Bills Digest no. 20, 2016–17
PDF version [1229KB]
Contacts
Cat Barker – Schedules 1 to 14,
Schedule 15 Part 1, Schedules 16 and 17
Foreign Affairs, Defence and Security Section
Christina Raymond – Schedule 15 Part
2, Schedule 18
Law and Bills Digest Section
10
October 2016
This Bills Digest updates an earlier
version dated 15 February 2016 that was prepared for an earlier
version of this Bill (the Counter-Terrorism
Legislation Amendment Bill (No. 1) 2015).
Contents
Glossary
The Bills Digest at a glance
History of the Bill
Purpose and structure of the Bill
Background
Implementation of COAG and INSLM
recommendations
Committee consideration
Parliamentary Joint Committee on
Intelligence and Security
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Control orders
Offences relating to special
intelligence operations
Other measures
Financial implications
Special advocate scheme
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Amendments relating to control orders
(Schedules 2, 3, 4 and 15)
Lowering the minimum age for a
control order to 14 years old (Schedule 2)
Tracking devices (Schedule 3)
Issuing courts (Schedule 4)
New types of orders to protect
national security information in control order proceedings (Part 1 of
Schedule 15)
Special advocates (Part 2 of Schedule
15)
Monitoring, protective and
preventative powers when a person is subject to a control order
(Schedules 8, 9 and 10)
Purposes for which powers would be
available
Thresholds for warrants authorising
powers
Powers in relation to interim control
orders and orders not yet in force
Use of things, information and
documents obtained where control order is later declared void
Entry, search, seizure and related
powers (Schedule 8)
Telecommunications interception
warrants (Schedule 9)
Surveillance devices
(Schedule 10)
Preventative detention orders
(Schedules 5 and 6)
Offence of advocating genocide
(Schedule 11)
Offences relating to special
intelligence operations (Schedule 18)
The special intelligence operations
scheme
Section 35P—unauthorised disclosure
offence
Administrative requirements for the
commencement or continuation of prosecutions
Reviews of section 35P
INSLM findings and recommendations
Government response to the INSLM’s
report
Key amendments in Schedule 18
Disclosures by entrusted
persons—proposed subsections 35P(1) and 35P(1B) (items 1-4)
Comments on the proposed offences for
disclosures by entrusted persons
Offences for other disclosures—proposed
subsections 35P(2) and 35P(2A) (item 4)
Comments on the offences for ‘other
disclosures’
New prior publication
defence—proposed subsection 35P(3A) (item 6)
Comment on the “prior publication”
defence
Application of existing exceptions in
subsection 35P(3) to the new offences (item 5)
Extended geographical
jurisdiction—subsection 35P(4) (item 7)
Other issues—omissions from the 2016
Bill
Other provisions
Exemptions to terrorism organisation
offences: funds for legal representation (Schedule 1)
Security assessments by ASIO
(Schedule 12)
Classification of publications et
cetera (Schedule 13)
Delayed notification search warrants
(Schedule 14)
Dealing with national security
information in proceedings (Schedule 16)
Disclosures by taxation officers
(Schedule 17)
Concluding comments
Measures previously included in the
2015 Bill
New measures
Date introduced: 15
September 2016
House: Senate
Portfolio: Attorney-General
Commencement: Sections 1
to 3 on Royal Assent. Part 2 of Schedule 15 on proclamation or
12 months after Royal Assent, whichever is earlier. Part 1 of
Schedule 15 and all other Schedules 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 Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at October 2016.
Glossary
Abbreviation
or acronym |
Definition |
2015 Bill |
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 |
AAT |
Administrative Appeals Tribunal |
ACIC |
Australian Criminal Intelligence Commission |
ACLEI |
Australian Commission for Law Enforcement Integrity |
AFP |
Australian Federal Police |
AGD |
Attorney-General’s Department |
AHRC |
Australian Human Rights Commission |
ALHR |
Australian Lawyers for Human Rights |
ASIO |
Australian Security Intelligence Organisation |
ASIO Act |
Australian Security Intelligence Organisation Act 1979 |
CDPP |
Commonwealth Director of Public Prosecutions |
COAG |
Council of Australian Governments |
Criminal Code |
Criminal Code Act 1995 |
IGIS |
Inspector-General of Intelligence and Security |
IS Act |
Intelligence Services Act 2001 |
INSLM |
Independent National Security Legislation Monitor |
LCA |
Law Council of Australia |
MEAA |
Media, Entertainment and Arts Alliance |
NTEU |
National Tertiary Education Union |
NSI Act |
National Security Information (Criminal and Civil
Proceedings) Act 2004 |
NSLA Bill |
National Security Legislation Amendment Bill (No. 1) 2014 |
PDO |
Preventative Detention Order |
PJCHR |
Parliamentary Joint Committee on Human Rights |
PJCIS |
Parliamentary Joint Committee on Intelligence and Security |
SD Act |
Surveillance Devices Act 2004 |
SIO |
Special Intelligence Operation |
TIA Act |
Telecommunications (Interception and Access)
Act 1979 |
The Bills Digest at a glance
The Counter-Terrorism Legislation
Amendment Bill (No. 1) 2016 (the 2016 Bill) is the latest in a series of
reforms to national security and counter-terrorism laws since mid-2014. The
Government states the Bill would address issues that have come to light through
recent counter-terrorism investigations and operational activity.
The 2016 Bill is comprised mainly of measures included in
a 2015 Bill that lapsed on prorogation of Parliament. Those measures have
been amended to implement recommendations that the Parliamentary Joint Committee
on Intelligence and Security (PJCIS) made on the 2015 Bill. It also
includes two new measures recommended by the Independent National Security
Legislation Monitor.
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)
Implementation of the PJCIS recommendations relating to
those measures will increase safeguards and accountability but leave the scope
of the actual measures unchanged.
The 2016 Bill will also allow 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 (Part 1
of Schedule 15) and introduce a system of special advocates to
represent the interests of those people in proceedings from which they and
their legal representatives have been excluded (Part 2 of Schedule 15—this
is a new measure). The measure in the 2015 Bill raised significant
concerns about procedural fairness that the introduction of a special advocates
scheme is designed to address. However, it is suggested that the particular
scheme proposed in the 2016 Bill has not been subject to sufficient scrutiny to
provide the Parliament with a meaningful assurance that its provisions will be
workable and effective in practice.
Also new in the 2016 Bill are proposed
amendments to secrecy offences relating to special intelligence operations (Schedule 18).
The amendments implement the Government’s response to recommendations of the Independent
National Security Legislation Monitor made in October 2015. Overall, the
proposed measures are reasonably consistent with those recommendations.
However, a number of ambiguities and uncertainties are also apparent in the
framing and drafting of the proposed provisions.
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. An amendment to implement a PJCIS
recommendation may mitigate concerns about the implications for free speech.
Other measures in the Bill include amending the threshold
for imposing a preventative detention order by moving the focus from the
imminence of a possible terrorist act to the existence of the capability for, and
possibility of, a terrorist act within 14 days (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).
History of
the Bill
An earlier version of this Bill, the Counter-Terrorism
Legislation Amendment Bill (No. 1) 2015 (the 2015 Bill) was
introduced into the 44th Parliament on 12 November 2015.[1]
The 2015 Bill lapsed on prorogation of Parliament before being debated in
either House of Parliament. This Bill contains amendments to implement committee
recommendations and includes two new measures as identified below.
Purpose and
structure of the Bill
The purpose of the Counter-Terrorism Legislation Amendment
Bill (No. 1) 2016 (the 2016 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).[2]
- 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[3]
- amend the Australian Security Intelligence Organisation Act
1979 (ASIO Act) 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)[4]
- amend the Classification (Publications, Films and Computer
Games) Act 1995 (Classification Act) to change 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)[5]
- amend the Crimes Act to change 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 (Part 1 of Schedule 15)[6]
-
amend the NSI Act to:
- introduce
a system of special advocates to represent the interests of a person who is the
subject of a control order proceeding where that person and their legal
representative have been excluded from seeing or hearing sensitive national
security information (Part 2 of Schedule 15; new in
the 2016 Bill) and
- 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).
-
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)[7], and
- amend the ASIO Act to replace offences for unauthorised
disclosure of information relating to a special intelligence operation with
separate offences for people employed by ASIO and others (Schedule 18; new
in the 2016 Bill).
Background
The 2016 Bill and the Criminal Code Amendment (High Risk
Terrorist Offenders) Bill 2016 are the latest in a series of national security
and counter-terrorism laws introduced since mid-2014.[8]
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.[9]
The Attorney-General stated that the measures in the current Bill ‘reflect
lessons learned from recent counter-terrorism investigations and operational
activity’.[10]
On 12 September 2014, Australia raised its national
terror threat level from medium to high.[11]
In November 2015, the revised National Terrorism Threat Advisory System
altered this to ‘probable’, meaning that there is credible intelligence
indicating individuals or groups have both the intent and capability to conduct
an attack.[12]
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), the murder of a police accountant in Parramatta
(October 2015) and a knife attack on a man in Minto (September 2016).[13]
Over the same period, the Australian Federal Police (AFP) and state police have
conducted 19 counter-terrorism operations, resulting in 48 people being
charged with terrorism and other offences, including foreign incursions and
firearms offences.[14]
As at June 2016, ASIO was managing around 400 high priority counter-terrorism
investigations, the same as June 2015 but double the June 2014 figure.[15]
At the time of the 2016 Bill’s introduction, estimates
indicated there were around 110 Australians fighting or engaged with terrorist
groups in Iraq and Syria and 200 providing support or facilitation from Australia,
and that at least 58 Australians had lost their lives in the conflict.[16]
Around 40 Australians had returned from the conflict, most of them some time
ago.[17]
As at 1 September 2016, the Minister for Foreign Affairs had
cancelled around 180 Australian passports, suspended 33, and refused 24 to
prevent Australians travelling to Iraq and Syria to take part in the conflict.[18]
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.[19]
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 New South Wales law on 18 September 2014 and
released the next day, reportedly without charge.[20]
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 with
others in the Anzac Day plot. That PDO was revoked when he was charged with a
terrorism offence.[21]
The prosecution for that charge was dropped in August 2015, but the man
remained subject to a control order and was sentenced to a 12 month good
behaviour bond without conviction for weapons offences in November 2015.[22]
Implementation
of COAG and INSLM recommendations
The Attorney-General also noted the 2016 Bill would give
effect to ‘a number of recommendations from the Council of Australian
Governments [COAG] Review of Counter-Terrorism Legislation’.[23]
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’s recommendation that the Government give
consideration to introducing a special advocates system for control order
proceedings, reiterated by the Parliamentary Joint Committee on Intelligence
and Security (PJCIS) in November 2014, was not implemented in the 2015 Bill.[24]
The 2016 Bill (Part 2 of Schedule 15) now includes
amendments to establish such a system in response to recommendations of the
Independent National Security Legislation Monitor (INSLM) in January 2016 and
the PJCIS in February 2016 (in its report on the 2015 Bill; see further
‘Committee consideration’ below).[25]
COAG released its response to the COAG Review in
October 2014.[26]
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.[27]
While some recommendations were addressed through the Counter-Terrorism
Legislation Amendment (Foreign Fighters) Act 2014, several of the recommendations supported or partially
supported would remain outstanding if the 2016 Bill is passed.[28]
The INSLM’s report on an
inquiry into whether the additional safeguards for the control order regime set
out in the COAG Review should be introduced was tabled in May 2016.[29] The INSLM supported recommendation 28 (which as noted
above would be partially implemented by the 2016 Bill).[30] The INSLM also supported recommendation 33, which
was for amendments to make it explicit that a prohibition or restriction
on a person being at specified areas or places must not constitute a relocation
order.[31]
Despite also having been supported by COAG, that recommendation is not implemented in the 2016 Bill.
Schedule 18 of the 2016 Bill will replace the
current offences for unauthorised disclosure of information relating to a
special intelligence operation with separate offences for disclosures made by
people employed by ASIO and disclosures by others. This will implement
recommendations made by the INSLM in a report tabled in February 2016 on
the impact of the offences on journalists.[32]
See further the ‘Offences relating to special intelligence operations’ section
of this Digest below.
Committee consideration
At its 14 September 2016 meeting, the Senate
Standing Committee for Selection of Bills deferred consideration of the
2016 Bill to its next meeting.[33]
Parliamentary
Joint Committee on Intelligence and Security
2015 Bill
The PJCIS inquired into the 2015 Bill and reported on
15 February 2016.[34]
The report included 20 substantive recommendations for amendments to the
2015 Bill and Explanatory Memorandum. The Government stated in
July 2016 that following consultation with state and territory
governments, it accepted all of the recommendations and would amend the Bill
accordingly before reintroducing it early in the next Parliament.[35]
The PJCIS’s recommendations are reflected in the 2016 Bill through
changes relating to control orders and associated monitoring powers, control
order proceedings (including the introduction of a special advocates scheme),
preventative detention orders, the offence of advocating genocide, security
assessments by ASIO and disclosure of certain tax information. Further detail
is provided in the analysis of the Bill’s Schedules.
Special intelligence operations
The Attorney-General referred the National Security
Legislation Amendment Bill (No. 1) 2014 (NSLA Bill) to the PJCIS for inquiry
and advisory report in July 2014.[36]
This was further to the PJCIS’s inquiry into potential reforms to national
security legislation, including a proposal to develop the SIO scheme, in the
43rd Parliament on the referral of the former Attorney-General in 2012.[37]
In its 2013 report on the latter inquiry, the PJCIS
recommended that the Government develop the SIO scheme, subject to comparable
limitations and safeguards applying to the ‘controlled operations’ scheme in
Part 1AB of the Crimes Act 1914. [38]
(This scheme authorises the Australian Federal Police to conduct covert
operations for the purpose of investigating and obtaining admissible evidence
in relation to certain serious offences. Sections 15HK and 15HL of the Crimes
Act contain offences for the unauthorised disclosure of information
relating to a controlled operation, upon which section 35P of the ASIO Act
is modelled.[39])
In its report on the NSLA Bill in September 2014, the PJCIS
did not recommend major amendments to the text of section 35P.
It acknowledged concerns of stakeholders about the potential impacts of
the offences on freedom of expression (including in relation to journalists and
“whistleblowers”).[40]
The PJCIS concluded, however, that interests in freedom of
expression and protecting sensitive information could be managed adequately
through the fault elements and criminal standard of proof applying to the
offences, and administrative requirements under the Prosecution Policy of
the Commonwealth which provide that the Commonwealth Director of Public
Prosecutions (CDPP) must be satisfied that the commencement or continuation of
a prosecution would be in the public interest.[41]
The PJCIS recommended some relatively minor amendments, including to broaden
the scope of exceptions to enable disclosures for the purpose of obtaining legal
advice, and making complaints to the Inspector-General of Intelligence and
Security (or staff).[42]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny
of Bills Committee) had not yet reported on the 2016 Bill as at the date of
publication of this Digest. However, the Scrutiny of Bills Committee had
concerns about several measures in the 2015 Bill[43],
some of which would be at least partly addressed by the implementation in the
2016 Bill of the PJCIS’s recommendations. Among the key concerns it raised that
remain relevant to the 2016 Bill 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[44]
- 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’[45]
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.[46]
The Scrutiny of Bills Committee was not persuaded by further
information from the Attorney-General that the amendments relating to access to
national security information now in Part 1 of Schedule 15
provide an appropriate balance between national security concerns and
procedural fairness in control order proceedings.[47]
However, it did consider that implementing the PJCIS’s recommendations on those
provisions ‘may represent an improvement to the Bill as currently drafted’.[48]
The Scrutiny of Bills Committee supported the PJCIS’s
recommendation that for the proposed advocating genocide offence (in Schedule 11)
to apply, a person must be reckless as to whether another person might act
accordingly. It expressed some concern about the PJCIS’s recommendation to
remove the requirement that the advocacy was engaged in ‘publicly’, but left the
question of the most appropriate approach to the Senate as a whole.[49]
Both recommendations will be implemented by the 2016 Bill.
The Scrutiny of Bills Committee, in its consideration of the
National Security Legislation Amendment Bill (No 1) 2014 (‘NSLA Bill’)[50],
identified section 35P as potentially trespassing unduly on personal
rights and liberties (namely freedom of expression). It drew the provision
to the attention of the Senate, together with the response of the
Attorney-General.[51]
Policy
position of non-government parties/independents
As at the time of writing this Digest, the Australian Labor
Party did not appear to have publicly stated its support or otherwise for the 2016 Bill.
However, it had stated that it will continue to work constructively with the
Government on national security legislation.[52]
Implementation of all of the PJCIS’s recommendations on the 2015 Bill in the
2016 Bill should make it more likely that Labor will support the measures
previously included in the 2015 Bill.
In October 2015, ahead of the 2015 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.[53]
In the 44th Parliament, some members of the cross-bench
opposed the enactment of section 35P of the ASIO Act (to be amended by Schedule 18)
during the debate of the NSLA Bill. They moved various amendments to remove the
provision from the NSLA Bill, or alternatively to include exceptions or
defences, and ultimately voted against the NSLA Bill.[54]
In addition, while Labor supported the enactment of
section 35P as part of the NSLA Bill, some members have individually
expressed their concern that the offences could have a harsh and oppressive
effect on journalists and others seeking to report, or participate in public
discussion, on national security matters.[55]
The Leader of the Opposition reportedly wrote to the Prime Minister on 29
October 2014, requesting the Prime Minister to refer
section 35P to the INSLM for inquiry and report.[56]
Position of
major interest groups
The views of major interest groups, in particular law groups
and legal experts, civil liberties and human rights organisations and the
Inspector-General for Intelligence and Security (IGIS) on most of the measures
in the 2016 Bill, are set out in their submissions and evidence to the
PJCIS’s inquiry into the 2015 Bill and summarised in the PJCIS’s report on
the inquiry. Some of the concerns raised by stakeholders about the
2015 Bill will be addressed in the 2016 Bill through implementation
of the PJCIS’s recommendations on the 2015 Bill.
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 2015 Bill.[57]
Lowering
the minimum age to 14 years old
The proposal to lower the minimum age for control orders
attracted attention when it was formally announced in October 2015.[58]
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.[59]
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.[60]
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.[61]
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.[62]
The LCA and some other legal experts have raised similar questions about the
likely efficacy of the measure.[63]
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’. [64]
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’.[65]
Human rights and legal organisations and councils for
civil liberties considered the amendments as introduced in 2015 did not
properly implement Australia’s obligations under the United Nations Convention
on the Rights of the Child, including ensuring the interests of the child
are a primary consideration in all proceedings.[66]
The 2016 Bill will implement recommendation 1 of the PJCIS’s
report on the 2015 Bill by requiring the best interests of the child to be
a primary consideration.
Several stakeholders opposed the court appointed advocate
scheme in the 2015 Bill.[67]
This has been removed in the 2016 Bill and replaced with amendments to
explicitly provide that a young person has the right to legal representation in
control order proceedings and a system of special advocates, implementing recommendations 2 and 5 of the PJCIS’s report on the 2015 Bill.[68]
Monitoring
powers
The Australian Human Rights Commission (AHRC) and the
Muslim Legal Network (NSW) opposed the proposed monitoring powers in Schedules 8,
9 and 10. They did 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.[69]
The Muslim Legal Network (NSW) considered Schedule 8 to go well
beyond monitoring compliance with orders and to be ‘clearly designed to operate
as an investigative extension of the control order provisions’.[70]
The INSLM took a similar view, stating ‘[t]he details of the potential
monitoring blur, if not eliminate, the line between monitoring and
investigation’.[71]
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.[72]
While not opposing the monitoring powers entirely, the LCA
and Gilbert + Tobin considered 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.[73]
Councils for civil liberties raised similar concerns, and recommended the
provisions not proceed in their current form.[74]
Implementation of the PJCIS’s recommendations 9,
13 and 14 will go some way to addressing some of those concerns
by requiring consideration to be given prior to authorisation to whether the
exercise of powers would be likely to have the least interference with privacy
(and in the case of search powers, also liberty) of any person. However, most
of the PJCIS’s recommendations on Schedules 8, 9 and 10
(which will be implemented in the 2016 Bill) related to improved
accountability for, and oversight of, the proposed powers, as opposed to the
their scope and the thresholds at which they will be available.[75]
Gilbert + Tobin also considered the amendments could make
it more likely for a court to conceive of the control order regime as punitive
and therefore unconstitutional.[76]
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 provisions now in Part 1 of Schedule 15 of the 2016
Bill. 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. [77]
The 2016 Bill will implement recommendations 4
(minimum standard of disclosure) and 5 (special advocates, also a
recommendation of the COAG Review and the INSLM) of the PJCIS’s report on the
2015 Bill. This should largely address the concerns raised in relation to these
provisions in the 2015 Bill. However, the 2016 Bill will not
implement the INSLM’s recommendation that Part 1 of Schedule 15
not commence until a special advocates scheme has been implemented.[78]
Following the introduction of the 2016 Bill, the LCA
welcomed the inclusion of the special advocates scheme (Part 2 of Schedule 15).
It also called for an immediate review of the special advocate scheme by the
PJCIS. [79]
Offences relating to special intelligence operations
At the time of writing, major interest groups do not
appear to have made substantial public comments on the text of the proposed
amendments to section 35P of the ASIO Act, as contained in Schedule
18 to the 2016 Bill.
However, major non-government stakeholders—including media
organisations, civil liberties organisations, and members of the legal
profession and academia—opposed the enactment of section 35P in 2014.[80]
Several interest groups and individuals continued to express their criticism
after its enactment.[81]
They also made submissions to the INSLM’s inquiry into the provision in 2015,
supporting its repeal or amendment.[82]
Some interest groups and individuals have commented on the
INSLM’s recommendations to retain section 35P subject to several
amendments.[83]
Some have argued that the recommendations do not go far enough to provide
certainty to journalists and others to know what information may be disclosed
without exposure to criminal liability, or protect journalists and
‘whistleblowers’ who seek to disclose allegations of wrongdoing in the course
of an SIO.[84]
Other
measures
Preventative
detention orders
Some stakeholders raised concerns about the proposed
change in the 2015 Bill to when a terrorist act is considered to be
imminent for the purposes of the preventative detention order (PDO) regime. The
AHRC, LCA and councils for civil liberties considered 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.[85]
As per recommendation 15 of the PJCIS’s report
on the 2015 Bill, the word ‘imminent’ has been removed entirely in Schedule 5
of the 2016 Bill. However, the 2016 Bill will lower the threshold at
which PDOs may be made in the same way as would the 2015 Bill.
Offence of
advocating genocide
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.[86]
Some stakeholders also considered 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.[87]
This concern is addressed in the 2016 Bill through implementation of recommendation 17 of the PJCIS’s report on the 2015 Bill. A person will now need to be reckless
as to whether another person might engage in genocide on the basis of his or
her advocacy for the offence to be proven.
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 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.[88]
Financial
implications
The Explanatory Memorandum states that the 2016 Bill will
have ‘little financial impact on Government expenditure or revenue’, but
provides no further explanation.[89]
The Explanatory Memorandum to the 2015 Bill stated that it would have no
financial impact.[90]
It appears that either the Government has become more cautious about such
statements or that it anticipates that the introduction of a special advocates
system (Part 2 of Schedule 15), changes to offences
relating to special intelligence operations (Schedule 18), or
amendments to address the PJCIS’s recommendations (possibly additional
oversight functions imposed on the Ombudsman) could have a small financial
impact.[91]
Special
advocate scheme
The task of recruiting and security clearing a panel of
lawyers who are available to perform the functions of special advocates is
likely to be resource intensive. The need to ensure that special advocates have
access to appropriate administrative support will also have resource
implications.
The Government also does not appear to have provided any
commitment or assurance that existing legal aid or legal assistance funding (or
court funding) will not be diverted or otherwise effectively reduced to meet
the establishment or operational costs of a special advocates scheme.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the 2016
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 2016 Bill is compatible.[92]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights (PJCHR)
had not yet reported on the 2016 Bill as at the date of publication of this
Digest. However, the PJCHR had some significant concerns in relation to parts
of the 2015 Bill, some of which were allayed by further information
provided by the Attorney-General, some of which would be mitigated by the
implementation in the 2016 Bill of the PJCIS’s recommendations, and some of
which would remain outstanding.[93]
The PJCHR also considered section 35P of the ASIO
Act, as part of the NSLA Bill, in the 44th Parliament. The PJCHR concluded
that section 35P was incompatible with the right to freedom of expression in
Article 19(2) of the International Covenant on Civil and Political Rights.[94]
Control orders
The PJCHR remained concerned about the compatibility of the
control order regime more broadly with Australia’s human rights obligations.[95]
In relation to the 2015 Bill, following legal advice provided to the PJCHR
and further information from the Attorney-General, disagreement remained
between committee members as to whether or not the amendments allowing control
orders to be imposed on people from the age of 14 years were compatible with
international human rights law.[96]
The PJCHR supported in principle the PJCIS’s recommendations
to remove the role of court-appointed advocates and to expressly provide that
young people have a right to legal representation in control order proceedings.[97]
Both recommendations will be implemented by the 2016 Bill.
