The PJCHR and Gilbert + Tobin also pointed out that while
the Explanatory Memorandum states that a child ‘will not be separated from
family and will be able to attend school’, there is nothing in the legislation to
prevent an order requiring a child not to attend a particular school or to be
separated from their family.[123]
Reporting
The Attorney-General is required to table an annual report
detailing statistical information relating to control orders made in each
financial year.[124]
The Bill will require that report to include those statistics specifically for
control orders made in relation to persons 14 to 17 years of age.[125]
Additional comment
The role of independent advocates, a key safeguard in
relation to young people, may be hampered by other changes proposed in Schedule 15
of the Bill, which will limit the access of the subject of a control order (and
their representatives) to sensitive information on the basis of which an order
is made.
While some additional safeguards are being provided in terms
of the making of a control order in relation to someone 14 to 17 years of
age, the ‘monitoring’ powers proposed in Schedules 8, 9 and 10
of the Bill and the offence for intentionally breaching a control order (with a
maximum penalty of five years imprisonment) will apply to minors in the same
way as adults.
Tracking devices (Schedule 3)
One of the obligations that may be imposed on a person
under a control order is the wearing of a tracking device.[126]
Schedule 3 of the Bill will provide that when a
court requires a person subject to a control order to wear a tracking device,
it must also impose a specific set of requirements (listed in proposed
subsection 104.5(3A)) on the person that is designed to ensure the
device remains in good working order. The requirements include authorising
entry to premises for the purpose of installing equipment necessary for the
operation of the device, reporting for inspections of the device and notifying
the AFP within four hours if the person becomes aware the device or related
equipment is not in good working order. One of the existing obligations that
may be imposed on a person subject to a control order is that of reporting to
specified persons at specified times. While it is possible police could attempt
to use the new provisions to add to the number of occasions on which a person
must report to police, the decision as to how often a person must report rests
with the issuing court.[127]
The additional requirements are to be imposed ‘by the
order’ (in the control order, as opposed to a separate order of the court).
This means that the offence of contravening a control order, punishable by up
to five years imprisonment, would apply to an intentional contravention of any
of those requirements.[128]
The Queensland Government is concerned about the
application of this measure to 14–17 year olds. In particular, it does not
consider it appropriate that a court not have the discretion to amend the
requirements to take account of the particular circumstances of a child.[129]
In response, AGD stated that given the requirement for a court to be satisfied
that all the obligations imposed in an order are reasonably necessary,
appropriate and adapted, a court would only require a child to wear a tracking
device if it was satisfied that all of those supplementary requirements met
that threshold.[130]
The LCA and Gilbert + Tobin have concerns about the lack
of clarity around what constitutes ‘reasonable steps’ (which the person will be
required to take to ensure the device and any associated equipment remain in
good working order).[131]
Muslim Legal Network (NSW) and Gilbert + Tobin also object to the requirement
to alert the AFP if a person becomes aware that the device or any associated
equipment is not in good order within four hours, arguing that a person may not
have the technical knowledge to fulfil such a requirement.[132]
Gilbert + Tobin suggest that if the amendments are proposed to address concerns
about devices being disabled, the more appropriate solution would be a clear
prohibition on interference with the device.[133]
Issuing courts (Schedule 4)
Schedule 4 of the Bill will remove the Family
Court from the list of courts authorised to make control orders. This partially
implements a recommendation of the COAG Review. Recommendation 28 was that
both the Family Court and the Federal
Circuit Court of Australia be removed, leaving the Federal Court as the only
issuing court.[134] Gilbert + Tobin support the
amendment, but argue the Government should adopt the COAG Recommendation in
full.[135] AGD stated that doing so
‘would limit the geographic locations for making applications and could delay
consideration of a control order application, resulting in ongoing risk to the
community’.[136]
ALHR takes a
different view. It considers that the Family Court would be the most
appropriate issuing court for control orders imposed on minors, as its members
have more experience considering the best interests of children, including
their human rights.[137]
Protecting national security
information in control order proceedings (Schedule 15)
Schedule 15 of the Bill will amend the NSI Act
to introduce new provisions providing courts with the power to make three new
types of orders in control order proceedings (under Division 104 of the Criminal
Code), allowing the court to consider information that is not disclosed to
the subject of the control order or their representative for national security
reasons (Schedule 16 will also amend the NSI Act, but those
amendments are not specific to control order proceedings, so are discussed
separately beginning page 37 of this Digest).
The Explanatory Memorandum states:
The objective of the NSI Act is to prevent the
disclosure of information in federal criminal proceedings and civil proceedings
where disclosure is likely to prejudice national security, except to the extent
that preventing the disclosure would seriously interfere with the
administration of justice. “National security” means “Australia’s defence,
security, international relations or law enforcement interests” (section 8).[138]
The NSI Act already contains protections for
sensitive information, such as the closed hearing requirements in existing
section 38I, non-disclosure certificates under section 38F or witness
exclusion certificates under section 38H.[139]
However, if a court determines to exclude information under the existing
provisions, under section 38L, such information cannot be used as evidence
in the substantive hearing.
The Explanatory Memorandum states that it may be necessary
to present such sensitive material to a court in order for a control order to
be obtained, that the existing protections may be inadequate in some
circumstances and that these issues, combined with the speed of
counter-terrorism investigations, necessitate the proposed changes:
In some circumstances, information will be so sensitive that
existing protections under the NSI Act are insufficient. For example,
critical information supporting a control order may reveal law enforcement or
intelligence sources, technologies and methodologies associated with gathering
and analysing information. The inadvertent or deliberate disclosure of such
material may endanger the safety of individuals as well as the general public,
or jeopardise sources and other intelligence methods. However, the inability to
provide such information to a court may mean that a control order is unable to
be obtained.
... In order for control orders to be effective, law
enforcement need to be able to act quickly, and be able to present sensitive
information (which is in the form of admissible evidence) to a court as part of
a control order proceeding without risking the integrity, safety or security of
the information or its source.[140]
Proposed subsection 38J(2) of the NSI Act will
set out the circumstances under which courts may control information in
documents in non-disclosure certificate hearings required by existing
subsection 38G(1) (civil non-disclosure certificates), and provides courts with
the power to order the non-disclosure of the information to anyone but the
court and impose closed hearing requirements as set out in existing section 38I.
This subsection will permit redacted versions of the documents to be disclosed
if ordered.
Proposed subsection 38J(3) will provide similar
powers relating to information in any form, and so does not deal with the
deleting of information from documents as provided in subsection 38J(2).
Proposed subsection 38J(4) will provide that where a
hearing is required under subsection 38H(6) (regarding an Attorney‑General’s civil witness exclusion
certificate), the court has the ability to order that a witness not be called
by a person or their representative, or that the closed hearing requirements in
38I must apply.
In making these decisions, proposed subsection 38J(5) will
require the court to consider whether there would be a prejudice to national
security if information was disclosed or a witness called, or if an order would
have a substantial adverse effect on the substantive hearing. The court may
also consider any other matter it considers relevant. The Explanatory
Memorandum notes that there is no requirement in revised section 38J for
the court to give the greatest weight to the need to protect national security. [141]
Noting that the object of the NSI Act is ‘to prevent
the disclosure of information in federal criminal proceedings and civil
proceedings where the disclosure is likely to prejudice national security,
except to the extent that preventing the disclosure would seriously interfere
with the administration of justice’, section 3 of the Act also provides that
courts must have regard to this object when exercising powers or performing
functions under the Act.[142]
This requirement would continue to operate in guiding the court’s exercise of
its discretion under the proposed changes.
Procedural fairness issues relating
to new section 38J
An article in The Conversation has referred to this
provision as ‘the Bill’s most concerning aspect’.[143] The article goes on to
point out the inherent threats to procedural fairness, claiming that allowing
the court to consider evidence that is not provided to the defence and cannot be
challenged is unfair and the Bill does not provide sufficient safeguards to
ensure a fair hearing. The article quotes UK Supreme Court Justice Lord Kerr in
a 2011 secret evidence case:
The central fallacy of the argument, however, lies in the
unspoken assumption that, because the judge sees everything, he is bound to be
in a better position to reach a fair result. That assumption is misplaced. To
be truly valuable, evidence must be capable of withstanding challenge. I go
further. Evidence which has been insulated from challenge may positively
mislead.[144]
As noted in the ‘Position of major interest groups’ section
of this Digest, many stakeholders voiced similar concerns.
AGD responded to the concerns raised in submissions,
highlighting the continued role and discretion of the court and stating that
‘it is important to consider the proposed amendments as a whole rather than
considering the sections in isolation. There are several protections built into
the legislation that mitigate any procedural unfairness.’[145] In particular, proposed
subsection 38J(1) requires the court, before making a special court order,
to be satisfied that the person has been given notice of the allegations, even
if the supporting information is withheld.
The AFP’s submission acknowledged the concerns relating to
the threat to a fair hearing, but noted various existing safeguards and stated
that such proceedings would not be brought unless the AFP considered there to
be a significant risk posed by the subject. The AFP also highlighted the
vulnerability of people who assist police with information and the need to
protect them from retaliation.[146]
The COAG Review considered this situation, and recommended
that special advocates, as used in the UK, should be provided to assist in
cases where sensitive information must be withheld from the accused in control
order hearings, and that as a minimum standard ‘the applicant must be given
sufficient information about the allegations against him or her to enable
effective instructions to be given in relation to those allegations.’[147]
The INSLM also supported this position, and recommended that
proposed section 38J should not come into force until a system of
special advocates had been established for the control order regime. The
Monitor noted that this provision of the Bill, given its focus on withholding
information from the accused, would have the most direct relation to the role
of a special advocate.[148]
The INSLM stated a system of special advocates would be a
reasonable means to address the information imbalance the proposed court orders
would create, and the consequent threats to ‘the principles of open justice, a
fair trial, a fair hearing and the equality of arms.’[149]
The Government, in the Explanatory Memorandum, claims that
existing statutory protections in the Criminal Code will preserve the
procedural rights of the person subject to the control order.[150]
As noted above, the purpose of the control order regime is
preventative. Obligations, prohibitions or restrictions are imposed so as to
protect the public and mitigate the likelihood of a person engaging in
terrorism-related activity. However, police do not currently have access to
specific powers to monitor the compliance of someone subject to a control order
with the obligations, prohibitions or restrictions it imposes.
Schedules 8, 9 and 10 will provide
access to powers normally used to investigate offences—entry, search and
seizure; telecommunications interception; and use of surveillance devices—for
the purpose of determining whether the conditions of a control order have been,
or are being, complied with.
However, as outlined below, those Schedules will also
provide for the use of those powers in relation to a person subject to a
control order for broader protective and preventative purposes. In addition,
information and evidence derived from the use of those powers can be used for a
range of purposes beyond monitoring compliance with the control order and
combating terrorism, even when a control order to which the relevant warrant is
linked is subsequently declared void.
Purposes for which monitoring,
protective and preventative powers would be available
The justification for the introduction of the powers
proposed in Schedules 8, 9 and 10 in the
Explanatory Memorandum and AGD’s and the AFP’s submissions to the PJCIS inquiry
focuses largely (in the case of the AFP, solely) on the need to ensure police
have adequate powers to properly monitor compliance with control orders.[151]
However, that justification concerns only one of four purposes for which the
powers will be available.
The new powers proposed for the Crimes Act, Telecommunications
(Interception and Access) Act 1979 (TIA Act) and Surveillance
Devices Act 2004 (SD Act) will also be available in relation to
a person subject to a control order for the purpose of:
-
protecting the public from a terrorist act
-
preventing the provision of support for, or the facilitation of,
a terrorist act and/or
-
preventing the provision of support for, or the facilitation of,
the engagement in a hostile activity in a foreign country.[152]
In a law enforcement context, entry, search and seizure powers
are provided either in the context of determining compliance with legislative
requirements (monitoring powers, generally granted to regulatory agencies) or
investigating a criminal offence, and telecommunications interception and
surveillance device powers only for the purposes of investigating criminal
offences.[153]
The amendments proposed by the Bill will expand the purposes for which such
powers may be used other than for investigations (which could be argued to be
reactive or protective in nature) and compliance, to uses that are largely preventative
in nature. Making those powers available to police to protect the public from,
or prevent commission of, a terrorist act or offence, albeit in the limited
context of persons subject to control orders, would be a significant new
development.
Parliament may wish to seek further justification for the
proposed ‘monitoring powers’ for purposes other than monitoring compliance with
a control order, particularly in light of the existing availability of those
powers to investigate terrorism offences relating to preparatory acts and the
offence of breaching a control order.[154]
Threshold for warrants authorising
powers
A related but somewhat separate issue is the particular
threshold that must be satisfied before the powers in Schedules 8, 9
and 10 may be used for one or more of the four purposes outlined in the
preceding section of this digest.
Under proposed sections 3ZZOA and 3ZZOB
of the Crimes Act in Schedule 8, a monitoring warrant may be
issued for one or more of the four purposes where the issuing officer is
satisfied that a search is ‘reasonably necessary’ for one of those purposes.
