Bills Digest No. 71, 2020-21
PDF version [961 KB]
Cat Barker
Foreign Affairs, Defence and Security Section
Karen Elphick
Law and Bills Digest Section
17 June 2021
Contents
Glossary
The Bills Digest at a glance
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
SCHEDULE 1 PART 1: AMENDMENTS TO THE CRIMINAL CODE
Eligibility for an order
Key thresholds for making an order
Procedure for seeking and making an ESO
Withholding application and supporting information from terrorist offenders
Interim supervision orders
Conditions that may be imposed under an ESO or ISO
Reviews of CDOs and ESOs
Reporting about ESOs and ISOs
SCHEDULE 1 PART 2 and PART 3: AMENDMENTS TO OTHER ACTS
Expansion of monitoring and surveillance powers for individuals subject to ESOs
National security information and special advocates
Exclusion of decisions from judicial review
SCHEDULE 2: INTERNATIONAL PRODUCTION ORDERS
Appendix A: Consolidated list of Law Council recommendations for amendments to the Bill
Appendix B: Consolidated list of AHRC recommendations for amendments to the Bill
Appendix C: Consolidated table comparing Law Council and AHRC recommendations for amendments to the Bill
Date introduced: 3 September 2020
House: House of Representatives
Portfolio: Attorney-General
Commencement: Sections 1-3 on Royal Assent; Schedule 1 on the day after Royal Assent; Schedule 2 the later of the day after Royal Assent or on commencement of Part 1 of Schedule 1 to the Telecommunications Legislation Amendment (International Production Orders) Act 2020, whichever is later. However, Schedule 2 will not commence if the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 is not enacted.
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 June 2021.
Glossary
The Bills Digest at a glance
The purpose of the Bill is to amend
the Criminal
Code Act 1995 (the Criminal Code) to introduce extended
supervision orders (ESOs), which may be imposed on terrorist offenders released
into the community if a court is satisfied that the individual poses an
unacceptable risk of committing certain serious terrorism offences. It also
expands monitoring and surveillance powers.
The Criminal Code already contains a framework for
the control or detention of high risk terrorist offenders (HRTOs). Division 104
of the Criminal Code concerns control orders (COs) and interim
control orders (ICOs). Division 105 concerns preventative
detention orders (PDOs). Division 105A concerns continuing
detention orders (CDOs). The Independent National Security Legislation
Monitor (INSLM) recommended the introduction of ESOs to provide a less
restrictive option to CDOs. The Bill is largely consistent with the INSLM’s
recommendations however it departs from them by:
- providing
for more extensive conditions to be imposed under an ESO than under a control
order
- setting
a lower threshold for imposition of an ESO than a CDO in relation to
satisfaction of unacceptable risk and
- not
requiring the Minister to refrain from consenting to a request for an interim
control order while proceedings are underway for a CDO or ESO.
Committee and public comment on the Bill
The Parliamentary Joint Committee on Human Rights (PJCHR)
considered that the proposed ESO scheme ‘engages a significant number of human
rights, some of which are not identified in the statement of compatibility’.
The Senate Standing Committee for the Scrutiny of Bills expressed concerns in
relation to the potential for the trespass on personal rights and liberties in
respect of the standard of proof for an ESO, the procedure for the hearing, and
the expansion of monitoring and surveillance powers.
Several major interest groups made lengthy submissions to
the inquiry into the Bill by the Parliamentary Joint Committee on Intelligence
and Security (PJCIS) recommending amendments. Several recommended that the Bill
not be passed in its current form. Some of the principal concerns expressed
were:
- the
Bill proposes a lower standard of proof to obtain an ESO (satisfaction on the
balance of probabilities) than is currently required to obtain a CDO
(satisfaction to a high degree of probability)
- the
conditions that may be imposed pursuant to an ESO extend beyond the conditions
that may be imposed pursuant to a control order
- ESO
proceedings should take place in open court, the person who is the subject of
those proceedings should be present in court, and the person should have adequate
access to legal representation.
The Law Council also noted that the Bill contained
measures unrelated to ESOs or that applied beyond ESOs, including a proposal to
significantly expand control order conditions, which it recommended be
withdrawn and considered separately.
Some recommendations of the recently tabled Comprehensive
Review of the Legal Framework of the National Intelligence Community (the
Richardson Review) are relevant to the Bill, including that oversight bodies be
consulted on amendments to intelligence legislation.
Purpose of the Bill
The purpose of the Counter-Terrorism Legislation Amendment
(High Risk Terrorist Offenders) Bill 2020 (the Bill) is to amend the Criminal Code Act
1995 (the Criminal Code) to introduce extended supervision
orders (ESOs). An ESO may be imposed on a terrorist offender released into the
community if a court is satisfied that the individual poses an unacceptable
risk of committing certain serious terrorism offences.[1]
An ESO will impose conditions on an offender that a court
is satisfied are reasonably necessary and reasonably appropriate and adapted
for the purpose of protecting the community from that unacceptable risk.
Contravening those conditions will be an offence.
The Bill will also make consequential amendments to
several other Acts.
Structure of the Bill
Schedule 1 of the Bill contains three parts:
Schedule 2 of the Bill contains amendments
contingent on the passage of the Telecommunications
Legislation Amendment (International Production Orders) Bill 2020.
Background
The Criminal Code contains a framework in Part
5.3—Terrorism for the control or detention of high risk terrorist offenders
(HRTOs). Division 104 of the Criminal Code concerns control orders
(COs) and interim control orders (ICOs). Division 105
concerns preventative detention orders (PDOs). Division 105A
concerns continuing detention orders (CDOs).
In 2017, the Independent National Security Legislation
Monitor (INSLM) conducted his scheduled statutory review of the Criminal
Code CO and PDO frameworks.[2]
The INSLM recommended the introduction of an extended supervision order (ESO)
to the Criminal Code framework to provide a less restrictive option to
CDOs.[3]
Existing control order and preventative detention order
frameworks
The Executive Summary of the INSLM’s report contains a
useful overview of the existing types of order and is reproduced in the
coloured text box below. All of the orders are civil rather than criminal
because they are protective rather than punitive.
Extract from Executive Summary of Report No. 3 of the
INSLM, September 2017, pp. x–xi.
|
Control orders (division
104)
A control order is an order made
by a federal court on the application of the AFP. Control orders impose
potentially far-reaching obligations, prohibitions and restrictions on a
controlee, but these ‘controls’ fall short of detention. The objects of a
control order are variously to:
- protect the public from a terrorist act
- prevent the provision of support for,
or the facilitation of, either:
-
a terrorist act, or
-
the engagement in a hostile activity
in a foreign country.
Although recommendations have
been made for repeal of div 104, including by the first INSLM, that has not
occurred. Instead, Parliament has amended div 104 to:
-
broaden the basis for obtaining a
control order
-
strengthen the capacity of
authorities to monitor compliance by a controlee
-
improve the rights of the controlee
by introducing a regime of special advocates who can access classified
material that is otherwise denied to the controlee.
While only six control orders
have ever been obtained, the AFP (supported by ASIO and AGD) argues that
control orders should be retained, even if they are rarely used, because
there will always be a gap between the generally desirable aim of criminally
prosecuting a terrorist suspect, and the situation where a prosecution cannot
be achieved but the public still needs the protection from the individual.
The AFP contends that control orders are a remedy always considered in a
counter-terrorist operation.
The retention of control orders
either in their current form or in a modified form is contested.
Continuing
detention orders (division 105A)
Division 105A of the Criminal
Code was enacted pursuant to the [Criminal
Code Amendment (High Risk Terrorist Offenders) Act 2016] and commenced on 7 June 2017. The object of the
division is ‘to ensure the safety and protection of the community by
providing for the continuing detention of terrorist offenders who pose an
unacceptable risk of committing serious [part] 5.3 offences if released into
the community’ (s 105A.1). Division 105A is largely based upon state and
territory serious sex offenders legislation, the prototype for which was
found to be constitutionally valid by the High Court in Fardon v
Attorney-General (Qld).
CDOs can only be made in relation
to persons who have already been found guilty by a jury of serious terrorist
offences and who are detained in custody serving a sentence of imprisonment
(or are committed to detention under an existing CDO).
A CDO is made by a state or
territory supreme court on the application of the Commonwealth
Attorney-General. CDOs provide for the detention to continue for up to three
years at a time. The supreme court makes the order on the basis of evidence,
including expert evidence, to continue to detain or to release.
There is obvious overlap with
control orders which are a less restrictive measure that may address the risk
the offender poses. There is scope to reduce this overlap.
Preventative detention orders
(division 105)
PDOs are different from control
orders and CDOs. Division 105 allows the AFP to apply to a current or former
judge, acting,
for constitutional reasons, persona designata, to order a person to be
detained, effectively incommunicado, for up to 48 hours, to prevent a
terrorist act which is capable of occurring within that period or to preserve
evidence of, or relating to, a recent terrorist act. Questioning of the
detainee is forbidden.
PDOs remain controversial, even
while unused. The first INSLM recommended repeal, the COAG Review Committee
by majority did so, but the government and the PJCIS have not accepted that PDOs
should be abolished.
The states and territories have
similar legislation, authorising detention for longer periods and at least in
some cases permitting the detainee to be questioned. Some states have invoked
those provisions. The AFP has never applied for a PDO under div 105.
[citations removed]
|
A helpful table titled ‘Comparison between the HRTO
regime (ESOs and CDOs) and control orders’ can be found at Attachment D to
the combined submission of the Attorney-General’s Department and the Department
of Home Affairs (AGD and DHA) to the Parliamentary Joint Committee on
Intelligence and Security (PJCIS).[4]
Policy background
The CDO scheme was enacted to address concerns about
reoffending among terrorist offenders who remain radicalised at the conclusion
of their prison sentence, and provided a mechanism to keep such offenders
imprisoned for a further period under a court order.[5]
The CDO scheme is similar to those that have existed for some time in the
states and territories and some overseas jurisdictions for post-sentence
preventative detention of high risk sex and/or violent offenders.[6]
As with the existing scheme for CDOs enacted in 2016 and
other counter-terrorism laws enacted since 2014, the stated purpose of the ESO
scheme is to protect the community from terrorist threats.[7]
A specific impetus for the CDO scheme and the proposed ESO
regime is the number of terrorist offenders recently released or due for
release in the near future, including some who are serving long sentences and
about whom authorities have concerns about a lack of contrition or
rehabilitation.[8]
As at 3 September 2020, 86 individuals had been convicted of terrorism
related offences in Australia since 2001, 12 of these were scheduled for
release by the end of 2025.[9]
Findings about the rate of terrorist recidivism or
re-engagement in other countries have been somewhat mixed, and figures do not
appear to be available for Australia.[10]
In his second reading speech, the Attorney-General pointed to attacks in the UK
in 2019 and 2020 perpetrated by individuals released after serving sentences
for terrorist offences as highlighting the ‘very real threat’ that such
offenders can pose.[11]
Australian examples of re-engagement in terrorist
activities include Khaled Sharrouf, Ezzit Raad and Amer Haddara, each of whom
reportedly travelled overseas to fight with or support terrorist organisations
after having served sentences for their involvement in a failed terrorist plot.[12]
Majed Raad, who was acquitted of charges in relation to the same plot, was
later captured by Kurdish forces in Syria and reported to be a member of the
Islamic State group.[13]
Yacqub Khayre, acquitted of charges in relation to a separate plot, was shot
and killed by police during a siege in Melbourne that was claimed to be an
Islamic State operation.[14]
Even if terrorist reoffending is rare, as suggested by a
recent study that examined the literature on the issue,[15]
Parliament has previously found it appropriate to have mechanisms in place to
manage offenders assessed as posing an unacceptably high risk.
COs have been imposed on several recently released
terrorist offenders.[16]
The Australian reported on 1 May 2021 that seven people have been
charged with breaching their COs.[17]
The first CDO was issued on 24 December 2020 in respect of Abdul Nacer Benbrika.
Reporting prior to that suggested that authorities have found it difficult to
meet the high threshold for imposition of a CDO.[18]
Benbrika was convicted by the Supreme Court of Victoria of
being a member of a terrorist organisation and directing the activities of a
terrorist organisation. He was sentenced to 15 years imprisonment with a
non-parole period of 12 years. His sentence expired on 5 November 2020. On
4 September 2020, the Minister commenced proceedings in the Supreme
Court of Victoria, seeking a CDO in respect of Benbrika. On 24 December 2020,
it was ordered that Benbrika be subject to a CDO to be in force for a period of
three years. A challenge to the constitutional validity of the CDO scheme by
Benbrika was rejected by the majority of the High Court.[19]
That decision is discussed below under the heading ‘High Court affirms
constitutional validity of CDO made under section 105A.7’.
In addition to the existing Criminal Code options
for dealing with HRTOs, there are several national security-related grounds
under which a dual citizen may lose their Australian citizenship.[20]
One such circumstance is where:
- an individual has been convicted of a listed offence/s (including
a terrorism offence) and sentenced to at least three years imprisonment
-
the Minister considers that the individual’s conduct demonstrates
that they have repudiated their allegiance to Australia and
-
having regard to certain factors, the Minister considers that it
is not in the public interest for that person to remain an Australian citizen.[21]
The Home Affairs Minister used this conviction-based
citizenship cessation power for the first time on 20 November 2020 to cancel
the citizenship of Benbrika.[22]
The Minister advised:
[Benbrika is] the first individual to have lost his
citizenship onshore under the terrorism related provisions of the Australian
Citizenship Act of 2007 and given Benbrika no longer holds Australian
citizenship, he’s granted an ex-citizen visa by operation of law, under the
Migration Act.
Benbrika has been notified of his citizenship loss and he’ll
remain in prison whilst an interim detention order is enforced, pending the
courts consideration of the application for a continuing detention order… I can
confirm today, also, that 20 dual-nationals cease to hold Australian
citizenship as a result of their engagement in terrorist conduct, but
[Benbrika] is the first onshore.[23]
INSLM and PJCIS recommendations
The INSLM noted that similar state and territory schemes
provided for two types of orders—continuing detention or conditional release—and
that some of those schemes required, as a condition of making an order for
continued detention, that the court be satisfied that an extended supervision
order would not be adequate to address the identified risk.[24]
He noted that while the Commonwealth CDO scheme similarly requires that the
court be satisfied that no less restrictive measure would be effective, ‘no
such measure is available or otherwise addressed in div 105A beyond a statutory
note that a control order (by definition only available from a federal court)
may be a less restrictive measure’.[25]
The INSLM considered that it is unclear exactly how the
control order and CDO regimes are intended to interact, and that the existing
position creates difficulties in relation to how the threshold for a CDO may be
met and could lead to duplicative and oppressive proceedings for CDOs and control
orders.[26]
The INSLM recommended that
the CDO regime in Division 105A be amended to provide for two types of
orders—CDOs and ESOs—and that CDOs should only be able to be made if the court
is satisfied that an ESO would not be effective in preventing the identified
risk.[27]
He further recommended that:
- the ESO scheme allow for the imposition of the same obligations,
prohibitions and restrictions as control orders under ESOs
- the Attorney-General be the applicant for ESOs, with no
additional pre-conditions for commencing proceedings under Division 105A
- applications for an ESO may be made where an individual is
already the subject of a CDO or ESO
-
the regime that exists to monitor compliance with control orders
also be applied for ESOs
- the Government should consider making the special advocates
regime that exists for control order proceedings available for applications
under Division 105A and
-
to clarify the interaction of Division 105A with the control
order regime:
- the
Attorney-General be unable to give consent [to a request for a control order] under
s 104.2 while div 105A proceedings are pending
- in
requesting an interim control order in relation to a person, the senior AFP
member be required to give the issuing court a copy of any div 105A application
made in relation to that person, and any order (including reasons) of the
relevant court in respect of that application
- no
control order may be in force in relation to a person while a CDO or ESO is in
force in relation to that person.[28]
The PJCIS endorsed the INSLM’s recommendation to introduce
ESOs and the INSLM’s recommended model in its 2018 report on a review of
various counter-terrorism powers.[29]
The Government supported the INSLM and PJCIS
recommendations in a response tabled in May 2018,[30]
and the Bill is largely consistent with the INSLM’s recommendations. The main
ways in which the Bill departs from or goes beyond the INSLM’s recommendations
are by:
- providing for more extensive conditions to be imposed under an
ESO than under a control order
-
setting a lower threshold for imposition of an ESO than a CDO in
relation to satisfaction of unacceptable risk and
-
not requiring the Minister to refrain from consenting to a
request for an interim control order while proceedings are underway for a CDO
or ESO.