Preventative detention orders
The PJCHR considered that removing the requirement for a
terrorist act to be imminent before a PDO can be imposed may be incompatible
with the right to liberty. Further, it was of the view that implementing the
PJCIS’s recommendation on this amendment, rather than being an improvement, would
actually ‘further weaken the nexus between PDOs and imminent threats to life’.[98]
Monitoring powers in relation to
people subject to control orders
The PJCHR had several concerns relating to the monitoring
powers in relation to people subject to control orders, which include search
and seizure, telecommunications interception and surveillance devices. It
considered the PJCIS’s recommendations on those powers (which will be
implemented in the 2016 Bill) would provide important safeguards and
stated that it would welcome their implementation.[99]
However, some of the PJCHR’s concerns may not be fully addressed in the 2016
Bill:
The committee remains concerned that insufficient safeguards
exist to protect the right to privacy. In particular, monitoring warrants can
be issued without any reasonable suspicion that the relevant person is doing
anything suspicious or unlawful; B-Party warrants involve a significant
intrusion into non-suspect's right to privacy; and the deferred reporting
arrangements limit the transparency surrounding the use of such intrusive
measures.[100]
National security information
The PJCHR considered the proposed restrictions on access to
national security information in control order proceedings would limit the right
to a fair hearing. The PJCHR concluded that the implementation of the PJCIS’s
recommendations would address its concerns if a special advocates scheme
was in place before those restrictions commenced.[101]
In the 2016 Bill, the special advocates scheme in Part 2 of Schedule 15
could commence up to 12 months after the further restrictions on access to
national security information in Part 1 of the same Schedule.
Amendments relating to control
orders (Schedules 2, 3, 4 and 15)
Control orders have been part of the Australian
anti-terrorism framework since December 2005.[102] Reforms passed in 2014
expanded both the grounds on which orders may be sought and the purposes for
which they may be granted.[103]
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).[104] 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.[105] 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.[106]
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.[107]
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.[108]
Policy position
Australian security intelligence and law enforcement
agencies have advised that terrorist organisations, particularly Islamic State,
are targeting propaganda and recruitment activities at a younger audience than
was previously the case.[109]
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’.[110]
The AFP Commissioner confirmed in October 2015 that a twelve year old boy
was ‘on the police radar’ in relation to possible terrorist activity.[111] 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.[112]
Another 15 year old was charged with conspiracy to conduct an act in
preparation for a terrorist act on 10 December 2015.[113]
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.[114]
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).[115]
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.
In its report on the 2015 Bill, the PJCHR noted 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’.[116]
Nonetheless, the PJCHR retained some doubt as to whether the extension of the
scheme to children aged 14 and 15 years is a proportionate response,
rationally connected to a legitimate objective.[117] 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.[118]
PJCIS view on lowering the minimum age
The PJCIS noted concerns about proportionality raised by
some stakeholders, but in light of recent events and evidence from law
enforcement, found lowering the minimum age at which a control order may be
imposed to be ‘justified and in principle, a reasonable and necessary measure
for protecting the community from harm’.[119]
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.[120]
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.[121]
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.[122]
The Attorney-General’s Department (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.[123]
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 as a primary consideration when determining whether each
proposed obligation, prohibition or restriction is reasonably necessary and
reasonably appropriate and adapted to the purposes of a control order.[124] It will
need to take into account the objects of the control order regime as a paramount
consideration, and the impact on the person’s circumstances as an additional
consideration.[125]
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.[126] The 2016 Bill
responds to recommendation 1 of the PJCIS report on the 2015 Bill,
that the best interests of a young person be a primary consideration (not just
‘a consideration’) and the safety and security of the community a paramount
consideration.[127]
This should go some way to addressing concerns about this aspect of the Bill
raised by the PJCHR and echoed by the AHRC, LCA, Gilbert + Tobin, UNICEF
Australia, ALHR and councils of civil liberties.[128]
The PJCHR also questioned the compatibility of the
provisions in the 2015 Bill with children’s rights because those rights
must be considered only in the context of the proposed obligations, prohibitions
and restrictions, not the initial determination of whether the order is
necessary.[129]
In a supplementary submission, AGD stated 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.’[130]
The requirements to give paramount consideration to the
objects of the control order regime and primary consideration to the best
interests of a young person will also be applied to variations that would add
further obligations, prohibitions or restrictions to an existing control order.[131]
Right to legal representation
The 2015 Bill would have introduced independent court
appointed advocates for persons 14 to 17 years of age where an interim control
order had been imposed. While it was intended to operate as a safeguard, the
PJCHR, INSLM and submitters to the PJCIS inquiry into the 2015 Bill 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.[132] Those
concerns were shared by the PJCIS, which recommended the role of court
appointed advocate be removed and amendments made instead ‘to expressly provide
that a young person has the right to legal representation in control order proceedings’
(recommendation 2).[133]
There was nothing in the existing legislation to prevent a young person (or
adult) seeking legal advice or representation in relation to a control order,
but the PJCIS considered it desirable for those rights to be made explicit.
The PJCIS’s recommendation is reflected in the
2016 Bill and a proposed Government amendment to the 2016 Bill. Item 5
of Schedule 2 (proposed subparagraph 104.12(1)(b)(iiia))
will require that an AFP member serving an interim control order on any person
must inform them that he or she has a right to obtain legal advice and legal
representation. A Government amendment would require an issuing court to
appoint a lawyer to act for a person aged 14–17 years of age in control order
proceedings if the young person does not already have one (proposed
subsection 104.28(4)). The requirement will not apply to ex parte
proceedings for an interim order or where the young person has refused a lawyer
previously appointed under the proposed provisions (proposed subsection 104.28(5)).[134]
Service
of orders on parents and guardians
The 2016 Bill will implement recommendation 3 of the PJCIS’s report on the 2015 Bill by requiring an AFP member to take
reasonable steps to personally serve copies of all documents relating to a
control order imposed on a 14–17 year old on at least one parent or guardian
(in addition to the young person), including interim and confirmed orders,
revocation or variations of an order and associated applications.[135]
Reporting
The Attorney-General is required to table an annual report
detailing statistical information relating to control orders made in each
financial year.[136]
The 2016 Bill will require that report to include those statistics specifically
for control orders made in relation to persons 14 to 17 years of age.[137]
Additional comment
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 2016 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.[138]
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 on that person, and
authorise an AFP member to do certain things, to ensure the device remains in
good working order. It will also introduce new offences for interference with,
or disruption or loss of function of, a tracking device.
Proposed subsection 104.5(3A) lists the
requirements to be imposed on a person required to wear a tracking device
(including taking both steps specified in the control order and ‘reasonable
steps’ to ensure the device and any related equipment remain in good working
order). Intentionally contravening any of those requirements would constitute
an offence punishable by up to five years imprisonment under existing
section 104.27.[139]
Proposed subsection 104.5(3B) requires the court to authorise an
AFP member to take steps specified in the control order to ensure the device
and associated equipment remain in good working order and to enter one or more
premises specified in the order to install any necessary equipment. The two
sets of requirements have been separated to address ambiguities in the
2015 Bill as per the first part of recommendation 8 of the
PJCIS’s report on the 2015 Bill.[140]
Stakeholder concerns
The Queensland Government raised concerns about the
application of this measure to 14–17 year olds in its submission on the
2015 Bill. In particular, it did 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.[141]
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.[142]
The LCA and Gilbert + Tobin had concerns about the lack of
clarity around what constitutes ‘reasonable steps’.[143] Muslim Legal Network (NSW)
and Gilbert + Tobin also objected 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.[144]
Gilbert + Tobin suggested 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.[145]
PJCIS view
The PJCIS recommended amendments to the Explanatory
Memorandum to include examples of what would constitute reasonable steps.
Examples have been included in the Explanatory Memorandum to the
2016 Bill, including notifying the AFP if the device becomes too loose to
wear or makes uncommon sounds.[146]
The PJCIS also recommended inclusion of ‘a clear
prohibition on interfering with a tracking device required to be worn by the
subject of a control order’ (the second part of recommendation 8).
New offences
The Government has responded to that PJCIS recommendation
by introducing two new offences (item 3 of Schedule 3).
The first offence will apply if a person subject to a control
order is required to wear a tracking device, and that person engages in conduct
that results in interference with, or disruption or loss of function of, the
tracking device.[147]
The offence will only apply where the person engages in the conduct intentionally
and is reckless as to whether it will have that result specified in the
offence.[148]
The conduct can be an act or an omission.[149]
The second offence is an equivalent offence for a person other than the subject
of a control order interfering with the tracking device.[150]
The maximum penalty for each of the offences is five years
imprisonment, the same as for the existing offence of contravening a control
order. The Explanatory Memorandum states that this ‘is appropriate given that
all of the offences are directed to similar sorts of wrongdoing that frustrate
and undermine the efficacy of the control order regime’.[151]
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 will partially
implement 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.[152] Gilbert + Tobin supported
the amendment, but argued the Government should adopt the COAG Recommendation
in full.[153]
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’.[154]
The INSLM suggested a compromise whereby COAG’s
recommendation is implemented in full, but the Federal Court is given the power
to remit an application for a control order to the Federal Circuit Court.[155]
New types
of orders to protect national security information in control order proceedings
(Part 1 of Schedule 15)
Part 1 of 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.
As outlined separately below, Part 2 of Schedule 15
will introduce a system of special advocates to represent the interests of a
person who is the subject of a control order proceeding where that person and
their legal representative have been excluded from seeing or hearing sensitive
national security information.
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).[156]
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 and
witness exclusion certificates under section 38H.[157]
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.[158]
Amendments
Item 21 of Schedule 15 will repeal
and replace section 38J of the NSI Act.
Proposed subsection 38J(1) will set out the
circumstances in which one of the orders in proposed section 38J may be
made. Specifically, the orders may be made when certain hearings have been held
relating to a control order, the Attorney-General or his or her legal
representative has requested such an order, and the court is satisfied that the
person to whom the control order proceeding relates ‘has been given sufficient
information about the allegations on which the control order request was based
to enable effective instructions to be given in relation to those allegations’.
This last aspect has been modified from the 2015 Bill in accordance with recommendation 4 of the PJCIS’s report on the 2015 Bill, which recommended a higher
standard of disclosure.[159]
Proposed subsection 38J(2) of the NSI Act will
set out what the court may order to control information in documents in
non-disclosure certificate hearings required by existing subsection 38G(1) (civil
non-disclosure certificates). It 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. An
addition in the 2016 Bill is that the court may order that the person to
whom the control order proceeding relates and that person’s legal
representative are not entitled to be present for any part of a hearing in the
proceeding in which the information is disclosed to the court (proposed
paragraph 38J(2)(e)). Where such an order is made, the court may
appoint a special advocate under proposed section 38PA (see further
the analysis of Part 2 of Schedule 15 below).
Proposed subsection 38J(3) will provide similar
powers relating to information in any form, and so does not deal with redacting
information from documents as provided in subsection 38J(2). The 2016 Bill
includes an equivalent addition to that in proposed subsection 38J(2) and
a special advocate may be appointed.
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. The 2016 Bill includes an
equivalent addition to that in proposed subsection 38J(2) and a special
advocate may be appointed.
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 proposed section 38J
for the court to give the greatest weight to the need to protect national
security. [160]
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.[161]
This requirement would continue to operate in guiding the court’s exercise of
its discretion under the proposed changes.
Reporting
Item 31 of Schedule 15 will amend
section 47 of the NSI Act to require the Attorney-General to
include, in annual reports on the NSI Act, how many orders were made
under proposed section 38J and identify the types of proceedings to which
they related. This will implement recommendation 6 of the PJCIS’s
report on the 2015 Bill.[162]
Procedural
fairness issues relating to new section 38J
An article in The Conversation referred to proposed
section 38J of the 2015 Bill as ‘the Bill’s most concerning aspect’.[163] The
article went 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. As noted in the ‘Position of
major interest groups’ section of this Digest, many stakeholders voiced similar
concerns.
COAG, INSLM and PJCIS view
The COAG Review considered this situation, and recommended
that special advocates 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.’[164]
The INSLM also supported that 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 INSLM
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.[165]
The INSLM stated that 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.’[166]
The PJCIS recommended COAG’s recommendation on the minimum
standard of disclosure be implemented (Recommendation 4,
implemented in proposed subsection 38J(1)) and that a system of
special advocates be introduced (Recommendation 5).[167]
Unlike the INSLM, the PJCIS considered this measure ‘should
proceed without delay’.[168]
In the 2016 Bill, the special advocates scheme in Part 2 of Schedule 15
could commence up to 12 months after the further restrictions on access to
national security information in Part 1, and further details of the
scheme may be set out in regulations.[169]
Special
advocates (Part 2 of Schedule 15)
Special advocates (Part 2 of Schedule 15) Part 2 of Schedule 15 establishes a scheme
of special advocates, where an order is made or sought under proposed new
section 38J of the NSI Act, with the result that a person who is subject
to an application for a control order (‘the party’) and his or her legal
representative has sensitive information withheld from them, and are excluded
from parts of the hearing when the relevant information is considered by the
court.
Background
to the proposed scheme
In its report on the 2015 Bill, the PJCIS described the role
of a ‘special advocate’ in the following terms:
Special advocates are security cleared lawyers who represent
individuals in proceedings where the individual and their legal representative
have been excluded. In the context of the proposed amendments to the NSI Act,
the special advocate would represent the subject of the control order
application in closed proceedings where both the subject and their legal
representative have been excluded.[170]
The PJCIS endorsed a recommendation of the INSLM that such a
scheme should be established, although deviated from the INSLM’s view that the
proposed amendments to the NSI Act (now in Part 1 of Schedule 15 to the
2016 Bill) should not come into force until a special advocates regime was
established.[171]
The PJCIS stated that ‘special advocates provide a valuable, additional
safeguard in the judicial process’[172]
and appeared to place weight on the following view and reasoning of the INSLM:
My experience as defence counsel is that it
is possible to play a useful role in testing the prosecution case where no
positive defence can be put forward on behalf of an accused. My experience as
counsel, Royal Commissioner and judge is that a contradictor plays a vital role
in any decision making, particularly judicial or quasi-judicial decision making.
A special advocate can make submissions, for example: as to the extent to which
the information needs to be protected if at all; the most helpful way of
redacting the information and providing summaries or particulars of it; and the
admissibility of the information and the lack of, or limited, probative value
the information might have to support the case for the orders. The special
advocate will have access to all of the evidence and can put the withheld
evidence into context ... The involvement of a special advocate in the NSI Act
proceedings should not introduce any undue delay in control order proceedings
as special advocates will only be involved in those cases where proposed s 38J
of the NSI Act is invoked and should not require any additional steps to
be taken.[173]
Overview of
the proposed scheme
The key provision in Part 2 of Schedule 15 is item
41 which establishes the regime by inserting a new Subdivision C in
Division 3 of Part 3A of the NSI Act.
Proposed Subdivision C provides a broad framework
under which the court may exercise its discretion to appoint special advocates.
It also prescribes the functions of special advocates and the nature of their
relationship with the party, as well as the circumstances and manner in which
the special advocate, the party and the party’s lawyer may communicate (with
criminal penalties for contravention). Proposed Subdivision C also
confers an extremely broad regulation-making power to settle matters of detail,
including the terms on which a person serves as a special advocate, in
subordinate legislation. Some key aspects of the scheme are summarised below.[174]
Delayed
commencement
Section 2 of the 2016 Bill provides that the proposed scheme
will commence on the earlier of a date to be fixed by Proclamation, or 12
months after Royal Assent. The Explanatory Memorandum states that this is
necessary to operationalise the scheme, including appointing a pool of special
advocates and making regulations.[175]
This means that the proposed arrangements in new section 38J (inserted by item
21 in Part 1 of Schedule 15) will be in force for up to 12
months without a statutory special advocates scheme in place.
The Explanatory Memorandum states, however, that a court
could decide to exercise its inherent powers to appoint a special advocate in
the interim.[176]
While technically accurate, the practical implications of this position should
also be acknowledged. In particular, the court, in exercising inherent
jurisdiction, may not have access to the same degree of administrative support
and resourcing as may accompany a statutory scheme, which may be necessary for
a special advocate to be appointed and perform his or her functions
effectively.
This raises the question of whether the Government is
supporting the courts to develop any interim arrangements that may need to be
implemented until such time as a statutory special advocates regime is
operational. (Such arrangements might need to include, for example, arranging
for the security clearance of a pool of lawyers who are available to act as special
advocates, if appointed under the court’s inherent jurisdiction.) Such
administrative support may help ensure that the potential to appoint special
advocates under inherent jurisdiction is a realistic option for courts
considering control order applications in which section 38J (if enacted)
is invoked.
An alternative is to revert to the approach recommended by
the INSLM, to the effect that the commencement of proposed section 38J
should be tied to the establishment of a special advocates scheme, and therefore
deferred.[177]
Appointment
of a special advocate (proposed section
38PA)
Appointment of a special advocate is at the court’s
discretion.[178]
The court must provide parties (and the Attorney-General and his or her legal
representative) with an opportunity to make submissions about who to appoint.[179] If the
party or his or her lawyer nominates a person to be appointed as special
advocate, the court must generally appoint that person, unless it is satisfied
there would be some adverse consequence in the nature of unreasonable delay,
conflict of interest, or a risk of inadvertent disclosure of sensitive
information.[180]
Potential concern—delegation of
legislative power
One matter of potential concern is that regulations made
under the proposed enactment may prescribe the requirements that a person must
meet in order to be appointed as a special advocate. The effect of proposed
paragraph 38PA(2)(a) is that the court has no discretion to appoint a person
who does not comply with whatever requirements the Executive may choose to set
in the regulations at any given point in time. The regulation-making power is
entirely open-ended, in that the provisions of proposed Subdivision C do
not appear to impose any statutory limits on the types of eligibility
requirements that may be prescribed by regulation.
Leaving the mandatory eligibility requirements for the
appointment of special advocates entirely to subordinate legislation may be
undesirable. For example, it could result in arbitrariness in the setting and
amending of requirements. At least hypothetically, if the requirements set in
the regulations are overly prescriptive, there may be no special advocates
available—either at all, or in a particular geographical region—to represent
the person’s interests. To better manage this risk, consideration could be
given to fixing, in primary legislation, the basic qualifications a special
advocate must hold, and conferring a more limited regulation-making power to
prescribe supplementary, technical or more detailed eligibility requirements in
subordinate legislation.
Functions
of a special advocate (proposed section
38PB)
Proposed section 38PB provides that the function of
the special advocate is to represent the interests of the party to a proceeding
by:
- making submissions to the court at any part of a hearing in the
proceeding where the party and his or her legal representative are not entitled
to be present
- adducing evidence and cross-examining witnesses at such a part of
a hearing in the proceeding, and
- making written submissions to the court.
Proposed section 38PB should also be read in
conjunction with proposed subsection 38PC(3), which states that the special
advocate is not a party to proceedings. Therefore, the special advocate cannot
perform activities such as appealing procedural orders made as part of the
proceedings such as orders under proposed section 38J (see item 21 in Part
1 of Schedule 15 to the 2016 Bill). It is open to question whether
there is a sufficiently clear demarcation between a special advocate’s
functions in proposed 38PB, and the activities that are peculiar to a
party to the proceedings, and are therefore excluded by proposed subsection
38PC(3).
Relationship of special advocate and relevant person
(proposed section 38PC)
Absence of lawyer-client
relationship
Proposed subsection 38PC(1) makes clear that there is
no lawyer-client relationship between the party and the special advocate. This
appears to be consistent with the role and functions of special advocates as
representative of the interests of the party in closed proceedings, not as the
party’s lawyer.[181]
Legal professional privilege
Importantly, proposed subsection 38PC(2) provides
that legal professional privilege applies to communications between the party
(or his or her lawyer) and the special advocate.[182]
However, this privilege is not absolute, as a result of the communication
arrangements prescribed by proposed section 38PF, under which the
court—and in some instances the Attorney-General or his or her
representatives—is privy to the communications from a special advocate to the
party or legal representative. (This is discussed below).
Disclosure of information to special advocate by the
Attorney-General (proposed section 38PE)
Proposed section 38PE provides a framework through
which the Attorney-General must disclose the sensitive information to the
special advocate. Proposed subsection 38PE(1) provides that, at the same
time the court appoints a special advocate, it must also make an order fixing a
date on which the Attorney-General must disclose the relevant information to
the special advocate. Proposed subsection 38PE(2) provides that the
Attorney-General must comply with the order. There are no provisions dealing
with the consequences of non-compliance. Proposed subsection 38PE(3)
places limitations on the circumstances in which the special advocate may
disclose this information.[183]
Communication by special advocate and parties—conditions
and restrictions
(proposed sections 38PD, 38PF and 38PG)
Proposed sections 38PD, 38PF and 38PG
prescribe the circumstances and manner in which the special advocate and
parties may communicate. In broad terms, the special advocate will be able to
communicate with the party and his or her legal representative, without
restriction, before receiving the sensitive information, unless the court makes
an order restricting or prohibiting communication. [184]
Once the special advocate has received the sensitive
information, he or she will only be able to communicate with the party in
writing and with the approval of the court.[185] The special advocate must
not disclose the sensitive information he or she has received to the party or
the party’s legal representative. [186]
Similarly, the party will only be able to communicate with the special advocate
via the party’s legal representative, who must make such communications in
writing only.[187]
The restrictions on communication continue to apply even if the control order
proceeding has ended or the special advocate has ceased acting for the party.[188] The
Explanatory Memorandum states that these restrictions are considered necessary
to protect national security information, including minimising the risk of
inadvertent disclosure by the special advocate (via the court’s supervision of
communications).[189]
Will
the proposed communication arrangements be practicable?
These restrictions, if adhered to, would seem to provide a
reasonable safeguard against the possibility of inadvertent disclosure of
sensitive information by the special advocate. However, it is not clear whether
the proposed arrangements would also be workable, from a practical perspective,
to enable the special advocate to obtain necessary information from a party in
order to perform his or her role effectively and efficiently.
As discussed subsequently in this Bills Digest (see the “key
issue” heading below) it is difficult to arrive at an informed conclusion on
the practicality of the proposed arrangements without the benefit of
consultation with the relevant issuing courts and members of the legal
profession with experience in security related proceedings or analogous
litigation. The extrinsic materials to the 2016 Bill do not provide information
on what, if any, efforts have been made to consult with the legal profession or
the courts on the proposed scheme (and whether these stakeholders are
supportive of the proposed scheme).[190]
There does not appear to have been a public consultation process on the
proposed scheme, in the nature of an exposure draft, prior to the introduction
of the Bill.
Abrogation
of legal professional privilege
Proposed subsection 38PF(5) may result in the
abrogation of legal professional privilege in the communications between the
special advocate and the party. This is because the court is responsible for
on-forwarding communications from the special advocate to the party, in
accordance with the requirements of proposed subsection 38PF(4). If the
court is satisfied that the communication is not likely to prejudice national
security (in the sense of not raising a real, rather than remote,
possibility of causing such prejudice) it must forward the communication. It
the court is not satisfied that the communication is not likely to prejudice
national security, it must amend the communication to remove the concern, or
must decline to forward the communication if it cannot be so amended.
Proposed subsection 38PF(5) provides that the court
may, in making a decision under proposed subsection 38PF(4), consult with
the Attorney-General or the Attorney-General’s legal representative or any
other representative of the Attorney-General. The Explanatory Memorandum
indicates that this ‘reflects the fact that the Attorney-General, and agencies
under his or her portfolio, have intimate knowledge of national security
considerations and could provide the court with guidance in relation to why a
proposed communication is likely to prejudice national security (or not likely
to prejudice national security)’.[191]
However, this consultation may operate to abrogate legal
professional privilege in the communication. The Explanatory Memorandum
acknowledges this possibility and states that this is expected to occur only in
‘rare circumstances’ and in any event only ‘following a careful balancing of
the competing interests by the court’.[192]
While the second part of that statement is evidently correct, there does not
appear to be any rational basis upon which to predict the frequency with which
a court may consider it necessary to consult with the Attorney-General about
the potential impact on national security that a particular proposed communication
may have.