The provisions were modelled on the monitoring warrant provisions in the Regulatory
Powers (Standard Provisions) Act 2014, which were developed for
monitoring compliance with legislative requirements.[155]
Under changes to the TIA Act and the SD Act in
Schedules 9 and 10 respectively, a control order warrant may
be issued where the relevant issuing authority is satisfied that information to
be obtained under a warrant ‘would be likely to substantially assist’ in
connection to one of those purposes.[156]
Several stakeholders considered the proposed thresholds to
be too low. The LCA suggested that before a warrant could be issued under Schedule 8,
9 or 10 in relation to a person subject to a control order, there
should ‘as a minimum be a reasonable suspicion that the order is not being
complied with or that the individual is engaged in terrorist related activity’.[157]
Gilbert + Tobin and the AHRC also suggested amendments to make the thresholds
more stringent.[158]
AGD responded to the LCA’s and Gilbert + Tobin’s
suggestions, stating that requiring ‘reasonable suspicion’ would effectively
bring the threshold into line with that required to access powers for the
purpose of an investigation, meaning the provisions would no longer fill the
gap they are being proposed to address.[159]
While that argument is appropriate to the context of availability of the powers
to monitor compliance with a control order, it highlights the difficulties
associated with extending the proposed scheme to other purposes (as discussed
in the section above). In particular, the novelty of introducing powers to
serve a purpose somewhere in between the two well established purposes of
monitoring compliance with conditions and investigating a suspected offence
makes it difficult to establish an appropriate threshold at which they should
be available.
Whether powers should be available
in relation to interim control orders
The powers in Schedules 8, 9 and 10
will be available in relation to a person subject to an interim control order
or a confirmed control order.[160]
An interim control order is made by a court in ex parte proceedings at
which the person in relation to whom the order is proposed is not represented.
Once an interim order is made, an AFP member must serve the order on the person
and inform the person of various matters, including the person’s right to
attend court for the court to decide whether to confirm, void or revoke the
order.[161]
The person and one or more of their representatives is entitled to adduce
evidence and make submissions in relation to confirmation of the order at a
hearing held to determine whether the order should be confirmed.[162]
Accordingly, allowing the powers outlined below to be
exercised before a control order is confirmed means those powers may be
exercised before the person subject to the order has a chance to contest it.
Further, while an AFP member is required to serve the person with the interim
control order ‘as soon as practicable’ the Bill would allow the proposed
telecommunications interception and surveillance device powers to be exercised
even before that occurs, so before the person is aware they are subject to an
interim control order.[163]
There may be sound justification for allowing the exercise
of these powers in relation to a person subject only to an interim control
order. However, the issue is not addressed in the Explanatory Memorandum. In
terms of how long an interim order may be in place, the court that makes the
order must specify a day on which the person may attend court for the court to
decide whether to confirm, void or revoke the order. That day must be ‘as soon
as practicable, but at least 72 hours, after the order is made’.[164]
A 13 November 2015 article in The Guardian stated that the four control
orders made since December 2014 remained interim orders.[165]
The interim control order imposed on Ahmad Naizmand on 5 March 2015
specified a court date of 9 June 2015, but was not confirmed until
30 November 2015.[166]
Use of things, information and
documents obtained where control order is later declared void
Schedules 8 (monitoring powers), 9
(telecommunications interception) and 10 (surveillance devices) each
make provision for how things, information and documents obtained through the
use of those powers may be dealt with if the relevant interim control order is
declared void by a court. The Bill limits, but does not prevent, the use of
those things, information and documents.
Under proposed section 3ZZTC of the Crimes Act,
in Schedule 8, a person may:
-
adduce the thing, information or document as evidence in a
proceeding or
-
use or communicate the information, or use or communicate the
contents of a document
if:
-
the person reasonably believes that doing so is necessary to
assist in preventing, or reducing the risk of the commission of a terrorist
act, serious harm to a person or serious harm to property or
-
the person does so for purposes connected with the performance of
a function or duty, or exercise of a power, by a person, court, tribunal or
other body under, or in relation to a matter arising under, specific
legislation so far as it relates to a preventative detention order (under
Commonwealth, state or territory law).[167]
Similar provisions are set out in Schedules 9
and 10 with respect to information obtained under a
telecommunications interception warrant relating to an interim control order or
the use of a surveillance or tracking device in relation to an interim control
order respectively.[168]
As a result, information, evidence and documents obtained
under a warrant linked to an interim control order later declared void by a
court will have a range of potential applications beyond combating terrorism or
monitoring a person’s compliance with a control order.
Clearly, serious harm to a person or serious damage to
property may encompass a wide range of conduct beyond terrorist acts. The Evidence
Act 1995 provides that evidence obtained improperly or in contravention of
an Australian law, or in consequence of an impropriety or of a contravention of
an Australian law, is generally not to be admitted unless the desirability of
admitting the evidence outweighs the undesirability of admitting evidence that
has been obtained in such a way.[169]
One view is that where a control order is subsequently declared void, any
evidence or information obtained in reliance on the order should be classified
as either improperly obtained or obtained in contravention of an Australian
law. As a result, these provisions have attracted criticism, with the Muslim
Legal Network (NSW) stating that allowing information and evidence to be used
in the manner proposed is a ‘violation of the principle requiring that only
legally obtained information may be used as evidence against an individual’.[170]
These provisions have also been highlighted by the PJCHR and
the Scrutiny of Bills Committee, both of which have asked the Attorney-General
for information outlining the rationale and providing further justification in
light of the implications for peoples’ rights and liberties.[171]
In a supplementary
submission, AGD stated:
The Surveillance Devices Act 2004 and Telecommunications
(Interception and Access) Act 1979 impose strict prohibitions on when
material obtained under those Acts may be admitted into evidence. It is a
criminal offence for a person to deal in information obtained under these Acts
for any purpose, unless the dealing is expressly permitted under one or more of
the exceptions to that general prohibition. These prohibitions expressly
override the discretion of the judiciary, both at common law and under the Evidence
Act 1995 (Cth), to admit information into evidence where the public
interest in admitting the evidence outweighs the undesirability of admitting
it, given the manner in which it was obtained.[172]
AGD concluded that the amendments proposed by the Bill will
permit agencies to use and adduce information in evidence in proceedings, but
will not remove a court’s discretion to refuse to admit evidence, or its duty
to refuse to admit improperly obtained evidence in particular circumstances.[173]
Schedule 8: Entry, search,
seizure and related powers
Schedule 8 will insert proposed
Part IAAB into the Crimes Act to provide a scheme under which
Commonwealth and state or territory police may exercise certain powers in
relation to a person subject to a control order, or a premises to which the
person has a ‘prescribed connection’ for the purpose of:
-
protecting the public from a terrorist act
-
preventing the provision of support for, or the facilitation of,
a terrorist act
-
preventing the provision of support for, or the facilitation of,
the engagement in a hostile activity in a foreign country and/or
-
determining whether the control order has been, or is being,
complied with.[174]
‘Prescribed connection’ with premises will be defined in proposed
section 3ZZJC. It will include, for example, the person’s residence, (paid
or voluntary) workplace, business or educational institution. The Explanatory
Memorandum states that the definition is designed to capture even temporary
connections between premises and a person subject to the control order ‘for
example, where the person is merely staying with friends for a short period of
time’.[175]
It is not clear whether the proposed definition would achieve this. [176]
The definition would not generally capture other premises
the person regularly visits, such as the homes of friends or family members or
places of worship. However, searches of prescribed premises and powers
exercisable thereon, such as questioning people, potentially impact many third
parties, including colleagues and fellow students and depending on the nature
of the person’s employment (for example retail or hospitality), members of the
public.
Broadly, the powers included under proposed
Part IAAB are:
-
entry to premises and exercise of ‘monitoring powers’, including
a search, either by consent or under a monitoring warrant[177]
-
conducting an ordinary or frisk search of a person subject to a
control order, either by consent or under a monitoring warrant[178]
-
searching any recently used conveyance and recording
fingerprints, and taking samples, from things found in a search, without the
need to obtain further consent or an additional warrant[179]
-
powers to ask questions and request or require documents
following entry to premises[180]
-
powers to seize things believed to be evidential material,
tainted property or seizable items following a search of a person or premises
under a warrant[181]
and
-
the ability to use and share things seized, documents produced
and answers provided for certain purposes.[182]
More extensive powers are available under a warrant than
by consent. A monitoring warrant can only be issued by a magistrate, as is the
case with a search warrant under Part IAA of the Crimes Act for
offence-related search warrants.[183]
The magistrate must be satisfied that a warrant is reasonably necessary for one
or more of the purposes outlined above.[184]
See the Appendix for a table summarising the powers available in
relation to premises and persons with and without a warrant.
Safeguards
The proposed safeguards include:
-
explicit preservation of legal professional privilege and the
privilege against self-incrimination[185]
-
a prohibition on strip searches and searches of a person’s body
cavities[186]
-
a general prohibition on executing a monitoring warrant and
exercising consequential powers if the control order is revoked, declared void
or varied to remove one or more obligations, prohibitions or restrictions[187]
- Note:
If a warrant is executed in breach of the prohibition, evidence, information
and documents seized are not admissible in criminal proceedings (other than
those concerning misconduct or corruption). However, the Bill does not provide
such material is not admissible in civil proceedings[188]
-
procedural protections outlined in proposed Division 4,
Part IAAB, including that consent must be informed and voluntary, and may
be limited or withdrawn; compensation for damage to electronic equipment; and
the occupier of premises and the person subject to the control order being
entitled to be present and observe searches of premises.[189]
Issue: no reporting, record-keeping
or inspection powers
Schedule 8 does not include any proposed
record-keeping or reporting obligations and makes no provision for the
inspection of records and warrants associated with the new regime by the Ombudsman.
A model on which such provisions could be based can be found in
Divisions 6 and 7 of Part IAAA of the Crimes Act, which apply
to the delayed notification search warrant regime.
Issue: role for Public Interest
Monitor?
The Queensland Government notes the Public Interest
Monitor’s role in applications for control orders and suggests that be extended
to applications for monitoring warrants. It recommends that where an
application is made in Queensland, the issuing authority be required to have
regard to any submissions made by the Public Interest Monitor.[190]
Use, sharing and retention of
things, documents and information obtained
Proposed Division 8, Part IAAB
makes different provision for the use, sharing and retention of things seized,
documents obtained and answers to questions obtained under the Part. The
Explanatory Memorandum does not explain why each is to be treated differently,
or why the purposes for which it is proposed material may be used, shared and
retained are appropriate.
Things seized
Things seized under proposed Part IAAB will be
able to be used, shared and retained as if they had been seized under a search
warrant issued for investigation of an offence (under Division 2 of
Part IAA of the Crimes Act).[191]
This will mean things seized can be used or made available to constables,
Commonwealth officers, state and territory police and anti-corruption agencies
and foreign law enforcement, intelligence and security agencies for a broad
range of purposes, including:
- preventing,
investigating or prosecuting an offence under Commonwealth or state or
territory law
- use
in various types of proceedings (such as proceeds of crime and forfeiture
proceedings) under Commonwealth or state or territory law or
- when
use or sharing of the things is required or authorised by a state or territory
law.[192]
Documents obtained
Documents obtained under proposed Part IAAB
will be able to be used, shared and retained as if they had been obtained under
notice to produce provisions used for investigation of serious offences (under
Division 4B of Part IAA of the Crimes Act).[193]
This will mean they can be used and shared with the same persons and agencies,
and for the same purposes, as outlined above in relation to things seized.[194]
In addition, documents may also be shared with constables,
Commonwealth officers, state and territory police and anti-corruption agencies
and foreign law enforcement, intelligence and security agencies for the
purposes of:
-
protecting the public from a terrorist act
-
preventing the provision of support for, or the facilitation of,
a terrorist act
-
preventing the provision of support for, or the facilitation of,
the engagement in a hostile activity in a foreign country and/or
-
determining whether the control order has been, or is being,
complied with.[195]
These additional purposes considerably expand the
circumstances in which a document may be shared. The existing preventative
ground is specific to preventing a Commonwealth or state or territory offence.[196]
The proposed additional grounds are framed instead around the broader concepts
of ‘terrorist act’ (for which the definition is independent of the offence of
committing a terrorist act)[197]
and ‘engaging in a hostile activity’ (for which the definition is independent
of the foreign incursions offences).[198]
Given documents may be shared with foreign law enforcement, intelligence and
security agencies, the breadth of purposes for which documents may be shared,
and lack of any requirement that the conduct to be prevented constitute an
Australian offence, is significant.
Answers given
Answers given to questions asked under proposed
Part IAAB will only be able to be used for the purposes of:
-
protecting the public from a terrorist act
-
preventing the provision of support for, or the facilitation of,
a terrorist act
-
preventing the provision of support for, or the facilitation of,
the engagement in a hostile activity in a foreign country
-
determining whether the control order has been, or is being,
complied with and/or
-
preventing, investigating or prosecuting an offence.[199]
As with the document use provisions, the first three
purposes are not defined by reference to preventing conduct that would
constitute an offence.
The scope of proposed section 3ZZRD is unclear
in several other respects. It lists the purposes for which an answer may be
used, but does not specify who may use them, whether they may be shared, and if
so, with whom. Under proposed section 3ZZKE, questions may be asked
by a constable who has entered premises by consent or under a warrant. However,
given answers may be used in a prosecution for an offence, it appears there is
some intention that answers be used by officers other than constables (and,
accordingly, that they may be shared). It is also unclear how retention of
information obtained from answers is governed.