Comprehensive Review of the Legal Framework of the National
Intelligence Community
On 4 December 2020 the Attorney-General released the
unclassified Comprehensive Review of the Legal Framework of the National
Intelligence Community[31]
(the Richardson Review) and the Government Response.[32] The four volumes of the Richardson Review were tabled
in Parliament on 7 December 2020:
- Volume
1: Recommendations and Executive Summary; Foundations and Principles; Control,
Coordination and Cooperation[33]
- Volume
2: Authorisations, Immunities and Electronic Surveillance[34]
- Volume
3: Information, Technology, Powers and Oversight[35]
- Volume
4: Accountability and Transparency; Annexes.[36]
The Richardson Review’s comprehensive examination of the
legislative framework underpinning the NIC is the first since the Hope Royal
Commissions considered the AIC in the 1970s and 1980s.[37]
The Executive Summary can be found at pages 32–59 of Volume 1. Its 203
recommendations are consolidated in a table in Chapter 4 of Volume 1 at pages
60–85.
Several general comments from the Executive Summary are
worth noting, including the suggestion that a certain level of scepticism is
appropriate when considering legislative proposals that affect NIC agency
powers:
Complex laws also undermine public trust and confidence. It
should be clear to the Australian public what intrusive powers are available to
NIC agencies, the circumstances in which they may be used, and the limits,
controls, safeguards and accountability mechanisms that apply…
Our laws are not constraints or barriers to operational
effectiveness as they are sometimes perceived. Rather, they are the guardians
of valuable principles and enablers assisting agencies to perform their
functions…
Too often during the Review, proposals to ‘clarify’ or
‘streamline’ legislation amounted to no more than a bid to extend powers or
functions. Government should be sceptical of calls for legislative clarity—very
often such claims do not withstand even modest inquiry.[38]
A centrepiece of the Richardson Review is the
recommendation that the TIA Act, the SD Act and parts of the ASIO
Act be consolidated into a new electronic surveillance Act, however Richardson
noted that the process of replacing the legislation might take five years.[39]
Consultation
with the IGIS and the Ombudsman on proposed legislation
The Richardson Review recommended early consultation with
oversight bodies:
The IGIS and Ombudsman should be consulted as a matter of
course in relation to all proposed amendments to intelligence legislation
affecting matters within their jurisdiction to ensure that oversight issues can
be addressed upfront. This requirement should be included in the Legislation
Handbook.[40]
The Commonwealth Ombudsman made a submission to the Parliamentary
Joint Committee on Intelligence and Security (PJCIS) inquiry into the Bill.[41]
It is not clear whether either officer was consulted on the Bill.
High Court affirms
constitutional validity of CDO made under section 105A.7
In Minister
for Home Affairs v Benbrika (Benbrika),[42]
the High Court was asked:
Is all or any part of Division 105A of the Criminal Code
(Cth) and, if so, which part, invalid because the power to make a continuing
detention order under section 105A.7 of the Code is not within the judicial
power of the Commonwealth and has been conferred, inter alia, on the Supreme
Court of Victoria contrary to Chapter III of the Commonwealth Constitution?
In a judgment delivered on 10 February 2021, a majority of
the High Court (Gageler and Gordon JJ dissenting) answered ‘No’; they found
section 105A.7 of the Criminal Code was within the judicial power of the
Commonwealth:
There is no principled reason for distinguishing the power of
a Ch III court to order that a mentally ill person be detained in custody for
the protection of the community from harm and the power to order that a
terrorist offender be detained in custody for the same purpose. It is the
protective purpose that qualifies a power as an exception to a principle that
is recognised under our system of government as a safeguard on liberty. Demonstration
that Div 105A is non‑punitive is essential to a conclusion that the
regime that it establishes can validly be conferred on a Ch III court, but that
conclusion does not suffice. As a matter of substance, the power must have as
its object the protection of the community from harm.[43]
[…]
Detention in prison is prima facie penal or punitive;
however, that characterisation may be displaced by an evident non-punitive
purpose. Division 105A has an evident non-punitive protective purpose.[44]
This Court has consistently held, and most recently in Fardon,
that detention that has as its purpose the protection of the community is not
punishment.[45]
Committee consideration
Parliamentary Joint Committee on Intelligence and Security
The Bill has been referred to the Parliamentary Joint
Committee on Intelligence and Security (PJCIS) for inquiry and report. Details
of the inquiry are at the inquiry
homepage. Submissions to the PJCIS closed on 29 October 2020, but no
reporting date has been set. A number of submissions were made to the Committee
and some of the issues raised are discussed under the ‘Key issues and
provisions’ heading of this Digest.
Senate Standing Committee for the Scrutiny of Bills
Trespass on
personal rights and liberties—general comment
In its Scrutiny Digest 14 of 2020, the Senate
Standing Committee for the Scrutiny of Bills (Scrutiny Committee) commented generally
on the potential for the Bill to trespass on personal rights and liberties.[46]
The Scrutiny Committee noted:
If the continuing detention (or, as is proposed in this bill,
the imposition of severe conditions) is triggered by past offending, then it
can plausibly be characterised as retrospectively imposing additional
punishment for that past offence. Even if the continuing detention (or
imposition of severe conditions) is not conceptualised as imposing additional
punishment and is instead rationalised on the basis of its protective purpose,
the fact that the order is made on the basis of predicted future offending
still inverts fundamental principles of the criminal justice system.[47]
The Scrutiny Committee acknowledged that the proposed ESO
scheme was less restrictive of liberty than the existing CDO scheme:
However, given the severity of conditions that may be imposed
on a person subject to an extended supervision order, the committee considers
that the extended supervision order scheme may still be characterised as
fundamentally inverting basic assumptions of the criminal justice system,
including that a person should only be punished for a crime which it has been
proved beyond a reasonable doubt that they have committed, not the risk that
they may in future commit a crime.[48]
In his response to the Scrutiny Committee,[49]
the Attorney-General explained that the decision of the court as to whether to
impose an ESO is based on an assessment of future risk, rather than as
punishment for past conduct:
Post-sentence orders are thus based on the risk posed by the
offender as they are approaching completion of their custodial sentence, rather
than at the time of conviction, consistent with their protective rather than
punitive purpose. This is in line with similar state schemes which serve to
protect the community from high risk violent and sexual offenders.[50]
The Scrutiny Committee noted the Attorney-General's advice
but retained its original scrutiny concerns quoted above and left the
appropriateness of the proposed ESO scheme to the consideration of the Senate
as a whole.[51]
The Scrutiny Committee requested further advice from the
Attorney-General in relation to the standard of proof required in order to
impose an ESO:
The committee therefore requests the Attorney-General's
advice as to whether proposed paragraph 105A.7A(1)(b) can be amended to require
the court be satisfied to a 'high degree of probability' (rather than on the
'balance of probabilities') that an offender poses an unacceptable risk of
committing a serious Part 5.3 offence before the court may make an extended
supervision order.[52]
The Minister’s response was considered by the Committee in
its report of 20 November 2020.[53]
The Attorney-General’s comments and the response of the Scrutiny Committee are discussed
below under the heading ‘The standard of proof for issue of an ESO’.
The Scrutiny Committee also drew the attention of senators
to concerns relating to:
- Procedural
fairness—right to fair hearing.[54]
The committee draws its scrutiny concerns to the attention of
senators and leaves to the Senate as a whole the appropriateness of:
- proposed sections 105A.14B–105A.14D which provide that certain
information (such as national security information) may be excluded from the
copies of applications and materials provided to an offender and their legal
representative; and
-
the proposed amendments to the National Security Information
(Criminal and Civil Proceedings) Act 2004 set out in items 189–210 of Schedule
1 which would allow the court to consider and rely on national security
information which is not disclosed to the offender or their legal
representative.
The committee considers that these provisions may negatively
impact an offender's ability to effectively contest an application for an
extended supervision order that is made against them.[55]
The issue is discussed below
under the heading ‘Right to a fair hearing’.
- Trespass
on personal rights and liberties—expansion of monitoring and surveillance
powers.[56]
The committee draws its scrutiny concerns to the attention of
senators and leaves to the Senate as a whole the appropriateness of extending
significant monitoring and surveillance powers under a number of Acts to
persons subject to an extended supervision order, noting that these powers may
trespass on a person's rights and liberties.[57]
The issue is discussed under the
‘Expansion of monitoring and surveillance powers for individuals subject to
ESOs’ heading below.
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights (PJCHR)
considered that the proposed ESO scheme ‘engages a significant number of human
rights, some of which are not identified in the statement of compatibility’,
including the prohibition against retrospective criminal laws, the rights to
privacy, freedom of movement, liberty, freedom of expression, assembly and
participation, work, education, protection of the family, freedom of religion,
and an adequate standard of living, and the rights of the child.[58]
It stated that while most of those rights may be
permissibly limited, it required further information from the Attorney-General
to assess the compatibility of ESOs with multiple human rights, in particular:
- whether
the type of conditions that may be imposed under an extended supervision order
may be so severe as to amount to a penalty;
- why it
is appropriate to apply the extended supervision order scheme to those who
committed offences before this scheme (or the continued detention order scheme)
was in operation;
- what
factors would a court consider in determining whether a person poses an
'unacceptable risk' in the context of a court assessing a person's level of
future risk under the proposed supervision order scheme, and what threshold
would a court apply in determining whether a risk is an acceptable or
unacceptable one;
- what evidence
is there of a pressing and substantial concern to which the proposed extended
and interim supervision order scheme is directed (including evidence of
terrorism offenders in Australia who have been released from a custody sentence
and subsequently engaged in terrorism related conduct);
- how an
expert assessment as to the risk of a person engaging in future terrorism
related conduct would be effective to accurately assess such a risk, and
consequently whether the imposition of an extended supervision order would be
rationally connected with the objective of protecting the public from terrorist
acts;
- why,
and in what respects, the power to release an offender on parole during the
final quarter of their sentence (subject to conditions) would not be effective
to protect the public from any potential risk sought to be addressed by these
measures, including by supporting a person to rehabilitate and reduce their
risk of recidivism;
- whether
a person could be released from prison and be subject to both parole conditions
and conditions under an extended or interim supervision order, and if so, how
would any conflict between the two be managed;
- what
percentage of persons who have been imprisoned for a terrorism offence under
Part 5.3 of the Criminal Code have received parole in the past 10 years;
- whether,
how, and to what extent the current prison services available to manage
terrorist offenders are not effective in reducing the risk of recidivism with
respect to terrorism offences;
- why it
is appropriate that the civil standard of proof (balance of probabilities)
should be required for the issue of an extended or interim supervision order,
noting the potential significant impact on human rights by the imposition of a
supervision order; and
- whether,
as a matter of statutory interpretation, a court could impose a condition that
an offender remain at specified premises for more than 12 hours within any 24
hour period, nothing that the general conditions listed in proposed subsection
105A.7B(3) are expressly stated as being 'without limiting' a court's ability
to impose any condition they were satisfied was necessary (under proposed
subsection 105A.7B(1)).[59]
The PJCHR also sought further information from the
Attorney-General on the proposal to permit certain evidence to be withheld from
individuals in relation to whom an ESO has been sought or made and their legal
representatives, to determine the compatibility of the measure with the right
to a fair hearing.[60]
The PJCHR questioned the compatibility of the proposed
powers to monitor individuals subject to an ESO with the right to privacy but
did not request further information from the Attorney‑General on that
aspect of the Bill.[61]
The Attorney-General’s response to the PJCHR report has
been published.[62]
Some aspects of that response are discussed below under the heading ‘Key issues
and provisions’.
Policy position of non-government parties/independents
Non-government parties and independents did not appear to
have publicly stated their positions on the Bill as at the date of this Digest.
Position of major interest groups
Commonwealth Ombudsman
The Ombudsman noted the effect of the Bill on its
oversight functions:
Like the control order and continuing detention order
regimes, the Bill does not propose a direct oversight function for our Office
in relation to the ESO scheme. However, alongside the proposed ESO scheme, the
Bill would extend the AFP’s scope to use pre-existing covert and intrusive
powers which the Office oversees under the TIA Act, the SD Act and the Crimes
Act to include the following purposes:
- monitoring compliance with an ESO or interim supervision order
(ISO) via a Part 5.3 warrant
-
informing a decision about whether to apply for an ESO or
continuing detention order.
The Bill would also extend the AFP’s obligations to notify
the Office when it has used these powers and provide relevant material under:
- section 49A of the SD Act,
- section 59B of the TIA Act, and
- section 3ZZTE of the Crimes Act.
…
The Bill would also extend the Office’s role in the oversight
framework proposed under the Telecommunications Legislation Amendment
(International Production Orders) Bill 2020 (IPO Bill) to include:
- overseeing relevant Part 5.3 IPO agency activity, and
-
receiving notifications and relevant material relating to
international production orders issued on the basis of Part 5.3 supervisory
orders.[63]
The Ombudsman welcomed the inclusion of independent
oversight and assurance arrangements in the Bill. It expected the Bill would
result in a marginal increase in the use of the AFP’s powers under the TIA
Act, SD Act, and Crimes Act and, therefore, a marginal
increase in its oversight activities.[64]
Australian
Lawyers Alliance
The Australian Lawyers Alliance (Lawyers Alliance) is a
national association of lawyers, academics and other professionals dedicated to
protecting and promoting justice, freedom and the rights of the individual. The
Lawyers Alliance estimates that its 1,500 members represent up to 200,000
people each year in Australia. The Lawyers Alliance submitted that:
-
the standard of proof required for making an ESO should not be
lower than that for a continuing detention order (‘CDO’), namely ‘to a high
degree of probability’
-
ESO proceedings should take place in open court, that the person
who is the subject of those proceedings should be present in court, and that
the person should have a right to be legally represented by the advocate of
their choice in court during those proceedings and
-
there should be an option for judicial review under the Administrative
Decisions (Judicial Review) Act 1977 of the decisions made by the Minister
for Home Affairs under Division 105A of the Criminal Code.[65]
Law Council of Australia
The Law Council of Australia (Law Council) made a lengthy
submission to the PJCIS inquiry into the Bill.[66]
The Law Council did not oppose an ESO regime as a less-restrictive alternative
to CDOs. However, the Law Council made 21 recommendations for amendments to the
Bill. A consolidated list of the Law Council recommendations forms Appendix
A to this Digest.
In summary, the Law Council is concerned to ensure that
the ESO regime:
-
is consistent with the
recommendations of the third Independent National Security Legislation Monitor
(INSLM), Dr James Renwick CSC SC about the core elements of the regime,
especially the applicable standard of proof and conditions able to be imposed
under an ESO; and
-
applies a fair, reasonable and proportionate process for the determination
of ESO applications, including adequate access to legal assistance; and
- effectively manages interactions
between ESOs, the control order (CO) regime in Division 104 of the
Criminal Code, and applicable State or Territory
post-sentence regimes. In particular,
the Law Council supports safeguards to ensure that a person is not
exposed to oppression by being subjected to:
-
multiple orders under different
regimes, on the same or substantially similar grounds;
- proceedings seeking a particular
type of order (for example, a CO) as an effective ‘repechage’ to a previous,
failed application for a different type of order (for example, an ESO),
irrespective of outcome; or
- conflicting conditions or
obligations, or conditions or obligations whose combined effect is oppressive.[67]
In particular, the Law Council considered that the ESO
regime should only proceed if it implements the INSLM’s September 2017 recommendations,
as a minimum standard for the legislative framework governing ESOs. In the
alternative, state and territory Supreme Courts should be invested with
jurisdiction to issue control orders.[68]
The Law Council also noted that the Bill contained
measures unrelated to ESOs or that applied beyond ESOs. In particular, the Bill
includes a proposal to significantly expand control order conditions.[69]
The Law Council had significant concerns about expansion
of the control order conditions, and recommended that those proposals be
withdrawn from the Bill and examined separately as part of the PJCIS’s current
statutory review of the control order regime.[70]
Some of the Law Council’s concerns are discussed in more detail below under the
heading ‘Key issues and provisions’.
Australian Human Rights Commission
The Australian Human Rights Commission (AHRC) noted its
previously expressed concerns about the very severe restrictions on liberty
imposed by the CDO regime and noted that the Bill would leave in place the
current CO regime.[71]
The AHRC argued it was important, given the increase in counter-terrorism laws
over the last two decades, that the Bill not be assessed in isolation.