Further, the abrogation of legal professional privilege over
the relevant information may have broader, detrimental consequences for the
party’s interests, since the Bill does not contain any explicit prohibitions on
the secondary use of any information that is provided to the Attorney-General
or his or her representatives. Such information may be prejudicial to a party’s
interests (either in the extant control order proceedings or more broadly). To
better balance the party’s interests in being able to have ‘frank and honest
communication’[193]
with the special advocate, consideration might be given to enacting a further
provision to place an express prohibition on the Attorney-General and his or
her legal representatives making subsequent use of that information, and a
requirement that the document is returned to the court after inspection (or
deleted or destroyed securely).
Regulation-making power (proposed section
38PI)
Proposed 38PI confers a broad regulation-making
power, stating that the regulations ‘may determine matters relating to special
advocates’. It states that such matters may include, but are not limited to,
remuneration, conflicts of interest and immunity. The Explanatory Memorandum
acknowledges the significant breadth of the proposed regulation-making power,
but states that it is considered necessary to ensure that ‘Parliament has the
requisite authority to make such regulations as necessary to ensure the
effective operation of the special advocates role’ and that regulations would
be ‘established as soon as practicable in order to operationalise the special
advocates role swiftly’.[194]
It is unclear from this limited explanation why a
regulation-making power needs to be entirely open-ended, presumably covering
any matter relating to the operation of the proposed scheme. In particular, it
is unclear why it is necessary or appropriate for matters of special advocates’
immunity to be dealt with via regulation, rather than fixed in primary
legislation. (In addition to promoting transparency and certainty, the use of
primary legislation to set the scope and limits of a person’s legal liability
or immunity would ensure that these matters are not made unduly dependent upon
administrative discretion.)
Offences
relating to unauthorised disclosures and communications (item 42, proposed
section 46H)
Proposed section 46H contains four offences, which variously
apply to unauthorised disclosures of information by special advocates;[195] and
unauthorised communications by the party or his or her lawyer after the
Attorney-General discloses the sensitive information to the special advocate.[196] All of
the offences are punishable by a maximum penalty of two years’ imprisonment. In
all of the offences, the person making the disclosure or communication must be
reckless as to whether the Attorney-General has disclosed the information to
the special advocate.[197]
This means that the person must be aware of a substantial risk that the
Attorney‑General had made the communication, and acted unreasonably in
the circumstances by taking that risk and making the communication or
disclosure.[198]
It may be questioned whether it is necessary or appropriate
for the special advocates regime to incorporate a punitive dimension at all
and, if so, whether a harm element should be included in the offences; or
whether the defendant should be required to know that the
Attorney-General has disclosed the relevant information.
The prospect of exposure to legal liability for an inadvertent or technical
contravention of these provisions may create a disincentive for legal
practitioners to serve as special advocates, or to provide legal representation
of controlees; and may have a harsh or oppressive impact on a controlee who may
not fully understand his or her obligations.
Reporting requirement (item 43, proposed
paragraphs 47(e)-(f))
Item 43 amends the annual reporting requirement in
section 47 of the NSI Act to require the annual reports on the operation
of the Act to include details of the use of the special advocates scheme. In
particular, the reports must provide the number of special advocates appointed
in the reporting period, and the proceedings in relation to which they were
appointed. This will help to provide transparency about the use of the scheme.
Possible
explicit oversight function for the PJCIS in relation to the special advocates
scheme
In addition to the proposed annual reporting of unclassified
information about the special advocates scheme, Parliamentary oversight could
be enhanced further by amending section 29 of the Intelligence Services Act
2001 (IS Act) to make explicit that the statutory oversight
functions of the PJCIS include the special advocates scheme.[199]
The PJCIS has oversight functions under paragraphs
29(1)(baa)-(bac) and subparagraph 29(1)(bb)(iii) of the IS Act in
relation to the performance by the AFP of its functions under Part 5.3 of the Criminal
Code (which includes the control order regime in Division 104). The
PJCIS’s functions in relation to Part 5.3 might be argued to encompass the
operation of the proposed special advocates scheme, given that it is specific
to control order proceedings. Nonetheless, making this explicit in the IS
Act would ensure that there is a clear and enduring mandate for the PJCIS
to perform oversight in relation to the scheme, which is not open to contrary
interpretation.
For completeness, it is worth noting that the NSI Act
is within the statutory oversight remit of the INSLM, with the result that the
proposed scheme would, if enacted, be subject to ongoing review by the INSLM.[200]
Issue: need
for further scrutiny of, and consultation on, the details of the scheme
Shortly after the introduction of the Bill on 15 September
2016, the President of the Law Council of Australia, Stuart Clark, stated:
A special advocate regime provides a
significant safeguard. The special advocate will be able to see the sensitive
information that has been withheld from the subject of a control order and make
representations on behalf of that person. This is essential, given that a
person’s legal representative will also be excluded from accessing certain
information.
For full accountability, however, the scheme
must be immediately reviewed by the PJCIS. The exact relationship and level of
interaction between the special advocate and the subject of the control order,
and their legal representatives requires careful consideration.[201]
The Australian Human Rights Commission, in
its submission to the PJCIS inquiry into the 2015 Bill also urged the
consultative development and careful pre-legislative scrutiny of any proposed
scheme, stating that:
In the Commission’s view, the precise form
of a Special Advocate regime should be the result of careful consideration,
following consultation with appropriately qualified experts, including legal
practitioners with experience in criminal and control order proceedings where
national security information has been put before the court.[202]
Indeed, it is difficult to comment
meaningfully on the appropriateness or practicality of the provisions of Part 2
of Schedule 15 in the abstract, without knowing the perspectives of members of
the legal profession who would be required to operate under the scheme, or the
views of the courts upon which jurisdiction would be conferred. This is
particularly evident in relation to the regulation of communication between the
special advocate and parties (proposed sections 38PD, 38PF, 38PG and 38PH) and
the provisions governing the disclosure by the Attorney-General of the relevant
information to the special advocate (proposed section 38PE).
The Explanatory Memorandum does not provide
an indication of what, if any, consultation the Government has undertaken in
developing the proposed scheme; or whether the procedural and technical details
of the proposed scheme have the support of the courts or legal profession (or
other stakeholders).
The proposed scheme is complex and
prescriptive. It operates in the context of an application for an order to
place potentially significant restrictions on the liberty of a controlee. The
scheme would expose controlees, their lawyers and special advocates to criminal
liability in the event that its complex procedures for communications are not
followed precisely. In this context, there is a risk that an absence of public
consultation on the details of the proposed legislation may result in the
enactment of measures that are practically unworkable. This may create a
disincentive for legal practitioners to offer their services as special
advocates or as the legal representatives of controlees. Such an outcome may,
in turn, serve as a disincentive to the use of the special advocates scheme in
individual cases, and may further place an unnecessary impost on the
Parliament’s time to pass amending legislation correcting oversights that could
have been identified in pre-legislative consultation.
The referral of Part 2 of
Schedule 15 to a Parliamentary committee for inquiry and report to the
Parliament, in advance of the Bill being debated, would therefore appear to be
a sensible and prudent course of action to avoid unintended consequences, and
support informed deliberations on the proposed scheme.
Possible
trial arrangements and alignment with the sunsetting of the control order
scheme
In its submission to the INSLM’s inquiry into control order
safeguards in September 2015, the Law Council of Australia expressed its
support for an incremental approach to the establishment of a special advocates
scheme:
If a special advocates model is to be
adopted, the Law Council considers that it should be trialed on a limited basis
only, within narrow parameters (for example, in relation to a single area of
the law such as the control order regime) and a finite timeframe. A
comprehensive independent review should then take place before it is adopted on
a permanent basis.[203]
The 2016 Bill proposes to enact the scheme in Part 2
of Schedule 15 on a permanent basis. In view of the discussion above,
the merits of this approach are open to debate.
Monitoring, protective and
preventative powers when a person is subject to a control order
(Schedules 8, 9 and 10)
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. This will support enforcement of control orders,
including through the existing offence of contravening a control order and the
proposed offences in Schedule 3 of the Bill for interfering with a
tracking device worn as a condition of a control order.
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. Information and
evidence derived from the use of those powers can also 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
later declared void.
Some issues common to all three Schedules are outlined first
below, followed by further detail on each Schedule.
Purposes for which 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
into the 2015 Bill 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.[204]
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.[205]
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.[206]
The amendments proposed by the Bill will expand the purposes for which such
powers may be used beyond investigations 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
new development. The appropriateness or otherwise of the proposed powers for
the four purposes set out in the 2016 Bill cannot be properly assessed
where the justification put forward addresses only one of those four purposes.[207]
Thresholds 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.[208]
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.[209]
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’.[210] Gilbert
+ Tobin and the AHRC also suggested amendments to make the thresholds more
stringent.[211]
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.[212]
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. In particular,
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.
The PJCIS noted stakeholder concerns but did not recommend
any changes to the thresholds in the 2015 Bill, which are replicated in
the 2016 Bill.[213]
Powers in relation to interim
control orders and orders not yet in force
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.[214]
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.[215]
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.[216]
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.[217]
The court making the interim 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’.[218]
The interim control order imposed on Ahmad Naizmand on 5 March 2015
was not confirmed until 30 November 2015.[219] The interim control order
imposed on Harun Causevic in September 2015 was not confirmed until
July 2016.[220]
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. Things, information and documents
obtained under the powers in Schedule 8 may still be used or shared
by a person 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).[221]
Similar provisions are set out in Schedules 9
and 10 with respect to information obtained under a
telecommunications interception warrant and the use of a surveillance or
tracking device in relation to an interim control order respectively.[222]
These provisions have attracted some 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’.[223]
These provisions also attracted the attention of the PJCHR
and the Scrutiny of Bills Committee, both of which asked the Attorney-General
for information outlining the rationale and providing further justification in
light of the implications for peoples’ rights and liberties.[224] On receipt of that
information and following further consideration, the PJCHR assessed that the
provisions are ‘likely to be compatible’ with the right to a fair trial, while
the Scrutiny of Bills Committee declined to finalise its comments pending the
Government’s response to the PJCIS’s recommendations on the monitoring powers.
While the PJCIS recommended several amendments to Schedules 8, 9
and 10 (which are reflected in the 2016 Bill), none of them were
specific to use of information where an order is later declared void.
Entry, search, seizure and
related powers (Schedule 8)
This section of the Digest should be read in conjunction
with those on issues common to Schedules 8, 9 and 10
above, which provide commentary on the purposes for which the powers below will
be available, the threshold at which they will be available and other issues.
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.[225]
‘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’.[226]
The definition would not generally capture other premises the person regularly
visits, such as the homes of friends or family members or frequently visited
public places. However, searches of 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[227]
- conducting an ordinary or frisk search of a person subject to a
control order, either by consent or under a monitoring warrant[228]
- 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[229]
- powers to ask questions and request or require documents
following entry to premises[230]
- 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[231]
and
- the ability to use and share things seized, documents produced
and answers provided for certain purposes.[232]
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.[233]
A magistrate must be satisfied that a warrant is reasonably necessary for one
or more of the purposes outlined above.[234]
Safeguards
The safeguards in the 2015 Bill have been supplemented
in the 2016 Bill to address recommendations made by the PJCIS in its
report on the 2015 Bill. Proposed safeguards include:
- explicit preservation of legal professional privilege and the
privilege against self-incrimination[235]
- a requirement for police to notify a person required to answer
questions or produce documents of their rights to claim those privileges,
implementing recommendation 10 of the PJCIS[236]
-
an obligation on issuing officers to consider whether allowing
access to the powers available under a warrant would be ‘likely to have the
least interference with any person’s liberty and privacy that is necessary in
the circumstances’ (in response to recommendation 9 of the PJCIS)[237]
- a prohibition on strip searches and searches of a person’s body
cavities[238]
- 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[239]
- 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.[240]
-
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[241]
-
requirements for the AFP to keep certain documents connected to
the issue of monitoring warrants, notify the Commonwealth Ombudsman within six
months of a warrant issued in response to an AFP application, and notify the
Ombudsman of any contraventions of proposed Part IAAB of the Crimes Act
or of a monitoring warrant as soon as practicable (all implementing parts of recommendation 11 of the PJCIS)[242]
- powers for the Ombudsman to conduct inspections and report on the
compliance of the AFP and AFP members and special members with the provisions
of proposed Part IAAB of the Crimes Act and of a monitoring warrant
(also implementing part of recommendation 11 of the PJCIS)[243] and
-
a requirement for the Attorney-General to include information on
the number of monitoring warrants issued and executed, and the Ombudsman’s
annual report on compliance, in annual reports to Parliament on control orders
(partially implementing recommendation 12 of the PJCIS).[244]
There were two other pieces of
information required by recommendation 12 of the PJCIS: complaints made or
referred to the Ombudsman relating to the exercise of the monitoring powers,
and certain information about AFP conduct and practice issues that related to
the exercise of the monitoring powers. Annual reports on control orders must
already include those types of information where it is ‘related to control
orders’. It is unclear whether the exercise of monitoring powers would fall
within those existing obligations or whether further amendments would be
required to fully implement the recommendation.
Use,
sharing and return of things, documents and information obtained
Proposed Division 8, Part IAAB makes
different provision for the use, sharing and returning 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).[245]
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.[246]
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).[247] 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.[248]
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.[249]
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.[250] 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)[251]
and ‘engaging in a hostile activity’ (for which the definition is independent
of the foreign incursions offences).[252]
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.[253]
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. Consideration could
be given to 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, and clarify how answers given to questions may be
used and shared.
Telecommunications interception
warrants (Schedule 9)
This section of the Digest should be read in conjunction
with those on issues common to Schedules 8, 9 and 10
above, which provide commentary on the purposes for which the powers below will
be available, the threshold at which they will be available and other issues.
Powers
The amendments in Schedule 9 will allow ‘control
order warrant agencies’ to obtain both B-party and Named person warrants to
intercept and monitor the telecommunications of a person subject to a control
order or a telecommunications service likely to be used by someone else 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).[254]
‘Control order warrant agency’ will include the AFP, the
Australian Commission for Law Enforcement Integrity (ACLEI) and the Australian
Criminal Intelligence Commission (ACIC) and a state agency declared by the
Minister under section 34 of the TIA Act.[255] The types of state
agencies the Minister may declare include police forces and crime and
corruption commissions.[256]
The amendments will also allow intercepted
telecommunications information to be used in any proceedings associated with
that control order and any proceedings related to serious offences (be they
terrorism or non‑terrorism related offences).[257] 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.[258]
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.[259]
Privacy protections
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[260],
with an additional factor included to implement recommendation 13
of the PJCIS’s report on the 2015 Bill (concerning whether interception
represents the least interference with any person’s privacy, see further below).
The effectiveness of the privacy protections included in the
2015 Bill was questioned by several stakeholders, including the AHRC, LCA
and councils for civil liberties.[261]
The LCA noted that the amendments ‘would significantly broaden the
circumstances in which innocent parties may be subjected to surveillance by
reason of association’.[262]
Of particular concern is the impact on the privacy of people other than those
subject to control orders whose communications are intercepted under a B-party
warrant, as outlined below.
The changes proposed to section 67 of the TIA Act
by item 35 of Schedule 9 appear to provide that agencies can
only use intercepted information obtained under a control order warrant for
purposes relating to the control order regime (that is, broadly speaking,
purposes related to preventing and protecting the public from terrorism) or a
Commonwealth, state and territory law related to PDOs. However, proposed
section 139B allows lawfully intercepted information to be used for a
broader range of purposes.
Proposed subsection 139B(1) will allow 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)[263], and (4A) and 139A(2) of
the TIA Act encompass much broader purposes than those provided by
section 67 (as proposed to be amended). Those purposes include:
- investigating a serious offence[264]
- 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[265]
- prosecuting the offences referred to above[266]
- providing information to a foreign country in relation to a
mutual assistance request[267]
and
- undertaking certain integrity investigations and related
proceedings.[268]
Of particular note, proposed section 139B allows an
officer or staff member of the AFP or a state or territory police force who
intercepts the communications of a third party 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.
Further, an amendment included in the Criminal Code
Amendment (High Risk Terrorist Offenders) Bill 2016 would, if passed, amend
proposed section 139B to also allow information obtained under a control
order warrant to be used for the purposes of the proposed continued detention
scheme.[269]
As noted above, the 2016 Bill includes amendments to
implement recommendation 13 of the PJCIS’s report on the
2015 Bill. The amendments will impose an obligation on eligible judges and
AAT members to consider whether allowing interception under a control order
warrant would be ‘the method that is likely to have the least interference with
any person’s privacy’. [270]
This will go some way towards addressing concerns about privacy implications.
Proposed section 79AA of the TIA Act, at item
37 of Schedule 9, requires agencies to destroy information obtained
under a control order warrant before the control order to which it relates came
into force, if that warrant was issued for the purpose of, or for purposes that
include, monitoring compliance with a control order. The amendments contain
several exceptions to the obligation to destroy such information. Those
exceptions will ensure that any information that could assist in preventing
terrorism (broadly speaking) can be retained and used, thus reflecting the
‘preventative’ thrust of many of the amendments. Of note, this destruction obligation
will not apply at all if a control order warrant was issued for purposes that
did not include monitoring compliance with a control order (broadly speaking,
preventing terrorism).
Record-keeping
and oversight by the Ombudsman
Part 2–7 of the TIA Act imposes requirements for
records relating to applications for and issue of interception warrants to be
kept by Commonwealth agencies (AFP, ACLEI and ACIC), and for the Commonwealth
Ombudsman to inspect those records and report on agencies’ compliance.
The 2015 Bill included amendments to Part 2–7 to
extend those existing requirements to capture records relating to control order
warrants. In order to implement recommendation 11 of the PJCIS’s report
into the 2015 Bill, the amendments to Part 2–7 in the 2016 Bill
are more comprehensive.[271]
Agencies will be required to keep records relating to
applications for and issue of control order warrants. They will also need to
keep records relating to decisions to defer the publication of information
about control order warrants in annual public reports. The Ombudsman will have
powers to conduct inspections to determine agencies’ compliance with record
keeping and information destruction requirements (including proposed
section 79AA) and the TIA Act more broadly, and report on its
findings.[272]
In addition, in accordance with recommendation 11 of
the PJCIS’s report, proposed section 59B will require Commonwealth
agencies to notify the Ombudsman of:
- each control order warrant issued in response to a Commonwealth
agency application, within six months of issue and
- any contraventions by an officer of a Commonwealth agency of TIA
Act provisions relating to control order warrants as soon as practicable.
The Ombudsman will also have the power to conduct
inspections in response to notice of contraventions and to report on any
breaches.[273]
Items 12 and 13 will amend section 35 and
insert proposed section 38A respectively, so that the Minister may
only declare a state agency to be a control order warrant agency if he or she
is satisfied that the agency will be subject to record keeping obligations and
oversight equivalent to that imposed on Commonwealth agencies. The Minister
will also be able to revoke a declaration if satisfied that state requirements,
or compliance with those requirements, is no longer satisfactory.
Reporting
requirements
Part 2–8 of Chapter 2 of the TIA Act deals with the
reporting of information related to interception warrants. As control order
warrants will be a type of interception warrant, those provisions will
automatically apply in relation to control order warrants.
Item 49 of Schedule 9 will insert proposed section 103B
to require that the public reporting of control order warrants is deferred
until a subsequent report if the chief officer of a control order warrant
agency 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.
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).[274]
Surveillance
devices (Schedule 10)
This section of the Digest should be read in conjunction
with those on issues common to Schedules 8, 9 and 10
above, which provide commentary on the purposes for which the powers below will
be available, the threshold at which they will be available and other issues.
Currently the SD Act provides that surveillance
device warrants are available where an eligible judge or nominated member of
the 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.[275]
Use of tracking devices can also be authorised by certain senior officers of
law enforcement agencies, and less intrusive types of surveillance devices may
be used without special authorisation.[276]
Powers
Schedule 10 will amend the SD Act to
allow Commonwealth and state and territory law enforcement agencies to obtain a
warrant to install and use a surveillance device 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).[277]
The amendments will also extend the circumstances in which
law enforcement agencies may use less intrusive types of surveillance devices
without a warrant to include the purposes noted above.[278]
As with the amendments to the TIA Act, 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
surveillance device relating to a control order in certain circumstances.[279]
Privacy protections
In relation to surveillance device warrants, the amendments
propose a balancing test and other restrictions on the issuing of those
warrants that reflect those currently in place under the SD Act, with an
additional factor included to implement recommendation 14 of the
PJCIS’s report on the 2015 Bill.[280]
Implementation of that recommendation will impose an obligation on eligible
judges and nominated AAT members to consider whether allowing use of a
surveillance device would be the means of obtaining information ‘that is likely
to have the least interference with any person’s privacy’.[281]
The 2016 Bill would not, however, impose an equivalent
requirement on law enforcement officers to consider whether use of a
surveillance device without a warrant would be likely to result in the least
interference with any person’s privacy.
The existing offences related to the unlawful use,
recording, communication or publication of ‘protected information’ will
automatically include information obtained via control order surveillance
warrants and tracking device authorisations in respect of a person subject to a
control order.[282]
Item 29 will add to the exceptions to those offences so that
information obtained under a surveillance device warrant or tracking device
authorisation relating to a control order can be used for the purposes of
determining whether the relevant control order has been, or is being, complied
with.[283]
However, the application of existing exceptions to those offences will also
mean that information obtained under a surveillance device warrant or tracking
device authorisation relating to a control order can be used in a broad range
of circumstances beyond investigating compliance with a control order,
preventing terrorism or prosecuting breaches of control orders and terrorism
offences. Those purposes include:
- investigating or prosecuting a ‘relevant offence’ [284]
- providing information to a foreign country in relation to a
mutual assistance request[285]
- undertaking certain integrity investigations and related
proceedings.[286]
Proposed section 46A of the SD Act, at item
32 of Schedule 10, purports to ensure that agencies must destroy
information obtained under a control order warrant or tracking device
authorisation before the control order to which it relates came into force, if
that warrant or authority was issued for the purpose of, or for purposes that
include, monitoring compliance with a control order. The amendments contain
several exceptions to the obligation to destroy such information. Those
exceptions will ensure that any information that could assist in preventing
terrorism (broadly speaking) can be retained and used, thus reflecting the
‘preventative’ thrust of many of the amendments. Of note, this destruction
obligation will not apply at all if a control order warrant or tracking device
authorisation was issued for purposes that did not include monitoring
compliance with a control order (broadly speaking, preventing terrorism).
Further, as noted above in relation to issues common to Schedules 8,
9 and 10, proposed section 65B will allow information
obtained through a surveillance device as permitted by the amendments in
Schedule 10 to be used in certain circumstances even where the relevant
control order is later declared void.
Record-keeping
and oversight by the Ombudsman
Division 2 of Part 6 of the SD Act requires
Commonwealth and state and territory law enforcement agencies to keep records
relating to applications for and issue of surveillance device warrants and
tracking device authorisations. Division 3 of Part 6 requires the
Commonwealth Ombudsman to inspect those records and report on agencies’
compliance.
The 2015 Bill included amendments to Divisions 2
and 3 of Part 6 to extend those existing requirements to capture records
relating to warrants and authorisations related to control orders. In order to
implement recommendation 11 of the PJCIS’s report into the
2015 Bill, the amendments to those Divisions in the 2016 Bill are
more comprehensive.[287]
Agencies will be required to keep records relating to
applications for and issue of surveillance device warrants and tracking device
authorisations. They will also need to keep records relating to decisions to
defer the publication of related information in annual public reports. The
Ombudsman will have powers to conduct inspections to determine agencies’
compliance with record keeping and information destruction requirements
(including proposed section 46A) and the SD Act more
broadly, and report on its findings.[288]
In addition, in accordance
with recommendation 11 of the PJCIS’s report, proposed
section 49A will require agencies to notify the Ombudsman of:
- each surveillance device warrant and tracking device
authorisation related to a control order issued in response to an agency
application, within six months of issue and
- any contraventions by an officer of an agency of SD Act
provisions about use of a surveillance device associated with a control order
as soon as practicable.
The Ombudsman will also have the power to conduct
inspections in response to notice of contraventions and to report on any
breaches.[289]
Reporting
requirements
Division 2 of Part 6 of the SD Act also
deals with the reporting of information relating to surveillance device
warrants and tracking device authorisations. Those provisions will
automatically apply in relation to warrants and authorisations issued in
relation to control orders. Among those provisions is section 49, which
requires the chief officer of each law enforcement agency to provide certain
details and documents to the Minister as soon as practicable after a warrant or
authorisation ceases to be in force. Items 33 and 34 of Schedule 10
will amend section 49 to require specific details to be included in such
reports if a warrant was issued in relation to a control order, specifically
the benefit of the use of the device in determining compliance with the control
order or preventing terrorism, and the general use to made of any information
obtained. However, the amendments will not require those same details to be
reported for tracking authorisations issued in relation to a control order.