Issue: breadth of use and sharing
provisions, including with foreign agencies
As is clear from the descriptions above, things seized and
information obtained under proposed Part IAAB, especially documents, may
be used and shared for a broad range of purposes and with a broad range of
domestic and foreign agencies, well beyond the purpose for which the monitoring
powers are available. The Explanatory Memorandum contains no rationale for, or
justification of, the breadth of the proposed provisions. Parliament may wish
to seek such justification, and consider whether the provisions should be
framed more narrowly so as to better accord with the particular aims and
purposes of the Bill. Amendments might, for example, limit use and sharing for
protective or preventative purposes to circumstances where the conduct to be
prevented would constitute an offence under Australian law.
Parliament may also wish to consider amendments to clarify
how answers given to questions may be used, shared and retained.
Telecommunications interception
warrants (Schedule 9)
The TIA Act creates two types of interception
warrants:
- B-party
warrants: allow the interception of a telecommunications service likely to
be used by another person (a non-suspect) to communicate with the suspect and
- Named
person warrants: allow the interception of more than one telecommunications
service used or likely to be used by the suspect.[200]
The amendments in Schedule 9 will allow agencies to
obtain both types of warrants to intercept and monitor the telecommunications
of a person subject to a control order or a telecommunications service likely
to be used by a non-suspect to communicate with the subject of a control order for
the purpose of:
-
protecting the public from a terrorist act
-
preventing the provision of support for, or the facilitation of,
a terrorist act
-
preventing the provision of support for, or the facilitation of,
the engagement in a hostile activity in a foreign country and/or
-
determining whether the control order has been, or is being,
complied with (such as breaches of a prohibition on communicating with certain
individuals).
They will also allow intercepted telecommunications
information to be used in any proceedings associated with that control order
and any other proceedings related to other serious offences (be they
terrorism or non‑terrorism related offences).[201]
The amendments will also introduce new ’deferred reporting’ arrangements that
will permit the chief officer of an agency to defer public reporting on the use
of a warrant relating to a control order in certain circumstances.[202]
Finally, the amendments will also permit the use of intercepted
telecommunications in connection with PDOs made under state and territory laws
to support a nationally consistent prevention scheme.[203]
Currently the TIA Act allows the AFP and other
enforcement agencies (such as state police forces) to use both types of
interception warrants for the purpose of investigating persons suspected
of being involved in the commission of serious offences (clearly this
includes terrorism offences).[204]
The amendments proposed by Schedule 9 raise a number of issues.
It would appear that, with the exception of monitoring
compliance with a control order, the arguments for the necessity of the
proposed powers may be somewhat overstated. This is because if a control order
is issued, it is because the AFP had (for example) reasonable grounds to
suspect that:
- the
order would substantially assist in preventing a terrorist act
- the
person had:
- provided
training to, received training from or participated in training with a listed
terrorist organisation
- engaged
in a hostile activity in a foreign country
- been
convicted in Australia or overseas of an offence relating to terrorism, a
terrorist organisation or a terrorist act or
- provided
support for or otherwise facilitated the engagement in a hostile activity in a
foreign country or
- the
order would substantially assist in preventing the provision of support for or
the facilitation of a terrorist act.[205]
Ultimately, a control order will only be issued where a
court is satisfied on the balance of probabilities that the making of the
control order would (for example), substantially assist in preventing a
terrorist act or preventing the provision of support for or the facilitation of
a terrorist act[206]
and:
-
each of the obligations, prohibitions and restrictions imposed by
a control order were reasonably necessary, and reasonably appropriate and
adapted, for the purpose of:
- protecting
the public from a terrorist act
- preventing
the provision of support for or the facilitation of a terrorist act or
- preventing
the provision of support for or the facilitation of the engagement in a hostile
activity in a foreign country.[207]
Therefore it follows from the above that in circumstances
where a control order is issued it is probable that the person to whom
the control order applies will already be suspected of being involved in the planning
or commission of serious offences and hence may already be under
investigation.[208]
If that is the case, then it may be that interception warrants may have already
been applied for as part of that investigation. The Inspector‑General of
Intelligence and Security (IGIS) made a similar point, noting:
While decisions to seek a control order for a young person or
a monitoring warrant will be made by law enforcement agencies, they will
often relate to persons who have been or continue to be subjects of security
investigation. Where this is so, it is likely that there would be
regular information sharing, in accordance with relevant legislative
frameworks, between ASIO and law enforcement agencies prior to seeking a
control order or monitoring warrant. Information sharing is also likely in
relation to any developments and information obtained by law enforcement
agencies under monitoring warrants that may also be relevant to security. ASIO
and law enforcement agencies have established procedures for managing cases
where there is overlap in their respective investigative roles, including
interaction through the Joint Counter-Terrorism Teams.[209]
(emphasis added)
It is therefore logical that an interception warrant could
be obtained in relation to that person in most circumstances because there is an
overlap between the purposes for which control orders are issued (and
hence the offences they are designed to prevent) and the types of offences
that can currently be investigated using interception warrants. Further, it is
also likely that a person subject to a control order is likely to have been (or
is) a subject of an ASIO security investigation. In any case, prior to any
interception warrants being approved, the AFP could nonetheless self-authorise
access to the person’s historical and prospective telecommunications data
(‘metadata’, discussed below).
For the reasons noted above (for example, that a subject of
a control order may well be the subject of either an AFP or ASIO investigation
at the time a control order is made), with the exception of monitoring
compliance with a control order, the arguments around facilitating quicker
investigations may overstate the need for the proposed powers.
This is because both the AFP and ASIO can currently obtain
both historical and prospective metadata without the need to obtain a warrant.[210]
Put simply, they can self-authorise the collection and on-going monitoring of a
person’s metadata. Given the detailed nature of information that can be
obtained from metadata and the degree of information sharing between ASIO and
the AFP noted by the IGIS, suggesting that investigations could not commence
quickly enough without the proposed powers appears to be an overstatement. [211]
Nonetheless, it is possible that situations may arise where:
-
events trigger an application for a control order before
the relevant person has been investigated by either ASIO or the AFP (or
information obtained through a security investigation is not shared with the
AFP) or
-
the early stages of an investigation into a person result in an
interim control order being made before an interception or named person warrant
had been applied for.
Whilst the necessity, efficacy and proportionality of the
proposed changes in dealing with such situations is open to debate, it is clear
that the amendments would facilitate quicker access and monitoring of the content
of the telecommunications of a person subject to the control order than is
currently the case.
In relation to B-party warrants, the amendments propose a
privacy-balancing test and other restrictions on the issuing of those warrants that
reflect those currently in place under the TIA Act.[212]
The amendments proposed by items 20-23 have the same effect in relation
named person warrants.
The effectiveness of the proposed privacy protections has
been questioned. For example, the LCA noted that the amendments ‘would
significantly broaden the circumstances in which innocent parties may be
subjected to surveillance by reason of association’ and would allow the
interception of the content of telecommunications made or received ‘by people
who are not suspects or who may have no knowledge or involvement in a crime,
but who may be in contact with someone who does’.[213]
Likewise, the AHRC stated:
While there are requirements that issuing authorities take a
number of other factors into account, including the extent to which any
person’s privacy would be affected and whether there are alternative means of
obtaining the information, the Commission considers these requirements are
insufficient in circumstances.[214]
Of particular concern is the impact on the privacy of
non-suspects whose communications are intercepted under a B-party warrant. The
LCA pointed to and supported concerns previously expressed by the Australian
Law Reform Commission about the ‘potential to collect a large amount of
information about non-suspect persons under a B-party warrant, compared with
other types of warrant’.[215]
Councils for civil liberties expressed a similar view.[216]
For example, the changes proposed to section 67 of the TIA Act
by items 33, 34 and 35 of Schedule 9 appear to provide
that agencies can only use intercepted information for the purposes of
monitoring compliance with a control order or for the more general purposes
associated with protecting the ‘the performance of a function or duty, or the
exercise of a power... in relation to a matter arising under, Division 104 of the
Criminal Code’ (that is, broadly speaking, purposes related to preventing and
protecting the public from terrorism). However, proposed section 139B
allows lawfully intercepted information to be used in broader ways.
Proposed subsection 139B(1) allows an officer of the
AFP or a state or territory police force to:
- communicate
lawfully intercepted information to another person and
- make
use of lawfully intercepted information
for ‘one or more of the purposes referred to in subsection
(2), and for no other purpose (other than a purpose referred to in subsection
139(2) or (4A) or 139A(2), if applicable’ (emphasis added).
Importantly, subsections 139(2), (3) [217] and (4A) and
139A(2) of the TIA Act encompass much broader purposes than those
provided by section 67 (as sought to be amended by items 33, 34 and 35
of Schedule 9). Those purposes include:
- investigating
a serious offence[218]
- investigating
an offence punishable by imprisonment for a period, or a maximum period, of at
least 12 months or a fine of at least 60 penalty units[219]
- prosecuting
the offences referred to above[220]
- providing
information to a foreign country in relation to a mutual assistance request[221]
and
- undertaking
certain integrity investigations and related proceedings.[222]
Accordingly, amendments in proposed section 139B
will allow information obtained under an interception warrant issued in
relation to a person subject to a control order to be used for a wider range of
purposes than just monitoring compliance with the control order, or preventing
or investigating terrorism and related offences.
Of particular note, proposed section 139B allows an
officer or staff member of the AFP or a state or territory police force that
intercepts the communications of non-suspect under a B-party warrant to use
that information to investigate or prosecute that person (or others) for a
range of criminal offences attracting a term of imprisonment greater than 12
months, despite that person not having been previously suspected of doing
anything unlawful.
Proposed subsection 139B(2) would also allow
‘lawfully accessed information’ (such as the intercepted contents of the
telecommunications of a person subject to a control order) other than foreign
intelligence information to be used for purposes related to PDOs under
Commonwealth, state and territory laws.
Proposed section 79AA of the TIA Act, at item
37 of Schedule 9, purports to ensure that agencies must destroy
information obtained under a control order warrant before the control order to
which it relates came into force. The amendments contain several exceptions to
the obligation to destroy information obtained under a control order warrant. Those
exceptions will ensure that any information obtained as a result of determining
if a control order had been complied with that could assist in preventing
terrorism (broadly speaking) can be retained and used, thus reflecting the
‘preventative’ thrust of many of the amendments.
Further, as noted above under overarching issues, proposed
section 299 will allow the use of information intercepted under a warrant
relating to a control order which is subsequently declared void in certain
circumstances.
Proposed section 6T will enable an
interception warrant to be applied for prior to a person being served with a
control order. Whilst this will clearly enable the monitoring the contents of
that person’s telecommunications to commence earlier (and prior to them being
notified that they are subject to a control order), it also represents a
significant intrusion into that person’s privacy. As noted above, proposed
section 79AA will impose some restrictions on the retention of information
obtained before the relevant control order came into force.
Currently Part 2-8 of Chapter 2 of the TIA Act deals
with the reporting of information related to interception warrants. The Bill
will amend a number of provisions. The effect of the amendments is to require
that the public reporting of interception warrants relating to a person subject
to a control order is deferred until a subsequent report if the chief officer
is satisfied that the information, if made public, could reasonably be expected
to enable a reasonable person to conclude that:
-
a control order warrant is likely to be, or is not likely to be,
in force in relation to a telecommunications service used, or likely to be
used, by a particular person or
-
a control order warrant is likely to be, or is not likely to be,
in force in relation to a particular person.[223]
The Government argues that this is necessary because, due to
the low number of control orders in existence at any time, public reporting
during the period in which a control order warrant is in operation would undermine
the purpose and effectiveness of such warrants (for example, by effectively
revealing that a particular person who is subject to a control order is or is
not also subject to covert surveillance).[224]
Currently the SD Act provides that surveillance and
tracking device warrants are available where an eligible judge or nominated member
of the Administrative Appeals Tribunal (AAT) is satisfied that one or more ‘relevant
offences’ (usually serious offences) have been, are being, are about to be, or
are likely to be, committed.[225]
They can also be authorised by certain senior officers of law enforcement
agencies in emergency situations.[226]
The amendments in Schedule 10 will amend the SD Act
to allow agencies to obtain a warrant to install and use surveillance and
tracking devices in relation to a person who is subject to a control order for
the purpose of:
-
protecting the public from a terrorist act
-
preventing the provision of support for, or the facilitation of,
a terrorist act
-
preventing the provision of support for, or the facilitation of,
the engagement in a hostile activity in a foreign country and/or
-
determining whether the control order has been, or is being,
complied with (such as curfew requirements or visiting a prohibited place).[227]
The amendments will also extend the circumstances in which
agencies may use less intrusive types of surveillance devices without a warrant
to include the purposes noted above (including monitoring compliance with a
control order). Further, they allow surveillance and tracking device information
to be used in a broad range of circumstances beyond investigating compliance
with a control order, terrorism offences or prosecuting breaches of control
orders and terrorism offences. Those purposes include:
- investigating
or prosecuting a ‘relevant offence’ [228]
- providing
information to a foreign country in relation to a mutual assistance request[229]
or
- undertaking
certain integrity investigations and related proceedings.[230]
As a result the SD Act will allow information
obtained under surveillance or tracking device warrants issued in relation to a
person subject to a control order to be used for a range of purposes other than
monitoring compliance with the control order, or preventing or investigating
terrorism and related offences, even (because of proposed section 65B)
where the control order is subsequently declared void (though in the latter
case for a relatively more restricted range of purposes).