The Bill should be assessed by reference to its likely effect
taking into account the other elements of Australia’s counter-terrorism regime,
especially given that CDOs, control orders and the proposed ESO regime would
all operate to address the same, or at least a similar, risk—namely, that an
individual is likely to commit a terrorist offence in the future… the
introduction of an ESO regime should be accompanied by the repeal of the
existing control order regime.[72]
The AHRC opposes the Bill in its current form; however, it
supported the introduction of an ESO scheme, as a less restrictive and more
proportionate way of effectively managing the risk to the community of
terrorist recidivism than the CDO alone, subject to two key provisos:
-
any federal ESO regime should be in the form recommended by the
third INSLM in September 2017 and
-
the regime proposed by the Bill is amended to ensure it remains
consistent with Australia’s human rights obligations.[73]
The AHRC is concerned about the following aspects of the
Bill:
- the
Bill proposes a lower standard of proof to obtain an ESO (satisfaction on the
balance of probabilities) than is currently required to obtain a CDO
(satisfaction to a high degree of probability), contrary to the recommendation
of the third INSLM and contrary to every other comparable regime in Australia
- the
conditions that may be imposed pursuant to an ESO extend far beyond the
conditions that may be imposed pursuant to a control order and, for example,
could require:
-
a person to comply with directions given by a ‘specified
authority,’ which is not limited to law enforcement authorities and in fact
could be any other person in Australia
-
the compulsory participation in de-radicalisation and other
programs in a way that is counterproductive to efforts to counter violent
extremism
- de facto home detention, rather than limited curfews
-
a person to give consent to entry into their home by a ‘specified
authority’ (which could be any person in Australia), in circumstances where
that consent was not truly voluntary and where alternatives such as the use of
warrants are readily available
- the
current safeguard in control order proceedings, requiring the personal
circumstances of the respondent to be taken into account, would be removed for
ESO proceedings
- an
offender in custody could be compelled to attend an assessment by an expert
chosen by the AFP Minister, in addition to the existing requirement to be
assessed by an independent expert chosen by the Court, and failure to
participate in the assessment with the Minister’s expert could count against
them in a post-sentence order proceeding (that is, a proceeding for either a
CDO or ESO)
- the
current use immunity that applies to participation in an assessment by the
Court’s independent expert would be watered down, and this lower level of
protection would also be applied to participation in the compulsory assessment
by the Minister’s expert
- the
Minister would be given the ability to apply to vary an interim supervision
order (ISO) to add conditions, in a way that is not permitted under the control
order regime.[74]
The AHRC made 25 recommendations for amendments to the
Bill.[75]
A consolidated list of the AHRC recommendations forms Appendix B to this
Digest. A table comparing the amendments recommended by the Law Council and the
AHRC is at Appendix C.
Australian Federal Police
The Australian Federal Police (AFP) strongly supports the introduction
of ESOs and, in particular, the proposal to improve flexibility for a state or
territory Supreme Court to impose, tailor and adapt conditions attached to the
ESO.[76]
The AFP noted that the Bill will streamline the
application process for post-sentence orders; an ESO can be issued by the same
court hearing the application for a CDO.[77]
The AFP advised the PJCIS that it anticipates making fewer
CO applications once the ESO scheme has commenced. However, the AFP argues that
the COs will retain an important place in the framework for managing HRTOs.
Control orders remain a key tool to address risks, and will
continue to apply to a broader cohort of individuals, including those who are
not eligible for consideration for an ESO, for example:
- individuals
who have not been charged with any offence
- individuals
who have been convicted of related offences, who are not eligible for consideration
of an ESO or CDO under the HRTO framework… and
- individuals
who have been convicted of an offence at some point in the past.[78]
The AFP does not support the proposal from interest groups
to repeal the CO scheme once the ESO scheme is in place.[79]
Financial implications
The costs of the ESO scheme have
not yet been determined. The Explanatory Memorandum states that the Government
is working with state and territory governments ‘to determine the cost
implications of implementing the ESO scheme’ and that costs will be considered
as part of implementation.[80]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The Government
considers that the Bill is compatible.[81]
However, as noted above, the PJCHR has sought additional information from the
Attorney-General in order to determine whether the Bill is compatible with relevant
rights and freedoms.
Key issues and provisions
Overview
The Bill proposes a new type of post-sentence order, an
ESO, to manage the risk of future offending by a person who has completed a
sentence of imprisonment for a terrorism or security offence. The ESO scheme
will build on and complement the existing CDO scheme by providing a less
restrictive alternative to continued detention for the management of HRTO. An
ESO will enable a person to be released into the community subject to
prohibitions and other conditions on their activities, associations, and
movements.
A Supreme Court of a state or territory will be able to
impose an ESO on a terrorist offender released into the community if satisfied
that the individual poses an unacceptable risk of committing certain serious
terrorism offences. This is consistent with section 71 of the Australian
Constitution, which allows the Commonwealth to invest state or
territory courts with federal jurisdiction.
Key features of the ESO scheme will include:
- ESOs may be made on application for an ESO, or as an alternative
order where the court is not satisfied that a CDO is required
-
ESOs may be imposed for periods of up to three years, and
successive ESOs will be permitted
-
interim supervision orders (ISOs) may be imposed for periods of
up to 28 days (more than one may be made, but the total period of all interim
orders must not generally exceed three months)
- an ESO or ISO will impose conditions on an offender that a court
is satisfied are reasonably necessary and reasonably appropriate and adapted
for the purpose of protecting the community from an unacceptable risk of the
offender committing a serious Part 5.3 offence
-
contravention of the conditions of an ESO or ISO will be an
offence carrying a maximum penalty of five years imprisonment
-
entry, search and seizure, surveillance device, computer access
and telecommunications interception powers will be available in relation to
individuals subject to ESOs and ISOs for the purposes of monitoring compliance
with the order and of protecting the community from the unacceptable risk of a
terrorist offender committing a serious Part 5.3 offence
-
surveillance device, computer access and telecommunications
interception powers will also be available for the purposes of determining
whether to apply for an ESO (or a CDO) in relation to a person detained in
custody and
-
a court will be permitted to make an order under the NSI Act
that will allow evidence to be considered in a proceeding related to an ESO or
ISO that is not disclosed to the offender or their legal representative; in
such circumstances, a special advocate may be appointed to represent the interests
of the offender in parts of a proceeding from which they and their legal
representative are excluded.
Serious Part 5.3 offence means an
offence against Part 5.3 of the Criminal Code, the maximum penalty
for which is seven or more years of imprisonment.[82]
Do the
provisions punish a person for risk they may commit a future crime?
The Scrutiny Committee expressed concern that the ESO
scheme could be characterised as permitting a person to be punished for the
risk that they may commit a future crime, not for crime they have committed:
The committee acknowledges that the proposed extended
supervision order scheme is less restrictive of liberty than the existing
continuing detention order scheme. However, given the severity of conditions
that may be imposed on a person subject to an extended supervision order, the
committee considers that the extended supervision order scheme may still be
characterised as fundamentally inverting basic assumptions of the criminal
justice system, including that a person should only be punished for a crime
which it has been proved beyond a reasonable doubt that they have committed,
not the risk that they may in future commit a crime.[83]
In his response to the Scrutiny Committee, the
Attorney-General advised that an extended supervision order is not a penalty
for a criminal offence:
The imposition of an ESO is not a penalty for criminal
offending, as the purpose of an ESO is protective rather than punitive or
retributive. While eligibility for a post-sentence order (ESO or CDO) depends
on the person having been convicted of a specified terrorism offence, the
decision of the court as to whether to impose an ESO is based on an assessment
of future risk, rather than as punishment for past conduct. An order could only
be made where the court is satisfied that the offender poses an unacceptable
risk of committing a serious Part 5.3 offence once released in the community
following their custodial sentence. Post-sentence orders are thus based on the
risk posed by the offender as they are approaching completion of their
custodial sentence, rather than at the time of conviction, consistent with
their protective rather than punitive purpose. This is in line with similar
state schemes which serve to protect the community from high risk violent and
sexual offenders.[84]
The Scrutiny Committee noted the Attorney-General's advice
that an order can only be made where the court is satisfied that an offender
poses an unacceptable risk of committing a serious Part 5.3 offence upon
release. However, the Committee retained the scrutiny concerns quoted above and
left the appropriateness of the proposed extended supervision order scheme to
the consideration of the Senate as a whole [85]
SCHEDULE 1 PART 1: AMENDMENTS TO THE CRIMINAL
CODE
Eligibility for an order
ESOs may be made in relation to offenders convicted of the
same offences as for CDOs.
A post-sentence order (a CDO under
section 105A.7 or an ESO under proposed section 105A.7A[86])
may be made in relation to a person (referred to as a terrorist offender)
if:
- the person has been convicted of an offence listed in
paragraph 105A.3(1)(a):
- an
offence against Subdivision A of Division 72 (international terrorist
activities using explosive or lethal devices); or
- a serious Part 5.3 offence; or
- an
offence against Part 5.5 (foreign incursions and recruitment), except an
offence against subsection 119.7(2) or (3) (publishing recruitment
advertisements); or
- an
offence against the repealed Crimes (Foreign Incursions and Recruitment) Act
1978, except an offence against
paragraph 9(1)(b) or (c) of that Act (publishing recruitment
advertisements);
- one of the preconditions outlined in proposed
section 105A.3A applies and
-
the person will be at least 18 years old when the sentence
for the conviction mentioned above ends.[87]
Preconditions
Broadly, an ESO or a CDO may made if the person is:
- serving a custodial sentence for a specified offence
- currently subject to a CDO or an interim detention order (IDO)
- serving a custodial sentence for another offence, and has been continuously
detained in custody since:
- being
convicted of a specified offence or
- a
CDO or IDO was in force in relation to the person
- serving a custodial sentence for breaching an ESO or interim
supervision order (ISO), if the court is satisfied that as a result of that
breach, the person poses an unacceptable risk of committing a serious
Part 5.3 offence or
-
the person previously served a custodial sentence for a specified
offence and is serving a custodial sentence for breaching a control order or
interim control order, if the court is satisfied that as a result of that
breach, the person poses an unacceptable risk of committing a serious
Part 5.3 offence.[88]
An ISO or ESO may also be made if the person is:
- currently subject to an ISO or ESO
- serving a custodial sentence for another offence, and has been
continuously detained in custody since being subject to an ISO or ESO or
-
the person previously served a custodial sentence for a specified
offence and before being released and before the commencement of the proposed
provisions:
- an
interim control order or the Minister’s consent to apply for an interim control
order was sought and
- the
interim control order, or a subsequent confirmed control order, is in force.[89]
This last precondition has been included as a transitional
measure to ensure that offenders released under control orders because they
were not suitable for a CDO but ESOs were not yet available, may be considered
for an ESO. The Explanatory Memorandum states:
All offenders who have been serving a sentence for a
specified terrorism offence in paragraph 105A.3(1)(a) have been eligible for a
CDO since Division 105A commenced on 7 June 2017. This measure provides
that those released before ESOs commence may be eligible for an ESO, which is a
less restrictive measure than the CDO for which they were already eligible. It
is limited to the cohort that is already subject to some obligations,
prohibitions and restrictions in the community under a control order. Offenders
subject to a control order cannot be automatically transitioned to an ESO but
will be subject to the usual court processes for making an ESO. A court asked
to make an ESO in relation to an offender subject to a control order will need
to be satisfied that the offender meets the relevant thresholds for an ESO (see
section 105A.7A) before it can make the ESO.[90]
Key thresholds for making an order
The amended thresholds for making a CDO and the proposed
thresholds for making an ESO are set out in Table 1 below.[91]
Table 1:
amended thresholds for making a CDO and the proposed thresholds for making an
ESO
|
CDO
|
ESO
|
|
Satisfied to a high degree of probability, on the
basis of admissible evidence, that the offender poses an unacceptable risk of
committing a serious Part 5.3 offence
|
Satisfied on the balance of probabilities, on the
basis of admissible evidence, that the offender poses an unacceptable risk of
committing a serious Part 5.3 offence
|
|
Satisfied that there is no other less restrictive
measure that would be effective in preventing the unacceptable risk
|
N/A
|
|
N/A
|
Satisfied on the balance of probabilities that each of
the conditions to be imposed on the offender is reasonably necessary,
and reasonably appropriate and adapted, for the purpose of protecting the
community from that unacceptable risk
|
Source:
Parliamentary Library
Unacceptable
risk of committing a serious Part 5.3 offence
Judging and punishing criminal guilt is an exclusively
judicial function. There are, therefore, constitutional limits to the capacity
of the executive to order involuntary detention of a citizen to prevent the
executive straying into the exercise of judicial functions. The ‘Lim
principle’, developed by the High Court in Chu Kheng Lim v Minister for
Immigration,[92] expresses
those limits.
…
the central principle derived from Lim,
as reflected in subsequent decisions of this Court, is that involuntary detention in custody by
the State is inherently penal or punitive in character, and thus cannot be
imposed other than as an incident of adjudging and punishing criminal guilt
unless one of the recognised exceptions applies; "[it] exists only as
an incident of the exclusively judicial function of adjudging and punishing
criminal guilt". As Lim recognised, there are some
exceptional cases where detention other than as punishment for a breach of the
law will be authorised, such as detention in cases of mental illness or
infectious disease or to secure attendance at trial for an offence.[93]
All of the High Court judges in Benbrika affirmed
the Lim principle, though there were differences over whether Division
105A came within the exceptions.
Gordon J acknowledged that the stated purpose of Division
105A is non-punitive and protective.[94]
However, in Division 105A that purpose is not expressed by directly requiring
the court to find, as Divisions 104 and 105 require, that there is a high
degree of probability of serious harm to persons or property. Instead, the risk
of harm to the community is expressed in Division 105A as a risk that the
offender will commit a serious Part 5.3 offence.[95]
Gordon J noted that serious Part 5.3 offence was
‘not limited to a “terrorist act” or providing support for or facilitating a
terrorist act’ but also included a wide range of preparatory conduct.[96]
She found:
Merely describing certain offences as “serious Part 5.3
offences” does not, without more detailed inquiry, identify the kind or extent
of harm to the community caused by the commission of those offences. Parliament
cannot draft itself into power by using labels.[97]
Gordon J therefore found that ‘the power of a Supreme
Court to make a CDO under section 105A.7 is not sufficiently tailored to
the stated purpose of Div 105A to be an exercise of Commonwealth judicial power’.[98]
Gageler J noted:
Prevention of harm
is a legitimate non-punitive objective, at least where the harm is grave and
specific. Mere prevention of commission of a criminal offence is not.[99]
[…]
By adapting the model of the legislation considered in Fardon,
the Commonwealth Parliament has extrapolated from continuing detention to
protect against a narrow category of inherently harmful criminal conduct to
continuing detention to prevent criminal conduct remote from the terrorist acts
against which protection is sought to be provided. The exceptional case of
detention in custody otherwise than as punishment for a past offence has in the
result become unexceptional in relation to offences having some (even very
remote) connection to a potential terrorist act.[100]
However, the majority of the court[101]
emphasised the exceptional nature of the threat posed to society by terrorism.[102]
They considered the nature of serious Part 5.3 offences[103]
and concluded there was a sufficient link to protecting the community from
harm:
As Spigelman CJ has observed of the Pt 5.3 regime:
"Preparatory acts are not
often made into criminal offences. The particular nature of terrorism has
resulted in a special, and in many ways unique, legislative regime. It was,
in my opinion, the clear intention of Parliament to create offences where an
offender has not decided precisely what he or she intends to do. A policy
judgment has been made that the prevention of terrorism requires criminal
responsibility to arise at an earlier stage than is usually the case for other
kinds of criminal conduct, e.g. well before an agreement has been reached
for a conspiracy charge."[104]
It is difficult to
envisage any circumstances in which a continuing detention order would be made
to prevent the risk of the commission of a serious Pt 5.3 offence where that
offence is of a kind that could not be seen to pose a real threat of harm to
the community. Even where the apprehended serious Pt 5.3 offence does not
involve as an element the inflicting, or having as an immediate purpose the
actual inflicting, of personal injury on a person or persons, the advancement
of terrorist ideology can readily be seen to create a milieu which fosters the
prospect that personal injury will be suffered by innocent members of the
community. A law directed against the implementation of such an ideology
(even by preparatory acts) does not lack the character of a law for the
protection of the community from harm simply because the law does not include
the immediate likelihood or purpose of inflicting personal injury as an element
of the offence.[105]
The
‘unacceptable risk’ threshold
The Law Council noted the ‘extraordinary and unusual
nature’ of ESOs in that they involve making predictions about a person’s future
risk, based on evidence of their past conduct, and further that, predicting a
person’s future conduct is an inherently difficult task for which there is no
settled and empirically validated risk assessment framework.[106]
… in the absence of direct evidence of a person’s preparation
or planning to engage in a terrorist act, the task of predicting a person’s
future risk will generally rely upon the drawing of inferences based on their
past conduct.[107]
The Law Council submitted that the threshold of
‘unacceptable risk’ is ‘vague, fluid and subjective, especially when applied in
the context of assessing a non-specific threat of re-offending at an
unspecified point in the future, rather than a specific and imminent threat’.