Item 37 will insert proposed section 50A
to require that inclusion of information about surveillance devices in a public
annual report is deferred until a subsequent report if the chief officer of a
law enforcement agency is satisfied it is ‘control order information’. This
will be information that, 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, authorising the use of a surveillance
device:
- on particular premises
- in or on a particular object or class of object or
-
in relation to the conversations, activities or location of a
particular person.
Information that might reveal those same matters in relation
to a tracking device authorisation does not fall within the definition of
control order information, so reporting of it may not be deferred in the same
way. This appears to be an oversight.
The Government has advanced essentially the same arguments
for the need to defer reporting as made in relation to the interception
warrants.[290]
Preventative detention orders
(Schedules 5 and 6)
There are currently two purposes for 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 replace the first of these
(prevention of an imminent terrorist act). Instead of being able to be made to
prevent a terrorist act that is imminent and expected to occur
within the next 14 days, a PDO will be able to be made if a terrorist act 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:
- 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.[291]
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. For example, if a terrorist is prepared and waiting for a signal or
instruction to carry out their act, the AFP may not be able to identify when
that signal or instruction will be sent. Indeed the terrorist themselves may
not know. In other circumstances, a person may become aware that they are the
subject of law enforcement surveillance and accordingly change the timing of
the planned attack to evade attention. In such instances, 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.[292]
The Explanatory Memorandum also characterises the change as
a clarification that ‘still captures the essence of the original imminent test
by having both a preparedness component and a temporal component’.[293]
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.[294] The
Scrutiny of Bills Committee and the PJCHR both sought additional explanation
from the Attorney-General.[295]
Having received that, the Scrutiny of Bills Committee left the question of the
amendment’s appropriateness to the Senate as a whole, while the PJCHR remained
concerned and considered the amendment ‘may be incompatible with the right to
liberty’.[296]
While objecting to the PDO regime as a whole, Gilbert +
Tobin did not oppose this amendment.[297]
However, the AHRC, LCA and councils for civil liberties considered the proposed
new threshold to be too low. [298]
The PJCIS considered the amendment in the 2015 Bill,
which would have had the same effect as that in the 2016 Bill, but was
differently worded. The PJCIS accepted the change to the threshold, but
recommended the word ‘imminent’ not be used, as the revised threshold
‘stretches beyond the common understanding of the term “imminent”’ (recommendation 15).[299] Schedule 5
has been amended in the 2016 Bill accordingly.
Schedule 6 will make a minor amendment so that
neither a person’s past nor current service as a judge in the Family Court will
make them eligible to be appointed as an issuing authority for continued
preventative detention orders. The same Schedule in the 2015 Bill would only
have excluded past service. The 2016 Bill will implement recommendation 16 of the PJCIS’s report on the 2015 Bill by also excluding current service.[300]
Offence of
advocating genocide (Schedule 11)
Division 80 of the Criminal Code contains
offences for treason and related conduct, urging violence and advocating
terrorism. Schedule 11 will insert proposed section 80.2D
to introduce a new offence of ‘advocating genocide’, with a maximum penalty of
seven years imprisonment.
Proposed
subsection 80.2D(3) contains definitions for the purposes of the
proposed offence.
- ‘Advocate’
will mean ‘counsel, promote, encourage or urge’. This is consistent with the
definition used in the offence of advocating terrorism[301]
- ‘Genocide’ will mean the commission of an offence (other than an
ancillary offence such as attempt or conspiracy) against Subdivision B of
Division 268 of the Criminal Code, accordingly, genocide by: killing; causing
serious bodily or mental harm; deliberately inflicting conditions of life
calculated to bring about physical destruction; imposing measures intended to
prevent births; or 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).[302]
As noted in the ‘Position of major interest groups’
section of this Digest, some stakeholders were 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 was inappropriately low. They also questioned the need for an
additional offence, given the apparent overlap with existing offences (such as
other offences in Division 80) and the availability of section 11.4
of the Criminal Code, which provides for an extension of criminal
liability for incitement that could be applied to the existing genocide
offences.
The PJCIS considered those issues and concerns raised
about a lack of clarity around certain terms used in the offence in the
2015 Bill. It made two recommendations for amendments, both of which are
reflected in the 2016 Bill.
The revised offence in proposed
subsection 80.2D(1) will apply to someone if:
- the
person (intentionally[303])
advocates genocide and
- the
person does so reckless as to whether another person will engage in genocide.
The second part of the offence was added to implement recommendation 17 of the PJCIS’s report on the 2015 Bill, and should go some way to
addressing concerns about the breadth of the offence.[304]
The requirement in the 2015 Bill that the advocacy be engaged in ‘publicly’ has
been removed in the 2016 Bill in accordance with recommendation 18 of the PJCIS’s report.[305]
Implementation of these recommendations brings the way the offence is framed
into closer alignment with the existing offence of advocating terrorism.[306]
The PJCIS noted the potential overlap of the proposed
offence and existing offences, but was persuaded of its necessity:
Some participants in the inquiry argued that such existing
offences mean that the proposed ‘advocating genocide’ offence is unnecessary.
However, the Committee recognises that the new offence is targeted at behaviour
that does not meet the thresholds for prosecution under existing legislation.
Evidence from the AFP was that such tools are needed to enable police to
intervene earlier in the radicalisation process to prevent and disrupt further
engagement in genocide offences.[307]
The proposed offence includes a note referring to the
existing defence in section 80.3 for acts done in good faith. The
Explanatory Memorandum claims that ‘(t)his defence protects the implied freedom
of political communication.’[308]
This defence may be particularly necessary in the Australian domestic context
in view of ongoing debates over current Indigenous policies, 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.[309]
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.
Offences relating
to special intelligence operations (Schedule 18)
Schedule 18 contains proposed amendments to the secrecy
offences in section 35P of the ASIO Act, which implement the
Government’s response to recommendations of the INSLM made in October 2015.[310]
Section 35P contains offences for the unauthorised
disclosure of information relating to a particular type of covert intelligence
operation, known as a Special Intelligence Operation (SIO).
The key amendments are in item 4 (new offences) and
item 6 (an exception to new offences which apply to persons who are not
involved in the conduct of an SIO, if the information disclosed was already
published).
An understanding and analysis of the proposed amendments
requires an appreciation of the SIO scheme, the existing offences, the
administrative arrangements governing their enforcement, and the INSLM’s
inquiry.
These matters are outlined below, followed by analysis of
the provisions in Schedule 18.
The special intelligence operations scheme
The SIO scheme was enacted in October 2014, as part of the
Government’s first tranche of amendments to national security legislation,
which was introduced and enacted in the 44th Parliament.[311]
In broad terms, the SIO scheme enables the
Attorney-General to authorise ASIO to conduct certain covert intelligence
collection operations.[312]
The effect of authorisation is to confer upon authorised participants a
limited immunity from civil and criminal liability in relation to authorised
conduct carried out as part of the SIO.[313]
The Inspector-General of Intelligence and Security (IGIS)
has oversight of ASIO’s activities in relation to SIOs, including applications
for authorisation and the conduct of operations, under the Inspector-General
of Intelligence and Security Act 1986 (IGIS Act).[314]
Section 35P—unauthorised disclosure offence
Section 35P, as currently in force, contains two
offences—a ‘basic offence’ and an ‘aggravated offence’.
These offences are capable of applying to all persons,
including:
- so-called ‘insiders’—persons who are in some way involved
in an SIO (such as participants in an SIO, and ASIO personnel and others
supporting the conduct of an SIO)
- so-called ‘outsiders’—persons who have no involvement in,
or connection with, an SIO (such as journalists seeking to report on
security operations, or community members who are aggrieved or adversely
affected by activities carried out as part of an SIO).
The offences in section 35P are modelled on corresponding
offences in Part 1AB of the Crimes Act, for unauthorised disclosures of
information relating to controlled operations.[315] (Controlled operations are covert law enforcement
operations in which one or more persons are authorised to engage in otherwise
unlawful conduct in order to obtain evidence of a serious criminal offence.)
The debate about section 35P, and the proposed amendments
arising from the INSLM’s recommendations, turns heavily on an understanding and
analysis of the technical elements of the offences. Awareness of these issues
is, therefore, essential to an analysis of the proposed amendments. To this
end, details of the existing offences and the application of general principles
of criminal law in relation to the elements of offences are provided below.
The basic
offence—subsection 35P(1)
The basic offence in subsection 35P(1) is punishable by a
maximum penalty of five years’ imprisonment and applies to a person who:
- intentionally discloses information, and
-
is reckless as to whether the information disclosed relates to an
SIO.
The
aggravated offence—subsection 35P(2)
The aggravated offence in subsection 35P(2) is punishable
by a maximum penalty of 10 years’ imprisonment, and applies to a person who:
- intentionally discloses information
- is reckless as to whether the information disclosed relates to an
SIO, and
- intends
to endanger the health or safety of any person, or prejudice the effective
conduct of an SIO, or
- is
reckless as to whether the disclosure will cause the endangerment or prejudice
mentioned above.
Exceptions
to the offences—subsection 35P(3)
Subsection 35P(3) contains exceptions for persons who
make disclosures in specified circumstances. These include disclosures for
the purposes of legal proceedings arising out of or in relation to an SIO or
any report of such proceedings,[316]
disclosures for the purpose of obtaining legal advice in relation to the SIO,[317]
and disclosures to the Inspector-General of Intelligence and Security (or
staff).[318]
Explanation
of fault elements applying to both offences
Chapter 2 of the Criminal Code Act 1995 (Criminal
Code) provides that Commonwealth offences comprise two types of
elements—physical elements and fault elements—both of which must be established
beyond reasonable doubt in order for a person to be convicted.[319]
The physical elements of an offence are prescribed
in each individual offence provision. The Criminal Code provides that
there are three main types of physical elements, being: conduct, a circumstance
in which conduct occurs, and the result of conduct.[320]
The Criminal Code also applies a fault element
(or a ‘mental element’) to each physical element of an offence. The standard
fault elements are intention, knowledge, recklessness and negligence.[321]
The Criminal Code prescribes general rules about the specific fault
element that will apply to each type of physical element if the law creating
the offence does not specify a fault element.[322]
Intentional
disclosure of information
As subsections 35P(1) and 35P(2) do not
specify fault elements, the Criminal Code applies the fault element of intention
to the physical element of disclosing information (being a form of conduct).[323]
A person has intention in relation to conduct if he or she means to engage in
that conduct.[324]
Other than in cases in which a person inadvertently
discloses information (for example, if a document was released in an
administrative error) the element of intention is unlikely to be in serious
contention in alleged contraventions of section 35P. A media organisation that
publishes a story, and an individual journalist who files a story for
publication, would clearly mean to do so, and therefore engage in an
intentional disclosure.
A ‘whistleblower’ who provides comment, or hands documents, to a journalist
would also clearly mean to do so.
Recklessness
that information relates to a special intelligence operation, or that
disclosure will cause harm
The Criminal Code applies the fault element of recklessness
to the physical element in both offences that the information disclosed relates
to an SIO (being a circumstance in which conduct, namely disclosure, occurs).[325]
The Criminal Code also applies the fault element of
recklessness to the physical element in the aggravated offence that the
disclosure ‘will’ cause harm in the form of endangering health or safety, or
prejudicing the effective conduct of an SIO (since this is also a circumstance
in which conduct, namely disclosure, occurs).[326]
The Criminal Code provides that a person will be
reckless about a circumstance in which conduct occurs if, at the time of
engaging in the relevant conduct, the person satisfies two requirements:
- the person is aware of a substantial risk that the
circumstance exists—in this case:
- in
the basic offence—awareness of a substantial risk that the information relates
to an SIO
- in
the aggravated offence—awareness of a substantial risk that the disclosure of
the information would endanger health or safety, or prejudice the effective
conduct of an SIO.
- the person, unjustifiably in the circumstances known to him or
her at the time, takes the risk by engaging in the relevant conduct—in this
case, engaging in the conduct that is the disclosure of the information
(for example, publishing the story or filing it for publication, or making a
comment to the media).[327]
Proof that a person had actual knowledge of a circumstance
will also satisfy the requirements of proof in relation to recklessness.[328].
(Given the covert nature of SIOs, however, it seems highly unlikely that
persons who are not officially involved in these operations would have actual
knowledge of them.)
What
amounts to a ‘substantial risk’ and acting ‘unjustifiably’ for the purpose of
criminal recklessness?
There are no statutory criteria for determining whether a
risk is ‘substantial’ or whether the taking of a risk was ‘unjustifiable’ in
the circumstances known to the person. These are questions of fact to be
determined at trial.
However, it is generally accepted that the task of proving
that a person was aware of a substantial risk requires, in broad terms, proof
that the person was consciously aware of a real and not remote possibility that
the circumstance existed.[329]
It is also generally accepted that proof that the taking
of a risk was ‘unjustifiable’ requires a moral or value judgment based on the
circumstances as the person believed them to be, and can involve the
consideration of factors such as the degree of risk, the social utility of the
person’s conduct and the social harm of the danger inherent in the risk, and
the practicability of eliminating the risk.[330]
Government’s
rationale for applying the fault element of recklessness, not knowledge
The Government provided the following explanation of its
rationale for selecting recklessness, rather than knowledge, as the applicable
fault element to the circumstance that the information ‘relates to’ an SIO:
The policy justification for adopting recklessness, rather
than knowledge, as the applicable fault element is ... that the wrongdoing targeted
by ... s 35P is that the disclosure of information about an SIO will, by its very
nature, create a significant risk to the integrity of that operation and the
safety of its participants. The fault element of recklessness gives expression
to the policy imperative to deter such conduct by clearly placing an onus on
persons contemplating making a public disclosure of such information to
consider whether or not their actions would be capable of justification to the
criminal standard. In the event that there is doubt, and the proposed
disclosure relates to suspected wrongdoing by ASIO, consideration should be
given to making an appropriate internal disclosure, such as to the
Inspector-General of Intelligence and Security, or to the Australian Federal
Police if the commission of a criminal offence is suspected. [331]
How would
the fault element of recklessness apply to journalists and others who report on
operations?
This question was the subject of significant Parliamentary
and public debate on the NSLA Bill, and after its enactment, including in the
INSLM’s inquiry in 2015.
In short, the Government also contended that the fault
element of recklessness meant it was unlikely a journalist who adhered to ‘the
usual practices of responsible journalism in the reporting of operational
matters relating to national security’ (such as checking facts and consulting
ASIO’s media liaison unit) would be exposed to prosecution.[332]
The basis for this position was that such actions would tend to suggest that a
journalist and media organisation who proceeded to publish a story after making
such inquiries (and presumably acting consistently with any information or
advice received in response) had acted justifiably. In addition, it was said
that a journalist who was entirely unaware of the possibility that the
information might relate to an SIO would not be reckless, since he or she would
not have adverted to a risk of any kind.[333]
In contrast, media organisations and others argued that
this did not provide adequate certainty about their potential exposure to legal
liability in advance of publishing a story—including if ASIO declined to
provide a substantive response to any attempts by the journalist to check facts
(for example, by refusing to confirm or deny matters). The prospect of
exposure to liability may therefore create a disincentive to publication.[334]
Administrative requirements for the commencement or
continuation of prosecutions
Attorney-General’s
direction to the Commonwealth Director of Public Prosecutions
The Attorney-General issued a direction to the
Commonwealth Director of Public Prosecutions (CDPP) on 30 October 2014
under section 8 of the Director of Public Prosecutions Act 1983.
This direction relevantly requires the CDPP to obtain the
Attorney-General’s consent to proceed with a prosecution of a person for an
alleged offence against section 35P ‘where the person is a journalist and the
facts constituting the alleged offence relate to the work of the person in a
professional capacity as a journalist’.[335]
Commonwealth
Director of Public Prosecutions National Legal Direction
The CDPP has issued a National Legal Direction, which
requires prosecutors to obtain the consent of the Director to any proposed
prosecutions for offences against section 35P, in advance of seeking the
Attorney-General’s consent to a prosecution of a person who is a journalist.
The direction also provides guidance to prosecutors about the application of
the public interest test in the Prosecution Policy of the Commonwealth
in relation to potential prosecutions for offences against section 35P.[336]
Some have criticised the adequacy of these mechanisms as
safeguards against the prosecution of legitimate journalism or other
disclosures in the public interest, because they involve the exercise of
executive discretion rather than a legal immunity that would apply as of right.[337]
Others have advocated for the extension of the Attorney-General’s direction to
persons other than journalists.[338]
Reviews of section 35P
In conjunction with the appointment of Roger Gyles as
Acting INSLM on 11 December 2014, the Prime Minister referred the matter of
‘the impact on journalists of section 35P of the ASIO Act’ to the (then)
Acting INSLM for inquiry and report.[339]
It is also worth noting that the Australian Law Reform
Commission (ALRC) briefly considered section 35P in its inquiry into the
encroachment by Commonwealth laws upon traditional rights and freedoms in
2014-15.[340]
The ALRC identified section 35P as a law that interferes with freedom of
speech, and recommended that it was reviewed further to determine whether it
imposed an unjustifiable limitation on the freedom. The ALRC noted that the
provision was within the oversight remit of the INSLM and the PJCIS, and that the
INSLM was undertaking such a review.[341]
INSLM findings and recommendations
The INSLM provided his report to the Prime Minister on 1
October 2015, which was tabled on 2 February 2016.[342]
In broad terms, the INSLM recommended the retention of section 35P, subject
to several amendments to modify the application of the offences to so-called
‘outsiders’ or third parties such as journalists who are not involved in, or
connected with, the conduct of an SIO.[343]
Impact of
section 35P on journalists
The INSLM considered that section 35P had two main impacts
on journalists, which are as follows:
A. It
creates uncertainty as to what may be published about the activities of ASIO
without fear of prosecution. The so-called chilling effect of that uncertainty
is exacerbated because it also applies in relation to disclosures made to
editors for the purpose of discussion before publication.
B. Journalists
are prohibited from publishing anywhere at any time any information relating to
an SIO, regardless of whether it has any, or any continuing, operational
significance and even if it discloses reprehensible conduct by ASIO insiders.[344]
Need for a
secrecy offence applying to special intelligence operations
The INSLM stated that, in his view, an offence for the
unauthorised disclosure of information relating to an SIO was ‘not
inappropriate’.[345]
However, section 35P did not contain ‘adequate safeguards for protecting the
rights of outsiders’ and was ‘not proportionate to the threat of terrorism or
the threat to national security’.[346]
Problems with
section 35P
The INSLM identified ‘three basic flaws’[347]
in section 35P in support of this conclusion, which are as follows:
- the
basic offence in subsection 35P(1)—the absence of a requirement in the basic
offence in subsection 35P(1) to prove that a disclosure caused harm
- the
aggravated offence in subsection 35P(2)—the application of the fault element of
recklessness to the physical element that the disclosure will cause harm (in
the form of endangering life or safety, or prejudicing the effective conduct of
an SIO)
- both
offences—the application of both offences to the disclosure of information
already in the public domain.[348]
The INSLM considered that these flaws meant that section
35P is ‘arguably invalid’ on the basis it infringes the implied freedom of political
communication, and is arguably incompatible with Australia's obligations under
Article 19(2) of the International Covenant on Civil and Political Rights
with respect to freedom of expression.[349]
Central to the INSLM’s conclusion was his rejection of the
Government’s position that harm was implicit in the disclosure of any
information relating to an SIO at any time. He opined this was
‘simply not sustainable’ as a rationale for exposing so-called ‘outsiders’ to
criminal liability.[350]
He stated that ‘unless good cause is shown’ persons who do not have means of
knowledge of the existence or nature of an SIO, or obligations of
confidentiality, should not be exposed to prosecution.[351]
The fundamental policy question is what—if anything—the
Parliament should recognise, in legislation, as being a ‘good cause’ to
justify the imposition of criminal sanctions upon so-called ‘outsiders’. The
INSLM’s recommended amendments to enact discrete ‘outsider’ offences give
expression to the INSLM’s opinion on this issue (discussed below).
Form of
recommended amendments
To address the above issues, the INSLM recommended the
enactment of two discrete categories of offences—one applying to unauthorised
disclosures of information by ‘insiders’ who are involved in the conduct of an
SIO, and the other applying to ‘outsiders’ who are not so involved.[352]
New ‘outsider’
offences
The INSLM’s recommended amendments would attach a higher
threshold of criminality to the offences applying to “outsiders”. In
particular, these offences would require proof that:
- the ‘outsider’ disclosed information relating to an SIO (and was
reckless as to that relationship), and
- the ‘outsider’ either:
- was
reckless that the disclosure would endanger the health or safety of any person,
or would prejudice the effective conduct of an SIO, or
- knew
or intended that the disclosure would have the harmful effect described in the
above point.[353]
The INSLM recommended that a maximum penalty of five
years’ imprisonment should apply to the offence for the disclosure of information,
where the discloser is reckless as to whether their disclosure would
cause the harm described above.[354]
He recommended that a maximum penalty of 10 years’
imprisonment should apply to the offence for the disclosure of information intending
to cause such harm, or knowing that the disclosure would cause such
harm.[355]
Exception
to ‘outsider’ offences—prior publication
The INSLM also recommended the enactment of an exception
(an offence-specific defence) of “prior publication” which would apply only to
the “outsider offences”.[356]
He recommended that the exception apply to persons who disclose
information relating to an SIO that has previously been published, subject to
the following conditions:
- having regard to the nature and
extent of that prior publication and the place where it occurred, the defendant
had reasonable grounds to believe that the second publication was not damaging,
and
- the defendant was not in any way
directly or indirectly involved in the prior publication.[357]
New ‘insider’
offences
The INSLM recommended that offences applying only to ‘insiders’
should retain the general structure of, and maximum penalties applicable to,
the offences as originally enacted.[358]
That is, they should require:
- proof
that a person disclosed information, reckless as to whether it related to an
SIO (punishable by a maximum penalty of five years’ imprisonment) or
- proof
of the above element, as well as proof that the person knew, or intended, that
the disclosure would endanger the health or safety of any person, or prejudice
the effective conduct of an SIO (punishable by a maximum penalty of 10 years’
imprisonment).[359]
This was said to reflect that ‘insiders’ had specific
obligations of confidentiality in relation to information obtained in the
course of their duties, and that such persons have a greater knowledge or
capacity to obtain knowledge of the risks of harm arising from unauthorised
disclosures of information relating to SIOs.[360]
The INSLM stated that he considered ‘insiders’ to include
‘ASIO employees, contractors and people who have entered into an agreement or
arrangement with ASIO’.[361]
Measures
not supported by the INSLM
The INSLM considered briefly, but did not support, other
potential amendments to section 35P suggested by inquiry participants.[362]
One such amendment was a ‘public interest defence’. The INSLM considered that
the case for enacting a public interest defence ‘is not sufficient if section
35P is amended as recommended’.[363]
In particular, the INSLM stated that ‘the judiciary should
not lightly be involved in binding value judgments about issues of national
security’.[364]
In the INSLM’s view, a preferable way of taking public interest considerations
into account in the design and application of the offences in section 35P would
be the combination of the harm element in the ‘basic outsiders offence’ together
with the exercise of executive discretion in prosecutorial decision-making
(including the Attorney-General’s consent to the prosecution of journalists,
and the application by the CDPP of the public interest test under the Prosecution
Policy of the Commonwealth.)[365]
Government response to the INSLM’s report
The Attorney-General announced on 2 February 2016
that the Government supported all of the INSLM’s recommendations.[366]
The Attorney-General also indicated that the Government
intended to apply a modification to the recommended prior publication defence
to the ‘outsiders offences’ by adding a further condition, namely:
The Government considers that prior to any
secondary publication, an individual must take reasonable steps to ensure the
proposed publication is not likely to cause harm. The Government will work with
stakeholders to amend section 35P to include a defence of prior publication.[367]
The extrinsic materials to the 2016 Bill do not appear to
identify whether the Government consulted with stakeholders on the ‘prior
publication defence’ prior to its introduction (and, if so, which stakeholders
were consulted); or whether the Government intends to undertake consultations
before the 2016 Bill is debated.
Key amendments in Schedule 18
The key proposed amendments are contained in item 4
(offences) and item 6 (prior publication defence).