Schedule 10 will also introduce new ’deferred
reporting’ arrangements that will permit the chief officer of an agency to
defer public reporting on the use of a warrant relating to a control order in
certain circumstances and will also makes changes to the reporting requirements
around the installation and use of surveillance devices.[231]
Currently the SD Act allows the AFP and other
enforcement agencies (such as state police forces) to use a range of surveillance
and tracking device warrants for the purpose of investigating persons
suspected of being involved in the commission of certain types of offences
(including terrorism offences). The amendments raise substantially the same
issues raised by the amendments proposed in relation to telecommunications
interception warrants.
Part 4 of the SD Act provides for use of
surveillance devices without a warrant in certain circumstances.
Items 19–25 of Schedule 10 of the Bill will expand
Part 4 of the SD Act to enable law enforcement officers acting in
the course of their duties, and persons assisting them, to use certain
surveillance and tracking devices without a warrant to obtain information about
the activities of the person subject to a control order, for the purpose of:
-
protecting the public from a terrorist act
-
preventing the provision of support for, or the facilitation of,
a terrorist act
-
preventing the provision of support for, or the facilitation of,
the engagement in a hostile activity in a foreign country and/or
-
determining whether the control order has been, or is being, complied
with (such as curfew requirements or visiting a prohibited place).[232]
Items 26–31 will expand the existing offences related
to the unlawful use, recording, communication or publication of ‘protected
information’ to information obtained via control order surveillance warrants
and tracking device authorisations in respect of a person subject to a control
order.
Proposed section 46A will operate to ensure that information
obtained prior to the control order having been served on a person (that is,
before the control order comes into force under the Criminal Code) is destroyed
as soon as practicable. However, that requirement does not apply to records or
reports that are likely to protect the public from a terrorist act, prevent a
person engaging in, providing support for or facilitating a terrorist act or
prevent hostile activity in a foreign country.
Further, as noted above under overarching issues, proposed
section 65B will allow information obtained through a surveillance or
tracking device under a warrant or authorisation, or permitted to be used
without a warrant, relating to a control order which is subsequently declared
void in to be used for a variety of purposes, in certain circumstances.
Proposed section 6C will enable a surveillance
device control order warrant to be applied for prior to a person being served
with a control order. Whilst this will clearly enable the commencement of
monitoring of that person to commence earlier (and prior to them being notified
that they are subject to a control order), it also represents a significant
intrusion into that person’s privacy. As noted above, proposed section 46A
will impose some restrictions on the retention of information obtained before
the relevant control order came into force.
Currently Division 2 of Part 6 of the SD Act
deals with the reporting of information related to surveillance and tracking device
warrants and authorisations. The Bill will amend a number of provisions. The
effect of the amendments is to require that the public reporting of the use of a
surveillance or tracking device to be deferred until a subsequent annual report
if the chief officer is satisfied that the information, if made public, could
reasonably be expected to enable a reasonable person to conclude that a control
order surveillance device warrant is likely to be, or is not likely to be, in
force, in relation to a particular premises, object or person.[233]
The Government has advanced essentially the same arguments
for the need to defer reporting as made in relation to the interception
warrants.[234]
Role for the Public Interest
Monitor?
The Queensland Government notes the Public Interest
Monitor’s role in applications for control orders and suggests that be extended
to applications made for surveillance device warrants in relation to persons
subject to control orders. It recommends that where an application is made in
Queensland, the issuing authority be required to have regard to any submissions
made by the Public Interest Monitor.[235]
Schedule 11 will introduce the new offence of
‘advocating genocide’ into division 80 of the Criminal Code, with a maximum
penalty of seven years imprisonment.
For the purposes of the proposed offence, ‘advocate’ is
defined by proposed section 80.2D as ‘counsel, promote, encourage or
urge’. This follows a similar definition in the Criminal Code for the
advocating of terrorism.[236]
For the purposes of the proposed offence, ‘genocide’ is
defined as the commission of an offence against Subdivision B of Division 268
of the Criminal Code.
The genocide offences in Subdivision B of Division 268 are:
268.3..................... Genocide by killing
268.4..................... Genocide by causing serious bodily or mental harm
268.5..................... Genocide by deliberately inflicting conditions of life calculated
to bring about physical destruction
268.6..................... Genocide by imposing measures intended to prevent births
268.7..................... Genocide by forcibly transferring children
These offences are essentially aligned with the definition
provided in the 1948 United Nations Convention on the Prevention and
Punishment of the Crime of Genocide (Article II), which defines genocide as
‘any of the following acts committed with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group ...’, including:
(a) Killing
members of the group;
(b) Causing
serious bodily or mental harm to members of the group;
(c) Deliberately
inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing
measures intended to prevent births within the group;
(e) Forcibly
transferring children of the group to another group.[237]
Division 80 of the Criminal Code currently includes
various offences for treason, advocating terrorism (section 80.2C), and
urging violence against groups or members of groups (sections 80.2A and 80.2B).
Subdivision B of Division 268 of the Criminal Code contains offences for
committing genocide. Section 11.4 of the Criminal Code provides for
an extension of criminal liability for incitement which could be applied to the
existing genocide offences. Accordingly, it is not immediately clear what the
practical effect of the proposed offence may be, given that the conduct likely
to constitute such an offence would also often constitute an offence against at
least one of the abovementioned existing offences.
The Explanatory Memorandum points out that current offender
behaviour (in particular online) includes making comments that encourage the
carrying out of acts by others without making explicit statements that would
satisfy the evidential requirement for the existing offences of incitement of genocide
or urging violence. It asserts that while the existing offences will continue
to be used where evidence allows:
... (t)hese offences require proof that the person intended the
crime or violence to be committed, and there are circumstances where there is
insufficient evidence to meet that threshold. Groups or individuals publicly
advocating genocide can be very deliberate about the precise language they use,
even though their overall message still has the impact of encouraging others to
engage in genocide. [238]
The Explanatory Memorandum also asserts that the proposed
offence is required in response to the use of social media to radicalise youths
and is intended to specifically create an offence for situations where a person
is using social media to encourage others to commit attacks without making explicit
statements.[239]
Some further indication of the reasons for introducing
similar new offences in this way was provided in a speech given by the
Attorney-General to the Centre for Independent Studies on 6 November 2015.[240] The Attorney‑General
stated that the offence of advocating terrorism, introduced in 2014:
... was done in order to meet a gap in the pre-existing law,
whereby it was necessary to demonstrate a relationship between advocacy and a
specific act of terrorism. In other words it was based on the old common law
crime of incitement. Although there have not yet been any prosecutions brought
under the new provision, the Australian Federal Police advise me that its
introduction has resulted in a significant reduction in the use of inflammatory
language among certain radical elements within the community.[241]
The Attorney-General further stated that the proposed
offence of advocacy of genocide:
... is consistent with our international obligations as a party
to the Genocide Convention. In the Government’s view, the preaching of the
genocide of a race or population can never be regarded as being the equivalent
of the mere expression of a radical political opinion: it is an injunction to
violence and slaughter. Yet advocacy of genocide does go on, unpunished, in
Australia today – in particular, directed against Jewish people and against the
state of Israel.[242]
The proposed offence includes a reference to the existing
section 80.3 defence for acts done in good faith. The Explanatory Memorandum
claims that ‘(t)his defence protects the implied freedom of political
communication.’[243]
This defence may be particularly necessary in the
Australian domestic context in view of ongoing debates over current Indigenous
policies,[244]
and the statements in the Bringing Them Home report and elsewhere
asserting that Indigenous assimilation may be considered to fall within the
definition of genocide. [245]
The proposed offence also includes a double jeopardy
safeguard in proposed subsection 80.2D(2) to prevent trial for such an
offence where the person has already been convicted or acquitted by the
International Criminal Court for an offence based on the same conduct.
As noted in the ‘Position of major interest groups’
section of this Digest, some stakeholders are concerned that the proposed offence
may infringe on free speech and could limit legitimate discussions of genocide
related topics, and that the threshold required for proving the offence is
inappropriately low. In a supplementary submission, AGD stated that the
proposed offence is designed to fill a gap in existing offences, and so
proposed alternate formulations aimed at more closely mirroring existing
offences would not achieve this.[246]
AGD also stated that the meaning of ‘advocates’, and ‘publicly’, combined with
the good faith defence would result in no infringement of genuine commentary on
genocide related issues.[247]
There are two circumstances in which preventative
detention orders (PDOs) may be made if relevant thresholds are met: to prevent
an imminent terrorist act, and to preserve evidence of or relating to a
terrorist act that has already occurred.
Schedule 5 will amend provisions that define
when a terrorist attack is to be considered ‘imminent’ for the purpose of
applications for and issuing of a PDO to prevent a terrorist attack. Instead of
being a terrorist act that is imminent and expected to occur
within the next 14 days, it will be one that is ‘capable of being
carried out, and could occur, within the next 14 days’ (emphasis added).
Before making a PDO, the issuing authority will still be
required to be satisfied that:
- making the order would substantially assist in
preventing a terrorist act occurring and
- detaining the person for the proposed period is
reasonably necessary for the purpose of preventing that terrorist act.[248]
The Explanatory Memorandum states that law enforcement
agencies may be aware of individuals with the capability and intent to carry
out a terrorist act, but no clear timeframe in mind:
The terrorist act could potentially occur within hours, weeks
or months. In such circumstances, law enforcement agencies may not be able to
obtain a PDO as the issuing authority may not be satisfied that there is an
expectation the act will occur within precisely 14 days, despite the clear and
ongoing threat posed by the individual. The current focus of 105.4(5) on the
timing for when an act will occur within a certain period, rather than the
capability for an act to occur within a certain period, is problematic.[249]
The Explanatory Memorandum also characterises the change as
a clarification of the imminence test.[250]
However, as the Scrutiny of Bills Committee pointed out, the change in emphasis
from an expectation that a terrorist attack will occur to a
determination that it realistically could occur, represents a
significant shift that would mean PDOs were available in a broader range of
circumstances.[251]
The Scrutiny of Bills Committee sought more detailed justification from the
Attorney-General.[252]
For the same reason, the PJCHR questioned the assertion that the amendment will
not impact the right to liberty and sought an explanation from the Attorney‑General.[253]
While objecting to the PDO regime as a whole, Gilbert +
Tobin does not oppose this amendment.[254]
However, the AHRC, LCA and councils for civil liberties share the Scrutiny of Bills
Committee’s concern that the proposed new threshold is too low. [255]
The AHRC stated:
The requirement that an issuing authority be satisfied there
are reasonable grounds to suspect an imminent terrorist attack may not
be an easy one to meet. However, that is entirely consistent with the
extraordinary nature of the preventative detention order regime ...
Further, the purpose of preventative detention orders is to
prevent a terrorist act that would occur within a short period of time, by
taking a potential perpetrator ‘out of circulation’ in circumstances where the
urgency of the case is such that other means of preventing the act are unlikely
to be effective. This rationale requires that the potential act be likely to
occur within a short space of time.[256]
The LCA suggested a more appropriate threshold would be
where a terrorist act is capable of being carried out, and is likely
to occur, within the next 14 days.[257]
AGD considers that threshold would present the same difficulties as the current
threshold.[258]
Schedule 6 would make a minor amendment so that
a person’s service as a judge in the Family Court does not make them eligible
to be appointed as an issuing authority for continued preventative detention
orders.
Delayed notification search
warrants (Schedule 14)
A scheme allowing delayed notification search warrants
(DNSWs) was enacted in 2014, implementing a recommendation of the former
Independent National Security Legislation Monitor.[259]
DNSWs are only available in relation to suspected terrorism offences punishable on conviction by imprisonment
for seven years or more.[260]
Schedule 14 will amend various provisions in
Part IAAA of the Crimes Act to clarify that rather than being
required to themselves hold certain suspicions and beliefs, the AFP
Commissioner (who must consent to an application being made) and an issuing
officer must be satisfied the officer applying for the warrant holds those
suspicions and beliefs on reasonable grounds.[261]
The thresholds that must be met for an officer to seek a warrant will remain
unchanged.[262]
The amendments will bring the provisions for the issue of warrants into closer
alignment with the general offence-related search warrant scheme in
Part IAA of the Crimes Act.[263]
Security assessments by ASIO
(Schedule 12)
ASIO’s security assessment function is set out in
Part IV of the ASIO Act. Security assessments are written
statements provided by ASIO in relation to:
-
the question of whether it would be consistent with the
requirements of security for ‘prescribed administrative action’ to be taken in
respect of a person or
-
the question of whether the requirements of security make it
necessary or desirable for prescribed administrative action to be taken in
respect of a person.[264]
‘Prescribed administrative action’ is defined in
section 35 of the ASIO Act. The sorts of actions it refers to
include, for example, decisions relating to visas, passports and citizenship,
and action that relates to or affects a person’s access to information or places
to which access is restricted on security grounds.