To counterbalance the risks of arbitrariness and error that arise from its
vagueness and subjectivity, the Law Council argued that the
criminal standard of proof and rules for drawing inferences should be adopted.[108]
While Gordon J in Benbrika noted that ‘Div 105A
does not identify the amount of risk of a terrorist offender committing a
serious Part 5.3 offence that would be acceptable’;[109]
the majority of the Court in Benbrika did not express concern that there
would be a problem for a judge making the assessment in the context of a CDO.[110]
The comments of the majority suggest that risk might be unacceptable where:
- there is a real threat of harm to the community
- the advancement of terrorist ideology could create an environment which fosters the prospect that personal injury will be suffered by innocent members of the community.[111]
The majority also noted that a court had power to address
the risk of harm to the community by the making of an order less intrusive on
personal liberty than a CDO.[112]
The standard of proof for issue of an ESO
The INSLM recommended that ‘high degree of probability’ be
the standard applied for an ESO.[113]
The Explanatory Memorandum states that the lower standard proposed in the Bill
‘reflects the less restrictive nature of ESOs as an alternative to CDOs’, and
is consistent with that which ordinarily applies in civil proceedings,
including control order proceedings.[114]
The Scrutiny Committee noted that proposed paragraph
105A.7A(1)(b) (at item 87 of Schedule 1 to the Bill) provides
that a court may make an ESO if the court is satisfied, on the balance of
probabilities, that the offender poses an unacceptable risk of committing a
serious Part 5.3 (terrorism) offence. By comparison a CDO can only be made if
the court is satisfied the offender poses the same risk but at the higher
standard of a high degree of probability.[115]
The Scrutiny Committee asked the Attorney-General to
comment on whether the provision could be amended to require the higher standard
of proof.[116]
The Attorney-General noted the INSLM’s recommendation and advised:
The civil standard of proof required for making of an ESO or
interim supervision order (ISO) is appropriately set to the 'balance of
probabilities' (which is the same standard of proof for making a control order)
to reflect the fact that these orders impose restrictions on an individual's
personal liberties that fall short of custody. As such, this standard of proof
is lower than the current standard of proof required for making a continuing
detention order (CDO), which is a high degree of probability. It is also
consistent with the standard of proof that ordinarily applies in other civil
proceedings…
Since the INSLM's 2017 Report the Government has further
developed the ESO scheme based on experience with the control order and CDO
schemes, and the experience of states which have post-sentence orders,
including New South Wales' scheme under the Terrorism (High Risk Offenders)
Act 2017 and Victoria's scheme under the Serious Offenders Act 2018. [117]
The reason for preferring
the lower standard of proof was not further explained.
AGD and DHA provided a table comparing the state and
territory extended supervision order schemes in Attachment B to Submission 5 to
the PJCIS Review.[118]
For the sake of comparison:[119]
-
New South Wales ESO legislation requires a court to be ‘satisfied
to a high degree of probability’ that an offender poses an unacceptable risk of
committing another serious offence/a serious terrorism offence if not kept
under supervision[120]
-
South Australian legislation requires a court to be ‘satisfied’
that the individual ‘poses an appreciable risk to the safety of the community
if not supervised under the order’ and[121]
-
Victorian legislation requires a court to be ‘satisfied’ that an
offender ‘poses, or after release from custody will pose, an unacceptable risk
of committing a serious sex offence or a serious violence offence or both’ if a
supervision order is not made and the offender is in the community.[122]
While the state laws
impose somewhat different thresholds with respect to unacceptable risk, none of
them apply a lower standard of satisfaction to that threshold for an ESO than
for a CDO.[123]
The state laws also each refer to the unacceptable risk being posed if the
offender is not placed under a CDO or ESO, unlike the amended threshold for
making a CDO and the proposed threshold for making an ESO under the Bill, which
do not state the context in which the risk arises.
The Law Council argued
that post sentence orders are closely connected with criminal process and
impose grave consequences on an individual made subject to them. It therefore recommended
that both ESOs and CDOs require the criminal standard of proof ‘beyond
reasonable doubt’ and criminal procedure rules for the drawing of adverse
inferences.[124]
The Law Council
recommended that the ESO regime be withdrawn if the standard of proof is not
increased, as a bare minimum, to the same high degree of probability standard
as CDOs.[125]
The AHRC[126]
and the Lawyers Alliance[127]
made similar recommendations.
In response to the
Attorney-General, the Scrutiny Committee noted the Attorney-General’s advice,
but reiterated its scrutiny concerns in relation to proposed paragraph
105A.7A(1)(b).[128]
The committee considers that the significant impact that an
extended supervision order may have on an individual's rights and liberties
makes this offence more appropriate for the standard of proof to be amended to
a 'high degree of probability'. Although the Attorney-General advised that an
extended supervision order falls short of custody, the committee's view is that
such an order is sufficiently restrictive of an individual's rights and
liberties that it warrants a higher standard of proof than the general civil
standard, balance of probabilities. The committee's concerns in this regard are
heightened by the fact that the assessment is made in relation to the risk of conduct
occurring as opposed to evidence of past conduct.
In addition, the committee considers that the views of the
INSLM remain relevant to extended supervision orders regardless of the scheme
having been further developed by the government since the report was published.
In light of the above information the committee draws its
scrutiny concerns to the attention of senators and leaves to the Senate as a
whole the appropriateness of proposed paragraph 105A.7A(1)(b) which provides
for the court to be satisfied on the balance of probabilities, as opposed to a
high degree of probability, that an offender poses an unacceptable risk of
committing a serious Part 5.3 offence before the court may make an extended
supervision order.[129]
Procedure for seeking and making an ESO
As with applications for CDOs, applications for ESOs may
be made by the AFP Minister (or a legal representative of the Minister) to a
Supreme Court of a state or territory. Applications must include certain
information and documents, including the proposed conditions, an explanation of
why each condition should be imposed, and facts the Minister is aware of
relating to why any of those conditions should not be imposed (except those
likely to be protected by public interest immunity).[130]
Assessments of an offender’s risk of committing a serious
Part 5.3 offence
As with CDOs, the court must consider whether to appoint
one or more relevant experts, and if it considers that doing so is likely to
materially assist the court in deciding whether to make an order, appoint one
or more relevant experts to assess and report on the risk of the offender
committing a serious Part 5.3 offence.[131]
The Bill will also include a new provision under which the
AFP Minister may direct that a terrorist offender in relation to whom a CDO or
ESO could be made or is in force be subject to an assessment of the risk of the
offender committing a serious Part 5.3 offence. The Minister may appoint a
relevant expert to assess and report on the offender for the purpose of
determining whether an application for an order, or for a variation or review
of an order, should be made.[132]
Such assessments are intended to provide the Minister with additional
information on which to base decisions about whether to make applications
relating to post-sentence orders, and for ESOs, provide information that may
help to identify the most suitable controls to mitigate the offender’s
individual risk.[133]
The Bill also proposes that surveillance device warrants,
computer access warrants and telecommunications interception warrants be
available for the purpose of determining whether to apply for a CDO or an ESO
against an individual who is detained in custody. See below under ‘New
surveillance powers: ESOs and CDOs’.
Determining applications
For CDO applications, in addition to the options of making
a CDO or dismissing the application, the court will now have the alternative of
making an ESO if the relevant threshold is met.[134]
If the court is not satisfied of the need for a CDO, it must request certain
information from the Minister and consider whether an ESO should be made.[135]
For ESO applications, the court may make an ESO or dismiss
the application.[136]
Section 105A.8 of the Criminal Code currently
sets out particular matters to which the court must have regard in deciding
whether to make a CDO. Proposed section 105A.6B (at item 82)
will replace that section and apply those same considerations to decisions
about CDOs and ESOs (with reports of assessments ordered by the Minister added
as something that must be considered).
As with CDOs, successive ESOs will be permitted and no
limit will be placed on how many successive orders may be made.[137]
How proceedings relating to ESOs will operate
Subdivision E of Division 105A of the Criminal
Code contains provisions relating to CDO proceedings. The Bill will amend
and expand the following provisions so that they also apply to ESO proceedings:[138]
- section 105A.13 (which applies, with some modifications, the
rules of evidence and procedure for civil proceedings)
- section 105A.14 (allowing parties to proceedings to adduce
evidence and make submissions)
- section 105A.15 (when documents are taken to have been given
to terrorist offenders who are in prison)
- 105A.16 (requiring courts to provide reasons for decisions)
- 105A.17 (providing a right of appeal) and
- 105A.18 (consequences for proceedings relating to an order for a
terrorist offender being released).[139]
Withholding application and supporting information from
terrorist offenders
Currently, when an application for a CDO is made by the
AFP Minister, the AFP Minister is required to provide the offender with a copy
of the application within two business days.[140]
However, the AFP Minister is not required to include national security
information excluded (or for which an exclusion is to be sought) under the National Security
Information (Criminal and Civil Proceedings) Act 2004 or by a court
order.[141]
Information covered by public interest immunity may also be withheld.[142]
These provisions will be repealed by item 72 of Schedule 1 to the
Bill.
Instead, proposed sections 105A.14A–14D, at item
120 of Schedule 1, set out information that must be provided to the
offender when the AFP Minister makes specified post-sentence order
applications, and detail circumstances when the information will not need to be
provided.
Proposed section 105A.14A applies when the AFP
Minister applies to the Supreme Court of a state or territory for:
- a
CDO or ESO
- an
interim CDO or ESO
- a
variation of an ESO or interim ESO or
- a
review of a CDO or ESO.
In such circumstances, the AFP Minister (or their legal
representative) is required to provide offenders and their legal
representatives with a copy of the application, and any additional materials
the court seeks from the AFP Minister (such as proposed conditions and the reasons
why they are needed) if the court is considering whether to make an ESO on an
application for a CDO. Documents must be provided within two business days;
however, the AFP Minister may exclude sensitive information from applications
or materials where the information is:
-
national security information (under proposed
section 105A.14B)
-
subject to a claim of public interest immunity (under proposed
section 105A.14C)[143]
or
- terrorism material (that
is, it advocates support for engaging in terrorist acts or violent extremism,
or joining or associating with a terrorist organisation; or relates to planning
or preparing for, or engaging in, terrorist acts or violent extremism) (under proposed
section 105A.14D).
Right to a fair hearing
The Scrutiny Committee noted that the current provisions for
COs which allow information to be withheld from the offender on national
security and public interest immunity grounds (as set out above) ‘clearly
undermine the fundamental principle of natural justice which includes a fair
hearing’, and that the proposed provisions suffer the same shortcoming: [144]
In judicial proceedings a fair hearing traditionally includes
not only the right of a person to contest any charges against them but also to
test any evidence upon which any allegations are based … it may not be
possible, in practice, to contest the case for the imposition of [an ESO] without
access to the evidence on which the case is built.
… it should be noted that judges routinely accept that the
courts are 'are ill-equipped to evaluate intelligence' and the possibility that
the executive may be wrong in their national security assessments. For this
reason, the fact that national security information is read by judges does not
mean that they will be well placed to draw a different balance between security
risk and fairness than is drawn by the executive.[145]
The Explanatory Memorandum states that revealing
information relevant to the ESO application may risk ‘jeopardising ongoing
counter-terrorism and national security investigations’ and have consequences
for the safety of human sources because it might disclose ‘sensitive sources,
methodologies and capabilities employed by security agencies’.[146]
The Scrutiny Committee acknowledged the rationale and commented:
The committee draws its scrutiny concerns to the attention of
senators and leaves to the Senate as a whole the appropriateness of:
-
proposed sections 105A.14B–105A.14D which provide that certain
information (such as national security information) may be excluded from the
copies of applications and materials provided to an offender and their legal
representative; and
-
the proposed amendments to the National Security Information
(Criminal and Civil Proceedings) Act 2004 set out in items 189–210 of
Schedule 1 which would allow the court to consider and rely on national
security information which is not disclosed to the offender or their legal
representative.
The committee considers that these provisions may negatively
impact an offender's ability to effectively contest an application for an
extended supervision order that is made against them.[147]
The Attorney-General acknowledged that the proposed
provisions were exceptional and stated they would only be used ‘… in
exceptional circumstances, where it is absolutely necessary to present highly
sensitive information to a court to support an application.’[148]
The Attorney-General also noted the involvement of the court:
… information the AFP Minister seeks to exclude under
proposed sections 105A.14B–105A.14D on either national security grounds, on the
basis of public interest immunity, or as terrorism material, will ultimately be
a matter for the court to determine.[149]
Where material is redacted, it cannot be relied on in the
proceedings:
The Attorney-General further advised that where sensitive
information is redacted then the redacted or summary version must be relied
upon in substantive proceedings, and no regard can be made to the original
sensitive materials.[150]
The Attorney-General also noted the proposed amendments to
the NSI Act, which would make a special advocate available to:
… represent the offender's interests during the parts of a
hearing from which the offender and their ordinary legal representative are
excluded when the court agrees to consider highly sensitive court-only
evidence. The special advocate is able to make arguments to the court querying
the need to withhold information from the offender, and can challenge the relevance,
reliability and weight accorded to that information. The appointment of a
special advocate ensures that the offender will have a reasonable opportunity
to present their case and challenge the arguments adduced by the other party.
The appointment of a special advocate is at the discretion of
the court, which is best placed to assess whether a special advocate is
necessary to assist the court process and safeguard the rights of the offender
in proceedings. In some instances, the court may consider itself sufficiently
equipped to safeguard the rights of the offender without the appointment of a
special advocate. It is appropriate that that decision be made on a case by
case basis by the court.[151]
The Scrutiny Committee acknowledged the Attorney-General’s
advice but maintained its scrutiny concerns. It considered that the further
information provided by the Attorney-General (that court‑only evidence
orders are considered exceptional measures and will only be used in exceptional
circumstances) should be included in guidance on the face of the Bill:[152]
The committee's preference would be for this approach to be
set out on the face of the bill to provide high level guidance as to when
court-only evidence orders may be used in applications for extended supervision
orders. The committee considers that this would provide an important safeguard
on the use of court-only evidence orders with the aim of ensuring that they are
only employed when absolutely necessary, given that the provisions undermine
the right to a fair hearing. The inclusion of high level guidance on the face
of the bill would allow the courts to have regard to the government's position
that such orders should only be used in exceptional circumstances where
absolutely necessary when making a decision.[153]
The Scrutiny Committee requested the Attorney-General's
further advice as to whether the Bill can be amended to provide high level
guidance that the court-only evidence provisions in items 189–210 of Schedule 1
may only be used in exceptional circumstances, where it is absolutely necessary
to present highly sensitive information to a court to support an application.[154]
The Attorney-General advised that amending the Bill would
not result in any change to the effect and operation of the provisions:[155]
I am of the view that it is not necessary to amend the Bill
to provide guidance of that kind. Doing so would not result in any change to
the effect and operation of the provisions under the National Security
Information (Criminal and Civil Proceedings) Act 2004, which already
stipulate the circumstances in which orders may be sought.
Wherever possible, proceedings for extended supervision
orders will be held in open court. The court-only evidence provisions would
only be used in circumstances where it is necessary to protect highly sensitive
information where disclosure may be likely to prejudice national security. It
would ultimately be a matter for the court to determine if, and how,
information is to be protected in proceedings, balancing the need to protect
highly sensitive national security information with the offender's right to a
fair hearing. The court may also appoint a special advocate to represent the
interests of the offender if the court makes an order that the offender and/or
their legal representatives are not entitled to be present at any part of a
hearing in the proceeding.[156]
The Scrutiny Committee noted the advice but remained of
the view that it would be appropriate to amend the Bill. If no amendment is
made, the Scrutiny Committee requested that an addendum to the Explanatory
Memorandum be tabled material to assist with future interpretation of the Bill.[157]
The Scrutiny Committee drew its scrutiny concerns to the attention of senators
and left to the Senate as a whole the appropriateness of the court-only
evidence provisions of the Bill.[158]
The proposed scheme for special advocates is discussed
further below under the heading ‘National security information and special
advocates’.