Item 4 repeals the offences in subsections 35P(1)
and 35P(2) and replaces them with the four new offences recommended by the
INSLM, which are contained in new subsections 35P(1), (1B) (2) and (2A).
The headings to the offences apply two broad
categorisations, which correspond to the INSLM’s labels of ‘insider’ and ‘outsider’
offences. These are:
- ‘Disclosures by entrusted persons’—covering the offences in
proposed subsections 35P(1) and 35P(1B)
- ‘Other disclosures’—covering the offences in proposed subsections
35P(2) and 35P(2A).
Item 6 inserts the new prior publication defence,
which applies to the ‘other disclosures’ offences.
Items 1-3, 5 and 7 are consequential to the
key amendments in items 4 and 6.
Disclosures by entrusted persons—proposed subsections
35P(1) and 35P(1B) (items 1-4)
Item 4 inserts proposed subsections 35P(1) (basic
offence) and 35P(1B) (aggravated offence), which correspond to the offences
described by the INSLM as ‘insider offences’. These offences are stated to
apply to a person who is, or who has been, an ‘entrusted person’.[368] This
term is used instead of the INSLM’s label of ‘insider’.
Items 1-3 define the term ‘entrusted person’ and
make other consequential amendments.
Who are
entrusted persons?
Item 1 inserts a definition of the term ‘entrusted
person’ in the general definitions in section 4 of the ASIO Act, and
includes three classes of persons, by reference to the specific type of
relationship they have with ASIO:
- an
‘ASIO employee’—defined in section 4 to mean a person who is employed under
the two main machinery type provisions of the ASIO Act governing
employment, namely section 84 (employment by the Director-General of Security)
and section 90 (employment under regulations)
- an
‘ASIO affiliate’—defined in section 4 to mean a person other than an ASIO
employee who performs functions or services for ASIO in accordance with a
contract, agreement or other arrangement.
(It includes, for example, secondees, consultants, contractors and sources.)
- a
person who has entered into a contract, agreement or arrangement with ASIO other
than an ASIO affiliate—this covers people who do not fall within the
definition of ‘ASIO affiliate’ because they are not performing functions or
services for ASIO. (For example, this could conceivably cover staff
members of other departments, agencies or entities with whom ASIO has shared
information relating to an SIO—on conditions of confidentiality, and other
limitations on use—for the purpose of the recipient performing functions or
services for their agency, department or entity.).
The term ‘entrusted person’ is already used (and defined
identically) in other offences in the ASIO Act, which apply to
unauthorised dealings with intelligence-related information, and unauthorised
recordings of such information.[369]
Accordingly, items 2 and 3 make consequential amendments to repeal the
separate, identical definitions in these offence provisions, so that the
definition in section 4 applies to them.
It is also worth noting that another offence in subsection
18(2) of the ASIO Act applies to the classes of persons covered by the
definition of an ‘entrusted person’ although it does not use the defined term.
This offence applies to persons who engage in an unauthorised disclosure of
intelligence-related information. (The issue of its overlap with the proposed
new offences is discussed in the “comments” section below.)
The ‘basic
entrusted persons offence’—proposed subsection 35P(1) (item 4)
Proposed subsection 35P(1) creates the basic offence with
respect to ‘entrusted persons’. Broadly, it applies to a disclosure of
information relating to an SIO by a person who is, or who has been, an
‘entrusted person’ and who obtained that information in his or her capacity as
an entrusted person. The offence is punishable by a maximum penalty of five
years’ imprisonment, which is consistent with the ’basic offence’ as currently
in force.
The standard fault elements under the Criminal Code
(discussed above) apply to all but one of these physical elements.
(The exception is discussed separately below, in relation to strict
liability elements.)
As with the ‘basic offence’ in current subsection 35P(1),
the person must intend to engage in the conduct constituting the disclosure of
information, and the person must be reckless that the information disclosed
relates to an SIO. The person must also be reckless that the information came
to his or her knowledge, or came into his or her possession, in the person’s
capacity as an ‘entrusted person’.
The ‘aggravated
entrusted persons offence’—proposed subsection 35P(1B) (item 4)
Proposed subsection 35P(1B) contains the ‘aggravated
offence’ for unauthorised disclosures by ‘entrusted persons’. The elements of
aggravation are set out in proposed paragraph 35P(1B)(e). The person must
intend to endanger the health or safety of any person, or prejudice the
effective conduct of an SIO; or he or she must be reckless that the disclosure
will do so. The maximum penalty is 10 years’ imprisonment.
Strict
liability elements in the ‘entrusted persons offences’—proposed subsections
35P(1A) and 35P(1C)
Proposed subsections 35P(1A) and 35P(1C) provide that
strict liability applies to the physical elements in proposed paragraphs
35P(1)(a) (basic offence) and 35P(1B)(a) (aggravated offence). These physical
elements are that the person is, or has been, an entrusted person.
The key legal effect of strict liability is that no fault
element applies to these offences.[370]
Hence, the prosecution need only prove the relevant physical element. In this
case, the physical element of a person’s status as an entrusted person might be
satisfied by adducing documentary evidence such as the person’s contract of
employment, or the contract or agreement the person has entered into with ASIO,
or another document recording an arrangement. If strict liability did not
apply, the prosecution would be required to prove that the person was reckless
as to his or her status as an ‘entrusted person’.[371]
The Explanatory Memorandum states that proof of
recklessness ‘would not be appropriate’ and that proof of the fact the person
had entered into a contract, agreement or arrangement ‘should be sufficient’.[372] It does
not point to any reasons in support of this opinion.
Comments on the proposed offences for disclosures by
entrusted persons
Two questions arise in relation to the proposed “entrusted
persons offences”:
- First, is it appropriate to apply strict liability to the
physical element that the person is an entrusted person?
- Secondly,
are these offences necessary or appropriate in light of the general
unauthorised disclosure offence in subsection 18(2) of the ASIO Act?
In particular, could the overlap create unintended consequences?
Is strict
liability appropriate in relation to a person’s status as an entrusted person?
The INSLM did not make any comment about the application
(or removal) of the fault element accompanying the physical element of a
person’s status as an “insider”.
Other offences in the ASIO Act that apply to
entrusted persons (or persons within the categories forming the definition of
an ‘entrusted person’) do not apply strict liability to this element.[373]
The absence of reasons in the Explanatory Memorandum makes
it difficult to assess the appropriateness of proposed subsections 35P(1A) and
35P(1C). However, two relevant considerations are as follows.
Potential
policy grounds
One possible ground for applying strict liability is a
policy position that it is reasonable to hold an ‘entrusted person’ to a high
standard of conduct, by presuming him or her to have read and understood, and
be cognisant at all times, of his or her obligations and responsibilities under
the relevant contract, agreement or arrangement with ASIO.
This position, on first blush, seems reasonable. However,
it assumes that everyone who enters into a contract, agreement or arrangement
with ASIO has the capacity to understand the obligations placed upon them, and
are given an adequate opportunity to understand those obligations. While this
may be a reasonable assumption to make on a wholesale basis for ASIO employees
and certain ASIO affiliates who are in an employment-like relationship with
ASIO, it may be questioned whether it is reasonable in relation to other categories
of entrusted persons, who may only have a tangential relationship to ASIO.
The reasonableness of this assumption in relation to the
latter category of entrusted persons depends on the existence of effective
practical arrangements—both at the point of entry into a contract, agreement or
arrangement, and throughout its administration—to ensure that entrusted persons
are aware of, and understand, their status and consequent obligations. Two
particularly important obligations are the limits on the person’s authority to
disclose information, and any obligations placed upon the person that will
continue after he or she ceases to be an entrusted person (for example, when
the person’s contract ends). The Explanatory Memorandum does not contain any
information about practical arrangements that could provide an assurance of
this matter.
Potential
practical grounds
Another possibility is that the proposed use of strict
liability might help prevent the risk that prosecutions may not commence (or
may not succeed) due to difficulties in proving that a person was reckless as
to his or her status as an entrusted person.
For example, a defendant or prospective defendant might
maintain that they were unaware of the risk they might have been an ‘entrusted
person’. For example, there may be some suggestion that the person had not read
or understood, or had forgotten about, the relevant contract, agreement or
arrangement which established his or her status as an ‘entrusted person’. (As
mentioned above, it is open to question whether this is likely to occur with
people who are not ASIO employees or ASIO affiliates who are in an
employment-like relationship with ASIO.) The prosecution would need to negate
this possibility beyond reasonable doubt. Given that recklessness requires
proof of a person’s subjective state of mind regarding his or her awareness of
a substantial risk, it may be difficult to obtain admissible evidence that is
sufficient to do so.
Potential
ineffectiveness of strict liability
Even if it was accepted that the use of strict liability
is appropriate as a matter of policy, it is questionable whether proposed
subsections 35P(1A) and 35P(1C) will be effective in relieving the prosecution
of a requirement to prove that a person was reckless as to his or her status as
an entrusted person.
This is because the elements in proposed paragraphs
35P(1)(b) and 35P(1B)(b) do not apply strict liability. They require proof
that the relevant information came into the person’s knowledge or possession in
his or her capacity as an entrusted person, and that the person was reckless as
to this circumstance.
Arguably, the task of proving that a person was aware of a
substantial risk that information came into his or her knowledge or possession
in a specific capacity or status (such as that of an ‘entrusted person’) will
necessarily require some degree of proof that the person adverted to the
possibility that he or she possessed that capacity or held that status. If this
proposition is accepted, it would seem to neutralise any perceived policy or
practical benefit sought to be gained from applying strict liability to
paragraphs 35P(1)(a) and 35P(1B)(a).
Are the
proposed ‘entrusted persons offences’ necessary in light of subsection 18(2) of
the ASIO Act?
The conduct constituting the offences in proposed
subsections 35P(1) and 35P(1B) appears to be covered by the existing offence
for the unauthorised communication of intelligence-related information in
subsection 18(2).
The Explanatory Memorandum states that the offence in
subsection 18(2) is intended to be available ‘in addition to the offences in
section 35P’.[374]
It does not indicate why it is considered appropriate to have two sets of
offences that appear capable of applying to the same conduct, but adopt
different maximum penalty structures and are inconsistent in their approaches
to requiring proof of harm. In this regard, the internal offence and penalty
structure within the ASIO Act is different to that applying to
controlled operations under Part IAB of the Crimes Act. (For example,
the general secrecy offence in section 60A of the Australian Federal Police
Act 1979 is punishable by a maximum penalty of two years’ imprisonment.[375]
The general secrecy offences in Part VI and Part VII of the Crimes Act
also apply lesser maximum penalties and take a different approach to harm
elements.[376])
Do proposed
subsections 35P(1) and 35P(1B) duplicate the existing offence in subsection
18(2)?
As mentioned above, subsection 18(2) is an offence for the
unauthorised disclosure of intelligence-related information, and is
subject to a maximum penalty of 10 years’ imprisonment.
Subsection 18(2) contains the following elements:
(a) the person makes a communication of any
information or matter
(b) the information or matter has come into the
person’s knowledge or possession by reason of the person being (or having been)
an ASIO employee, ASIO affiliate, or having entered into a contract, agreement
or arrangement with ASIO (otherwise than as an ASIO affiliate)
(c) the information or matter was acquired or
prepared by or on behalf of ASIO in connection with its functions, or relates
to the performance by ASIO of its functions
(d) the communication was not made to the
Director-General, an ASIO employee, or an ASIO affiliate, by:
- an ASIO employee, in the course of the person’s
duties of employment, or
- an ASIO affiliate, in accordance with the
person’s obligations under the relevant contract, agreement or arrangement with
ASIO
- a person other than an ASIO affiliate, in
accordance with the person’s obligations under the relevant contract, agreement
or arrangement with ASIO.
(e) the communication was not made by a person
acting within the limits of authority conferred by the Director-General
(f)
the communication was not made with the approval
of the Director-General (or another person authorised to provide approval).
Subsection 18(2A) contains an exception
for information already in the public domain with the authority of the
Commonwealth. Subsection 18(2B) contains an exception for communications to the
IGIS (or the IGIS’s staff).
While there are differences in wording between the
relevant provisions, it is not apparent that there are any elements of proposed
subsection 18(2) that would make the task of prosecuting an unauthorised
disclosure more difficult, in practical terms, than the task of prosecuting
offences under proposed subsections 35P(1) and 35P(1B).
Accordingly, it seems likely that the
value in the offences in proposed subsections 35P(1) and 35P(1B) may lie in
their denunciatory effect rather than filling a substantive gap in the coverage
of the criminal law. That is, they explicitly communicate the Parliament’s
condemnation of the actions of entrusted persons who disclose information
relating to an SIO in breach of the limits of their authority, and the trust
reposed in them.
However, this benefit is arguably outweighed by the risks of unintended
consequences (discussed below).
Risk of
enacting offences which overlap significantly with subsection 18(2)
Inconsistent
penalty structure
The penalty structure between subsection 18(2) and
proposed subsections 35P(1) and 35P(1B) is inconsistent.
Subsection 18(2) and the aggravated offence in proposed subsection 35P(1B) have
the same maximum penalty of 10 years’ imprisonment.
Unlike proposed subsection 35P(1B), subsection 18(2) does
not require proof that the person intended to cause harm, or knew or was
reckless that the disclosure would cause harm. This reflects a policy judgment
that the harm is implicit in the combination of the person’s status as an
authorised recipient of intelligence-related information, their breach of trust
by acting in excess of their authority, and the nature of the information.[377]
In contrast, the Explanatory Memorandum states that the
maximum penalty applying to proposed subsection 35P(1B) ‘maintains parity’ with
that applying to subsection 18(2).[378]
Yet it also states that the penalty applying to proposed subsection 35P(1B) is specifically
intended to punish the wrongdoing arising from the aggravating elements of
that offence, which relate to the harmful effects of disclosure.[379]
This approach seems anomalous, particularly as subsection
18(2) applies to the unauthorised disclosure of a broader range of information
than the offences in section 35P. Some information caught by subsection 18(2)
might feasibly be less sensitive than information relating to an SIO,
and potentially less harmful to security if disclosed without
authorisation. Yet there is no requirement for the prosecution to prove
harm.
Risk of
perverse incentives to prosecute offences under subsection 18(2)
Subsection 18(2) covers conduct that could be prosecuted
under the basic offence in proposed subsection 35P(1) but applies a
maximum penalty double that of proposed subsection 35P(1). This could create a
perverse incentive to rely upon subsection 18(2) in preference to proposed
subsection 35P(1).
In addition, the parity of maximum penalties as between
subsection 18(2) and proposed subsection 35P(1B) might create a perverse
incentive to rely upon subsection 18(2) to avoid the potentially onerous task
of proving the harm elements in proposed paragraph 35P(1B)(e).
Potential
application of the principle in The Queen v De Simoni in relation to sentencing
The above risk may be mitigated, to an extent, by the
possible application of the common law principle of sentencing recognised in
The Queen v De Simoni (the ‘De Simoni principle’).[380] This principle provides
that a sentencing court cannot take into account, as an
aggravating factor, a circumstance that would have warranted the person’s
conviction for a more serious offence.
The potential application of the De Simoni principle
to subsections 18(2) and proposed subsection 35P(1B) is not beyond argument.
However, it might be argued that proposed subsection 35P(1B) amounts to a “more
serious” offence than subsection 18(2) by reason of the harm element in
proposed paragraph 35P(1B)(e) and its specific application to information
relating to SIOs.[381]
If this contention was accepted, then a person who is
convicted of an offence against subsection 18(2) could not be sentenced on the
basis of his or her advertence to the harmful impacts of disclosure, or
intention to cause harm, to the extent that these factors are covered by
proposed paragraph 35P(1B)(e).
The Government has not identified its policy position on
the intended interaction of subsection 18(2) with proposed subsection and
35P(1B). On one hand, the potential application of the De Simoni principle
may be viewed in a positive light, as a safeguard against the perverse
incentives mentioned above. On the other hand, it might be inconsistent with
the Government’s policy intention about the interaction of the respective
offence provisions, and therefore could produce unintended consequences from a
policy perspective.
Confused or
unintended signal to sentencing courts about the nature and gravity of
wrongdoing
Separately to the De Simoni principle, there is a
risk that an internally inconsistent penalty structure within the ASIO Act
may send a confused or an unintended signal to sentencing courts about the
Parliament’s assessment of the nature and relative gravity of the wrongdoing
involved in the various disclosure offences in the ASIO Act.
There is also a risk that this inconsistency could send a
confused or an unintended message to the Parliament, and the wider community,
about the policy underlying the relevant offences. This may complicate the task
of developing and gaining support for any proposed amendments in future.
Possible
solution to the risks of overlap with subsection 18(2)
One way of managing the risks of unintended legal and legal
policy consequences arising from the overlap of proposed subsections 35P(1) and
35P(1B) with existing subsection 18(2) would be to omit subsections 35P(1) and
35P(1B) from the 2016 Bill. The result would be that subsection 18(2)
alone would cover unauthorised disclosures of information relating to SIOs.
This may require consequential amendments to some provisions of
section 18.
An alternative solution may be to include new provisions in
the 2016 Bill, giving express effect to the intended relationship between
subsection 18(2) and proposed subsections 35P(1) and 35P(1B). (For example, new
provisions could expressly exclude or apply the De Simoni principle, or
otherwise provide guidance to sentencing courts.)
Offences for other disclosures—proposed subsections 35P(2)
and 35P(2A) (item 4)
Proposed subsections 35P(2) and 35P(2A) correspond to the
INSLM’s recommended category of outsider offences. With the exception of two
matters (discussed below) they appear to implement faithfully the INSLM’s
recommendations.
Proposed subsection 35P(2) contains the basic outsiders
offence. It applies to a person who intentionally discloses information,
reckless as to the circumstance that it relates to an SIO, and reckless as to
the circumstance that the disclosure will endanger the health or safety of any
person, or will prejudice the effective conduct of an SIO. The maximum penalty
is five years’ imprisonment.
Proposed subsection 35P(2A) contains the aggravated
outsiders offence. It is punishable by a maximum penalty of 10 years’
imprisonment. The elements of aggravation are contained in proposed paragraph
35P(2A)(c), which requires proof of one, or both, of the following:
- subparagraph
35P(2A)(c)(i)—the person intends to endanger the health or safety of any
person, or prejudice the effective conduct of an SIO
- subparagraph
35P(2A)(c)(ii)—the person knows that the disclosure will have either of the
above harmful effects.
Comments on the offences for ‘other disclosures’
Two issues are apparent in relation to the offences in
proposed subsections 35P(2) and 35P(2A). The first issue relates to unexplained differences to the INSLM’s
recommendations.
The second issue relates to stakeholder concerns about the
INSLM’s recommendation that the basic offence, now contained in proposed
subsection 35P(2), should apply the fault element of recklessness to the
circumstance that the information related to an SIO, and to the circumstance
that the disclosure would cause harm.
Application
of proposed subsections 35P(2) and 35P(2A) to ‘entrusted persons’
The INSLM’s recommendations appeared to support a complete
separation between the two categories of
so-called ‘insider’ and ‘outsider’ offences.
However, the proposed “outsider” offences in subsections
35P(2) and 35P(2A) do not expressly exclude ‘entrusted persons’. The
Explanatory Memorandum states that this reflects a deliberate intention that
these offences should not be ‘limited only to persons who are not and have
never been an entrusted person’.[382]
The Explanatory Memorandum suggests that ‘an entrusted
person could still be subject to prosecution under subsection 35P(2) or (2A) if
it was not demonstrated that they received the relevant information in their
capacity as an entrusted person, although it is envisaged that this situation
would be highly unusual’.[383]
The Explanatory Memorandum does not address why it is
considered necessary to prosecute an entrusted person under the so-called
“outsider” offences, or provide details about the types of situations in which
it is contemplated this course of action might be necessary. Presumably, the
Government may be contemplating the scenario in which an entrusted person comes
into contact with information relating to an SIO entirely outside his or her
capacity as an entrusted person (for example, in a social setting). However, it
is not clear whether the outsider offences are intended to apply to entrusted
persons in a wider range of circumstances.
Should
proposed subsections 35P(2) and 35P(2A) be capable of applying to entrusted
persons?
It is possible that this approach may reflect an intention
that proposed subsections 35P(2) and 35P(2A) should provide some kind of ‘safety
net’ in the event that a prosecution of an offence against proposed subsection
35P(1) or 35P(1B) may fail, or a potential prosecution may not be open, for
evidentiary reasons.
This risk might arise if, for example, there is
insufficient admissible evidence to establish that:
- the
person was an ‘entrusted person’ for the purpose of proposed paragraphs
35P(1)(a) and 35P(1B)(a).
This could arise from lapses in record keeping, or in the event that the
relevant contract, agreement or arrangement was not in writing, or if some
irregularity is discovered in a written instrument
- the
person was reckless as to whether the information came into his or her
knowledge or possession in the person’s capacity as an entrusted person for the
purpose of proposed paragraphs 35P(1)(b) and 35P(1B)(b).
The policy merits of allowing a prosecution to be brought
under proposed subsections 35P(2) and 35P(2A) in these circumstances are
debatable. However, the higher thresholds of criminality applied to these
offences (particularly the harm elements) arguably provide a safeguard against
the risk of abuse.
The potential availability of a prosecution under proposed
subsection 35P(2) or 35P(2A) may also help ensure that otherwise culpable
conduct does not go unpunished as a result of an evidentiary limitation in
establishing a potential defendant’s status as an ‘entrusted person’.
Risk that
the intended interpretation may not be supported by proposed subsections 35P(2)
and 35P(2A)
The proposed amendments do not include an express
provision stating that an entrusted person may be prosecuted for an offence
against proposed subsections 35P(2) and 35P(2A).
In the absence of such a provision, there may be some
doubt that the proposed amendments are capable of supporting the Government’s
desired interpretation.
It may be arguable that the word “person” as used in
proposed subsections 35P(2) and 35P(2A) could be interpreted to mean “a person
who is not an entrusted person”, having regard to the text and context
of these provisions.
In particular, the existence of two separate categories of
offences, and the use of the headings ‘disclosures by entrusted persons’
for the offences in proposed subsections 35P(1) and 35P(1B) and ‘other disclosures’
for the offences in proposed subsections 35P(2) and 35P(2A) (emphasis added)
may tend against the interpretation suggested in the Explanatory Memorandum,
despite its statement of subjective intention.[384]
Potential
amendments to reduce the risk of an interpretation contrary to the intended
meaning
This Bills Digest does not advance a concluded view on the
above question of statutory interpretation. The key issue is, arguably, managing
the potential risk that ambiguity in the provisions could be exploited in a
challenge to a prosecution of an entrusted person under proposed subsection
35P(2) or 35P(2A).
This risk could be removed through the enactment of a
provision containing an express statement to the effect that nothing in
proposed subsections 35P(1)-(1C) prevents a person who is an entrusted person
from being prosecuted under proposed subsection 35P(2) or 35P(2A).
A further, complementary measure may be the inclusion of
“alternative verdict provisions” as between prosecutions under proposed
subsection 35P(1B) and proposed subsections 35P(2) and (2A).[385]
Stakeholder
criticism of recklessness as the fault element in the “basic offence” in
subsection 35P(2)
The Media, Entertainment and Arts Alliance (MEAA) has
stated that, while the INSLM’s recommendations are ‘welcome’, they have ‘not
changed the fundamental intent of section 35P which is to intimidate
whistleblowers and journalists’.[386]
One of its concerns is the absence of a requirement that an “outsider” must
have actual knowledge that the information he or she discloses ‘relates to’ an
SIO. The MEAA argues that this means journalists will continue to face
uncertainty in determining whether a potential publication may contravene section
35P.[387]
Supporters of this view may prefer that the fault element of recklessness in
proposed paragraph 35P(2)(b) is replaced with that of knowledge.
A similar argument might also be made in relation to the
requirement in proposed paragraph 35P(2)(c) that a person must be reckless as
to whether the disclosure will cause harm. (That is, it might be said that this
provision fails to provide clear guidance to a person about their potential
exposure to criminal liability, in advance of making a disclosure.) If it
is considered that “outsiders” should only be exposed to criminal
liability if they know that disclosure will be harmful, or intend to
cause harm, this would require the removal of proposed subsection 35P(2)
from the 2016 Bill, with the only offence applying to outsiders being the
“aggravated offence” in proposed subsection 35P(2A).
On the other hand, it might be argued that limiting the
fault elements to knowledge or intention could have unintended, adverse
consequences. It may allow conduct to go unpunished, which should arguably be
regarded as culpable. It might reasonably be argued that a person who is aware
of a substantial risk that the information they are considering disclosing
relates to an SIO, and a substantial risk that their disclosure may have a
harmful effect, should be held criminally responsible if they unjustifiably
take that risk.