The definition of ‘security assessment’ in section 35 of the
ASIO Act, and section 40 of the Act, currently limit the
circumstances in which security assessments may be provided to states and state
authorities, and how they may be provided. Currently, a security assessment may
be provided to a state or state authority:
-
via a Commonwealth agency, where any prescribed administrative
action in relation to a person by the state or state authority would affect
security in connection with matters within the functions and responsibilities
of that Commonwealth agency or
-
directly, if the prescribed
administrative action would affect security in connection with an event
designated in writing by the Minister as a special event, and would affect
security in connection with matters within the functions and responsibilities
of a Commonwealth agency.[265]
Schedule 12 will amend Part IV of the ASIO
Act so that ASIO would be permitted to provide security assessments
directly to states and state authorities, but retain the option of providing
them via a Commonwealth agency where appropriate.[266]
It will also remove the limitation whereby a security
assessment may only be provided to a state or state authority where the
prescribed action ‘would affect security in connection with matters within the
functions and responsibilities of a Commonwealth agency’.[267]
The amendments will not affect the rights of a person to
apply to the AAT for review of an adverse or qualified security assessment
under Division 4 of Part IV of the ASIO Act. This is because
such a review is of the security assessment itself, not any decision the
assessment informed. However, the IGIS has pointed out that section 61 of the
ASIO Act requires Commonwealth agencies involved in decisions to which
the assessment is relevant to treat any AAT finding that does not confirm the
assessment as superseding it, but makes no such requirement of state and
territory agencies.[268]
The LCA recommends the power to provide assessments directly to states and state
authorities only be available upon satisfaction that equivalent rights of
review of decisions based on an assessment will be available.[269]
In response, AGD indicated an amendment to also apply section 61 of the ASIO
Act to state authorities could be considered.[270]
ASIO will be prohibited from providing information or advice
(whether directly or via a Commonwealth agency) that it knows is intended to be
used, or likely to be used, by a state or state authority in considering
prescribed administrative action in relation to a person, except in the form of
a security assessment.[271]
Dealing with national security
information in proceedings (Schedule 16)
Schedule 16 will amend the NSI Act to
introduce new provisions to provide that orders made by a court under that Act
in relevant circumstances will override any disclosure requirements provided by
the regulations.[272]
The relevant existing provisions in the NSI Act
require court orders made under existing subsections 19(1A) and (3A), relating
to dealing with national security information in criminal and civil
proceedings, to be consistent with both the Act and the regulations. The
proposed amendments provide that these orders must be consistent with both the NSI
Act and its regulations except where the orders are made on an application
by the Attorney-General or a representative. In these situations, the orders
would not need to be consistent with the regulations.
This proposal is similar to existing provisions providing
for the regulations not to apply to information that is subject to orders under
subsections 22(2) or 38B(2), both of which relate to the disclosure of national
security information. The principle difference is that the existing provisions
relate to situations where the Attorney-General, prosecutor and defendant or
their representative have agreed to arrangements about the disclosure of the
information.
While the proposed amendments extend the nature of orders
able to be inconsistent with the regulations beyond arrangements agreed to by
all parties, to also include applications made by the Attorney-General, some
safeguard is provided by the requirement that the orders must still be made by
the court, and the court must consider the orders to be appropriate in the
interest of national security (subsections 19(1A) and (3A)).
Proposed subsections 23(2) and 38C(2) also
maintain the existing ability for orders made under existing sections 22
and 38B respectively to override any disclosure requirements provided by the
regulations, but clarify that the regulations continue to apply to aspects of
the information not dealt with by the order.
Exemptions to terrorism
organisation offences: funds for legal representation (Schedule 1)
Sections 102.6 and 102.8 of the Criminal Code
criminalise getting funds to, from or for a terrorist organisation and
associating with terrorist organisations respectively.[273] The COAG Review
recommended an exemption to the offence in section 102.6 for receipt of
funds from a terrorist organisation for legal advice or representation in
connection with a range of proceedings.[274]
Schedule 1 of the Bill will partially implement that recommendation
by exempting receipt of funds solely for the purpose of ‘legal advice or legal
representation in connection with the question of whether the organisation is a
terrorist organisation’.[275]
It will also include an equivalent exemption to the offence in
section 102.8 (which the COAG Review recommended, by majority, be
repealed).[276]
Classification of publications et cetera
(Schedule 13)
Schedule 13 of the Bill will amend the Classification
Act to extend the threshold test for the requirement to refuse
classification to a publication, film or computer game that advocates the doing
of a terrorist act by extending the definition of ‘advocates’.[277]
At present, paragraph 9A(2)(a) of the Classification Act
requires classification to be refused where the publication, film or
computer game ‘directly or indirectly counsels or urges the doing of a
terrorist act.’ Item 1 will amend this to also refuse classification
where the publication, film or computer game ‘promotes’ or ‘encourages’ the
doing of a terrorist act.
This extension of the definition of advocating a terrorist
act is identical to the recent change to that definition in paragraph
102.1(1A)(a) of the Criminal Code. The definition in the Criminal
Code was amended by the Foreign Fighters Act 2014 in December 2014.[278]
In explaining the addition of these terms to the
definition, the Explanatory Memorandum states:
While there may be some overlap with the terms “counsels” or
“urges” the doing of a terrorist act, which may include conduct such as
inducement, persuasion or insistence, or to give advice about the doing of a
terrorist act, the inclusion of the additional terms is designed to ensure
coverage of a broader range of conduct that may be considered as advocating the
doing of a terrorist act, beyond the existing conduct of “counsels” or “urges”.[279]
As noted in the ‘Position of major interest groups’
section of this Digest, some stakeholders were concerned this measure could
limit freedom of expression by also restricting legitimate discussion. AGD’s
supplementary submission stated:
Schedule 13 is not intended to, and is unlikely to affect,
artistic freedom. A publication, film or computer game will not advocate the
doing of a terrorist act merely because it depicts, describes or discusses
terrorist acts. Under the proposed changes to the definition of advocates, the
content must directly or indirectly ‘counsel, urge, promote or encourage’ the
doing of a terrorist act.[280]
Disclosures by taxation officers
(Schedule 17)
The amendments in Schedule 17
of the Bill will broaden the range of circumstances in which protected taxation
information may be disclosed to Australian government agencies to allow
disclosure for security related purposes. This is consistent with other
disclosures permitted by the Taxation Administration Act 1953.[281]
While section 355-70 of Schedule 1 to the Taxation
Administration Act 1953 already provides for disclosure to law enforcement
and related agencies in listed circumstances, the Explanatory Memorandum notes
that there is a need for such information to be available to other agencies
that may provide counter-terrorism functions. In acknowledgement of the
constantly changing nature of counter-terrorism work this could include
multi-jurisdictional coordination bodies such as the National Disruption Group.[282]
Section 355-25 of Schedule 1 to the Taxation
Administration Act 1953 provides that it is an offence for former or
current taxation officers to release protected information that was acquired by
them as a taxation officer. Subsection 355-30(1) defines protected information
as information disclosed or obtained under a taxation law that relates to the
affairs of an entity and identifies or could identify the entity.
Section 355-65 provides tables listing exceptions to the
offences under section 355-25 to allow taxation officers to disclose protected
information when performing certain duties. Subsection 355-65(2) provides Table
1, which lists exceptions allowing the disclosure of information ‘relating to
social welfare, health or safety’.
Schedule 17 will insert proposed new item 10
to the table in subsection 355-65(2) to provide an exception allowing the
disclosure of information to an Australian government agency where the
disclosure is for the purposes of ‘preventing, detecting, disrupting or
investigating conduct that relates to a matter of security as defined in
section 4 of the Australian Security Intelligence Organisation Act 1979’.
This amendment will broaden the range of circumstances in
which protected taxation information may be disclosed to Australian government
agencies. However, the proposed item may be considered to be in keeping with
the intent of the many existing exceptions for law enforcement purposes in
section 355-70 and those for government purposes provided in section 355-65,
including for example Item 9 of Table 1 which permits disclosures to an
Australian government agency where the disclosure is for the purposes of:
preventing or lessening:
(a) a serious threat to an individual’s life, health or
safety; or
(b) a serious threat to public health or public safety.
Recent reforms to Australia’s already strong legislative
framework for protecting national security and countering terrorism have
included new and expanded offences, additional and broader powers for law
enforcement and intelligence agencies, and new grounds on which dual nationals
may lose their Australian citizenship. Those reforms included two sets of
amendments to the control order regime passed in 2014 that expanded both the
grounds on which orders may be sought and the purposes for which they may be
granted.
Most of the key amendments in the Bill also concern the
control order regime, either directly, via the proposed reduction of the
minimum age for control orders, or indirectly, through proposed changes to
control order proceedings and the proposed monitoring powers regime. The latter
of these would make coercive powers normally used for investigations or
monitoring compliance with regulatory schemes available for broader preventative
and protective purposes.
Issues for debate are likely to include whether the
measures proposed, particularly lowering the minimum age at which control
orders may be imposed, are justified, and further whether they are
proportionate. Both the breadth of the proposed amendments, and the adequacy or
otherwise of safeguards and accountability measures proposed alongside them, will
inform such determinations.
It is important for the measures proposed in the Bill to
be considered in the broader context of both continually evolving national
security threats and the cumulative impacts of the most recent series of
reforms on personal freedoms, privacy, court processes and social cohesion.
Power
|
Premises to which a person subject to a control order
has a ‘prescribed connection’
|
Person subject to a control order
|
Without a warrant
|
Under a warrant
|
Without a warrant
|
Under a warrant
|
Entering premises
|
Yes, if the subject of the control order:
- is
the occupier of the premises and
- has
consented to the entry[283]
|
Yes[284]
|
N/A
|
N/A
|
Searching the premises or person and anything on it or in
possession of the person
|
Yes, if the subject of the control order:
- is
the occupier of the premises and
- has
consented to the entry[285]
|
Yes, with such force as is necessary and reasonable in the
circumstances[286]
|
Yes, if the subject of the control order has consented to
the search[287]
|
Yes, with such force as is necessary and reasonable in the
circumstances [288]
|
Searching for and recording fingerprints
|
As above.
|
As above.
|
Yes, if the subject of the control order has consented to
the search[289]
|
Yes, with such force as is necessary and reasonable in the
circumstances [290]
|
Inspecting, examining, taking measurements of, conducting
tests or taking samples of things found at the premises or on the person
|
As above.
|
As above.
|
Yes (taking samples only) if the subject of the control
order has consented to the search[291]
|
Yes (taking samples only) with such force as is necessary
and reasonable in the circumstances [292]
|
Examining or observing any activity conducted on the
premises, making any still, moving image or recording of anything on the
premises
|
As above.
|
As above.
|
N/A
|
N/A
|
Inspecting documents at the premises and taking extracts
from or making copies of them
|
As above.
|
As above.
|
N/A
|
N/A
|
Taking equipment and material onto the premises as
necessary to exercise a power
|
As above.
|
As above.
|
N/A
|
N/A
|
Securing and operating electronic equipment or data
storage devices on the premises (including obtaining expert assistance)
|
As above.
|
As above.
|
N/A
|
N/A
|
Asking for or requiring answers to questions
and the production of documents
|
Yes. Can ask the subject of the control order to do
so if:
· he
or she is the occupier of the premises and
· he
or she consented to the entry onto the premises[293]
|
Yes. Can require not only the subject of the
control order, but any person on the premises to do so[294]
(subject to certain protections)[295]
|
No
|
No
|
Seizing evidential material, tainted property and seizable
items
|
No
|
Yes, with such force as is necessary and reasonable in the
circumstances[296]
|
No
|
Yes, with such force as is necessary and reasonable in the
circumstances[297]
|
Conducting an ordinary or frisk search of a person on or
near the premises
|
No
|
Yes, with such force as is necessary and reasonable in the
circumstances[298]
|
N/A
|
N/A
|
Obtaining assistance and using necessary and reasonable
force to execute a warrant.
|
N/A
|
Yes. A constable may use force against persons and things;
a person assisting may only use force against things[299]
|
N/A
|
Yes. A constable may use force against persons and things;
a person assisting may only use force against things[300]
|
Searching a recently used conveyance
|
Yes, if the conveyance is on the premises to which entry
has been granted by consent of the occupier[301]
|
Yes, if the conveyance is on the premises, and with such
force as is necessary and reasonable in the circumstances [302]
|
Yes, if the subject of the control order has consented to
the search[303]
|
Yes, with such force as is necessary and reasonable in the
circumstances [304]
|
Entering premises
|
Yes, if the subject of the control order:
· is
the occupier of the premises and
· has
consented to the entry[305]
|
Yes[306]
|
N/A
|
N/A
|
Searching the premises or person and anything on it or in
possession of the person
|
Yes, if the subject of the control order:
- is
the occupier of the premises and
has consented to the entry[307]
|
Yes, with such force as is necessary and reasonable in the
circumstances[308]
|
Yes[309]
|
Yes, with such force as is necessary and reasonable in the
circumstances [310]
|
Searching for and recording fingers prints
|
Yes[311]
|
Yes, with such force as is necessary and reasonable in the
circumstances [312]
|
Inspecting, examining, taking measurements of, conducting
tests or taking samples of things found at the premises or on the person
|
Yes (taking samples only)[313]
|
Yes (taking samples only)[314]
|
Examining or observing any activity conducted on the
premises, making any still, moving image or recording of anything on the
premises
|
N/A
|
N/A
|
Inspect documents at the premises and taking extracts from
or making copies of them
|
N/A
|
N/A
|
Taking and equipment and material onto the premises as
necessary to exercise a power
|
N/A
|
N/A
|
Securing, and operating electronic equipment or data
storage devices on the premises (including obtaining expert assistance)
|
N/A
|
N/A
|
Asking for or requiring answers to questions
and the production of documents
|
Yes. Can ask the subject of the control order to do
so if:
- he
or she is the occupier of the premises and
- he
or she consented to the entry onto the premises[315]
|
Yes. Can require not only the subject of the
control order, but any person on the premises to do so[316]
(subject to certain protections)[317]
|
No
|
No
|
Seizing evidential material, tainted property and seizable
items
|
No
|
Yes, with such force as is necessary and reasonable in the
circumstances[318]
|
No
|
Yes, with such force as is necessary and reasonable in the
circumstances[319]
|
Conducting an ordinary or frisk search of a person on or
near the premises
|
No
|
Yes, with such force as is necessary and reasonable in the
circumstances[320]
|
N/A
|
N/A
|
Obtaining assistance and using necessary and reasonable force
to execute a warrant.
|
No
|
Yes. A constable may use force against persons and things;
a person assisting may only use force against things.[321]
|
No
|
Yes. A constable may use force against persons and things;
a person assisting may only use force against things.[322]
|
Searching a recently used conveyance
|
Yes, if the conveyance is on the premises[323]
|
Yes, if the conveyance is on the premises, and with such
force as is necessary and reasonable in the circumstances [324]
|
Yes[325]
|
Yes, with such force as is necessary and reasonable in the
circumstances [326]
|
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1].