Interim supervision orders
If the Minister has applied for an ESO, the Minister may
apply for an interim supervision order (ISO) that will impose conditions on an
individual until the court has determined whether to make an ESO.[159]
An ISO may also be made by a court as an alternative to an interim detention
order.[160]
The court may make an ISO
if satisfied of particular matters, including that there are reasonable grounds
for considering that:
-
an ESO will be made and
- each of the conditions to be imposed are reasonably necessary and
reasonably appropriate and adapted for the purpose of protecting the community
from the unacceptable risk of the individual committing a serious Part 5.3
offence.[161]
An ISO may be made for a period of up to 28 days that
the court is satisfied is reasonably necessary to determine the application for
a CDO or ESO.[162]
More than one ISO may be made in relation to an offender, but the total period
of all ISOs must not exceed three months unless the court is satisfied that
there are exceptional circumstances.[163]
Conditions that may be imposed under an ESO or ISO
The court will be permitted to impose any conditions
that it is satisfied on the balance of probabilities are reasonably necessary
and reasonably appropriate and adapted for the purpose of protecting the
community from an unacceptable risk of the offender committing a serious
Part 5.3 offence.[164]
The Bill will set out non-exhaustive lists of general conditions and conditions
relating to monitoring and enforcement that a court may impose, as outlined
below.
This approach departs from the INSLM’s recommendation that
the scheme allow for the imposition of the same obligations, prohibitions and
restrictions as control orders under ESOs.[165]
However, it is consistent with state ESO laws that apply to serious or high
risk offenders, under which guidance is provided on particular conditions or
types of conditions that may be imposed, but the court retains discretion to
impose any other conditions it considers appropriate/sees fit.[166]
General conditions
Proposed subsection 105A.7B(3) of the Criminal
Code sets out a non-exhaustive list of general conditions that a court may
impose on an individual under an ESO or an ISO. The conditions are more
extensive than those that may be imposed under a control order.[167]
They include things such as prohibitions on being present at certain places or
types of place, restrictions on where the individual resides and on any travel,
prohibitions on communicating with certain individuals or specified classes of
individuals, restrictions on access to telecommunications (including use of the
internet), restrictions on undertaking particular work or engaging in study,
and requirements to participate in treatment or rehabilitation or undertake
psychological or psychiatric assessment or counselling.
A person’s lawyer may be included as a specified
individual or fall within a specified class of individuals with whom an
individual must not communicate.[168]
Subsection 105A.7B(7) makes explicit that where this has occurred,
the person may communicate or associate with any other lawyer who is not so
specified.
Conditions relating to monitoring and enforcement
Proposed subsection 105A.7B(5) sets out a
non-exhaustive list of conditions that a court may impose on an individual
under an ESO or an ISO to facilitate the monitoring of the person’s compliance
with, and the enforcement of, the order. This will include, for example, a
requirement to be subject to electronic monitoring, to carry and be contactable
on a mobile phone, to report periodically to specified persons, to allow a
police officer to enter specified premises and search them and their residence,
and to facilitate access (including by providing passwords) to their electronic
equipment.[169]
Specified authorities
Proposed section 105A.7B refers in several
instances to specified authorities. For example, a person may be prevented from
communicating with individuals determined by a specified authority and may be
required to seek the permission of a specified authority before engaging in
training or education. Specified authority will be defined to
mean a person, or person in a class of persons where:
- the person or class is any of the following:
- a police officer, or class of police officer;
- if the requirement or condition relates to electronic monitoring—a person, or class of person, who is involved in electronically monitoring the subject;
- for any requirement or condition in the order—any other person, or class of person; and
- the Court making the order is satisfied that the person or class is appropriate in relation to the requirement or condition; and
- the person or class is specified in the order.[170]
Temporary exemptions from certain conditions
The court may specify conditions from which an individual
may apply for a temporary exemption. For such conditions, the individual may
apply in writing to a specified authority for an exemption and the specified
authority must grant or refuse the exemption, or grant the exemption subject to
any reasonable directions specified in writing.[171]
As the PJCHR noted, the Bill does not impose a timeframe
in which a specified authority must respond to an application, provide guidance
on factors to be taken into consideration, or require a specified authority to
provide reasons for its decision.[172]
Variations
The Minister or the individual on whom an ESO or ISO has
been imposed (or a legal representative of either) will be able to apply to a
court to have the ESO or ISO varied.[173]
Variations by consent
Variations that do not involve adding any conditions may
be made where both parties agree to the variation or removal of conditions if
the court is satisfied that the variation is appropriate in all the
circumstances.[174]
Other variations
The Minister may apply to vary or add conditions, and the
individual may apply to vary or remove conditions. The Minister, one or more
AFP members, the offender and one or more representatives of the offender may
adduce additional evidence or make additional submissions to the court in
relation to the application.[175]
As with an application for an ESO, the court may appoint
one or more relevant experts to assess and report on the risk of the offender
committing a serious Part 5.3 offence, to inform a decision on whether to grant
a variation.[176]
While this is an appropriate inclusion, it creates a situation where a relevant
expert may be appointed to assess whether an ISO should be varied, but not
whether one should be made in the first place.[177]
For applications to add or vary conditions, the
court may make the variation if satisfied on the balance of probabilities that
each of the conditions being added or varied is reasonably necessary, and
reasonably appropriate and adapted, for the purpose of protecting the community
from the unacceptable risk of the offender committing a serious Part 5.3
offence. For applications to remove conditions, the court may make the
variation if it is not satisfied on the balance of probabilities that
those conditions are reasonably necessary, and reasonably appropriate and
adapted, for the purpose of protecting the community from that unacceptable
risk.[178]
Reviews of CDOs and ESOs
Subdivision D of Division 105A of the Criminal
Code:
- requires the Minster to apply periodically for reviews of each
CDO
- allows the Minister or an individual subject to a CDO, or a legal
representative of either, to apply for a review of a CDO at any time and
-
sets out the requirements and processes for such reviews.
The Bill will expand these provisions to also apply to
review of ESOs.[179]
Reviews of CDOs and ESOs will be required every
12 months, or if the order is suspended when a review is due because the
offender is detained in custody, on or before the day that detention ends.[180]
Upon review, the court may affirm a CDO or ESO (with or
without variations) or revoke it.[181]
If the court does not affirm a CDO, it must first consider making an ESO before
revoking the order.[182]
Offences
Three offences will apply to individuals subject to ESOs
or ISOs:
-
engaging in conduct that contravenes a condition of the ESO or
ISO
- engaging in conduct that contravenes a direction specified under
an exemption to a condition of the ESO or ISO and
- where the ESO or ISO requires the person to wear a monitoring
device, engaging in conduct that results in interference with, or disruption or
loss of, function of the monitoring device or any related monitoring equipment.[183]
Each of these offences carries a maximum penalty of five
years imprisonment, the same penalty that applies to similar offences that
apply to the subjects of control orders.[184]
The first two offences listed above will be added to the
definition of serious offence in the TIA Act, meaning that
interception warrants will be available to investigate those offences where the
relevant threshold for issue is met.[185]
An offence will also apply to any other person who engages
in conduct that results in interference with, or disruption or loss of,
function of a monitoring device required to be worn by someone under an ESO or
ISO or any related monitoring equipment. This offence will apply where the other
person knows or is reckless as to whether an ESO or ISO is in place that
requires the wearing of a monitoring device.[186]
This offence is similar to an offence that applies under the control order
scheme and carries the same maximum penalty of five years imprisonment.[187]
Reporting about ESOs and ISOs
Section 105A.22 requires the Minister to cause annual
reports to be prepared about the operation of Division 105A and tabled in
Parliament. The Bill will amend that section to require annual reports to
include statistical information about ESOs and ISOs as well as CDOs and interim
detention orders.[188]
SCHEDULE 1 PART 2 and PART 3: AMENDMENTS TO OTHER
ACTS
Expansion of monitoring and surveillance powers for
individuals subject to ESOs
Law enforcement officers may currently make use of entry,
search and seizure, surveillance device, computer access and telecommunications
interception powers in relation to individuals subject to control orders. These
powers, normally used to investigate offences, are available to law enforcement
in relation to an individual subject to a CO for the purposes of monitoring
compliance with the CO, protecting the public from a terrorist act and
preventing certain terrorism-related activity.[189]
Consistent with a recommendation of the INSLM, the Bill
will amend the Crimes Act, SD Act and TIA Act to extend
the monitoring powers that apply in relation to individuals subject to control
orders, to individuals subject to ESOs and ISOs.[190]
The powers will be available for the purposes of monitoring an individual’s
compliance with an ESO or ISO, and of protecting the community from the
unacceptable risk of a terrorist offender committing a serious Part 5.3
offence.
The Bill will also amend the SD Act and the TIA
Act to allow surveillance device, computer access and telecommunications
interception powers to be used for the purpose of determining whether to apply
for an ESO or a CDO. Those changes are outlined separately below under the
heading ‘New surveillance powers: warrants to obtain evidence for ESO and CDO
applications’.
Scrutiny
Committee
The Scrutiny Committee noted that it generally has
significant scrutiny concerns regarding Bills which allow for the extensive use
of significant monitoring and surveillance powers. It noted:
… the committee is not satisfied that appropriate safeguards
exist in the existing legislation to protect the personal rights and liberties
of persons subject to an extended supervision order. For example, the committee
notes that warrants authorising the use of many of the monitoring and
surveillance powers may be issued by members of the Administrative Appeals
Tribunal and the committee has a long-standing scrutiny view that the power to
issue warrants or orders relating to the use of intrusive powers should only be
conferred on judicial officers.
The committee draws its scrutiny concerns to the attention
of senators and leaves to the Senate as a whole the appropriateness of
extending significant monitoring and surveillance powers under a number of Acts
to persons subject to an extended supervision order, noting that these powers
may trespass on a person's rights and liberties.[191]
Law Council
The Law Council was concerned that both the existing broad
range of monitoring powers available to determine whether a breach of a CO has
occurred and the proposed expansion of monitoring powers to ESOs was likely to
be a disproportionate response under human rights law. It recommended the repeal of existing monitoring powers,
and the removal of the proposed expansions of those powers from the Bill. That is, it recommended the Bill
should be amended to omit the proposed expansions of monitoring powers in Parts
2 and 3 of Schedule 1.[192]
Overview of
proposed provisions
Entry, search and seizure
Part IAAB of the Crimes Act provides a scheme
under which police may exercise certain powers in relation to an individual
subject to a control order, or a premises to which the person has a prescribed
connection (for example, the premises is the person’s residence,
workplace, business or educational institution), to monitor compliance with the
order or for certain protective and preventative purposes. The Bill will amend
the Crimes Act to allow the same powers to be exercised in relation to
individuals subject to an ESO or ISO, for the purposes of monitoring compliance
with an ESO or ISO or of protecting the community from the unacceptable risk of
a terrorist offender committing a serious Part 5.3 offence.[193]
Broadly, the powers that will be available are:
- entry to premises and exercise of monitoring powers,
including search, either by consent or under a monitoring warrant[194]
- conducting an ordinary or frisk search of a person subject to an
ESO or ISO, either by consent or under a monitoring warrant[195]
- 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[196]
-
powers to ask questions and request or require documents
following entry to premises[197]
-
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 and[198]
-
the ability to use and share things seized, documents produced,
and answers provided for certain purposes.[199]
More extensive powers will be available under a warrant
than by consent. A monitoring warrant may be issued by a magistrate in relation
to an individual subject to an ISO or ESO or premises to which that person has
a prescribed connection if the magistrate considers it is reasonably necessary
for the purpose of monitoring compliance with an ESO or ISO or of protecting
the community from the unacceptable risk of a terrorist offender committing a
serious Part 5.3 offence.[200]
The Bill proposes applying certain safeguards,
record-keeping and reporting requirements that currently apply to the use of
those powers in relation to control orders to the use of powers in relation to
ESOs and ISOs:
- Items 168–169
of Schedule 1 propose amending section 3ZZNH of the Crimes Act
to ensure a person subject to a monitoring warrant in relation to an ESO or ISO
is entitled to be present during a search.
- Items 184–186
of Schedule 1 propose amending section 3ZZOD of the Crimes Act
to require that a revoked, void or varied monitoring warrant in relation to an
ESO or ISO is not executed.
- Section
3ZQU of the Crimes Act limits the purposes for which things and documents
may be shared. Items 187–188 of Schedule 1 propose
expanding the application of section 3ZQU to material obtained under section
3ZZKE of the Crimes Act that relates to a Part 5.3 object or
a Part 5.3 supervisory order (that is, a CDO, ESO or ISO).[201]
Surveillance devices
Surveillance device warrants authorise the installation,
use and maintenance of a surveillance device to covertly monitor activities,
conversations or movements connected to certain premises and/or persons.[202]
Surveillance devices may also be used without a warrant in limited circumstances.[203]
As noted above, surveillance devices may be used in
relation to an individual subject to a control order for the purposes of
monitoring compliance with the control order, protecting the public from a
terrorist act and preventing certain terrorism-related activity.[204]
The Bill will amend the SD Act to also allow
surveillance devices to be used to obtain information relating to individuals
subject to an ESO or ISO, for the purposes of monitoring compliance with an ESO
or ISO or of protecting the community from the unacceptable risk of the person
subject to the order committing a serious Part 5.3 offence.
An eligible Judge or nominated AAT
member will be permitted to issue a surveillance device warrant to
obtain information relating to an individual subject to an ESO or ISO if
satisfied that:
- an order is in force and
-
there are reasonable grounds for a law enforcement officer’s
suspicion that the use of the device would be likely to substantially assist in
protecting the community from the unacceptable risk of a terrorist offender
committing a serious Part 5.3 offence or determining whether the order has
been or is being complied with.[205]
In determining whether to issue a warrant, consideration
must be given to certain matters, including the privacy impacts, the existence
of alternative means of obtaining the information and the likely value of the
information for the purpose for which it is sought.[206]
Use of
surveillance devices without a warrant
Federal law enforcement officers have broad powers under
subsections 37(1) and 38(1) of the SD Act to use surveillance
powers without a warrant. State and territory police are given more limited
powers. The Bill proposes broadening the powers of state and territory police
to include use of optical, listening and tracking devices without a warrant for
the purpose of protecting the community from the unacceptable risk of a
terrorist offender committing a serious Part 5.3 offence or determining
whether the order has been or is being complied with.[207]
Consistent with existing powers, use of tracking devices will require internal
authorisation by a senior officer.[208]
The Bill will apply similar safeguards, record-keeping and
reporting requirements to the use of surveillance devices (and treatment of
information obtained) in relation to ESOs and ISOs as currently apply to the
use of those powers in relation to control orders.[209]
Computer access
Computer access warrants authorise the doing of specified
things (such as entering premises and using a computer or other electronic
equipment) in relation to a relevant target computer to obtain
access to data.[210]
Like surveillance device warrants, computer access powers are executed
covertly.
As noted above, computer access warrants may be issued in
relation to an individual subject to a control order for the purposes of
monitoring compliance with the control order, protecting the public from a
terrorist act and preventing certain terrorism-related activity.[211]
The Bill will amend the SD Act to also allow
warrants to be issued to obtain information relating to individuals subject to
an ESO or ISO, for the purposes of monitoring compliance with an ESO or ISO or
of protecting the community from the unacceptable risk of the person subject to
the order committing a serious Part 5.3 offence.
An eligible Judge or nominated AAT
member will be permitted to issue a computer access warrant to obtain
access to data held in a target computer to obtain information
relating to an individual subject to an ESO or ISO if satisfied that:
-
an order is in force and
-
there are reasonable grounds for a law enforcement officer’s
suspicion that the data access would be likely to substantially assist in
protecting the community from the unacceptable risk of a terrorist offender
committing a serious Part 5.3 offence or determining whether the order has
been or is being complied with.[212]
In determining whether to issue a warrant, consideration
must be given to certain matters, including the privacy impacts, the existence
of alternative means of obtaining the information and the likely value of the
information for the purpose for which it is sought.[213]
The Bill will apply similar safeguards, record-keeping and
reporting requirements to the execution of computer warrants (and treatment of
information obtained) in relation to ESOs and ISOs as currently apply to the
use of those powers in relation to control orders.[214]
Telecommunications interception
As noted above, telecommunications interception warrants
may be issued in relation to an individual subject to a control order for the
purposes of monitoring compliance with the control order, protecting the public
from a terrorist act and preventing certain terrorism-related activity.[215]
The Bill will amend the TIA Act to also allow
warrants to be issued to obtain information relating to individuals subject to
an ESO or ISO, for the purposes of monitoring compliance with an ESO or ISO or
of protecting the community from the unacceptable risk of a terrorist offender
committing a serious Part 5.3 offence.