New prior publication defence—proposed subsection 35P(3A)
(item 6)
Proposed subsection 35P(3A) contains the defence of prior
publication which applies only to the ‘outsider’ offences in proposed
subsections 35P(2) and 35P(2A).
Consistent with the general principles of criminal
responsibility in subsection 13.3(3) of the Criminal Code, the defendant
bears the evidentiary burden in relation to this defence. This means that he or
she must adduce or point to evidence suggesting a reasonable possibility the
relevant matters exist. If the defendant does so, the prosecution must then
discharge its legal burden to negate that possibility beyond reasonable doubt.
The defence contains four elements, the third of which was
not explicitly recommended by the INSLM:
- paragraph
35P(3A)(a)—the information disclosed must have ‘already been communicated,
or made available, to the public (‘prior publication’)
- paragraph 35P(3A)(b)—the person was not directly or
indirectly involved in the prior publication
- paragraph
35P(3A)(c)—at the time of disclosure, the person believes that the
disclosure will not endanger the health or safety of any person, and will not
prejudice the effective conduct of an SIO and
- paragraph
35P(3A)(d)—having regard to the nature, extent and place of the prior
publication, the person has reasonable grounds for that belief.
The Explanatory Memorandum states that the exception,
framed in this way, is needed to accommodate circumstances in which a
subsequent disclosure of information already in the public domain may cause
additional harm.[388]
The Explanatory Memorandum refers to the example of information being brought
into the public domain inadvertently, such as where a classified document is
released in error. While prompt action might be taken to reverse the
publication, a subsequent disclosure on a large scale ‘is likely to bring that
information to the attention of a much greater number of people and could
result in considerable new or additional harm’.[389]
Comment on the “prior publication” defence
Interaction
with the fault elements applying to proposed paragraphs 35P(2)(c) and
35P(2A)(c)
It is difficult to see how proposed subsection 35P(3A)
will, in practical terms, add significant additional protection to the
requirements of proof in relation to the harm elements in proposed paragraphs
35P(2)(c) and 35P(2A)(c).
That is, the effect of proposed subsection 35P(3A)
is that the offences in proposed subsections 35P(2) and 35P(2A) do not apply to
a person who believes,[390]
on reasonable grounds,[391]
that a disclosure of previously published information will not cause the harm
or damage of the kind specified in proposed subparagraph 35P(3A)(c)(i) or
subparagraph 35P(3A)(c)(ii).
Yet the offences in proposed paragraphs 35P(2)(c)
and 35P(2A)(c) apply to persons who (respectively) are reckless
that the disclosure will cause harm of the same kind as that specified in proposed
subparagraph 35P(3A)(c)(i) or subparagraph 35P(3A)(c)(ii); or who know
or intend that their disclosure will cause harm of that kind.
In other words, if a person discloses information, which
he or she believes on reasonable grounds will not endanger health or safety, or
will not prejudice the effective conduct of an SIO, then it is difficult to
envisage how he or she might credibly be at risk of prosecution in the first
place and therefore have need to rely on the proposed prior publication
defence.
The INSLM’s report endorsed a recommendation of the Review
of Commonwealth Criminal Law: Final Report, Chaired by former Chief Justice
of the High Court of Australia, Sir Harry Gibbs (‘Gibbs Review’).
The Gibbs Review recommended a prior publication defence, but also
made the following statement:
31.33 The Review Committee sees
considerable merit in the suggestion in effect put forward by the
Communications Law Centre of the University of New South Wales that there
should be no assumption that a second or subsequent disclosure would be harmful
or more harmful than the original disclosure and that the test should be the
actual harm done by the re-publication of the information having regard to any
prior publication of the information. Indeed, assuming that is the effect of
the law, then, in relation to the categories of information, disclosure of
which would, under these proposals attract criminal sanctions only on proof of
harm, there would appear to be little requirement for a specific defence of
prior publication. [Emphasis added.]
31.34 However, the limited categories of
information as to which this Report proposes no requirement for proof of harm
must be taken into consideration. Circumstances are readily available where
information in these categories disclosed without authority is so widely
published that a further publication will cause no additional damage. Indeed,
that is what happened in the UK in the case of the Spycatcher publication. In
such circumstances, it would be nonsensical to punish the subsequent publisher,
provided that person had not been involved in the prior publication. [392]
Stakeholder
consultation
The Government stated, in its response to the INSLM’s
report, that it would consult with stakeholders in developing a prior
publication defence. It is not known whether such consultation has taken place
(or will take place). In the event that such consultations have been
undertaken, it is not evident how the views of relevant stakeholders have been
taken into consideration, particularly the views of media organisations and
others who may have occasion to rely on the proposed defence.
In this regard, it is worth noting that the MEAA was
critical of the INSLM’s recommendation for a prior publication defence,
describing it as creating ‘a game of chicken for journalists’ in that ‘any
journalist seeking to be the first to publish a legitimate news story would
face prosecution while any subsequent story written after that point would be
defensible’ (provided that the conditions of the defence were satisfied).[393]
Application of existing exceptions in subsection 35P(3) to
the new offences (item 5)
Item 5 amends subsection 35P(3), which contains
exceptions to the disclosure offences. It adds a reference to all four new
offences so that the exemptions in subsection 35P(3) will apply to them.
Extended geographical jurisdiction—subsection 35P(4) (item
7)
Item 7 amends subsection 35P(4) to apply the
existing extended geographical jurisdiction provision to all of the new
offences.
Subsection 35P(4) provides that the offences in section
35P are subject to what is known as ‘Category D’ extended geographical
jurisdiction under section 15.4 of the Criminal Code. This means that a
prosecution can be brought in relation to conduct occurring wholly outside
Australia. (However section 16.1 of the Criminal Code provides that the
Attorney-General’s consent is required to a prosecution brought under Category
D jurisdiction, if the defendant is not an Australian citizen or a body
corporate incorporated under an Australian law.)
The Explanatory Memorandum to the NSLA Bill states that
applying Category D jurisdiction to section 35P was considered ‘necessary to
ensure that the offences apply to SIO participants or persons who have
knowledge of an SIO who are not Australian citizens and who engage in
unauthorised disclosures outside Australia’.[394]
This was justified on the basis that the risk of harm to Australia’s national
security and intelligence-gathering capabilities as a result of unauthorised
disclosures did not depend on the physical location of the discloser.[395]
Importantly, the continued application of Category D
jurisdiction means that the new “outsiders offences” will, if enacted, continue
to apply to foreign journalists or other non-Australian persons who are
‘whistleblowers’ who may obtain and choose to disclose information relating to
an SIO.
Other issues—omissions from the 2016 Bill
Statutory
prosecutorial consent requirement
The 2016 Bill does not propose the enactment of a
statutory requirement that prosecutions of offences against section 35P may
only be commenced with the consent of the Attorney-General. The absence of such
a provision stands in contrast to other offences in the ASIO Act, which
are subject to a statutory requirement of this kind.[396]
It is suggested that there would be benefit in enacting a
statutory consent requirement in preference to continued reliance on the
Attorney-General’s direction to the CDPP regarding the potential prosecution of
journalists. This would also strengthen the value of a consent requirement as a
safeguard, since legislation—unlike Ministerial directions—cannot be revoked or
amended unilaterally by the Executive Government of the day. In addition, in a
joint submission to the INSLM in January 2015, the Attorney-General’s
Department and ASIO stated:
Given that prosecutorial consent requirements are generally
incorporated in the relevant offence provisions rather than by way of an
executive direction, we consider there would be benefit in inserting a general
prosecutorial consent requirement in section 35P.
Having the requirement for prosecutorial consent apply in
respect of the provision as a whole rather than just in relation to the
prosecution of journalists could also alleviate the difficulty identified by
the PJCIS in identifying a person as a journalist for the purpose of the prosecutorial
consent requirement, and could remove any potential (actual or perceived) for
arbitrariness in this regard.[397]
Alternatively, if there is no intention to replace the
existing direction to the CDPP with a statutory consent requirement, expanding
its application to all prosecutions (not just journalists) may remove the
potential for, or perception of, arbitrariness or preferential treatment of
classes of prospective defendants.
Further, according to the National Tertiary Education
Union (NTEU), on 30 March 2015, the Chief of Staff to the Attorney-General
informed the NTEU that the Government would give ‘careful consideration’ to the
NTEU’s suggestion to expand the direction to academics and researchers. The
outcome of any such consideration does not appear to have been announced
publicly.[398]
Further
consideration of alternative or complementary measures
Although the INSLM considered that a public interest
defence would not be necessary if other amendments to section 35P were made,
this appears to be a policy issue in respect of which reasonable minds may
differ. Accordingly, Members of the Parliament may wish to continue
consideration of possible alternative or complementary measures to those
proposed in Schedule 18, in the course of debating the 2016 Bill.
Several stakeholders continue to support alternative
approaches. For example, the MEAA stated that the amendments would not change
the ‘fundamental intent of section 35P’, which was said to be ‘to intimidate
whistleblowers and journalists’ and to ‘stifle and punish legitimate public
interest journalism’.[399]
Legal academic Dr Kieran Hardy also supports a public
interest defence in addition to implementing the INSLM’s recommendations. He
described the INSLM’s recommendations as making it ‘more difficult to prosecute
journalists compared to the offence as it stands’ but argued that the absence
of a public interest defence fails to address ‘the major issue with the
offence—that section 35P does not provide any scope for journalists to disclose
information in the public interest’.[400]
On this basis, Dr Hardy disagreed with the INSLM’s conclusion that a public
interest defence would be unnecessary if the ‘outsiders offences’ were enacted
as recommended.[401]
Other
provisions
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.[402] 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.[403]
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’.[404]
It will also include an equivalent exemption to the offence in
section 102.8 (which the COAG Review recommended, by majority, be
repealed).[405]
This Schedule is unchanged from the 2015 Bill. The
PJCIS did not recommend any changes.
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.[406]
‘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.[407]
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.[408]
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’.[409]
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.[410]
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.
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. Item 7
of Schedule 12 in the 2016 Bill will amend section 61 to
impose the same requirement on states and state authorities, implementing recommendation 19
of the PJCIS’s report on the 2015 Bill.[411]
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’.[412]
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 change to that definition in paragraph 102.1(1A)(a) of
the Criminal Code. The definition in the Criminal Code was
amended by the Counter-Terrorism Legislation Amendment (Foreign Fighters)
Act 2014 in December 2014.[413]
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’.[414]
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 to the PJCIS 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.[415]
This Schedule is unchanged from the 2015 Bill. The
PJCIS did not recommend any changes.
Delayed notification search warrants (Schedule 14)
A scheme allowing delayed notification search warrants
(DNSWs) was enacted in 2014, implementing a recommendation of the former INSLM.[416] DNSWs
are only available in relation to suspected terrorism offences punishable on conviction by imprisonment
for seven years or more.[417]
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.[418] The thresholds that must
be met for an officer to seek a warrant will remain unchanged.[419] 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.[420]
This Schedule is unchanged from the 2015 Bill. The
PJCIS did not recommend any changes.
Dealing with national security information in proceedings
(Schedule 16)
Schedule 16 will amend the NSI Act to provide
that orders made by a court under that Act in relevant circumstances will
override any disclosure requirements provided by the regulations.[421]
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.
This Schedule is unchanged from the 2015 Bill. The PJCIS
did not recommend any changes to the provisions. However, it did recommend
amendments to the Explanatory Memorandum to correctly reflect the proposed
amendments (recommendation 7)[422];
this has been addressed in the Explanatory Memorandum to the 2016 Bill.
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.[423]
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. However, the Government considers
there is a need for such information to be available to other agencies that may
be involved in national security functions, and points specifically to the
example of the AFP-led National Disruption Group (NDG).[424]
The NDG was formed to prevent, disrupt and prosecute Australian involvement in
foreign fighter activities, and along with several law enforcement agencies,
includes the Departments of Human Services and Social Services.[425]
Disclosure of protected taxation information is an offence
under section 355–25 of Schedule 1 to the Taxation Administration Act 1953.
Section 355-65 contains 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’.
Item 1 of Schedule 17 will insert proposed
new item 10 to the table in subsection 355-65(2) to provide an additional 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.
Item 2 of Schedule 17 will insert
proposed section 355-182 to provide a further exception to ensure that
information obtained under the exception above can be shared with the
Commonwealth Ombudsman for the purposes of a function or duty of the Ombudsman.
This will implement recommendation 20 of the PJCIS’s report on the
2015 Bill.
Concluding
comments
Measures
previously included in the 2015 Bill
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.
Implementation in the 2016 Bill of the PJCIS’s
recommendations on the 2015 Bill will increase safeguards and improve
accountability associated with those measures. However, with the exceptions of
replacing the
court-appointed advocates scheme for young people with a special advocates
scheme and amendments to narrow the scope of the offence of advocating
genocide, implementation of those recommendations leave the scope of many of
the actual measures largely unchanged.
New
measures
As a general proposition, a regime of special advocates has
the potential to improve procedural fairness in relation to control order
applications where sensitive information is withheld from the subject of an
order (or his or her lawyer). However, it is suggested that the particular
scheme proposed in the 2016 Bill has not been subject to sufficient scrutiny to
provide the Parliament with a meaningful assurance that its provisions will be
workable and effective in practice. Further review, of a participatory and
transparent kind, is arguably needed. The referral of Part 2 of Schedule
15 to a Parliamentary committee for inquiry and report would seem to be a
sensible and prudent step, so that the Parliament may hear directly from key
stakeholders who would operate under the proposed scheme.
The proposed amendments to section 35P of the ASIO Act
in Schedule 18 implement the Government’s response to the
recommendations of the INSLM’s report of October 2015. Overall, the proposed
measures are reasonably consistent with those recommendations. However, a
number of ambiguities and uncertainties are also apparent in the framing and
drafting of the proposed provisions. The relationship between the proposed
“insiders” offence and the existing offence in subsection 18(2) of the ASIO
Act may be problematic.
Members of the Parliament may wish to consider the merits
of complementary or alternative measures to the Government’s proposed
amendments. In particular, several interest groups, including members of the
legal profession and the media, continue to support a public interest defence.
They have disputed the conclusions and reasoning of the INSLM on this issue of
policy, and their basis for doing so does not seem unreasonable.
[1]. Parliament
of Australia, ‘Counter-Terrorism
Legislation Amendment Bill (No. 1) 2015 homepage’ (2015 Bill),
Australian Parliament website.
[2]. Criminal Code Act 1995
(Criminal Code).
[3]. Crimes Act 1914;
Telecommunications
(Interception and Access) Act 1979 (TIA Act); Surveillance Devices
Act 2004 (SD Act).
[4]. Australian Security
Intelligence Organisation Act 1979 (ASIO Act); Administrative Appeals
Tribunal Act 1975.
[5]. Classification
(Publications, Films and Computer Games) Act 1995.
[6]. National Security
Information (Criminal and Civil Proceedings) Act 2004 (NSI Act);
Public Interest
Disclosure Act 2013.
[7]. Taxation Administration
Act 1953.
[8]. Parliament
of Australia, ‘Criminal
Code Amendment (High Risk Terrorist Offenders) Bill 2016 homepage’,
Australian Parliament website.
[9]. 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.
[10]. G Brandis,
‘Second
reading speech: Counter-Terrorism Legislation Amendment Bill (No. 1) 2015’,
Senate, Debates, 12 November 2015, pp. 8425–27. The
Attorney-General made a similar statement when introducing the 2016 Bill:
G Brandis, ‘Second
reading speech: Counter-Terrorism Legislation Amendment Bill (No. 1) 2016’,
Senate, Debates, (proof), 15 September 2016, pp. 35–39.
[11]. T Abbott
(Prime Minister) and G Brandis (Attorney-General), National terrorism public alert level raised to high, media release, 12 September 2014.
[12]. Australian Government, ‘National Terrorism Threat Advisory System’, Australian national security website.
[13]. 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 Sun Herald,
4 October 2015, p. 3; Australian Federal Police (AFP) and New South
Wales Police, Man
charged with committing a terrorist act and attempted murder–Joint Counter Terrorism
team, joint media release, 11 September 2016.
[14]. G Brandis,
‘Second reading speech: Counter-Terrorism Legislation Amendment Bill
(No. 1) 2016’, op. cit. See further A Zammit, ‘Australians
charged under Joint Counter-Terrorism operations since 2013’, The Murphy
Raid, blog, updated 15 September 2016.
[15]. Australian
Security Intelligence Organisation (ASIO), ASIO
report to Parliament 2014–15, ASIO, Canberra, September 2015,
p. 3; P Maley, ‘Hundreds
of cases on grid of ASIO’, The Australian, 15 June 2016,
p. 8.
[16]. G Brandis,
‘Second reading speech: Counter-Terrorism Legislation Amendment Bill
(No. 1) 2016’, op. cit.
[17]. Ibid.;
Council of Australian Governments (COAG), Australia’s
Counter-Terrorism Strategy: Strengthening our resilience, Commonwealth
of Australia, 2015, p. 3. The Strategy, published in July 2015,
indicated that over 30 Australians had returned, none of whom had subsequently
been involved in ‘activities of security concern’.
[18]. J
Bishop, ‘Answer
to Question without notice: Global security’, [Questioner: K Andrews],
House of Representatives, Debates, 1 September 2016, pp. 338–39.
[19]. R
Gyles, Control
order safeguards part 2, Australian Government Independent National
Security Legislation Monitor (INSLM), Canberra, April 2016, p. 5 and
Appendix A3.
[20]. 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, ‘Man
upset at secret detention’, The Sydney Morning Herald, 3 December 2014,
p. 9. 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.
[21]. 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.
[22]. S
Farnsworth, ‘Harun
Causevic, arrested over Anzac Day terror plot, wins bid to remove tracking
device’, ABC News (online), updated 8 July 2016.The
control order , which expired on 11 September 2016, is at Attachment
1 in the judgment (with redaction) in Gaughan v Causevic (No.2) [2016]
FCCA 1693. Control orders may only be in place for up to 12 months, but
successive orders may be made in relation to the same person: Criminal Code,
section 104.16. It is not clear whether police have sought a further order
on Mr Causevic.
[23]. G Brandis,
‘Second reading speech: Counter-Terrorism Legislation Amendment Bill
(No. 1) 2016’, op. cit. The Attorney-General was referring to COAG, Council
of Australian Governments review of counter-terrorism legislation (COAG
Review), COAG, Canberra, 2013.
[24]. COAG,
COAG Review, op. cit., pp. 59–60 (Recommendation 30); Parliamentary
Joint Committee on Intelligence and Security (PJCIS), Advisory
Report on the Counter-Terrorism Legislation Amendment Bill (No.1) 2014,
The Senate, Canberra, 20 November 2014, p. 24
(Recommendation 1); Parliament of Australia, 2015 Bill, op. cit.
[25]. R
Gyles, Control
order safeguards—special advocates and the Counter-Terrorism Legislation
Amendment Bill (No. 1) 2015, INSLM, Canberra,
January 2016, p. 10; PJCIS, Advisory report on the Counter-Terrorism Legislation Amendment Bill
(No.1) 2015, The Senate, Canberra, 15 February 2016,
p. 81 (Recommendation 5).
[26]. COAG,
Communique, COAG meeting,
Canberra, 10 October 2014.
[27]. COAG,
‘COAG
response to the COAG Review of Counter-Terrorism Legislation’, COAG, 2014.
[28]. 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. No amendments have been made to
address recommendations 1–3, 5, 7, 9–10, 18, 24, or 33, despite a positive
response from COAG.
[29]. Gyles,
Control order safeguards part 2, op. cit.
[30]. Ibid.,
p. 8.
[31]. Ibid.,
p. 15. The INSLM’s views on the other outstanding COAG Review
recommendations were more mixed, being that they should not be supported, were
not necessary, or would be desirable but not urgent.
[32]. R
Gyles, Report
on the impact on journalists of section 35P of the ASIO Act,
INSLM, Canberra, October 2015.
[33]. Senate
Standing Committee for Selection of Bills, Report,
6, 2016, The Senate, 15 September 2016.
[34]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit.
[35]. M
Turnbull (Prime Minister) and G Brandis (Attorney-General), Strengthening
counter-terrorism legislation, media release, 25 July 2016.
[36]. PJCIS,
Advisory
Report on the National Security Legislation Amendment Bill (No 1) 2014,
Commonwealth of Australia, Canberra, September 2014, p. vii.
[37]. PJCIS,
Report
of the inquiry into potential reforms of Australia's national security
legislation, Commonwealth of Australia, Canberra, June 2013, p. 1.
[38]. Ibid.,
pp. 108-112 (recommendation 28).
[39]. PJCIS,
Advisory Report on the National Security Legislation Amendment Bill (No 1)
2014, op. cit., p. 61.
[40]. Ibid.,
pp. 51, 55 and 61-63.
[41]. As
to which, see: Commonwealth Director of Public Prosecutions (CDPP), ‘Prosecution
policy of the Commonwealth: Guidelines for the making of decisions in the
prosecution process’, CDPP website, pp. 5–6.
[42]. Ibid.,
pp. 61-63, recommendations 11-13.
[43]. Senate
Standing Committee for the Scrutiny of Bills, Report,
3, 2016, The Senate, 2 March 2016, pp. 136–186.
[44]. Ibid.,
pp. 174–183.
[45]. Ibid.,
pp. 147–150.
[46]. Ibid.,
pp. 154–158.
[47]. Ibid.,
p. 180.
[48]. Ibid., pp. 181–182.
[49]. Ibid.,
pp. 168–171.
[50]. For
information about the NSLA Bill and its enactment, see: Parliament of
Australia, ‘National
Security Legislation Amendment Bill (No. 1) 2014 homepage’, Australian Parliament
website. The NSLA Bill was passed on 1 October 2014 and received the Royal
Assent on 2 October 2014, as the National Security
Legislation Amendment Act (No 1) 2014. Schedule 3 (special intelligence
operations, including section 35P) commenced on 30 October 2014. Also see C
Barker and M Biddington, National
Security Legislation Amendment Bill (No.1) 2014, Bills digest, 19,
2014–15, Parliamentary Library, Canberra, 2014.
[51]. Senate
Standing Committee for the Scrutiny of Bills, Report,
12. 2014, The Senate, 24 September 2014, pp. 583–636.
[52]. M
Dreyfus (Shadow Attorney-General), Counter-terror
legislation; Government's wasteful $160 million marriage equality plebiscite,
transcript, Sydney, 25 July 2016; M Dreyfus (Shadow Attorney-General),
Government's
mismanagement of countering violent extremism programs; donations, transcript,
Melbourne, 7 September 2016.
[53]. N McKim
(Australian Greens Spokesperson for Legal Affairs), Control
orders on children will not make us safer, media release,
13 October 2015; N McKim (Australian Greens Spokesperson for
Legal Affairs), Attorney-General
offers no evidence for draconian laws, media release,
14 October 2015.
[54]. See, for example, the following proposed amendments, published on Parliament
of Australia, ‘National
Security Legislation Amendment Bill (No. 1) 2014 homepage’, op. cit.: S Ludlam, National Security Legislation Amendment Bill (No.
1) 2014 [Sheet 7570] (items 3-5); N Xenophon, National
Security Legislation Amendment Bill (No. 1) 2014 [Sheet 7564] (item 1); D Leyonhjelm, National
Security Legislation Amendment Bill (No. 1) 2014 [Sheet 7579] (items 3-7). See further, D
Leyonhjelm , ‘National Security Legislation Amendment Bill (No. 1)’, Australia, Senate, Debates, 25 September 2014, pp. 7148,
7251–7253; S Ludlam , ‘National Security Legislation Amendment Bill (No. 1)’, Australia, Senate, Debates, 25 September 2014, p. 7239;
N Xenophon, ‘National Security Legislation Amendment Bill (No. 1)’, Australia, Senate, Debates, 25 September 2014, pp.
7242–7246; A Bandt, ‘National Security Legislation Amendment Bill (No. 1)’, Australia, Senate, Debates, 25 September 2014, p. 10891; A Wilkie,
‘National Security Legislation Amendment Bill (No. 1)’, Australia, House of Representatives, Debates, 1 October
2014, pp. 10899–10902; Australia, Senate, Journals, 56, 25 September
2014, pp. 1522–1534; and Australia, House of Representatives, ‘National Security Legislation Amendment Bill (No. 1)’, Votes and Proceedings, HVP 71, 1 October 2014, pp. 869–870.