Criminal Code Act 1995
(
Criminal Code), accessed 25 January 2016.
[2].
Crimes Act 1914;
Telecommunications
(Interception and Access) Act 1979 (
TIA Act);
Surveillance Devices
Act 2004 (
SD Act); all accessed
25 January 2016.
[3]. Australian Security
Intelligence Organisation Act 1979 (ASIO Act); Administrative Appeals
Tribunal Act 1975; both accessed 25 January 2016.
[4]. Classification
(Publications, Films and Computer Games) Act 1995, accessed
25 January 2016.
[5]. National Security
Information (Criminal and Civil Proceedings) Act 2004 (NSI Act);
Public Interest
Disclosure Act 2013; both accessed 25 January 2016.
[6]. Taxation Administration
Act 1953, accessed 25 January 2016.
[7]. National Security
Legislation Amendment Act (No. 1) 2014; Counter-Terrorism
Legislation Amendment (Foreign Fighters) Act 2014; Counter-Terrorism
Legislation Amendment Act (No. 1) 2014; Australian Citizenship
Amendment (Allegiance to Australia) Act 2015; all accessed 18 December 2015.
[8]. G Brandis,
‘Second
reading speech: Counter-Terrorism Legislation Amendment Bill (No. 1) 2015’,
Senate, Debates, 12 November 2015, pp. 8425–27, accessed
25 January 2016.
[9]. T Abbott
(Prime Minister), National Terrorism Public Alert Level raised to high, media release, 12 September 2014, accessed
7 December 2015.
[10]. Australian Government, ‘National Terrorism Threat Advisory System’, Australian national security website, accessed
7 December 2015.
[11]. C Houston,
T Mills, J Silvester and D Wroe, ‘Teen
suspect was in touch with Islamic State’, The Age,
25 September 2014, p. 2; Department of the Prime Minister and
Cabinet and NSW Department of Premier and Cabinet, Martin
Place siege: joint Commonwealth—New South Wales review, Australian and
NSW Governments, Canberra, January 2015; N Ralston,
A Benny-Morrison and R Olding, ‘Teen
shooter unknown to police’, The Sydney Morning Herald,
4 October 2015, p. 3; all accessed 7 December 2015.
[12]. M Turnbull,
‘Ministerial
statements: national security’, House of Representatives, Debates,
24 November 2015, pp. 13483–86; Australian Federal Police (AFP), Update
on additional charges in Operation Appleby investigation, media
release, 10 December 2015; A Zammit, ‘Australians
charged under Joint Counter-Terrorism Team operations since 2013’, The
Murphy Raid, blog, updated 12 October 2015; AFP, Update:
two men charged in latest Operation Appleby arrests, media release,
23 December; all accessed 22 January 2016.
[13]. Australian
Security Intelligence Organisation (ASIO), ASIO
report to Parliament 2014–15, ASIO, 2015, p. 3, accessed
7 December 2015.
[14]. G Brandis,
Second reading speech, op. cit.
[15]. Council
of Australian Governments (COAG), Australia’s
Counter-Terrorism Strategy: Strengthening our resilience, Commonwealth
of Australia, 2015, p. 3, accessed 7 December 2015.
[16]. E Whinnett,
‘Terrorist
suspects’ passports shredded’, The Daily Telegraph,
5 December 2015, p. 11, accessed 7 December 2015.
[17]. Department
of the Prime Minister and Cabinet and NSW Department of Premier and Cabinet, Martin
Place siege: joint Commonwealth—New South Wales review, op. cit.,
p. viii; D Box and M McKenna, ‘Control
orders used for raid pair’, The Australian,
20 December 2014, p. 1; P Farrell, ‘Judge
confirms first control order in more than eight years on man, 20’, The
Guardian, (online edition), 1 December 2015;
R Baxendale, ‘Teenager
walks free of Anzac Day plot charges’, The Australian,
13 November 2015, p. 3; B Walker, Declassified
annual report, Independent National Security Legislation Monitor
(INSLM), Canberra, 20 December 2012; all accessed
12 February 2016.
[18]. Australian
Federal Police (AFP), Clarification
of Operation Appleby numbers, media release,
20 September 2014; P Farrell, ‘Detention
orders obtained before anti-terrorism raids were carried out’, The
Guardian, (online edition), 19 September 2014; R Olding, ‘Almost
a decade to standardise Preventative Detention Orders’, The Sydney
Morning Herald, (online edition), 3 December 2014; all accessed
8 December 2015. Little information is available on these orders due
to a non-publication order: P Farrell, ‘Indefinite
ban on reporting of counter-terrorism preventative detention order’, The
Guardian, (online edition), 23 September 2014, accessed
8 December 2015.
[19]. IMO
an Application for a Preventative Detention Order in respect of CAUSEVIC [2015] VSC 248 (3 June
2015); AFP, Counter
terrorism operation update, media release, 21 April 2015;
T Minear and K McMahon, ‘Anzac
Day terror plot: Hampton Park teen Harun Causevic charged’, The Herald
Sun, (online edition), 21 April 2015; all accessed
8 December 2015.
[20]. AFP,
Update
to charges from JCTT Operation Rising, media release,
25 August 2015; R Baxendale, ‘Teenager
walks free of Anzac Day plot charges’, The Australian, p. 3,
13 November 2015; both accessed 8 December 2015.
[21]. G Brandis,
Second reading speech, op. cit. The Attorney-General was referring to
Council of Australian Governments, Council
of Australian Governments review of counter-terrorism legislation (COAG
Review), Australian Government, 2013, accessed
25 January 2016
[22]. COAG,
‘COAG meeting,
10 October 2014’, COAG website, accessed
8 October 2015.
[23]. COAG,
‘COAG
response to the COAG Review of Counter-Terrorism Legislation’, COAG, 2014,
accessed 8 October 2015.
[24]. 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, 2014, accessed
8 December 2015. No amendments have been made to address
recommendations 1–3, 5, 7, 9–10, 18, 24, or 33, despite a positive response
from COAG.
[25]. Parliamentary
Joint Committee on Intelligence and Security (PJCIS), ‘Inquiry
into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015’,
Australian Parliament website, accessed 7 December 2015.
[26]. Senate
Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), Alert
digest, 13, 2015, The Senate, 25 November 2015,
pp. 4–27, accessed 7 December 2015.
[27]. Ibid.,
pp. 22–26.
[28]. Ibid.,
pp. 7–9.
[29]. Ibid.,
pp. 10–12.
[30]. Ibid.,
pp. 14–15.
[31]. Ibid.,
pp. 4–7, 15–16.
[32]. See,
for example, T Plibersek, Transcript
of interview with Julie Doyle: ABC Capital Hill, media release,
19 November 2015; M Dreyfus, Transcript
of interview with Patricia Karvelas: Radio National Drive, media
release, 6 November 2015; both accessed 7 December 2015.
[33]. N McKim,
Control
orders on children will not make us safer, media release,
13 October 2015; N McKim, Attorney-General
offers no evidence for draconian laws, media release,
14 October 2015; both accessed 7 December 2015.
[34]. G Brandis
(Attorney-General), Government
tables INSLM’s report on control order safeguards, media release,
5 February 2016, accessed 10 February 2016.
[35]. R Gyles,
Control
order safeguards—(INSLM report) special advocates and the Counter-Terrorism
Legislation Amendment Bill (No. 1) 2015, Independent National
Security Legislation Monitor (INSLM), Canberra, January 2016, accessed
10 February 2016.
[36]. Law
Council of Australia (LCA), Submission
to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1)
2015, 10 December 2015, p. 6; Gilbert + Tobin Centre of
Public Law (Gilbert + Tobin), Submission
to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1)
2015, 8 December 2015, pp. 1–2; Amnesty International, Submission
to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1)
2015, 11 December 2015; Victorian Bar and Criminal Bar
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[48]. R Gyles,
Control order safeguards, op. cit., p. 3.
[49]. AHRC,
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[50]. Muslim
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[51]. R Gyles,
Control order safeguards, op. cit., p. 3.
[52]. Ibid.
[53]. LCA,
Submission to PJCIS, op. cit., pp. 16–23; Gilbert + Tobin,
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[54]. Joint
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[55]. Gilbert
+ Tobin, op. cit., p. 10. The submission points out that one of the
reasons the legislation was upheld in a 2007 challenge was that control orders
are not punitive, so do not breach the separation of powers.
[56]. AHRC,
Submission to PJCIS, op. cit., pp. 18–20; Gilbert + Tobin, Submission to
PJCIS, op. cit., pp. 12–18; Muslim Legal Network (NSW), op. cit., p. 41;
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[57]. Gilbert
+ Tobin, op. cit., pp. 17–18, quoting COAG Review, op. cit.,
Recommendation 31, 59–60.
[58]. Gilbert
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[59]. LCA,
Submission to PJCIS, op. cit., pp. 34–35.
[60]. AHRC,
op. cit., pp. 18–20.
[61]. R Gyles,
Control order safeguards, op. cit., p. 10.
[62]. Explanatory
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[63]. AHRC,
op. cit., pp. 14–16; LCA, Submission to PJCIS, op. cit.,
pp. 15–16; Joint submission by Australian councils for civil liberties,
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[64]. Gilbert
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[65]. Muslim
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[66]. Muslim
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[67]. LCA,
Submission to PJCIS, op. cit., pp. 28-29; Joint submission by Australian
councils for civil liberties, op. cit., pp. 17–18; Blueprint,
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[68]. Explanatory
Memorandum, p. 2.
[69]. The
Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory
Memorandum to the Bill.
[70]. Parliamentary
Joint Committee on Human Rights (PJCHR), Thirty-second
report of the 44th Parliament, 1 December 2015, p. 6,
accessed 7 December 2015.
[71]. Ibid.
[72]. Ibid.,
pp. 7–37.
[73]. Ibid.,
pp. 10–13.
[74]. Ibid.,
pp. 13–20.
[75]. Ibid.,
pp. 31–37.
[76]. Ibid.
[77]. Ibid.,
pp. 20–24.
[78]. Ibid.,
pp. 24–31.
[79]. Anti-Terrorism
Act (No. 2) 2005, Schedule 4, accessed
25 January 2016.
[80]. Counter-Terrorism
Legislation Amendment (Foreign Fighters) Act 2014, Schedule 1; Counter-Terrorism
Legislation Amendment Act (No. 1) 2014, Schedule 1. For
further information see: C Barker, M Biddington, M Coombs and M Klapdor, Counter-Terrorism
Legislation Amendment (Foreign Fighters) Bill 2014, op. cit. and C
Barker, Counter-Terrorism
Legislation Amendment Bill (No. 1) 2014, Bills digest, 50, 2014–15,
Parliamentary Library, Canberra, 2014, accessed 11 February 2016.
[81]. Criminal Code,
subsection 104.2(2), section 104.3 and paragraph 104.4(1)(c).
[82]. Ibid.,
section 104.1 and subsection 104.4(1).
[83]. Ibid.,
subsection 104.5(3).
[84]. Ibid.,
subsection 104.28(1).
[85]. Item 43
of Schedule 2, amendment to subsection 104.28(1).
[86]. ASIO, Report
to Parliament 2014–15, op. cit., pp. ix, 3–4; S Lane, ‘Prime Minister
meets states and territories to address radicalisation of young people’, 7.30,
transcript, ABC, 15 October 2015; AAP, ‘Boy,
12, on terror list’, West Australian, 15 October 2015,
p. 6; L Wilson, ‘Fresh-faced
westerners are being lulled into terrorism by ISIS propaganda’,
News.com.au, 16 March 2015; all accessed 25 January 2016.