The key thresholds for an eligible Judge or nominated
AAT member to issue a telecommunications service warrant for purposes
connected to an ESO or ISO will be satisfaction that:
-
there are reasonable grounds for suspecting that a particular
person is using, or likely to use, the service
-
an ESO or ISO is in force in relation to the particular person,
or another person that the particular person is likely to communicate with
using the service and
-
information likely to be obtained by intercepting communications
made to or from the service would be likely to substantially assist in
connection with protecting the community from the unacceptable risk of a
terrorist offender committing a serious Part 5.3 offence or determining
whether the order has been or is being complied with.[216]
The key thresholds for an eligible Judge or nominated
AAT member to issue a named person warrant for purposes connected to an
ESO or ISO will be satisfaction that:
-
there are reasonable grounds for suspecting that a particular
person is using or likely to use more than one telecommunications service
- an ESO or ISO is in force in relation to the particular person
-
information likely to be obtained by intercepting certain
communications would be likely to substantially assist in connection with
protecting the community from the unacceptable risk of a terrorist offender
committing a serious Part 5.3 offence or determining whether the order has
been or is being complied with.[217]
In determining whether to issue either type of warrant,
consideration must be given to certain matters, including the privacy impacts,
the existence of alternative means of obtaining the information, the likely
value of the information for the purpose for which it is sought and the
possibility that the person subject to an ESO or ISO has committed or will
commit a serious Part 5.3 offence.[218]
The Bill will apply similar safeguards, record-keeping and
reporting requirements to the execution of interception warrants (and treatment
of information obtained) in relation to ESOs and ISOs as currently apply to the
use of those powers in relation to control orders.[219]
Scope of some monitoring powers
The monitoring powers may be used for the purposes of
achieving a Part 5.3 object. For ESO-related powers under
the SD Act, this will mean the protection of the community from the
unacceptable risk of the person [subject to the order] committing a
serious Part 5.3 offence.[220]
However, for ESO-related powers under the Crimes Act and the TIA Act,
this will mean protection of the community from the unacceptable risk of a
terrorist offender committing a serious Part 5.3 offence.[221]
New surveillance powers: warrants to obtain evidence for ESO
and CDO applications
The Bill will also allow surveillance device warrants,
computer access warrants and telecommunications interception warrants to be
issued for the purpose of determining whether to apply for an ESO or CDO in
relation to a person who is detained in custody. These additional powers are
proposed as a means of obtaining contemporary evidence, in admissible form, on
which to base an assessment of the level of risk an offender presents.[222]
Threshold for issue
An eligible Judge or nominated AAT
member will be permitted to issue a surveillance device or computer
access warrant under the SD Act if satisfied that:
-
a person is a terrorist offender in relation to whom an application
for a post-sentence order could be made
-
the person is detained in custody
-
there are reasonable grounds for a law enforcement officer’s
suspicion that there is an appreciable risk of the person committing a
serious Part 5.3 offence
- consideration is being given, will be given, or is likely to be
given by the AFP Minister as to whether to apply for a post-sentence order in
relation to the person and
- there are reasonable grounds for a law enforcement officer’s
suspicion that:
- the
use of a surveillance device to obtain information or
- access
to data held in a computer
would be likely to assist in determining whether to
apply for the post-sentence order.[223]
In determining whether to issue either type of warrant,
consideration must be given to the extent to which the privacy of any person is
likely to be affected, the existence of alternative means of obtaining the
information, the likely value of the information in determining whether to
apply for an order, and any previous applications for equivalent warrants.[224]
The key thresholds for an eligible Judge or nominated
AAT member to issue an interception warrant under the TIA Act
will be satisfaction that:
- there are reasonable grounds for suspecting that a particular
person is:
- using
or is likely to use the service (for a telecommunications service warrant) or
- using
or is likely to use more than one telecommunications service (for a named
person warrant)
- the person is a terrorist offender in relation to whom an
application for a post-sentence order could be made
-
the person is detained in custody
-
there are reasonable grounds to suspect that that there is an appreciable
risk of the person committing a serious Part 5.3 offence
- consideration is being given, will be given, or is likely to be
given by the AFP Minister as to whether to apply for a post-sentence order in
relation to the person and
-
information that would be likely to be obtained through the
proposed interception would be likely to assist in determining whether
to apply for the post-sentence order.[225]
Unlike other types of telecommunications warrants,
warrants for this new purpose will not be able to be issued in relation to a
service likely to be used by someone other than the offender to communicate
with the offender (that is, so-called ‘b-party’ warrants will not be
available).[226]
In determining whether to issue either type of interception
warrant, consideration must be given to certain matters, including the privacy
impacts, the existence of alternative means of obtaining the information, and the
likely value of the information.[227]
Use of information obtained under SD Act and TIA Act
for state laws
The Bill will amend the SD Act and the TIA Act
to allow information lawfully obtained under those Acts to be used or
communicated for purposes relating to a post-sentence detention law
or a post-sentence supervision law.[228]
These are state laws that provide for post-sentence detention or supervision of
terrorist, serious or high risk offenders listed in the definitions or
prescribed by regulations.[229]
National security information and special advocates
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’.[230]
The Bill will expand special provisions in the NSI Act that apply to
control order proceedings to also apply to ESO and ISO proceedings.
Where the main provisions of the NSI Act are
invoked for civil proceedings (which include those relating to control orders,
CDOs and ESOs), the court must hold a closed hearing to determine whether
information potentially prejudicial to national security may be disclosed (and
if so, in what form), or whether to allow a witness to be called.[231]
It must then make an order about the disclosure or non-disclosure of
information, or whether a party must not or may call a person as a witness.[232]
Those orders do not permit evidence withheld from the affected party or their
legal representative to be adduced in the substantive civil proceeding.[233]
The NSI Act was amended in 2016 to provide for
special orders in control order proceedings that allow the court to consider
information in those proceedings that is not disclosed to the individual
subject to the order or their representative for national security reasons.[234]
The Explanatory Memorandum for the relevant Bill explained the need for such
orders as follows:
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.
The speed of counter-terrorism investigations is increasing. 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.[235]
In order to mitigate the impact of those orders on
procedural fairness, a special advocates scheme was introduced alongside the
new orders.[236]
The scheme provides for court-appointed, security-cleared special advocates to
represent the interests of a person subject to a control order in parts of a
control order proceeding from which they and their legal representative have
been excluded under section 38I (closed hearings) or 38J (special court
orders).[237]
The Bill will amend the NSI Act to extend the
provisions for special court orders and special advocates to ESO and ISO
proceedings.
Special court orders
Section 38J of the NSI Act provides for three
types of orders that allow the court to consider in control order proceedings
information that is not disclosed to the person subject to a control order or
their legal representative:
- where the information is in the form of a document, the controlee
and their legal representative may be provided with a redacted or summarised
form of the national security information. However, the Court may consider all
of the information contained in the original source document, even where that
information has not been provided in the redacted or summarised form
(subsection 38J(2))
- irrespective of the form of the information, the controlee and
their legal representative may not be provided with the national security
information, however the Court may consider all of that information
(subsection 38J(3)), or
- a witness may be called and the information provided by the
witness need not be disclosed to the controlee or their legal representative,
however the Court may consider all of the information provided by the witness
(subsection 38J(4)).[238]
The Bill will amend section 38J to make the same
orders available for ESO and ISO proceedings.[239]
It will allow sensitive information to be adduced by the AFP Minister and
considered by the court, but withheld from the person to whom an application or
order relates and their legal representative, in proceedings relating to:
- applications to make or vary an ESO or ISO, and to review an ESO,
in relation to a terrorist offender and
- applications for a CDO in relation to a terrorist offender, only
where the court has decided not to make a CDO and is considering whether to
make an ESO.[240]
The court may make an order only after considering certain
matters, including whether the order would have a substantial adverse effect on
the proceeding, and only if satisfied that the person to whom the proceedings
relate has been given sufficient information about the allegations on which the
application was based to enable effective instructions to be given about those
allegations.[241]
Special advocates
The function of a special advocate is to represent the
interests of a party by making submissions to the court, adducing evidence and
cross-examining witnesses in parts of proceedings or hearings from which the party
and their legal representative are excluded, and by making written submissions
to the court.[242]
The court may appoint a person as a special advocate if the person meets the
requirements specified in the regulations and the court has given the parties
to the proceeding and the Attorney-General the opportunity to make submissions
about who should be appointed. Unless satisfied that certain circumstances
apply, the court must appoint a person requested by the party to be represented
or their legal representative if that person meets the requirements specified
in the regulations.[243]
The Bill will amend provisions in Subdivision C of
Division 3 of Part 3A of the NSI Act to extend the special
advocates scheme to ESO and ISO proceedings, where the court has made an order
that results in the person to whom an application or order relates and their
legal representative being excluded from part of a hearing or proceeding.[244]
The INSLM recommended that the Government consider making
the special advocates scheme available for applications under
Division 105A.[245]
The Bill does not propose to extend the special advocates scheme to
applications for CDOs. However, nor does it propose to enable special court
orders to be made that would allow the court to rely on sensitive information
not disclosed to the subject of a CDO or CDO application (except where a court
has decided not to make a CDO and is instead considering making an ESO).
Exclusion of decisions from judicial review
The Bill will amend Schedule 1 to the Administrative
Decisions (Judicial Review) Act 1977 (ADJR Act) to add decisions
of the AFP Minister under Division 105A of the Criminal Code to the
list of decisions to which the ADJR Act does not apply.[246]
The decisions the Minister may make under Division 105A include directing
a terrorist offender to undergo expert assessment, and applying for a
post-sentence order.
The Lawyers Alliance submitted that due to the impact on
basic rights that an ESO would have, there should be an option for judicial
review under the ADJR Act.[247]
SCHEDULE 2: INTERNATIONAL PRODUCTION ORDERS
The Telecommunications
Legislation Amendment (International Production Orders) Bill 2020 (the IPO
Bill) will add Schedule 1 to the TIA Act to introduce a regime for
Australian agencies to obtain international production orders (IPOs) that
require designated communications providers overseas to intercept
communications and provide access to stored communications and
telecommunications data. The IPO scheme is intended to provide a faster
alternative to the formal mutual legal assistance process for obtaining access
to certain information and data held by overseas providers (and for overseas
authorities to access information and data held by Australian providers).[248]
The IPO Bill will allow IPOs for interception, stored
communications and telecommunications data to be sought for the purpose of
monitoring compliance with a control order or protecting the public from a
terrorist act and preventing certain terrorism-related activity.[249]
Schedule 2 of the Bill contains amendments that
will only commence if the IPO Bill is enacted. They will amend Schedule 1
to the TIA Act so that IPOs for interception, stored communications and telecommunications
data can also be sought for the purpose of monitoring compliance with an ESO or
ISO or protecting the community from the unacceptable risk of a terrorist
offender committing a serious Part 5.3 offence.
Appendix A: Consolidated list of
Law Council recommendations for amendments to the Bill
Recommendation 1—criminal standard of proof and rules for
drawing inferences
Preferred option
-
Proposed paragraphs 105A.7(1)(b) and 105A.7A(1)(b) and (c) (items
82 and 87 of Schedule 1 to the Bill) should be amended to provide that:
- the
criminal standard of proof applies to decisions to issue ESOs and CDOs; and
- the
criminal rules for drawing inferences apply to any findings of a person’s
future risk for the purpose of issuing an ESO or CDO.
Alternative (non-preferred) option
- As a minimum, paragraphs 105A.7A(1)(b) and (c) (item 87 of
Schedule 1 to the Bill) should be amended to provide that the standard of proof
for an ESO is ‘a high degree of probability’ (the standard for CDOs).
Recommendation 2—withdrawal of ESO regime if standard of
proof not increased
-
If there is no appetite to increase the standard of proof for
ESOs, to at least the standard recommended by the third INSLM (‘a high degree
of probability’) then:
- the
ESO regime should not proceed; and
- Division
104 of the Criminal Code should be amended to confer jurisdiction on
State and Territory Supreme Courts to issue COs.
Recommendation 3—cumulative assessment of all ESO
conditions
- Proposed paragraph 105A.7A(1)(c) (item 87 of Schedule 1 to the
Bill) should be amended to require the issuing court to assess, and be
satisfied of, the necessity and proportionality of:
- each
individual condition proposed to be included in an ESO; and
- the
combined effect of all of the proposed conditions of the ESO.
Recommendation 4—limitations on the range of ESO
conditions
- Proposed section 105A.7B (item 87 of Schedule 1) should be
amended so that:
- the
conditions prescribed in subsections 105A.7B(3) and (5) are exhaustive of the
conditions that may be imposed under ESOs; and
- the
conditions available for an ESO should be limited to those available for a CO
under subsection 104.5(5). In particular:
- there
should be no power to impose an ESO condition requiring a person to participate
in counselling, education, psychiatric or psychological assessment unless
the person has consented to the inclusion of that condition (equivalent to
existing subsection 104.5(6) in relation to COs); and
- the
power to impose conditions prohibiting a person’s association with others
should be subject to a limitation on associations with close family members for
matters of family or domestic concern (equivalent to the existing subsection
104.5(4) in relation to COs).
Recommendation 5—safeguards for the temporary variation
power
- Proposed section 105.7C (item 87 of Schedule 1 to the Bill)
should be amended to include the safeguards at paragraph [51] of this
submission.
Recommendation 6—removal of Ministerial power to appoint
‘relevant experts’
-
Proposed section 105A.18D (item 134 of Schedule 1) should be
omitted from the Bill.
-
If an offender voluntarily participates in a ‘pre-application’
risk assessment conducted by a person nominated by the Minister:
- the
court which hears a subsequent application for a CDO or ESO against that person
should not be subject to an express statutory obligation to consider a
report of that person, as part of its assessment of the offender’s future risk; and
- instead,
the admission and treatment of such a report in CDO or ESO proceedings should
be left to the general discretion of the court to admit relevant evidence and
determine its weight.
Recommendation 7—legal assistance funding for all
post-sentence orders
- Item 122 of Schedule 1 to the Bill should be omitted and
substituted with amendments to section 105A.15A of the Criminal Code,
which empower the court to make orders for legal assistance in proceedings for
all post-sentence orders (that is, both CDOs and ESOs).
-
The Bill should further amend one or both of Divisions 105A and
104 of the Criminal Code to include a similar power to that in section
105A.15A, enabling a court to make orders for legal assistance in prosecutions
for the offence of breaching an ESO or CO condition, if those offences are to
be the basis for making a person eligible for an ESO or CDO, under proposed
subsections 105A.3A(4) and (5).
- There should be a dedicated Commonwealth legal assistance funding
stream for all post-sentence orders, in addition to COs.
Recommendation 8—offences for breaching ESO conditions
-
Proposed sections 105A.18A and 105.18B (item 133 of Schedule 1 to
the Bill) should be amended to establish the ‘two-tiered’ breach offence regime
outlined at paragraph [84] of this submission.
Recommendation 9—express provisions dealing with
interaction of regimes
- The Bill should be amended to include a statutory scheme to
manage interactions between post-sentence orders issued under Commonwealth,
State and Territory laws (as in force from time-to- time). This should include:
- a
prohibition on a person being subject to concurrent post-sentence orders under
Commonwealth and State or Territory legislation; and
- issuing
criteria that specifically require a court to consider the cumulative impacts
on the person of being subject to multiple, consecutive post-sentence orders
under Commonwealth and State or Territory legislation.
Recommendation 10—limitations & safeguards in relation
to ‘post-sentence’ COs
Preferred option
- Division 104 of the Criminal Code should be amended to
remove the ability to obtain a CO, if a State or Territory Supreme Court has refused an ESO application made on
the same, or substantially similar, grounds.
Alternative (non-preferred)
option
- Alternatively, there should be a condition which prevents a CO application
from being made in such cases, unless the issuing court for the CO is satisfied
that there are exceptional circumstances.
Recommendation 11—amendments to the ESO regime to align
with Law Council recommendations on the CDO regime
- The Bill should be amended to incorporate the measures at
paragraph [102] of this submission. These measures would implement, in
relation to ESOs, the Law Council’s recommended amendments to CDOs (made as
part of the Committee’s current review of the CDO regime).
Recommendation 12—ESO regime must only apply prospectively
- The Bill should be amended to omit proposed subsection 105A.3A(8)
of the Criminal Code (inserted by item 59 of Schedule 1 to the Bill).
Recommendation 13—removal of monitoring powers for ESOs
- The Bill should be amended to omit the proposed expansions of
monitoring powers in Parts 2 and 3 of Schedule 1.