[55]. A Albanese (Shadow Minister for Infrastructure, Transport and
Tourism), Transcript of interview, Australian Agenda, Sky News, National security, Iraq, press
freedom, Paid Parental Leave, budget, party reform, cities &urban planning,
infrastructure, climate change, transcript,
12 October 2014. See also M Parke, Second reading speech, National Security Legislation Amendment Bill
(No 1) 2014, House of Representatives, Debates,
1 October 2014, p. 10880-10881.
[56]. L Bourke, ‘Bill Shorten writes to Tony Abbott with concerns that terror laws
could see journalists face jail’, Sydney Morning
Herald, (online edition) 30 October 2014. (The author also uploaded a copy of the letter.)
[57]. 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 Association of Victoria (Victorian Bar and CBA), Submission
to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill
(No. 1) 2015, 11 December 2015, p. 1; New South Wales
Council for Civil Liberties, Liberty Victoria, Queensland Council for Civil
Liberties, South Australia Council for Civil Liberties and the Australian
Council for Civil Liberties (joint submission), Submission
to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill
(No. 1) 2015 (Joint submission by Australian councils for civil
liberties), 16 December 2015, p. 4.
[58]. G Brandis
(Attorney-General), National
security legislation, media release, 12 October 2015.
[59]. S Martin,
‘Child
control orders “will do nothing to keep Australia safe”’, The Australian,
14 October 2015, p. 4; D Ellery, ‘Muslim
leaders slam anti-terrorism bill’, The Canberra Times,
19 October 2015, p. 6.
[60]. M Mitchell
(National Children’s Commissioner, Australian Human Rights Commission), ‘The
human rights of children are at risk if control orders are placed on
14-year-olds’, The Sydney Morning Herald, (online edition),
16 October 2015.
[61]. Muslim
Legal Network (NSW), Submission
to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill
(No. 1) 2015, 10 December 2015, pp. 10–11; Victorian
Bar and CBA, Submission to PJCIS, op. cit., p. 2, Joint submission by
Australian councils for civil liberties, Submission to PJCIS, op. cit.,
pp. 4–6.
[62]. E Alberici,
‘Interview
with Bret Walker SC’, Lateline, transcript, Australian Broadcasting
Corporation (ABC), 13 October 2015.
[63]. LCA,
Submission to PJCIS, op. cit., pp. 6–7; LCA, Control
order regime needs proper safeguards to protect children, media
release, 13 October 2015; M Koziol, ‘Should
14-year-olds be targeted by terror laws?’, Canberra Times, 17 October 2015.
See also Joint submission by Australian councils for civil liberties, Submission
to PJCIS, op. cit., pp. 4–6.
[64]. G Barton
(Chair in Global Islamic Politics, Deakin University), ‘Anti-terror
laws: If used properly, control orders could help prevent radicalisation’, The
Drum, (online edition), 13 October 2015.
[65]. LJ West,
‘Control
orders are a sad and unfortunate necessity in a globalised world’, The
Australian, 16 October 2015, p. 27.
[66]. AHRC,
Submission to PJCIS, op. cit., pp. 10–14; LCA, Submission to PJCIS,
op. cit., pp. 9–10; Gilbert + Tobin, Submission to PJCIS , op. cit.,
pp. 3–4; Joint submission by Australian councils for civil liberties,
Submission to PJCIS , op. cit., pp. 7–8; UNICEF Australia, Submission
to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill
(No. 1) 2015, 10 December 2015; Australian Lawyers for Human
Rights (ALHR), Submission
to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill
(No. 1) 2015, 8 December 2015, pp. 4–5.
[67]. Muslim
Legal Network (NSW), Submission to PJCIS , op. cit., pp. 7–8; Gilbert
+ Tobin, Submission to PJCIS , op. cit., pp. 4–6; AHRC, Submission to
PJCIS , op. cit., pp. 13–14; LCA, Submission to PJCIS, op. cit.,
p. 10.
[68]. As
noted earlier in this Digest, the special advocate scheme was also recommended
by the COAG Review and the INSLM.
[69]. AHRC,
Submission to PJCIS , op. cit., pp. 16–18; Muslim Legal Network
(NSW), Submission to PJCIS , op. cit., pp. 22–34.
[70]. Muslim
Legal Network (NSW), Submission to PJCIS , op. cit., p. 24.
[71]. Gyles,
Control order safeguards, op. cit., p. 3.
[72]. Ibid.
[73]. LCA,
Submission to PJCIS, op. cit., pp. 16–23; Gilbert + Tobin, Submission
to PJCIS , op. cit., pp. 9–10.
[74]. Joint
submission by Australian councils for civil liberties, Submission to PJCIS , op. cit.,
pp. 12–17.
[75]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit., pp. 87–136 (Recommendations
9–14).
[76]. Gilbert
+ Tobin, Submission to PJCIS , 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.
[77]. AHRC,
Submission to PJCIS, op. cit., pp. 18–20; Gilbert + Tobin, Submission to
PJCIS, op. cit., pp. 12–18; Muslim Legal Network (NSW), Submission to PJCIS , op.
cit., p. 41; ALHR, Submission to PJCIS , op. cit., p. 6; LCA,
Submission to PJCIS, op. cit., pp. 30–35.
[78]. Clause
3 of the 2016 Bill provides that Part 1 of Schedule 15
will commence the day after Royal Assent and Part 2 of Schedule 15
will commence on proclamation or 12 months after Royal Assent, whichever
is earlier. R Gyles, Control order
safeguards—special advocates and the Counter-Terrorism Legislation
Amendment Bill (No. 1) 2015, op. cit., p. 10
[79]. LCA,
Special
advocate regime a vital inclusion in new counter-terrorism bill, but further
parliamentary scrutiny necessary, media release, 15 September
2016.
[80]. A
summary of stakeholder views on the (then) proposed provision appears in PJCIS,
Advisory
Report on the National Security Legislation Amendment Bill (No 1) 2014,
The Senate, Canberra, September 2014, Chapter 3.
[81]. See,
for example, ABC, ‘Security,
secrecy and the new anti-terror law’, Media Watch, Episode 36,
transcript, ABC, 6 October 2014; G Sheridan, ‘Grave
blow to people's right to know’, The Australian, 9 October
2014, p.10; C Stewart, 'Security
laws run counter to free press', The Australian, 17 October 2014, p.
12; G Sheridan, ‘Minor
fix for what is very bad legislation’, The Australian, 31 October
2014, p. 6.; G Williams, ‘Anti-terrorism
laws threat to democracy’, The Sydney Morning Herald,
3 November 2014, p. 16; T Blackburn, ‘Big flaws in security
laws' Courier-Mail, 27 November 2014, p. 46; and L Oakes, These
things can't just be left to government, transcript, address to
Melbourne Press Freedom Dinner, 28 September 2015.
[82]. See
generally, INSLM, ‘Submissions—review
into section 35P of the ASIO Act’, INSLM website.
[83]. See,
for example, Media, Entertainment and Arts Alliance (MEAA), Journalists
still face jail under ASIO Act changes, media release,
3 February 2016; J Munsie and A Latu, ‘A
less restrictive "muzzle" on the free press? INSLM recommends
amendments to s 35P of the ASIO Act’, Addisons Lawyers Focus papers, 4
February 2016; K Hardy, ‘Despite
changes, terror law will still curb freedom’, The Conversation,
5 February 2016; ABC, ‘ASIO Act
updated’, Media Watch, Episode 2, transcript, ABC, 8 February 2016;
M Dobbie, Criminalising
the truth, suppressing the right to know: the report into the state of press
freedom in Australia in 2016, MEAA, Redfern, May 2016, p. 18.
[84]. See,
for example, MEAA, Journalists
still face jail under ASIO Act changes, op. cit. (MEAA CEO Paul Murphy
stated, ‘the Monitor's report, while welcome, has not changed the fundamental
intent of section 35P, which is to intimidate whistleblowers and journalists’.)
[85]. AHRC,
Submission to PJCIS, op. cit., pp. 14–16; LCA, Submission to PJCIS,
op. cit., pp. 15–16; Joint submission by Australian councils for civil
liberties, Submission to PJCIS, op. cit., pp. 11–12. Gilbert + Tobin
continued to object to the PDO regime as a whole, but did not oppose this
amendment (Submission to PJCIS, op. cit., p. 7).
[86]. Muslim
Legal Network (NSW), Submission to PJCIS, op. cit., pp. 35–38; Gilbert +
Tobin, Submission to PJCIS, op. cit., pp. 11–12; AHRC, Submission to
PJCIS, op. cit., pp. 20–22; LCA,
Submission to PJCIS, op. cit., pp. 23–26; Joint Media Organisations, Submission
to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill
(No. 1) 2015, 10 December 2015, p. 2; Joint submission
by Australian councils for civil liberties, Submission to PJCIS, op. cit.,
p. 17.
[87]. Muslim
Legal Network (NSW), Submission to PJCIS, op. cit., p. 36; Gilbert + Tobin, Submission to PJCIS, op. cit.,
p. 11.
[88]. LCA,
Submission to PJCIS, op. cit., pp. 28-29; Joint submission by Australian
councils for civil liberties, op. cit., pp. 17–18; Blueprint for Free
Speech, Submission
to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill
(No. 1) 2015, 11 December 2015, pp. 3–6.
[89]. Explanatory
Memorandum, Counter-Terrorism Legislation Amendment Bill (No. 1) 2016,
p. 2.
[90]. Explanatory
Memorandum, Counter-Terrorism Legislation Amendment Bill (No. 1) 2015,
p. 2.
[91]. All
of the other measures in the 2016 Bill were also in the 2015 Bill.
[92]. The
Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory
Memorandum to the 2016 Bill.
[93]. Parliamentary
Joint Committee on Human Rights (PJCHR), Thirty-sixth
report of the 44th Parliament, 16 March 2016, p. 85.
[94]. PJCHR,
Sixteenth
report of the 44th Parliament, 25 November 2014, pp. 55–57.
[95]. PJCHR,
Thirty-sixth report of the 44th Parliament, op. cit., pp. 87–94.
[96]. Ibid.,
pp. 94–105. It is not clear from the PJCHR’s report whether it sought
advice separately or whether the legal advice to which it refers was provided
by the Government.
[97]. Ibid.,
pp. 105–108.
[98]. Ibid.,
pp. 108–114.
[99]. Ibid.,
pp. 114–121.
[100]. Ibid.,
p. 123.
[101]. Ibid.,
pp. 127–136.
[102]. Anti-Terrorism
Act (No. 2) 2005, Schedule 4.
[103]. Counter-Terrorism
Legislation Amendment (Foreign Fighters) Act 2014, Schedule 1; Counter-Terrorism
Legislation Amendment Act (No. 1) 2014, Schedule 1. For
further information see: Barker, Biddington, Coombs and 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.
[104]. Criminal Code,
subsection 104.2(2), section 104.3 and paragraph 104.4(1)(c).
[105]. Ibid.,
section 104.1 and subsection 104.4(1).
[106]. Ibid.,
subsection 104.5(3).
[107]. Ibid.,
subsection 104.28(1).
[108]. Item 30
of Schedule 2, amendment to subsection 104.28(1).
[109]. ASIO, Report
to Parliament 2014–15, op. cit., pp. ix, 3–4; M Turnbull
(Prime Minister) and M Keenan (Justice Minister), 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.
[110]. G Brandis,
‘Answer
to Question without notice: national security’, [Questioner: N McKim],
Senate, Debates, 14 October 2015, p. 7626.
[111]. Turnbull
and Keenan, Prime Minister meets states and territories to address
radicalisation of young people, op. cit.
[112]. N Ralston,
A Benny-Morrison and R Olding, ‘Teen
shooter unknown to police’, The Sun Herald, 4 October 2015,
p. 3.
[113]. AFP
and NSW police, Two
men charged in Operation Appleby investigation, joint media release,
10 December 2015.
[114]. AFP,
Submission
to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill
(No. 1) 2015, December 2015, p. 5.
[115]. Criminal
Code, sections 7.1 and 7.2. Doli incapax will act as a
rebuttable presumption in these circumstances.
[116]. PJCHR,
Thirty-sixth report of the 44th Parliament, op cit., p. 92.
[117]. Ibid.,
pp. 94–100.
[118]. 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.
[119]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit., pp. 43–44.
[120]. Criminal
Code, subsection 104.28(2).
[121]. Ibid., section 104.28(3).
[122]. 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.
[123]. Attorney-General’s
Department (AGD), Supplementary
submission to the PJCIS, Inquiry into the Counter-Terrorism Legislation
Amendment Bill (No.1) 2015, January 2016, p. 13.
[124]. Item 3
of Schedule 2, repeal and replacement of subsection 104.4(2) of the Criminal Code.
[125]. The
objects of the control order regime are to allow a control order to be imposed
on a person for one or more of the following purposes: protecting the public
from a terrorist act; preventing the provision of support for or the
facilitation of a terrrorist act; preventing the provision of support for or
the facilitation of the engagement in a hostile activity in a foreign
country—section 104.1 of the Criminal Code.
[126]. Item 3
of Schedule 2, proposed subsection 104.4(2A) of the Criminal Code.
[127]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit., pp. 44–45.
[128]. PJCHR,
Thirty-sixth report of the 44th Parliament, op cit., p. 92.,
pp. 94–105; AHRC, Submission to PJCIS, op. cit., pp. 12–13; LCA,
Submission to PJCIS, op. cit., p. 9; Gilbert + Tobin, Submission to
PJCIS, op. cit., pp. 3–4; UNICEF Australia, Submission to PJCIS, op. cit.,
p. 2; Joint submission by Australian councils for civil liberties, Submission
to PJCIS, op. cit., pp. 7–8; ALHR, Submission to PJCIS, op. cit.,
pp. 4–5.
[129]. PJCHR,
Thirty-sixth report of the 44th Parliament, op. cit.,
pp. 94–105.
[130]. AGD,
Supplementary submission, op. cit., p. 7.
[131]. Item 26
of Schedule 2, repeal and replacement of subsection 104.24(2)
and proposed subsection 104.24(2A).
[132]. C
Barker, J Mills and J Murphy, Counter-Terrorism
Legislation Amendment Bill (No. 1) 2015, Bills digest, 80, 2015–16,
Parliamentary Library, Canberra, 15 February 2016, pp. 9, 15–16.
[133]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit., pp. 45–48.
[134]. Counter-Terrorism Legislation Amendment Bill (No.1) 2016, Proposed
amendment [sheet ZA417].
[135]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit., pp. 48–49; Items 7, 9,
10, 16, 18, 20, 23 and 27 of Schedule 2.
[136]. Criminal
Code, section 104.29.
[137]. Item 34
of Schedule 2, proposed paragraph 104.29(2)(j).
[138]. Criminal
Code, paragraph 104.5(3)(d).
[139]. Criminal
Code, section 104.27 (offence) and subsection 5.6(1) (default
fault element for a physical element consisting of conduct is intent).
[140]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit., pp. 92–94.
[141]. Queensland
Government, Submission
to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill
(No. 1) 2015, pp. 2–3.
[142]. AGD,
Supplementary submission to PJCIS, op. cit., pp. 13–14.
[143]. LCA,
Submission to PJCIS, op. cit., pp. 13–14; Gilbert + Tobin, Submission
to PJCIS, op. cit., p. 6.
[144]. Gilbert
+ Tobin, Submission to PJCIS, op. cit., p. 6; Muslim Legal Network
(NSW), Submission to PJCIS, op. cit., p. 12.
[145]. Gilbert
+ Tobin, Submission to PJCIS, op. cit., p. 6.
[146]. Explanatory
Memorandum, 2016 Bill, op. cit., p. 67.
[147]. Proposed
subsection 104.27A(1).
[148]. Criminal
Code, Division 5 of Part 2.2, particularly section 5.6
(default fault element for a physical element consisting of conduct is intent;
default fault element for a physical element consisting of a result is
recklessness).
[149]. Criminal
Code, section 4.1.
[150]. Proposed
subsection 104.27A(2).
[151]. Explanatory
Memorandum, 2016 Bill, op. cit., pp. 68–9.
[152]. COAG, COAG
Review, op. cit., p. 58.
[153]. Gilbert
+ Tobin, Submission to PJCIS, op. cit., pp. 6–7.
[154]. AGD,
Supplementary submission to PJCIS, op. cit., p. 15.
[155]. Gyles,
Control order safeguards part 2, op. cit., pp. 7–8.
[156]. Explanatory
Memorandum, 2016 Bill, op. cit., p. 142.
[157]. NSI Act.
[158]. Ibid.
[159]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit., pp. 74–75.
[160]. Explanatory
Memorandum, 2016 Bill, op. cit., p. 146.
[161]. NSI
Act, section 3.
[162]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit., pp. 81-82.
[163]. T Tulich and J
Blackbourn, ‘National
security bill opens the door to expanded control orders and secret evidence’,
The Conversation, 13 November 2015.
[164]. COAG, COAG
Review, op. cit., pp. 59–60 (Recommendations 30 and 31).
[165]. Gyles,
Control order safeguards—special advocates and the Counter-Terrorism
Legislation Amendment Bill (No. 1) 2015, op. cit., p. 10.
[166]. Ibid.,
pp. 3–5.
[167]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit., pp. 74–81.
[168]. Ibid.,
p. 81.
[169]. Clause
2 (commencement); proposed section 38PI, Part 2 of Schedule 15.
[170]. PJCIS, Advisory report on the Counter Terrorism Legislation
Amendment Bill (No. 1) 2015, op cit., pp. 68. Readers are referred to the
PJCIS report on the 2015 Bill for more detailed information about the proposal
to establish the scheme (including summary information about comparable schemes
in the United Kingdom and Canada and some stakeholders’ views about the
respective advantages or disadvantages of such a scheme).
[171]. Ibid.,
pp. 78-81 and recommendation 5. See also, R Gyles, Control order safeguards—(INSLM report) special advocates and the
Counter-Terrorism Legislation Amendment Bill (No 1) 2015, Independent National Security Legislation Monitor, Canberra,
January 2016, p. 10 (recommendations 1 and 2).
[172]. PJCIS, Advisory report on the Counter Terrorism Legislation
Amendment Bill (No. 1) 2015, op cit., p. 79.
[173]. Gyles,
Control order safeguards, op.
cit., pp. 6–7.
[174]. Readers
are also referred to the overview of the special advocates scheme at pp.
156–159 of the Explanatory Memorandum.
[175]. Explanatory Memorandum, 2016 Bill, p. 159.
[176]. Ibid.
[177]. Gyles,
Control order safeguards, op.
cit., p. 10 (recommendation 2).
[178]. Proposed subsection 38PA(1).
[179]. Proposed subsection 38PA(2).
[180]. Proposed subsection 38PA(3).
[181]. See also, Explanatory Memorandum, 2016 Bill, op. cit., pp. 157, 164.
[182]. By
way of background explanation, legal professional privilege (sometimes referred
to as client legal privilege) protects certain confidential communications between
a lawyer and client from compulsory production in court or other proceedings.
As the Australian Law Reform Commission (ALRC) has summarised, its rationale is
to ‘enhance the administration of justice and the proper conduct of litigation,
by promoting free disclosure between clients and lawyers, to enable lawyers to
give proper advice and representation to their clients’. The ALRC has noted
that ‘the privilege may also be considered a human right’. ALRC, Uniform
Evidence Law, Report, 102, ALCR, Canberra, December 2005 at [14.44].
[183]. Readers
are referred to the detailed discussion in the Explanatory Memorandum, 2016
Bill, op. cit., pp. 166–167.
[184]. Proposed
section 38PD.
[185]. Proposed
subsections 38PF(2)-(7).
[186]. Proposed
subsection 38PF(2). See also proposed subsection 46H(3) which
creates an offence for contravening this prohibition, punishable by a maximum
penalty of two years’ imprisonment (item 42 refers).
[187]. Proposed
subsections 38PF(8)-(10). See also proposed subsections 46H(4) and (5)
which create offences for contravening these prohibitions, punishable by a
maximum penalty of two years’ imprisonment (item 42 refers).
[188]. Proposed
section 38PG.
[189]. Explanatory
Memorandum, 2016 Bill, op. cit., p. 168.
[190]. As
discussed below, some stakeholders have called for further review of the
proposed scheme before it is enacted to enable stakeholder consultation. See,
for example: LCA, Special advocate regime a vital inclusion in new
counter-terrorism bill, but further parliamentary scrutiny necessary, op. cit.
See also: AHRC, Supplementary
submission to the PJCIS, Inquiry into the Counter-Terrorism Legislation
Amendment Bill (No. 1) 2015, December 2015, p. 5.
[191]. Ibid.,
p. 169.
[192]. Ibid.,
pp. 164–165. See also p. 169 (‘the court would likely try to ensure that legal
professional privilege is protected to the greatest extent possible when
consulting with the Attorney-General (or the Attorney-General’s legal
representative or any other representative of the Attorney-General)’).
[193]. Ibid.,
p. 164.
[194]. Ibid.,
p. 172. (The reference to ‘Parliament’ is presumably a typographical error,
since the regulations made under section 49 of the NSI Act are made by
the Governor-General, consistent with the delegated nature of legislative
power, and are subject to Parliamentary disallowance,)
[195]. Proposed
subsections 46H(1) and (3).
[196]. Proposed
subsections 46H(4) and (5).
[197]. A
detailed overview is provided at pp. 172–176 of the Explanatory Memorandum to
the 2016 Bill.
[198]. Criminal
Code Act 1995, subsection 5.4(1).
[199]. Intelligence Services Act 2001.
[200]. Independent
National Security Legislation Monitor Act 2010 (INSLM Act),
subparagraph 6(1)(a)(i) and section 4 (per paragraph (f) of the definition
of ‘counter-terrorism and national security legislation’).
[201]. LCA,
Special advocate regime a vital inclusion in new counter-terrorism bill, but
further parliamentary scrutiny necessary, op. cit.
[202]. Australian
Human Rights Commission, Supplementary
submission to the PJCIS, Inquiry into the Counter-Terrorism Legislation
Amendment Bill (No. 1) 2015, December 2015, p. 5.
[203]. LCA,
‘Adequacy of safeguards relating to the control order regime,’ Submission to the INSLM, 30
September 2015, p. 15.
[204] Explanatory
Memorandum, 2016 Bill, op. cit., pp. 13, 32–33, 36–37, 77, 98 and
115–116; AGD, Submission
to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill
(No. 1) 2015, December 2015, p. 7; AFP, Submission to PJCIS,
op. cit., pp. 9–11; AGD, Supplementary submission to PJCIS,
op. cit., pp. 18–20.
[205]. 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 21 and 24 of Schedule 9
(TIA Act) and
items 1, 8, 11 and 13 of Schedule 10 (SD Act).
[206]. AGD,
Guide
to framing Commonwealth offences, infringements notices and enforcement powers,
AGD, Canberra, September 2011, Chapters 7 and 10 and p. 87; TIA Act,
Part 2-5, particularly Division 4; SD Act, Parts 2
and 4.
[207]. 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.
[208]. Regulatory Powers
(Standard Provisions) Act 2014, section 32.
[209]. Items 21
and 24 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.
[210]. LCA,
Submission to PJCIS, op. cit., p. 17.
[211]. Gilbert
+ Tobin, Submission to PJCIS, op. cit., pp. 9–10; AHRC, Submission to
PJCIS, op. cit., pp. 17–18. See also Joint submission by Australian
councils for civil liberties, Submission to PJCIS, op. cit.,
pp. 12–17.
[212]. AGD,
Supplementary submission to PJCIS, op. cit., pp. 18–19.
[213]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit., pp. 111–115.
[214]. 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.
[215]. Criminal Code,
subsection 104.5(1) and section 104.12.
[216]. Ibid.,
subsection 104.14(1).
[217]. 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 9 of Schedule 9) and proposed
section 6C of the SD Act (item 7 of Schedule 10)
displace that particular provision of the Criminal Code.
[218]. Criminal Code,
subsections 104.5(1) and (1A).
[219]. 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.
[220]. S
Farnsworth, ‘Harun
Causevic, arrested over Anzac Day terror plot, wins bid to remove tracking
device’, ABC News, (online edition), updated 8 July 2016.
[221]. Proposed
section 3ZZTC of the Crimes Act in Schedule 8.
[222]. Proposed
section 299 of the TIA Act at item 58 of Schedule 9
and proposed section 65B of the SD Act at item 45 of Schedule 10.
[223]. Muslim
Legal Network (NSW), Submission to PJCIS, op. cit., p. 30. See also
pp. 26–27 and 34.
[224]. PJCHR,
Thirty-sixth report of the 44th Parliament, op. cit.,
pp. 123–127; Scrutiny of Bills Committee, Report, 3, 2016,
op. cit., pp. 154–158.