[87]. G Brandis,
‘Answer
to Question without notice: national security’, [Questioner: N McKim],
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25 January 2016.
[88]. S Lane,
‘Prime Minister meets states and territories to address radicalisation of young
people’, op. cit.
[89]. N Ralston,
A Benny-Morrison and R Olding, ‘Parramatta
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[90]. AFP,
Two
men charged in Operation Appleby investigation, media release,
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[91]. AFP,
Submission
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[92]. Criminal
Code, sections 7.1 and 7.2. Doli incapax will act as a
rebuttable presumption in these circumstances.
[93]. PJCHR,
Thirty-second report of the 44th Parliament, op. cit., p. 11.
[94]. Ibid.,
pp. 7–17.
[95]. Ibid.,
pp. 12–13. See COAG, COAG Review, op. cit., p. 63
(Recommendation 37).
[96]. Ibid.,
p. 17.
[97]. AHRC,
op. cit., pp. 9–10; LCA, Submission to PJCIS, op. cit.,
pp. 6–7; Amnesty International, op. cit.; Victorian Bar and CBA,
op. cit., p. 2; UNICEF Australia, op. cit.
[98]. See
C Barker, Counter-Terrorism
Legislation Amendment Bill (No. 1) 2014, op. cit.
[99]. Criminal
Code, subsection 104.28(2).
[100]. Ibid.,
section 104.28(3).
[101]. Joint
submission by Australian councils for civil liberties, op. cit.,
p. 8; Muslim Legal Network (NSW), op. cit., p. 11. It is unclear
from the submission whether ‘young people’ is intended to refer only to 14 and
15 year olds, or also 16 and 17 year olds.
[102]. Attorney-General’s
Department (AGD), Supplementary
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Amendment Bill (No.1) 2015, January 2016, p. 13, accessed
21 January 2016.
[103]. Item 46
of Schedule 2, proposed section 104.28AA.
[104]. AHRC,
op. cit., p. 13.
[105]. Item 46
of Schedule 2, proposed paragraph 104.28AA(1)(a).
[106]. Item 46
of Schedule 2, proposed paragraph 104.28AA(1)(b).
[107]. COAG, COAG
Review, op. cit., pp. 59–60. See also R Gyles, R Gyles, Control
order safeguards, op. cit., p. 10.
[108]. Explanatory
Memorandum, p. 17; Family
Law Act 1975, sections 68L and 68LA, accessed
18 December 2015.
[109]. Gilbert
+ Tobin, op. cit., p. 4. See also R Gyles, Control order
safeguards, op. cit., p. 3; Muslim Legal Network (NSW),
op. cit., pp. 7–8.
[110]. PJCHR,
Thirty-second report of the 44th Parliament, op. cit.,
pp. 18–19; R Gyles, Control order safeguards, op. cit.,
p. 3; LCA, Submission to PJCIS, op. cit., p. 10; AHRC, op. cit.,
pp. 13–14; Muslim Legal Network (NSW), op. cit., pp. 7–8; Joint
submission by Australian councils for civil liberties, op. cit.,
pp. 8–10.
[111]. PJCHR,
Thirty-second report of the 44th Parliament, op. cit., p. 19.
[112]. AHRC,
op. cit., p. 14; Gilbert + Tobin, op. cit., p. 5.
[113]. Gilbert
+ Tobin, op. cit., pp. 5–6.
[114]. AGD,
Supplementary submission op. cit., pp. 9–11.
[115]. Muslim
Legal Network (NSW), op. cit., p. 8.
[116]. Scrutiny
of Bills Committee, Alert digest, 13, op. cit., pp. 8–10.
[117]. Item 4
of Schedule 2, amendment to subsection 104.4(2).
[118]. Item 5
of Schedule 2, proposed subsection 104.4(2A).
[119]. Items
37 and 38 of Schedule 2, amendment to
subsection 104.24(2) and proposed subsection 104.24(2A).
[120]. PJCHR,
Thirty-second report of the 44th Parliament, op. cit., pp. 14–15.
[121]. AHRC,
op. cit., pp. 12–13; LCA, Submission to PJCIS, op. cit.,
p. 9; Gilbert + Tobin, op. cit., pp. 3–4; UNICEF Australia,
op. cit., p. 2; Joint submission by Australian councils for civil
liberties, op. cit., pp. 7–8; ALHR, op. cit., pp. 4–5.
[122]. AGD,
Supplementary submission, op. cit., p. 7.
[123]. PJCHR,
Thirty-second report of the 44th Parliament, op. cit.,
pp. 15–16; Gilbert + Tobin, op. cit., p. 4; Explanatory
Memorandum, p. 15.
[124]. Criminal
Code, section 104.29.
[125]. Item 48
of Schedule 2, proposed paragraph 104.29(2)(g).
[126]. Criminal
Code, paragraph 104.5(3)(d).
[127]. Criminal
Code, subsection 104.4(3).
[128]. Criminal
Code, section 104.27 (offence) and subsection 5.6(1) (default
fault element for a physical element consisting of conduct is intent).
[129]. Queensland
Government, Submission
to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1)
2015, n.d., pp. 2–3, accessed 21 January 2016.
[130]. AGD,
Supplementary submission, op. cit., pp. 13–14.
[131]. LCA,
Submission to PJCIS, op. cit., pp. 13–14; Gilbert + Tobin,
op. cit., p. 6.
[132]. Gilbert
+ Tobin, op. cit., p. 6; Muslim Legal Network (NSW), op. cit.,
p. 12.
[133]. Gilbert
+ Tobin, op. cit., p. 6.
[134]. COAG Review,
op. cit., p. 58.
[135]. Gilbert
+ Tobin, op. cit., pp. 6–7.
[136]. AGD,
Supplementary submission, op. cit., p. 15.
[137]. ALHR,
op. cit., p. 4.
[138]. Explanatory Memorandum,
p. 119.
[139]. NSI Act.
[140]. Ibid.
[141]. Explanatory
Memorandum, p. 123.
[142]. NSI
Act, section 3.
[143]. T Tulich and J
Blackbourn, ‘National
security bill opens the door to expanded control orders and secret evidence’,
The Conversation, 13 November 2015, accessed
25 January 2016.
[144]. Al Rawi and
others (Respondents) v The Security Service and others [2011] UKSC 34,
accessed 25 January 2016.
[145]. AGD,
Supplementary submission, op. cit., p. 35.
[146]. AFP,
Submission to PJCIS, op. cit., p. 12.
[147]. COAG Review, op.
cit., pp. 59–60 (Recommendations 30 and 31).
[148]. INSLM
Report, op. cit., p. 10.
[149]. Ibid.,
pp. 3–5.
[150] Explanatory
Memorandum, pp. 119–120.
[151] Explanatory
Memorandum, pp. 10, 25–26, 34–35, 66, 82 and 95; AGD, Submission
to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1)
2015, December 2015, p. 7, accessed 12 February 2016; AFP,
Submission to PJCIS, op. cit., pp. 9–11; AGD, Supplementary
submission, op. cit., pp. 18–20.
[152]. The same
purposes apply throughout many provisions of Schedules 8, 9 and 10.
See for example proposed sections 3ZZKA, 3ZZLA, 3ZZOA
and 3ZZOB of the Crimes
Act (Schedule 8), items 19 and 22 of Schedule 9
(TIA Act) and
items 1, 8, 11 and 13 of Schedule 10 (SD Act).
[153]. AGD,
Guide
to framing Commonwealth offences, infringements notices and enforcement powers,
AGD, Canberra, September 2011, Chapters 7 and 10 and p. 87, accessed
10 February 2016; TIA Act, Part 2-5, particularly
Division 4; SD Act, Parts 2 and 4.
[154]. Search
warrants, telecommunication interception and surveillance devices could all be
sought in the context of an investigation for the preparatory offences in
sections 101.4 (possessing things connected to terrorist acts), 101.5
(collecting or making documents likely to facilitate terrorist acts) and 101.6
(any act in preparation for, or planning, a terrorist act) of the Criminal
Code, and the offence of breaching a control order in section 104.27
of the Criminal Code.
[155]. Regulatory Powers
(Standard Provisions) Act 2014, section 32, accessed
11 January 2016.
[156]. Items 19
and 22 of Schedule 9, amending sections 46 and 46A
of the TIA Act respectively and item 11 of Schedule 10,
amending subsection 16(1) of the SD Act.
[157]. LCA,
Submission to PJCIS, op. cit., p. 17.
[158]. Gilbert
+ Tobin, op. cit., pp. 9–10; AHRC, op. cit., pp. 17–18. See
also Joint submission by Australian councils for civil liberties,
op. cit., pp. 12–17.
[159]. AGD,
Supplementary submission, op. cit., pp. 18–19.
[160]. Schedule 8,
proposed section 3ZZJB of the Crimes Act; Item 1
of Schedule 9, proposed amendments to subsection 5(1) of the TIA Act;
Item 3 of Schedule 10, proposed amendments to
subsection 6(1) of the SD Act.
[161]. Criminal Code,
subsection 104.5(1) and section 104.12.
[162]. Ibid.,
subsection 104.14(1).
[163]. The monitoring
powers in Schedule 8 are premised on the control order being in
force (proposed subsections 3ZZOA(5) and 3ZZOB (5)). Under
paragraph 104.5(1)(d) of the Criminal Code, a control order only
enters into force once it is served on the person. Proposed sections 6T
of the TIA Act (item 10 of Schedule 9) and proposed
section 6C of the SD Act (item 7 of Schedule 10)
displace that particular provision of the Criminal Code.
[164]. Criminal Code,
subsections 104.5(1) and (1A).
[165]. P Farrell, ‘Government
could retrospectively use secret evidence in anti-terror hearings’, The
Guardian, (online edition), 13 November 2015, accessed
10 December 2015.
[166]. Interim
control order (Ahmad Saiyer Naizmand) File no. (P)SYG562/2015, Federal
Circuit Court, 5 March 2015; Control
order (Ahmad Saiyer Naizmand), File no. (P)SYG562/2015, Federal Circuit
Court, 30 November 2015; both accessed 10 December 2015.
[167]. Proposed
section 3ZZTC of the Crimes Act in Schedule 8.
[168]. Proposed
section 299 of the TIA Act at item 53 of Schedule 9
and proposed section 65B of the SD Act at item 39 of Schedule 10.
[169]. Evidence Act 1995 (Cth),
subsection 138(1), accessed 12 January 2016. However, the general
prohibition on the admission of improperly or illegally obtained evidence is
subject to a number of exceptions.
[170]. Muslim
Legal Network (NSW), op. cit., p. 30. See also pp. 26–27 and 34.
[171]. Scrutiny
of Bills Committee, Alert digest, 13, op. cit., pp. 14–15;
PJCHR, Thirty-second report of the 44th Parliament, op. cit.,
pp. 29–31.
[172]. AGD,
Supplementary submission, p. 24.
[173]. Ibid.
[174]. Proposed
sections 3ZZJA, 3ZZKA, 3ZZLA, 3ZZOA, and 3ZZOB of the Crimes Act.
[175]. Explanatory
Memorandum, p. 68.
[176]. In
the absence of another of the prescribed connections a person must ‘occupy or
reside’ on the premises, or have ‘possession or control’ of the premises. These
terms are not defined, so would be interpreted on the basis of their ordinary
meanings and any relevant case law.
[177]. Proposed
sections 3ZZKA, 3ZZKB and 3ZZKC of the Crimes Act.
[178]. Proposed
sections 3ZZLA and 3ZZLB of the Crimes Act.
[179]. Ibid.
[180]. Proposed
section 3ZZKE of the Crimes Act.
[181]. Proposed
sections 3ZZKF and 3ZZLC of the Crimes Act.
[182]. Proposed
Division 8, Part IAAB of the Crimes Act.
[183]. Proposed
section 3ZZJB and Division 5, Part IAAB of the Crimes Act.
[184]. Proposed
sections 3ZZOA and 3ZZOB of the Crimes Act.
[185]. Proposed
3ZZJD of the Crimes Act.
[186]. Proposed
section 3ZZOC of the Crimes Act.
[187]. Proposed
section 3ZZOD of the Crimes Act.
[188]. Proposed
subsections 3ZZOD(2), (3) and (4) of the Crimes Act.
[189]. Proposed
Division 4, Part IAAB of the Crimes Act.
[190]. Queensland
Government, op. cit., pp. 3–4.
[191]. Proposed
section 3ZZRB of the Crimes Act.
[192]. Crimes Act,
section 3ZQU.
[193]. Proposed
section 3ZZRC of the Crimes Act.
[194]. Crimes Act,
section 3ZQU.
[195]. Proposed
subsection 3ZZRC(2) of the Crimes Act; Crimes Act,
section 3ZQU.
[196]. Crimes
Act, section 3C. The definition of offence for the purposes of Part
IAA will apply because proposed section 3ZZRC will apply
Division 4C of that Part to documents obtained under proposed
Part IAAB.
[197]. Crimes
Act, section 3; Criminal Code, subsection 100.1(1).
[198]. Proposed
section 3ZZJB of the Crimes Act; Criminal Code,
subsections 100.1(1) and 117.1(1).
[199]. Proposed
section 3ZZRD of the Crimes Act.
[200]. TIA
Act, paragraphs 9(1)(a)(ia) and 46(1)(d)(ii), sections 9A and 46A .