Recommendation 14—expansion of IPO regime to ESO
monitoring powers
- If there is an intention to retain monitoring powers for ESOs,
and to expand the IPO regime to cover these powers:
- the
IPO Bill should be further amended to implement the Law Council’s recommended
amendments to strengthen safeguards
for that regime (as set out in its separate submissions to the Committee’s
inquiry into the IPO Bill); and
- the
Government should provide advice as to whether it has informed the US
Government of the proposed expansion of the IPO regime, for the purpose of the
US determining whether a potential bilateral agreement with Australia would
satisfy the human rights conditions of the US CLOUD Act (18 USC 121
§2523(b)(1)).
Recommendation 15—administration of the special advocates
regime
- The Government should establish an independent office to
administer the special advocates regime, including the appointment of special
advocates and the provision of administrative support to special advocates.
-
The office should be independent to all law enforcement and
security agencies and government departments.
- Consideration could be given to conferring this function on legal
aid commissions, contingent on adequate additional resourcing.
-
Resourcing for this function should not be drawn from existing
legal assistance budgets, or the budgets of the federal courts, the
Administrative Appeals Tribunal, or oversight bodies.
Recommendation 16—statutory judicial review rights
regarding Division 105A
Preferred option
-
The Bill should be amended to omit item 153 of Schedule 1 so that
Ministerial decision-making under Division 105A is subject to ADJR Act
review. In particular, this should include Ministerial decisions to:
- apply
for an order under proposed section 105A.5;
and
- appoint
a person as a ‘relevant expert’ and to direct that person to conduct a mandatory risk assessment of a prisoner under proposed section 105A.18D.
Alternative option
- The Bill should be amended to:
- omit
item 153 of Schedule 1; and
- substitute it with amendments to section 9A of the ADJR Act,
to bring administrative decisions under Division 105A of the Criminal
Code within the definition of a ‘related criminal justice process decision’
in subsection 9A(4) of the ADJR Act.
Recommendation 17—ASIO’s ESO-related advice should be
subject to Part IV
- In the absence of a cogent justification, the Bill should be
amended to omit the proposed amendments to section 35 of the ASIO Act in
item 154 of Schedule 1.
- That is, ASIO should be required to furnish a security assessment if:
- it
gives security advice about ESO conditions or the exercise of monitoring powers
in relation to a person subject to an ESO;
and
- that
advice meets the current definition of a ‘security assessment’ in existing section
35 of the ASIO Act,
including the current
definition of the component term ‘prescribed administrative action’.
Recommendation 18—exclusion of offences for breach of CO
or ESO conditions
- Proposed subsections 105A.3A(4) and (5) (item 59 of Schedule 1)
should be omitted from the Bill.
Recommendation 19—power to withhold or limit access to
‘terrorism material’
- The Bill should be amended to omit proposed section 105A.14D
(item 120 of Schedule 1 to the Bill).
Recommendation 20—additional conditions for monitoring
devices
Preferred option
- The Bill should be amended to omit item 16 of Schedule 1. Any
proposed expansion of CO conditions should be examined separately in the
Committee’s current statutory review of the CO regime.
Alternative (non-preferred) option
- Proposed subsection 104.5A(1) (item 16 of Schedule 1 to the Bill)
should be amended so that the court has discretion about whether to impose the
requirements in paragraphs (b) and (c).
- The obligation in proposed subparagraph 104.5A(1)(c)(i) to allow
a specified authority to enter the controlee’s residence should be limited to
entry for the purpose of maintaining a monitoring device (not ‘any purpose
relating to the electronic monitoring of the person’).
Recommendation 21—omission of obligations to carry &
answer specified phone
Preferred option
- The Bill should be amended to omit proposed paragraph
104.5(3)(da) (item 16 of Schedule 1 to the Bill).
Alternative (non-preferred) option
-
If the condition in proposed paragraph 104.5(3)(da) is to be
retained, the Bill should be amended as follows:
- the
condition in proposed paragraph 104.5(3)(da) should only be available if the
court also imposes a condition under new paragraph 104.5(3)(d), which requires
the person to be subject to electronic monitoring; and
- proposed
paragraph 104.5(3A)(b) should be omitted from the Bill, so that the power to
give directions under proposed paragraphs 104.5(3)(da)(iii) is limited to the
purpose of giving effect to the obligations in subparagraphs 104.5(3)(da)(i)
and (ii) to carry a specified mobile phone, and to answer or return calls
promptly.
Appendix B: Consolidated list of AHRC
recommendations for amendments to the Bill
Recommendation 1
The Commission recommends that the Bill not be passed in
its current form.
Recommendation 2
The Commission recommends that the existing control order
regime be repealed and replaced by an extended supervision order regime in the
form recommended by the third INSLM.
Recommendation 3
If Recommendation 2 is not accepted, the Commission
recommends that the existing control order regime be amended to focus only on
orders for preventative purposes, as recommended by the PJCIS in 2016, leaving
the extended supervision order regime to apply to post-sentence orders. This
should be done by:
- repealing ss 104.2(2)(b) and (d) of the Criminal Code
- repealing ss 104.4(1)(c)(ii)–(v) and (vii) of the Criminal Code
- making any other necessary consequential amendments.
Recommendation 4
The Commission recommends that the offence in s 119.2 of
the Criminal Code (entering, or remaining in, declared areas) be excluded from
the definition of ‘terrorist offender’ in proposed s105A.3(1)(a) of the Criminal
Code, with the effect that a person convicted for such an offence is not
liable for a post-sentence order.
Recommendation 5
The Commission recommends that the threshold for making an
extended supervision order in proposed s 105A.7A(1)(b) of the Criminal Code
be amended to require that the Court be ‘satisfied to a high degree of
probability, on the basis of admissible evidence, that the offender poses an
unacceptable risk of committing a serious Part 5.3 offence’.
Recommendation 6
The Commission recommends that the proposed definition of
‘specified authority’ in s 100.1(1) of the Criminal Code be limited to
police officers and public authorities responsible for corrections.
Recommendation 7
The Commission recommends that any condition imposed by an
extended supervision order or interim supervision order that requires a person
to participate in treatment, rehabilitative or intervention programs or
activities, psychological or psychiatric assessment or counselling, interviews
or other assessments, be subject to a further condition that a person is only
required to participate if they agree, at the time of the relevant activity, to
so participate.
Recommendation 8
The Commission recommends that the Bill be amended to
prevent the imposition of a condition in an extended supervision order or an
interim supervision order that would permit or amount to home detention.
Recommendation 9
The Commission recommends that the conditions requiring a
person to consent to certain monitoring and enforcement activity in proposed ss
104.5A(1)(c)(i), (2)(a) and (5); 105A.7B(5)(g)–(j); and 105A.7E(1)(c)(i),
(2)(a) and (5) of the Criminal Code be removed from the Bill on the
basis that they are not necessary, given the existing and proposed new
monitoring warrants.
Recommendation 10
The Commission recommends that the Bill be amended to set
out the parameters for decision making by a specified authority in relation to
an application for an exemption under s 105A.7C of the Criminal Code.
This should include:
- the considerations that the specified authority must take into
account in making its decision
-
the timeframe for a decision by the specified authority
-
a requirement that the specified authority provide written
reasons for its decision
-
clear review rights for an applicant.
Recommendation 11
The Commission recommends that proposed ss 105A.7A(2),
105A.9A(5), 105A.9C(2) and 105A.12A(5) of the Criminal Code be amended
to ensure that a Court hearing an application for the making or variation of an
extended supervision order or interim supervision order, or conducting a review
of an extended supervision order, is required to take into account the impact
of the proposed conditions on the person’s circumstances, including their
financial and personal circumstances, for the purpose of determining whether
the condition is reasonably necessary and reasonably appropriate and adapted.
Recommendation 12
The Commission recommends that proposed s 105A.18D of the Criminal
Code, dealing with the power of the AFP Minister to direct an offender to
be assessed by an expert chosen by the Minister, be removed from the Bill.
Recommendation 13
If Recommendation 12 is not accepted, the Commission
recommends that:
- proposed s 105A.18D of the Criminal Code be amended to
confirm that the offender is not required to attend an assessment with an
expert chosen by the AFP Minister; and
-
proposed s 105A.6B of the Criminal Code be amended to
remove the requirement for the Court
to take into account the level of the offender’s participation in any
assessment under s105A.18D.
Recommendation 14
The Commission recommends that proposed s 105A.6(5A) of
the Criminal Code, which would weaken the use immunity provided to
individuals required to attend an assessment with a court appointed expert, be
removed from the Bill.
Recommendation 15
The Commission recommends that if s 105A.18D of the Criminal
Code, dealing with compulsory attendance at an assessment by an expert
chosen by the AFP Minister, is retained in the Bill, then subsection (5),
dealing with the use immunity provided to individuals required to attend an
assessment, be removed from the Bill and replaced with a use immunity in the
same terms as the current s 105A.6(5A).
Recommendation 16
The Commission recommends that the Bill be amended to
remove the ability of the AFP Minister to apply for a variation of an interim
supervision order to add conditions prior to the hearing of an
application for a continuing detention order or an extended supervision order.
Recommendation 17
The Commission recommends that the agency responsible for
monitoring compliance with control orders and ESOs should be given discretion
to allow them to respond appropriately to different kinds of breaches,
including by warning the offender, or deciding not to take action, in relation
to minor breaches.
Recommendation 18
The Commission recommends that the agency responsible for
monitoring compliance with control orders and ESOs should publish a policy
providing guidance as to how it will exercise the discretion referred to in
Recommendation 17.
Recommendation 19
The Commission recommends that the offences of
contravening a control order (s 104.27 of the Criminal Code),
contravening an ESO (proposed s 105A.18A), and interfering with a monitoring
device that a person is required to wear pursuant to a control order or an ESO (proposed ss104.27A and 105A.18B)
be subject to a defence of reasonable excuse.
Recommendation 20
The Commission recommends that the maximum penalty for the
offences of contravening a control order (s 104.27 of the Criminal Code),
contravening an ESO (proposed s 105A.18A), and interfering with a monitoring
device that a person is required to wear pursuant to a control order or an ESO
(proposed ss 104.27A and 105A.18B) be three years imprisonment.
Recommendation 21
The Commission recommends that the PJCIS seek advice from
the Attorney-General’s Department about how to ensure, whether by amendment to
the Bill or negotiation through COAG, that a person cannot be made subject to
both the Commonwealth PSO regime and a State or Territory PSO regime in
relation to the same underlying conduct.
Recommendation 22
The Commission recommends that ss 104.4(3) and 104.24(3)
of the Criminal Code, which provide that the Court need not include in a
control order an obligation, prohibition or restriction that was sought by the
AFP if the Court is not satisfied that that it is necessary or proportionate,
not be repealed.
Recommendation 23
The Commission recommends that the provisions in the Bill
to amend the Telecommunications (Interception and Access) Act 1979 (Cth)
and the Surveillance Devices Act 2004 (Cth) to create a new class of
warrants for post-sentence order applications be removed.
Recommendation 24
If Recommendation 23 is not accepted, the Commission
recommends that the provisions proposed to be inserted into ss 46 and 46(A) of
the Telecommunications (Interception and Access) Act 1979 (Cth), dealing
with warrants sought for post-sentence order applications, be amended to
require the issuing authority to be satisfied that:
- there are reasonable grounds to suspect that there is an unacceptable
risk of the person committing a serious Part 5.3 offence (see proposed ss
46(7)(f) and 46A(2C)(f)); and
- information that would be likely to be obtained would be likely
to substantially assist in determining whether to apply for the
post-sentence order (see proposed ss 46(7)(h) and 46A(2C)(h))
and that the issuing authority must have regard to:
- whether intercepting communications under the warrant would be the method that is likely to have the
least interference with any person’s privacy (see proposed ss 46(8) and
46A(2D)).
Recommendation 25
If Recommendation 23 is not accepted, the Commission
recommends that the provisions proposed to be inserted into ss 14 and 27A of
the Surveillance Devices Act 2004 (Cth), dealing with warrants sought
for post-sentence order applications, be amended to require the law enforcement
officer applying for the warrant to be satisfied that:
- there are reasonable grounds to suspect that there is an unacceptable
risk of the person committing a serious Part 5.3 offence (see proposed ss
14(3BA)(c) and 27A(5A)(c)); and
- the use of a surveillance device or access to the data would be
likely to substantially assist in determining whether to apply for the
post-sentence order (see proposed ss 14(3BA)(e) and 27A(5A)(e))
and, in addition to the matters in subsection 16(2) or 27C(2),
the issuing authority must have regard to:
- whether the use of the surveillance device or access to the data
in accordance with the warrant would be the means of obtaining the evidence or
information sought to be obtained, that is likely to have the least
interference with any person’s privacy.
Appendix C: Consolidated table comparing Law Council and AHRC
recommendations for amendments to the Bill
|
Provision
|
Law Council recommendation
|
AHRC recommendation
|
|
Withdrawal of ESO regime
if standard of proof not increased
|
If there is no appetite to
increase the standard of proof for ESOs, to at least the standard recommended
by the third INSLM (‘a high degree of probability’) then:
the ESO regime should not
proceed; and
Division 104 of the Criminal
Code should be amended to confer jurisdiction on State and Territory
Supreme Courts to issue COs.
|
The Commission recommends
that the Bill not be passed in its current form.
|
|
Definition of ‘terrorist
offender’
Proposed s 105A.3(1)(a) of
the Criminal Code
|
|
The Commission recommends
that the offence in s 119.2 of the Criminal Code (entering, or
remaining in, declared areas) be excluded from the definition of ‘terrorist
offender’ in proposed s 105A.3(1)(a) of the Criminal Code, with
the effect that a person convicted for such an offence is not liable for a
post-sentence order.
|
|
Definition of ‘specified
authority’
Section 100.1(1) of the Criminal
Code
|
|
The Commission recommends
that the proposed definition of ‘specified authority’ in s 100.1(1) of the Criminal
Code be limited to police officers and public authorities responsible for
corrections.
|
|
Criminal standard of
proof and rules for drawing inferences
Proposed paragraphs
105A.7(1)(b) and 105A.7A(1)(b) and (c) (items 82 and 87 of Schedule 1 to the
Bill)
|
Preferred option
Proposed paragraphs
105A.7(1)(b) and 105A.7A(1)(b) and (c) (items 82 and 87 of Schedule 1 to the
Bill) should be amended to provide that:
the criminal standard of proof
applies to decisions to issue ESOs and CDOs; and
the criminal rules for drawing
inferences apply to any findings of a person’s future risk for the purpose of
issuing an ESO or CDO.
Alternative
(non-preferred) option
As a minimum, paragraphs
105A.7A(1)(b) and (c) (item 87 of Schedule 1 to the Bill) should be amended
to provide that the standard of proof for an ESO is ‘a high degree of
probability’ (the standard for CDOs).
|
The Commission recommends
that the threshold for making an extended supervision order in proposed s
105A.7A(1)(b) of the Criminal Code be amended to require that the
Court be ‘satisfied to a high degree of probability, on the basis of
admissible evidence, that the offender poses an unacceptable risk of
committing a serious Part 5.3 offence’.
|
|
Cumulative assessment of
all ESO conditions
Proposed paragraph
105A.7A(1)(c) (item 87 of Schedule 1 to the Bill)
|
Proposed paragraph
105A.7A(1)(c) (item 87 of Schedule 1 to the Bill) should be amended to
require the issuing court to assess, and be satisfied of, the necessity and
proportionality of:
each individual condition
proposed to be included in an ESO; and
the combined effect of all of
the proposed conditions of the ESO.
|
|
|
Limitations on the range
of ESO conditions – counselling and home detention
Proposed section 105A.7B
(item 87 of Schedule 1)
|
Proposed section 105A.7B
(item 87 of Schedule 1) should be amended so that:
the conditions prescribed in
subsections 105A.7B(3) and (5) are exhaustive of the conditions that may be
imposed under ESOs; and
the conditions available for an
ESO should be limited to those available for a CO under subsection 104.5(5).
In particular:
there should be no power to
impose an ESO condition requiring a person to participate in counselling,
education, psychiatric or psychological assessment unless the person has
consented to the inclusion of that condition (equivalent to existing
subsection 104.5(6) in relation to COs); and
the power to impose conditions
prohibiting a person’s association with others should be subject to a limitation
on associations with close family members for matters of family or domestic
concern (equivalent to the existing subsection 104.5(4) in relation to COs).
|
The Commission recommends
that any condition imposed by an extended supervision order or interim
supervision order that requires a person to participate in treatment,
rehabilitative or intervention programs or activities, psychological or
psychiatric assessment or counselling, interviews or other assessments, be
subject to a further condition that a person is only required to participate
if they agree, at the time of the relevant activity, to so participate.