[225]. Proposed
sections 3ZZJA, 3ZZKA, 3ZZLA, 3ZZOA and 3ZZOB
of the Crimes Act.
[226]. Explanatory
Memorandum, 2016 Bill, op. cit., p. 79.
[227]. Proposed
sections 3ZZKA, 3ZZKB and 3ZZKC of the Crimes Act.
[228]. Proposed
sections 3ZZLA and 3ZZLB of the Crimes Act.
[229]. Ibid.
[230]. Proposed
section 3ZZKE of the Crimes Act.
[231]. Proposed
sections 3ZZKF and 3ZZLC of the Crimes Act.
[232]. Proposed
Division 8, Part IAAB of the Crimes Act.
[233]. Proposed
section 3ZZJB and Division 5, Part IAAB of the Crimes
Act.
[234]. Proposed
sections 3ZZOA and 3ZZOB of the Crimes Act.
[235]. Proposed
3ZZJD of the Crimes Act. An exception is provided only in relation
to information sought by the Ombudsman in the exercise of inspection powers.
[236]. Proposed
subsections 3ZZKE(4) and (5) of the Crimes Act; PJCIS, Advisory report on the Counter-Terrorism Legislation Amendment Bill
(No.1) 2015, op. cit., pp. 111–114.
[237]. Proposed
paragraphs 3ZZOA(4)(g) and 3ZZOB(4)(g) of the Crimes Act;
PJCIS, Advisory report on the Counter-Terrorism Legislation
Amendment Bill (No.1) 2015, op. cit., pp. 111–113.
[238].
Proposed section 3ZZOC of the Crimes Act.
[239]. Proposed
section 3ZZOD of the Crimes Act.
[240]. Proposed
subsections 3ZZOD(2), (3) and (4) of the Crimes Act.
[241]. Proposed
Division 4, Part IAAB of the Crimes Act.
[242]. Proposed
sections 3ZZTD and 3ZZTE of the Crimes Act; PJCIS, Advisory report on the Counter-Terrorism Legislation Amendment Bill
(No.1) 2015, op. cit., pp. 111–114.
[243]. Proposed
Division 11, Part IAAB of the Crimes Act; PJCIS, Advisory report on the Counter-Terrorism Legislation Amendment Bill
(No.1) 2015, op. cit., pp. 111–114.
[244]. Items 2
and 3 of Schedule 8, amending section 104.29 of the Criminal
Code; Part IAAB of the Crimes Act; PJCIS, Advisory
report on the Counter-Terrorism Legislation Amendment Bill (No.1) 2015,
op. cit., pp. 111–115.
[245]. Proposed
section 3ZZRB of the Crimes Act.
[246]. Crimes Act,
section 3ZQU.
[247]. Proposed
section 3ZZRC of the Crimes Act.
[248]. Crimes Act,
section 3ZQU.
[249]. Proposed
subsection 3ZZRC(2) of the Crimes Act; Crimes Act,
section 3ZQU.
[250]. 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.
[251]. Crimes
Act, section 3; Criminal Code, subsection 100.1(1).
[252]. Proposed
section 3ZZJB of the Crimes Act; Criminal Code, subsections 100.1(1)
and 117.1(1).
[253]. Proposed
section 3ZZRD of the Crimes Act.
[254]. The
key items are items 21 and 24 of Schedule 9,
amending sections 46 and 46A of the TIA Act respectively. B-party
warrants allow the interception of a telecommunications service likely to be
used by another person (a non-suspect) to communicate with a suspect. Named
person warrants allow the interception of more than one telecommunications
service used or likely to be used by the suspect: TIA Act, paragraphs
9(1)(a)(ia) and 46(1)(d)(ii), sections 9A and 46A. Law enforcement agencies may
obtain a warrant by applying to an eligible judge or a nominated member of the
Administrative Appeals Tribunal (AAT).
[255]. Proposed
definition of ‘Control order warrant agency’ in item 1 of Schedule 9,
in conjunction with existing definitions of ‘Commonwealth agency’ and ‘eligible
authority’ in subsection 5(1) of the TIA Act.
[256]. Definition
of ‘eligible authority’ in subsection 5(1) of the TIA Act.
[257]. Proposed
subsection 139B(1) (which links to existing subsections 139(2), 139(4A) and
139A(2) of the TIA Act).
[258]. Proposed
section 103B of the TIA Act.
[259]. Proposed
section 139B and amendments to definitions of ‘permitted purpose’ and
‘preventative detention order’/‘preventative detention order law’ in subsection
5(1) of the TIA Act.
[260]. For
B-party warrants, see proposed subsections 46(4)-(6) (item 21)
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). For named person warrants, items 22–25 will make equivalent
amendments to section 46A of the TIA Act.
[261]. AHRC,
Submission to PJCIS, op. cit., pp. 17–18; LCA, Submission to PJCIS, op.
cit., pp. 18–19; Australian councils for civil liberties, Submission to
PJCIS, op. cit., pp. 15–16.
[262]. LCA,
Submission to PJCIS, op. cit., p. 18.
[263]. 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 ...’.
[264]. TIA
Act, paragraph 139(3)(a).
[265]. TIA
Act, paragraph 139(3)(b).
[266]. TIA
Act, paragraph 139(2)(b) and (4).
[267]. TIA
Act, subsection 139(4A).
[268]. TIA
Act, subsection 139A(2).
[269]. Parliament
of Australia, Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016
homepage, op. cit., Part 2 of Schedule 2.
[270]. Proposed
paragraphs 46(5)(f) and 46A(2B)(f) of the TIA Act (items
21 and 24 of Schedule 9 to the Bill).
[271]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit., p. 114.
[272]. Items 38–44,
amending sections 80–83 of the TIA Act.
[273]. Items 45–47,
amending sections 83–85 of the TIA Act and inserting proposed
section 85A.
[274]. Explanatory
Memorandum, 2016 Bill, op. cit., pp. 111–112.
[275]. SD Act, sections
11–14 and 16. Surveillance devices include data surveillance devices, listening
devices, optical surveillance devices and tracking devices, as well as devices
that combine any two or more of those functions: SD Act,
subsection 6(1).
[276]. Ibid.,
sections 37 (optical surveillance devices), 38 (listening and recording
devices) and 39 (tracking devices under authorisation).
[277]. Items
1 (amending section 3 of the TIA Act), 8–10 (amending
section 14), 11–15 (amending section 16) and 16
(amending section 17).
[278]. Items
19 (amending section 37 of the TIA
Act), 20 and 21 (amending section 38), 22–24
(amending section 39) and 25 (amending section 40).
[279]. Items
35 to 37 (amendment to section 50 and insertion of proposed
section 50A of the SD Act).
[280]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit., pp. 135–136.
[281]. Proposed
paragraph 16(2)(ec) of the SD Act at item 13 of Schedule
10.
[282]. SD
Act, section 44 (meaning of ‘protected information’) and
subsections 45(1) and (2) (offences).
[283]. Proposed
paragraphs 45(5)(j) and (k).
[284]. SD
Act, 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.
[285]. Ibid.,
paragraph 45(4)(f).
[286]. Ibid.,
paragraphs 45(5)(d), (e), (h) and (i). See also: section 45A.
[287]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit., p. 114.
[288]. Items 33,
34, and 38–41, amending sections 49 and 51– 53 of the SD
Act.
[289]. Items 42
and 44, amending section 55 of the SD Act and inserting proposed
section 61A.
[290]. Explanatory
Memorandum, 2016 Bill, op. cit., p. 126.
[291]. Criminal
Code, paragraphs 105.4(4)(c) and (d).
[292]. Explanatory
Memorandum, 2016 Bill, op. cit., p. 72.
[293]. Ibid.,
pp. 71–72.
[294]. Scrutiny
of Bills Committee, Alert
digest, 13, 2015, The Senate, 25 November 2015.
p. 11.
[295]. Ibid.,
p. 12; PJCHR, Thirty-sixth report of the 44th Parliament, op. cit.,
p. 109.
[296]. Scrutiny
of Bills Committee, Report, 3, 2016, op. cit., p. 150; PJCHR, Thirty-sixth
report of the 44th Parliament, op cit., pp. 112–114.
[297]. Gilbert
+ Tobin, Submission to PJCUS, op. cit., p. 7.
[298]. AHRC,
Submission to PJCIS, op. cit., pp. 14–16; LCA, Submission to PJCIS,
op. cit., pp. 15–16; Australian councils for civil liberties,
Submission to PJCIS, op. cit., pp. 11–12.
[299]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit., pp. 148–151.
[300]. Ibid.,
p. 154.
[301]. Criminal
Code, section 80.2C.
[302]. Genocide Convention Act
1949.
[303]. Criminal
Code, subsection 5.6(1) (default fault element for a physical element
consisting of conduct is intent).
[304]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit., pp. 165–167.
[305]. Ibid.
[306]. Criminal
Code, section 80.2C.
[307]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit., p. 165.
[308]. Explanatory
Memorandum, 2016 Bill, op. cit., p. 131. The defence is available for
all offence in Division 80.
[309]. See for
example: J Pilger, ‘Another
stolen generation: how Australia still wrecks Aboriginal families’, The
Guardian, (online edition), 22 March 2014. For an example of recent
debate over assimilation including advocacy for the policy, see ‘Q&A’,
ABC TV, 9 June 2014, transcript. Report of the National Inquiry into the
Separation of Aboriginal and Torres Strait Islander Children from their
Families, Bringing
them home:, Human Rights and Equal Opportunity Commission (HREOC) ,
Sydney, April 1997, Chapter 13; R Wilson, Human rights and Indigenous Australians, transcript,
address to the Australian Reconciliation Convention, 1997.
[310]. Explanatory
Memorandum, Counter-Terrorism
Legislation Amendment Bill (No 1) 2016, p. 2; G Brandis, Second
reading speech, Counter-Terrorism Legislation Amendment Bill (No 1) 2016, op.
cit., p. 38; G Brandis (Attorney-General), Government
response to INSLM report on the impact on journalists of section 35P of the
ASIO Act 1979, media release, 2 February 2016.
[311]. National Security
Legislation Amendment Act (No 1) 2014, Schedule 3 (which enacted a new
Division 4 in Part III of the ASIO Act). The legislative history of the
SIO scheme, including its policy objectives, is summarised in in R Gyles, Report
on the impact on journalists of section 35P of the ASIO Act,
Independent National Security Legislation Monitor (INSLM), Canberra, October
2014, Appendix B, pp. 33–55.
[312]. ASIO
Act, section 35B (applications by ASIO for SIO authorities), section 35C
(granting of SIO authorities by the Attorney-General), section 35D
(contents of SIO authorities).
[313]. ASIO
Act, section 35K.
[314]. Inspector-General
of Intelligence and Security Act 1986 (IGIS Act). In addition to
the functions and powers conferred under the IGIS Act (including the
inspection of agencies’ records, the consideration of complaints and the
commencement of inquiries) the ASIO Act requires ASIO to provide certain
notifications and reports to the IGIS in relation to the commencement and
conduct of SIOs: section 35PA and section 35Q. A summary of oversight
arrangements is contained in Gyles, Report on the impact on journalists of
section 35P of the ASIO Act, op cit., Appendix G, pp. 83–86.
[315]. Crimes Act 1914,
sections 15HK and 15HL. The controlled operations scheme, including the secrecy
offences, is based on model national legislation. A summary is provided in
Gyles, Report on the impact on journalists of section 35P of the ASIO Act,
op cit., pp. 117–130, Appendix K).
[316]. ASIO
Act, paragraph 35P(3)(b).
[317]. ASIO
Act, paragraph 35P(3)(e).
[318]. ASIO
Act, paragraph 35P(3)(f). See also paragraph 35P(3)(g) which authorises
disclosures by IGIS officials to one another for the purpose of performing
functions and exercising powers under the Inspector-General of Intelligence
and Security Act 1986.
[319]. Criminal Code Act
1995, sections 3.1 and 3.2.
[320]. Criminal
Code, section 4.1.
[321]. Criminal
Code, section 5.1.
[322]. Criminal
Code, section 5.6.
[323]. Criminal
Code, subsection 5.6(1). (Note that the fault element of intention also
applies to the physical element in subparagraph 35P(2)(c)(i) of the aggravated
offence, that the person intended that the disclosure would endanger health or
safety of any person, or prejudice the effective conduct of the SIO. This is
because the fault element is prescribed expressly by the provision. The general
rules about the application of fault elements under 5.6 of the Criminal Code
can be displaced or overridden by specific offence provisions).
[324]. Criminal
Code, subsection 5.2(1).
[325]. Criminal
Code, subsection 5.6(2).
[326]. Ibid.
[327]. Criminal
Code, subsection 5.4(1).
[328]. Criminal
Code, subsection 5.4(4).
[329]. See,
for example, the commentary in S Odgers, Principles
of federal criminal law, 3rd edn., Thomson Reuters, Pyrmont, 2015,
pp. 69–71, paragraphs [5.4.120]–[5.4.150].
[330]. Ibid.,
p. 71, paragraphs [5.4.170]–[5.4.180].
[331]. Senate
Standing Committee for the Scrutiny of Bills, Report,
12. 2014, The Senate, 24 September 2014, p. 634 (citing correspondence from the
Attorney-General dated 16 September 2014).
[332]. A
summary of the reasoning in support of this position is provided in R Gyles Report
on the impact of journalists of section 35P of the ASIO Act, op cit.,
Appendix F, pp. 73-82 (the quoted phrase appears at p. 80).
[333]. Ibid.,
especially, pp. 79–80.
[334]. A
summary of the reasoning in support of this position is provided in the INSLM
report: Ibid., Appendix D, pp. 63–65.
[335]. Ministerial Direction (Commonwealth Director of Public Prosecutions),
20 October 2014, Government
Notices Gazette C2014G02068, 15 December 2014.
[336]. CDPP, Prosecuting offences for the unauthorised disclosure of information
relating to controlled operations, special intelligence operations or delayed
notification search warrants, National Legal
Direction, 1 December 2014, p. 4 (public interest test and consent of
Attorney-General) and p. 5 (consent of Director).
[337]. For
example, G Williams, ‘Anti-terrorism
laws threat to democracy’, The Sydney Morning Herald,
3 November 2014, p. 16; S Breheny, ‘George Brandis’s solution a cure worse than the disease’, The Australian, (online edition), Institute of Public
Affairs website, 7 November 2014; T Blackburn, ‘Big flaws in security
laws' Courier-Mail, 27 November 2014, p. 46.
[338]. JT Kwok (National Tertiary Education Union (NTEU)), ‘Attorney-General to consider further protections for academics from
s 35P’, NTEU website, 30 March 2015.
[339]. T
Abbott (Prime Minister), Appointment
of Independent National Security Legislation Monitor, media release, 7
December 2014; Gyles, Report on the impact of journalists of section 35P of
the ASIO Act, op. cit., p. 5. (Note that this report also indicates Mr
Gyles was appointed substantively as INSLM during the course of the inquiry on
20 August 2015 for a two-year term.)
[340]. ALRC, Traditional rights and freedoms—encroachments by Commonwealth Laws, ALRC, final report, 129, December 2015, p. 22 at paragraph [1.76],
p. 23 at paragraph [1.81], pp. 103-107 at paragraphs [4.129] to [4.143].
[341]. Ibid.,
pp. 126–127 at paragraph [4.251].
[342]. Gyles,
Report on the impact of journalists of section 35P of the ASIO Act,
op. cit.; G Brandis, ‘Government response to INSLM report on the impact on
journalists of section 35P of the ASIO Act 1979’, op. cit.; and Australia, Senate, Journals, SJ 135, 2 February 2016 (item 2) .
[343]. Gyles,
Report on the impact of journalists of section 35P of the ASIO Act,
op. cit., pp. 3–4 and pp. 23–25.
[344]. Ibid.,
p. 2 and pp. 12–13.
[345]. Ibid.,
pp. 2 and 21.
[346]. Ibid.,
pp. 2 and 23.
[347]. Ibid.,
pp.3 and 23.
[348]. Ibid.
[349]. Ibid.,
p. 3. See also, Appendix J at pp. 102–116 ,which provides a brief analysis of
constitutional and human rights issues.
[350]. Ibid.,
p. 22.
[351]. Ibid.,
p. 23.
[352]. Ibid.,
pp. 3–4 and pp. 23–25.
[353]. Ibid.,
p. 3 and pp. 24–25.
[354]. Ibid.,
pp. 3 and 24.
[355]. Ibid.
[356]. Ibid.,
pp. 4 and 25.
[357]. Ibid.,
p. 4.
[358]. Ibid.,
p. 24.
[359]. Ibid.
[360]. Ibid.,
p. 23.
[361]. Ibid.,
p. 14.
[362]. Ibid.,
pp. 24–28.
[363]. Ibid.,
pp. 26–27.
[364]. Ibid.,
p. 27.
[365]. Ibid.
[366]. Brandis,
Government response to INSLM report on the impact on journalists of section
35P of the ASIO Act 1979, op cit.
[367]. Ibid.
[368]. Proposed
paragraphs 35P(1)(a) and 35P(1B)(a) .
[369]. Section
18A (unauthorised dealings with records, such as removal, retention and
copying) and section 18B (unauthorised recording of information or matter).
Note that ‘intelligence related information’ is a short-hand reference to
the specific types of information (or records or other matter) covered by these
offences, being information, matter or records of information
(as applicable) that are acquired or prepared by ASIO in connection with its
functions, or which relate to the performance by ASIO of its functions.
[370]. Criminal
Code, subsection 6.1(2). A modified form of the defence of mistake of fact
(in section 9.2) also applies to the elements of offences which are subject to
strict liability.
[371]. As
this physical element is a circumstance in which conduct occurs, subsection
5.6(2) of the Criminal Code would otherwise have applied.
[372]. Explanatory
Memorandum, 2016 Bill, op. cit., p. 184.
[373]. See,
for example, the following offences, which do not apply strict liability to
this physical element: section 18A (offence of unauthorised dealing with
records) and section 18B (offence of unauthorised recording of
information or matter). See also subsection 18(2) (offence of
unauthorised communication of intelligence-related information. The physical element
in paragraph (b) provides that the person must be in one of the classes of
persons which are incorporated in the definition of ‘entrusted person’ although
it does not use this defined term).
[374]. Explanatory
Memorandum, 2016 Bill, op. cit., p. 183.
[375]. Australian Federal
Police Act 1979, section 60A.
[376]. For
example, section 70 of the Crimes Act (offence of disclosure of
information by Commonwealth officers in contravention of a duty of
non-disclosure) does not require proof of harm and is punishable by a maximum
penalty of two years' imprisonment. The general official secrets offence in
subsection 79(3) (unauthorised communication of, or enabling of unauthorised
access to, certain matter) is also punishable by a maximum penalty of two
years' imprisonment. An unauthorised communication offence with a higher
maximum penalty in subsection 79(2) (seven years' imprisonment) require proof of
the person’s intention to cause a specific form of harm, namely intention to
prejudice the security or defence of the Commonwealth (which may not be
co-extensive with the specific forms of harm in the aggravated offence in
section 15HL).
[377]. Revised
Explanatory Memorandum, National Security Legislation Amendment Bill (No 1)
2014, pp. 140–141.
[378]. Explanatory
Memorandum, 2016 Bill, op. cit., p. 11.
[379]. Ibid.
[380]. The Queen v De Simoni (1981)
147 CLR 383 at p. 389; [1981] HCA 31 at paragraph [8] (per
Gibbs CJ).
[381]. It
might be said that SIOs are more sensitive than other types of intelligence
operations or activities of ASIO which generate information covered by
subsection 18(2). This is supported by the onerous authorisation requirements
applying to SIOs, and the unusual legal effects of authorisation in the form of
immunity from civil and criminal liability (which departs from the fundamental
principle that all people are subject to the law, which applies consistently to
all persons).
[382]. Ibid.,
p. 184.
[383]. Ibid.
[384]. That
is, the use of the heading ‘disclosures by entrusted persons’ is used to denote
two offences which apply exclusively to defined class of persons. This may lead
to a necessary implication that a heading which denotes offences that apply to
‘other disclosures’ means disclosures by persons who are not in the class to
which the first category of offences applies. (It is not certain that the
statement at page 184 of the Explanatory Memorandum could be relied upon as an
aid to interpretation under section 15AB of the Acts Interpretation Act
1901. Extrinsic materials cannot be used to displace the ordinary meaning
of a provision that is unambiguous on its face, unless the ordinary meaning
would lead to a manifestly absurd result).
[385]. For
an example of alternative verdict provisions in the ASIO Act, see
subsections 18A(3)–(4) and 18B(3)–(4). The use of an alternative verdict
provision would mean that, if an ‘entrusted person’ is prosecuted for an
offence against subsection 35P(1B) and the trier of fact is not satisfied that
the person is guilty of that offence—but the trier of fact is satisfied that
the person is guilty of an alternative offence against subsection 35P(2) or
subsection 35P(2A)—then the trier of fact may convict the person of the
alternative offence. This is provided, however, that the person has been
accorded procedural fairness in relation to the alternative offence. A
provision of this kind may be of utility in cases in which there is evidence
suggesting that the ‘entrusted person’ knew or intended that the disclosure
would cause harm, but there may be reasonable doubt as to the person’s status
as an ‘entrusted person’. This would ensure that fresh charges would not need
to be laid.
[386]. MEAA,
Journalists still face jail under ASIO Act changes, op. cit.; and MEAA, Criminalising
the truth, suppressing the right to know: the report into the state of press
freedom in Australia in 2016, op. cit., p. 18.
[387]. Ibid.
[388]. Explanatory
Memorandum, 2016 Bill, op. cit., p. 185.
[389]. Ibid.,
pp. 185–186.
[390]. As
per proposed paragraph 35P(3A)(c).
[391]. As
per proposed paragraph 35P(3A)(d).
[392]. H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law,
final report, Australian Publishing Service, Canberra, 1991, paragraphs [31.33]
and [31.34].
[393]. MEAA,
Journalists still face jail under ASIO Act changes, op. cit.
[394]. Revised Explanatory Memorandum, National
Security Legislation Amendment Bill (No 1) 2014, p. 124.
[395]. Ibid.
[396]. ASIO
Act, subsection 18C(4) and subsection 92(3).
[397]. Attorney-General’s Department and ASIO, Submission to the INSLM inquiry into the impact on journalists of
section 35P of the ASIO Act, January 2015, p. 29.
[398]. Kwok (NTEU), ‘Attorney-General to consider further protections for
academics from s 35P offences’, op. cit.
(The NTEU uploaded a copy of the letter, which states, at
p. 4, ‘the Government will give careful consideration to your organisation’s
suggestion that the consent requirement is extended to academics and
researchers who make disclosures in that professional capacity’.)
[399]. MEAA,
Journalists still face jail under ASIO Act changes, op. cit.
[400]. Hardy,
‘Despite changes, terror law will still curb freedom’, op. cit.
[401]. Ibid.
[402]. Criminal Code,
sections 102.6 and 102.8.
[403]. COAG, COAG
Review, op. cit., pp. 29–31 (Recommendation 20).
[404]. Item 1
of Schedule 1.
[405]. Item 2
of Schedule 1; COAG Review, op. cit., pp. 33–37
(Recommendation 23).
[406]. ASIO Act, section 35.
‘Security’ is defined in section 4 of the Act.
[407]. ASIO
Act, section 40.
[408]. Item 4
of Schedule 12, proposed replacement subsection 40(1).
[409]. Ibid.
[410]. ASIO Act,
subsection 40(2), as amended by item 5 of Schedule 12.
[411]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit., pp. 169–172.
[412]. Classification
(Publications, Films and Computer Games) Act 1995.
[413]. Counter-Terrorism
Legislation Amendment (Foreign Fighters) Act 2014.
[414]. Explanatory
Memorandum, 2016 Bill, op. cit., p. 136.
[415]. AGD,
Supplementary submission to NJCIS, op. cit., p. 32.
[416]. 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).
[417]. Crimes
Act, subsection 3ZZAA(4).
[418]. ‘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.
[419]. Existing and
proposed section 3ZZBA of the Crimes Act.
[420]. 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.
[421]. National Security
Information (Criminal and Civil Proceedings) Act 2004.
[422]. PJCIS,
Advisory report on the Counter-Terrorism Legislation Amendment
Bill (No.1) 2015, op. cit., pp. 82–86.
[423]. Taxation Administration
Act 1953.
[424]. Explanatory
Memorandum, 2016 Bill, op. cit., pp. 180–181.
[425]. AFP,
‘National
efforts’, AFP webpage.
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