[201]. Proposed
subsection 139B(1) (which links to existing subsections 139(2), 139(4A) and
139A(2) of the TIA Act).
[202]. Proposed
section 103B.
[203]. Amendments
to definitions of ‘permitted purpose’ and ‘preventative detention order’ in subsection
5(1) and proposed section 139B.
[204]. TIA Act,
subsection 5(1) (definition of ‘agency’ and ‘interception agency’),
section 34, paragraphs 46(1)(d) and 46A(1)(d).
[205]. Criminal
Code, subsection 104.2(2).
[206]. Ibid.,
paragraphs 104.4(1)(c)(i) and (vi).
[207]. Ibid.,
paragraph 104.4(1)(d).
[208]. Whilst
not directly conceding this point, AGD noted that: ‘If there were reasonable
grounds to suspect that the control order subject was contravening the terms of
the control order or engaging in terrorism-related conduct, given both
categories of conduct constitute criminal offences, law enforcement would be
able to apply for warrants under the existing provisions for search,
telecommunications interception or surveillance device powers for the purposes
of investigating the commission of an offence.’: AGD, Supplementary submission,
op. cit., p. 19.
[209]. Inspector-General
of Intelligence and Security (IGIS), Submission
to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill
(No.1) 2015, 10 December 2015, p. 3, accessed 18 December 2015.
[210]. TIA
Act, sections 176 and 177 (in relation to ASIO) and 178, 179 and 180 (in
relation to the AFP and certain other enforcement agencies).
[211]. J
Murphy and M Biddington, Telecommunications
(Interception and Access) Amendment (Data Retention) Bill 2014, Bills
digest, 89, 2014–15, Parliamentary Library, Canberra, 2015, pp. 11–12, accessed
17 December 2015.
[212]. See
proposed subsections 46(4)-(6) and in particular proposed paragraphs
46(4)(d)(ii), (5)(a), (c) and (6)(a). These are
based on existing paragraph 46(1)(d)(ii), 46(2)(a) and (c) and subsection
46(3) of the TIA Act: ‘The Judge or nominated AAT member must not issue
a warrant in a case in which subparagraph (1)(d)(ii) applies unless he or she
is satisfied that... (a) the agency has exhausted all other practicable
methods of identifying the telecommunications services used, or likely to
be used, by the person involved in the offence or offences referred to in
paragraph (1)(d); or (b) interception of communications made to or from a
telecommunications service used or likely to be used by that person would
not otherwise be possible.’ (emphasis added).
[213]. LCA,
Submission to PJCIS, op. cit., p. 18.
[214]. AHRC,
Submission to PJCIS, op. cit., pp. 17–18.
[215]. LCA,
Submission to PJCIS, op. cit., p. 19.
[216]. Joint
submission by Australian councils for civil liberties, op. cit., pp. 15–16.
[217]. TIA
Act, paragraph 139(2)(b): ‘... the purposes are purposes connected with ... an
investigation by the agency or by another criminal law-enforcement agency of a
contravention to which subsection (3) applies ...’.
[218]. TIA
Act, paragraph 139(3)(a).
[219]. TIA
Act, paragraph 139(3)(b).
[220]. TIA
Act, paragraph 139(2)(b) and (4).
[221]. TIA
Act, subsection 139(4A)
[222]. TIA
Act, subsection 139A(2).
[223]. Proposed
subsections 103B(2) and (3).
[224]. Explanatory
Memorandum, p. 92.
[225]. SD Act, sections
11–14 and 16.
[226]. Ibid.,
Part 3.
[227]. Proposed
paragraphs 3(aa)–(ab), 16(1)(bc), 16(2)(eb) and proposed subsections 4(5)–(6),
14(3C), 21(3C)–(3D), 37(4), 38(3A), 38(6), and 39(3B).
[228]. Surveillance
Devices Act 2004, subsections 45(3)-(6). Paragraph 45(4)(b) allows
protected information to be used, disclosed and published where a person
‘believes on reasonable grounds that the use or communication is necessary to
help prevent or reduce the risk of serious violence to a person or substantial
damage to property’. Likewise paragraphs 45(5)(a)–(c) allow protected
information to be used, communicated and published ‘if it is necessary’ for the
investigation or prosecution of a ‘relevant offence’ or for a ‘relevant
proceeding’. As such, protected information can be used for a wider set of
purposes than investigating or prosecuting terrorism related offences or
breaches of control orders.
[229]. Ibid.,
paragraph 45(4)(f).
[230]. Ibid.,
paragraphs 45(5)(d), (e), (h) and (i). See also: section 45A.
[231]. Items
35 and 36.
[232]. Proposed
subsection 37(4), 38(3A), 38(6) and 39(3B).
[233]. Items
34–36.
[234]. Explanatory
Memorandum, pp. 104–105.
[235]. Queensland
Government, op. cit., pp. 3, 5.
[236]. Criminal
Code, section 80.2C.
[237]. Genocide Convention Act
1949, accessed 25 January 2016.
[238]. Explanatory
Memorandum, pp. 108-109.
[239]. Ibid., p. 109.
[240]. G Brandis
(Attorney-General), Address
to the Centre for Independent Studies, Sydney, media release, 6
November 2015, accessed 25 January 2016.
[241]. Ibid.
[242]. Ibid.
[243]. Explanatory
Memorandum, p. 109.
[244]. See for
example: J Pilger, ‘Another
stolen generation: how Australia still wrecks Aboriginal families’, The Guardian,
(online edition), 22 March 2014, accessed 25 January 2016. For an
example of recent debate over assimilation including advocacy for the policy,
see ‘Q&A’,
ABC TV, 9 June 2014, transcript, accessed 25 January 2016.
[245]. Human Rights
and Equal Opportunity Commission (HREOC), Bringing
them home: report of the National Inquiry into the Separation of Aboriginal and
Torres Strait Islander Children from their Families, HREOC, Sydney, April
1997, Chapter 13; R Wilson, ‘Human
rights and Indigenous Australians’, address to the Australian Reconciliation Convention, 1997;
both accessed 25 January 2016.
[246]. AGD,
Supplementary submission, op. cit., p. 27.
[247]. Ibid.,
pp. 27–30.
[248]. Criminal
Code, paragraphs 105.4(4)(c) and (d).
[249]. Explanatory
Memorandum, p. 61.
[250]. Ibid.,
pp. 22, 60.
[251]. Scrutiny
of Bills Committee, Alert digest, 13, op. cit., p. 11.
[252]. Ibid.,
p. 12.
[253]. PJCHR,
Thirty-second report of the 44th Parliament, op. cit., pp. 21–24.
[254]. Gilbert
+ Tobin, op. cit., p. 7.
[255]. AHRC,
op. cit., pp. 14–16; LCA, Submission to PJCIS, op. cit.,
pp. 15–16; Joint submission by Australian councils for civil liberties,
op. cit., pp. 11–12.
[256]. AHRC,
op. cit., p. 15.
[257]. LCA,
Submission to PJCIS, op. cit., p. 16.
[258]. AGD,
Supplementary submission, op. cit., pp. 16–17.
[259]. Counter-Terrorism
Legislation Amendment (Foreign Fighters) Act 2014; Part IAAA of
the Crimes Act;
B Walker, Annual
report, Australian Government, Independent National Security
Legislation Monitor (INSLM), Canberra, 28 March 2014, pp. 61–63
(Recommendation VI/2), accessed 25 January 2016.
[260]. Crimes
Act, subsection 3ZZAA(4).
[261]. ‘Eligible
issuing officer’ is defined in section 3ZZAD of the Crimes Act.
Only certain judges and members of the Administrative Appeals Tribunal fall
within the definition.
[262]. Existing and
proposed section 3ZZBA of the Crimes Act.
[263]. Crimes Act,
section 3E(1). The issuing officer is required to be satisfied that there
are reasonable grounds for the relevant suspicion, not to hold that suspicion
him or herself.
[264]. ASIO Act, section 35.
‘Security’ is defined in section 4 of the Act.
[265]. ASIO
Act, section 40.
[266]. Item 4
of Schedule 12, proposed replacement subsection 40(1).
[267]. Ibid.
[268]. IGIS,
op. cit., p. 2. See ASIO Act, section 61.
[269]. LCA,
Submission to PJCIS, op. cit., p. 27.
[270]. AGD,
Supplementary submission, op. cit., p. 30.
[271]. ASIO Act,
subsection 40(2), as amended by item 5 of Schedule 12.
[272]. National Security
Information (Criminal and Civil Proceedings) Act 2004, accessed 25
January 2016.
[273]. Criminal Code,
sections 102.6 and 102.8.
[274]. COAG
Review op. cit., pp. 29–31 (Recommendation 20).
[275]. Item 1
of Schedule 1.
[276]. Item 2
of Schedule 1; COAG Review, op. cit., pp. 33–37
(Recommendation 23).
[277]. Classification
(Publications, Films and Computer Games) Act 1995, accessed
25 January 2016.
[278]. Counter-Terrorism
Legislation Amendment (Foreign Fighters) Act 2014, accessed 25 January
2016.
[279]. Explanatory
Memorandum, p. 114.
[280]. AGD,
Supplementary submission, op. cit., p. 32.
[281]. Taxation Administration
Act 1953, accessed 25 January 2016.
[282]. Explanatory
Memorandum, op. cit., p. 134.
[283]. Proposed
section 3ZZKA (in particular, proposed paragraph 3ZZKA(2)(a)) of the Crimes Act .
[284]. Proposed
section 3ZZKA (in particular, proposed paragraph 3ZZKA(2)(b)).
[285]. Proposed
section 3ZZKB and proposed subsections 3ZZKC(1) and (4) and 3ZZKD(2).
[286]. Proposed
section 3ZZKB, proposed subsections 3ZZKC(1) and (4) and 3ZZKD(2) and
proposed section 3ZZKG (use of force).
[287]. Proposed
section 3ZZLA and proposed paragraph 3ZZLB(a).
[288]. Proposed
section 3ZZLA, proposed paragraph 3ZZLB(a) and proposed section 3ZZLD (use
of force).
[289]. Proposed
paragraph 3ZZLB(c).
[290]. Proposed
paragraph 3ZZLB(c) and proposed section 3ZZLD (use of force).
[291]. Proposed
paragraph 3ZZLB(d).
[292]. Proposed
paragraph 3ZZLB(d) and proposed section 3ZZLD (use of force).
[293]. Proposed
subsection 3ZZKE(2).
[294]. Proposed
subsections 3ZZKE(3) and (6) (offence).
[295]. Proposed
subsections 3ZZKE(4) and (5) and proposed section 3ZZJD.
[296]. Proposed
sections 3ZZKF and 3ZZKG (use of force).
[297]. Proposed
sections 3ZZLC and 3ZZLD (use of force).
[298]. Proposed
paragraph 3ZZKF(2)(d) and proposed section 3ZZKG (use of force).
[299]. Proposed
section 3ZZKG.
[300]. Proposed
section 3ZZLD.
[301]. Proposed
paragraph 3ZZKB(a).
[302]. Proposed
paragraph 3ZZKB(a) and proposed section 3ZZKG (use of force).
[303]. Proposed
paragraph 3ZZLB(b).
[304]. Proposed
paragraph 3ZZLB(b) and proposed section 3ZZLD (use of force).
[305]. Proposed
section 3ZZKA (in particular, proposed paragraph 3ZZKA(2)(a)).
[306]. Proposed
section 3ZZKA (in particular, proposed paragraph 3ZZKA(2)(b)).
[307]. Proposed
section 3ZZKB and proposed subsections 3ZZKC(1) and (4) and 3ZZKD(2).
[308]. Proposed
section 3ZZKB, proposed subsections 3ZZKC(1) and (4) and 3ZZKD(2) and
proposed section 3ZZKG (use of force).
[309]. Proposed
section 3ZZLA and proposed paragraph 3ZZLB(a).
[310]. Proposed
section 3ZZLA, proposed paragraph 3ZZLB(a) and proposed section 3ZZLD (use
of force).
[311]. Proposed
paragraph 3ZZLB(c).
[312]. Proposed
paragraph 3ZZLB(c) and proposed section 3ZZLD (use of force).
[313]. Proposed
paragraph 3ZZLB(d).
[314]. Proposed
paragraph 3ZZLB(d) and proposed section 3ZZLD (use of force).
[315]. Proposed
subsection 3ZZKE(2).
[316]. Proposed
subsections 3ZZKE(3) and (6) (offence).
[317]. Proposed
subsections 3ZZKE(4) and (5) and proposed section 3ZZJD.
[318]. Proposed
sections 3ZZKF and 3ZZKG (use of force).
[319]. Proposed
sections 3ZZLC and 3ZZLD (use of force).
[320]. Proposed
paragraph 3ZZKF(2)(d) and proposed section 3ZZKG (use of force).
[321]. Proposed
section 3ZZKG.
[322]. Proposed
section 3ZZLD.
[323]. Proposed
paragraph 3ZZKB(a).
[324]. Proposed
paragraph 3ZZKB(a) and proposed section 3ZZKG (use of force).
[325]. Proposed
paragraph 3ZZLB(b).
[326]. Proposed
paragraph 3ZZLB(b) and proposed section 3ZZLD (use of force).
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