The Commission recommends
that the Bill be amended to prevent the imposition of a condition in an
extended supervision order or an interim supervision order that would permit
or amount to home detention.
The Commission recommends
that proposed ss 105A.7A(2), 105A.9A(5), 105A.9C(2) and 105A.12A(5) of the Criminal
Code be amended to ensure that a Court hearing an application for the
making or variation of an extended supervision order or interim supervision
order, or conducting a review of an extended supervision order, is required
to take into account the impact of the proposed conditions on the person’s
circumstances, including their financial and personal circumstances, for the
purpose of determining whether the condition is reasonably necessary and
reasonably appropriate and adapted.
|
|
Safeguards for the
temporary variation power
Proposed section 105.7C
(item 87 of Schedule 1 to the Bill)
|
Proposed section 105.7C
(item 87 of Schedule 1 to the Bill) should be amended to include the
safeguards at paragraph [51] of the Law Council’s submission.
|
The Commission recommends
that the Bill be amended to set out the parameters for decision making by a
specified authority in relation to an application for an exemption under s
105A.7C of the Criminal Code. This should include:
the considerations that the
specified authority must take into account in making its decision
the timeframe for a decision by
the specified authority
a requirement that the specified
authority provide written reasons for its decision
clear review rights for an
applicant.
|
|
Consent to certain
monitoring and enforcement activity
Proposed ss
104.5A(1)(c)(i), (2)(a) and (5); 105A.7B(5)(g)–(j); and 105A.7E(1)(c)(i),
(2)(a) and (5) of the Criminal Code
|
|
The Commission recommends
that the conditions requiring a person to consent to certain monitoring and
enforcement activity in proposed ss 104.5A(1)(c)(i), (2)(a) and (5);
105A.7B(5)(g)–(j); and 105A.7E(1)(c)(i), (2)(a) and (5) of the Criminal
Code be removed from the Bill on the basis that they are not necessary,
given the existing and proposed new monitoring warrants.
|
|
Use immunity
Proposed s 105A.6(5A) of
the Criminal Code
|
|
The Commission recommends
that proposed s 105A.6(5A) of the Criminal Code, which would weaken
the use immunity provided to individuals required to attend an assessment
with a court appointed expert, be removed from the Bill.
The Commission recommends
that if s 105A.18D of the Criminal Code, dealing with compulsory
attendance at an assessment by an expert chosen by the AFP Minister, is
retained in the Bill, then sub-section (5), dealing with the use immunity
provided to individuals required to attend an assessment, be removed from the
Bill and replaced with a use immunity in the same terms as the current s
105A.6(5A).
|
|
Ministerial power to
appoint ‘relevant experts’
Proposed section 105A.18D
(item 134 of Schedule 1)
|
Proposed section 105A.18D
(item 134 of Schedule 1) should be omitted from the Bill.
If an offender voluntarily
participates in a ‘pre-application’ risk assessment conducted by a person
nominated by the Minister:
the court which hears a
subsequent application for a CDO or ESO against that person should not be
subject to an express statutory obligation to consider a report of that
person, as part of its assessment of the offender’s future risk; and
instead, the admission and
treatment of such a report in CDO or ESO proceedings should be left to the
general discretion of the court to admit relevant evidence and determine its
weight.
|
The Commission recommends
that proposed s 105A.18D of the Criminal Code, dealing with the power
of the AFP Minister to direct an offender to be assessed by an expert chosen
by the Minister, be removed from the Bill.
If that recommendation is
not accepted, the Commission recommends that:
proposed s 105A.18D of the Criminal
Code be amended to confirm that the offender is not required to attend an
assessment with an expert chosen by the AFP Minister; and
proposed s 105A.6B of the Criminal
Code be amended to remove the
requirement for the Court to take into account the level of the offender’s
participation in any assessment under s 105A.18D.
|
|
Ministerial power to
apply for a variation of an ISO
|
|
The Commission recommends
that the Bill be amended to remove the ability of the AFP Minister to apply
for a variation of an interim supervision order to add conditions
prior to the hearing of an application for a continuing detention order or an
extended supervision order.
|
|
Legal assistance funding
for all post-sentence orders
Item 122 of Schedule 1
|
Item 122 of Schedule 1 to
the Bill should be omitted and substituted with amendments to section
105A.15A of the Criminal Code, which empower the court to make orders
for legal assistance in proceedings for all post-sentence orders (that is,
both CDOs and ESOs).
The Bill should further
amend one or both of Divisions 105A and 104 of the Criminal Code to
include a similar power to that in section 105A.15A, enabling a court to make
orders for legal assistance in prosecutions for the offence of breaching an
ESO or CO condition, if those offences are to be the basis for making a
person eligible for an ESO or CDO, under proposed subsections 105A.3A(4) and
(5).
There should be a dedicated
Commonwealth legal assistance funding stream for all post-sentence orders, in
addition to COs.
|
|
|
Express provisions
dealing with interaction of Commonwealth and state and territory regimes
|
The Bill should be amended
to include a statutory scheme to manage interactions between post-sentence
orders issued under Commonwealth, State and Territory laws (as in force from
time-to- time). This should include:
a prohibition on a person being
subject to concurrent post- sentence orders under Commonwealth and State or
Territory legislation; and
issuing criteria that
specifically require a court to consider the cumulative impacts on the person
of being subject to multiple, consecutive post-sentence orders under
Commonwealth and State or Territory legislation.
|
The Commission recommends
that the PJCIS seek advice from the Attorney-General’s Department about how
to ensure, whether by amendment to the Bill or negotiation through COAG, that
a person cannot be made subject to both the Commonwealth PSO regime and a
State or Territory PSO regime in relation to the same underlying conduct.
|
|
Limitations & safeguards
in relation to ‘post-sentence’ COs
Division 104 of the Criminal
Code
|
Preferred option
Division 104 of the Criminal
Code should be amended to remove the ability to obtain a CO, if a State
or Territory Supreme Court has
refused an ESO application made on the same, or substantially similar,
grounds.
Alternative
(non-preferred) option
Alternatively, there should
be a condition which prevents a CO application from being made in such cases,
unless the issuing court for the CO is satisfied that there are exceptional
circumstances.
|
The Commission recommends
that the existing CO regime be repealed and replaced by an ESO regime in the
form recommended by the third INSLM.
If that recommendation is
not accepted, the Commission recommends that the existing the CO regime be
amended to focus only on orders for preventative purposes, as recommended by
the PJCIS in 2016, leaving the extended supervision order regime to apply to
post-sentence orders. This should be done by:
repealing ss 104.2(2)(b) and (d)
of the Criminal Code
repealing ss 104.4(1)(c)(ii)–(v)
and (vii) of the Criminal Code
making any other necessary
consequential amendments.
The Commission recommends
that ss 104.4(3) and 104.24(3) of the Criminal Code, which provide
that the Court need not include in a CO an obligation, prohibition or
restriction that was sought by the AFP if the Court is not satisfied that
that it is necessary or proportionate, not be repealed.
|
|
Amendments to the ESO
regime to align with Law Council recommendations on the CDO regime
|
The Bill should be amended
to incorporate the measures at paragraph [102] of the Law Council submission. These measures
would implement, in relation to ESOs, the Law Council’s recommended
amendments to CDOs (made as part of the Committee’s current review of the CDO
regime).
|
|
|
ESO regime must only
apply prospectively
Subsection 105A.3A(8) of
the Criminal Code (inserted by item 59 of Schedule 1 to the Bill).
|
The Bill should be amended
to omit proposed subsection 105A.3A(8) of the Criminal Code (inserted
by item 59 of Schedule 1 to the Bill).
|
|
|
Monitoring powers for
ESOs
Parts 2 and 3 of Schedule 1
|
The Bill should be amended
to omit the proposed expansions of monitoring powers in Parts 2 and 3 of
Schedule 1.
|
The Commission recommends
that the agency responsible for monitoring compliance with control orders and
ESOs should be given discretion to allow them to respond appropriately to
different kinds of breaches, including by warning the offender, or deciding
not to take action, in relation to minor breaches.
The Commission recommends
that the agency responsible for monitoring compliance with control orders and
ESOs should publish a policy providing guidance as to how it will exercise
that discretion.
|
|
Expansion of IPO regime
to ESO monitoring powers
|
If there is an intention to
retain monitoring powers for ESOs, and to expand the IPO regime to cover
these powers:
the IPO Bill should be further
amended to implement the Law Council’s recommended amendments to strengthen
safeguards.
|
|
|
Administration of the
special advocates regime
|
The Government should
establish an independent office to administer the special advocates regime,
including the appointment of special advocates and the provision of
administrative support to special advocates.
The office should be
independent to all law enforcement and security agencies and government
departments.
Consideration could be
given to conferring this function on legal aid commissions, contingent on
adequate additional resourcing.
Resourcing for this
function should not be drawn from existing legal assistance budgets, or the
budgets of the federal courts, the Administrative Appeals Tribunal, or
oversight bodies.
|
|
|
Statutory judicial
review rights regarding Division 105A
Item 153 of Schedule 1
|
Preferred option
The Bill should be amended
to omit item 153 of Schedule 1 so that Ministerial decision-making under
Division 105A is subject to ADJR Act review. In particular, this
should include Ministerial decisions to:
apply for an order under
proposed section 105A.5; and
appoint a person as a ‘relevant
expert’ and to direct that person to conduct a mandatory risk assessment of a
prisoner under proposed section 105A.18D.
Alternative
option
The Bill should be amended
to:
omit item 153 of Schedule 1; and
substitute it with amendments to
section 9A of the ADJR Act, to bring administrative decisions under Division
105A of the Criminal Code within the definition of a ‘related criminal
justice process decision’ in subsection 9A(4) of the ADJR Act.
|
|
|
ASIO’s ESO-related
advice should be subject to Part IV
Section 35 of the ASIO
Act in item 154 of Schedule 1
|
In the absence of a cogent
justification, the Bill should be amended to omit the proposed amendments to
section 35 of the ASIO Act in item 154 of Schedule 1.
That is, ASIO should be
required to furnish a security assessment if:
it gives security advice about
ESO conditions or the exercise of monitoring powers in relation to a person
subject to an ESO; and
that advice meets the current definition
of a ‘security assessment’ in existing section 35 of the ASIO Act,
including the current definition of the component term ‘prescribed
administrative action’.
|
|
|
Offences for breach of
CO or ESO conditions
Proposed subsections
105A.3A(4) and (5) (item 59 of Schedule 1).
Proposed sections 105A.18A
and 105.18B (item 133 of Schedule 1 to the Bill)
|
Proposed subsections
105A.3A(4) and (5) (item 59 of Schedule 1) should be omitted from the Bill.
Proposed sections 105A.18A
and 105.18B (item 133 of Schedule 1 to the Bill) should be amended to
establish the ‘two-tiered’ breach offence regime outlined at paragraph [84] of the
Law Council submission.
|
The Commission recommends
that the offences of contravening a CO (s 104.27 of the Criminal Code),
contravening an ESO (proposed s 105A.18A), and interfering with a monitoring
device that a person is required to wear pursuant to a CO or an ESO (proposed ss 104.27A and 105A.18B) be
subject to a defence of reasonable excuse.
The Commission recommends
that the maximum penalty for the offences of contravening a CO (s 104.27 of
the Criminal Code), contravening an ESO (proposed s 105A.18A), and
interfering with a monitoring device that a person is required to wear
pursuant to a CO or an ESO (proposed ss 104.27A and 105A.18B) be three years imprisonment.
|
|
Power to withhold or
limit access to ‘terrorism material’
Proposed section 105A.14D
(item 120 of Schedule 1 to the Bill).
|
The Bill should be amended
to omit proposed section 105A.14D (item 120 of Schedule 1 to the Bill).
|
|
|
Additional conditions
for monitoring devices
Item 16 of Schedule 1.
|
Preferred option
The Bill should be amended
to omit item 16 of Schedule 1. Any proposed expansion of CO conditions should
be examined separately in the Committee’s current statutory review of the CO
regime.
Alternative
(non-preferred) option
Proposed subsection
104.5A(1) (item 16 of Schedule 1 to the Bill) should be amended so that the
court has discretion about whether to impose the requirements in paragraphs
(b) and (c).
The obligation in proposed
subparagraph 104.5A(1)(c)(i) to allow a specified authority to enter the
controlee’s residence should be limited to entry for the purpose of
maintaining a monitoring device (not ‘any purpose relating to the electronic
monitoring of the person’).
|
|
|
Omission of obligations
to carry & answer specified phone
Proposed paragraph
104.5(3)(da) (item 16 of Schedule 1 to the Bill)
|
Preferred option
The Bill should be amended
to omit proposed paragraph 104.5(3)(da) (item 16 of Schedule 1 to the Bill).
Alternative
(non-preferred) option
If the condition in
proposed paragraph 104.5(3)(da) is to be retained, the Bill should be amended
as follows:
the condition in proposed
paragraph 104.5(3)(da) should only be available if the court also imposes a
condition under new paragraph 104.5(3)(d), which requires the person to be
subject to electronic monitoring; and
proposed paragraph 104.5(3A)(b)
should be omitted from the Bill, so that the power to give directions under
proposed paragraphs 104.5(3)(da)(iii) is limited to the purpose of giving
effect to the obligations in subparagraphs 104.5(3)(da)(i) and (ii) to carry
a specified mobile phone, and to answer or return calls promptly.
|
|
|
TIA Act and SD Act warrants
|
|
The Commission recommends
that the provisions in the Bill to amend the TIA Act and the SD Act
to create a new class of warrants for post-sentence order applications be
removed.
If the removal
recommendation is not accepted, the Commission recommends that the provisions
proposed to be inserted into ss 46 and 46(A) of TIA Act, dealing with
warrants sought for post-sentence order applications, be amended to require
the issuing authority to be satisfied that:
there are reasonable grounds to
suspect that there is an unacceptable risk of the person committing a
serious Part 5.3 offence (see proposed ss 46(7)(f) and 46A(2C)(f)); and
information that would be likely
to be obtained would be likely to substantially assist in determining
whether to apply for the post-sentence order (see proposed ss 46(7)(h) and
46A(2C)(h))
and that the issuing
authority must have regard to:
whether intercepting
communications under the warrant would be
the method that is likely to have the least interference with any person’s
privacy (see proposed ss 46(8) and 46A(2D)).
If the removal
recommendation is not accepted, the Commission recommends that the provisions
proposed to be inserted into ss 14 and 27A of the SD Act, dealing with
warrants sought for post-sentence order applications, be amended to require
the law enforcement officer applying for the warrant to be satisfied that:
there are reasonable grounds to
suspect that there is an unacceptable risk of the person committing a
serious Part 5.3 offence (see proposed ss 14(3BA)(c) and 27A(5A)(c)); and
the use of a surveillance device
or access to the data would be likely to substantially assist in
determining whether to apply for the post-sentence order (see proposed ss
14(3BA)(e) and 27A(5A)(e))
and, in addition to the matters
in subsection 16(2) or 27C(2), the issuing authority must have regard to:
whether the use of the
surveillance device or access to the data in accordance with the warrant
would be the means of obtaining the evidence or information sought to be
obtained, that is likely to have the least interference with any person’s privacy.
|
[1]. Under proposed subsection 105A.3(1)
of the Criminal Code, a post-sentence order (including
an ESO) may be made in relation to a person (referred to as a terrorist
offender) if:
- the person has been
convicted of an offence listed in paragraph 105A.3(1)(a):
-
an offence against Subdivision A of Division 72
(international terrorist activities using explosive or lethal devices); or
- a serious Part 5.3 offence (which
is an offence against Part 5.3 of the Criminal Code (terrorism), the
maximum penalty for which is seven or more years imprisonment); or
-
an offence against Part 5.5 (foreign incursions
and recruitment), except an offence against subsection 119.7(2) or (3)
(publishing recruitment advertisements); or
-
an offence against the repealed Crimes
(Foreign Incursions and Recruitment) Act 1978,
except an offence against paragraph 9(1)(b) or (c) of that Act (publishing
recruitment advertisements);
- one of the
preconditions outlined in proposed section 105A.3A applies and
- the person will be at
least 18 years old when the sentence for the conviction mentioned above ends.
[2]. J Renwick, Review of
Divisions 104 and 105 of the Criminal Code (including the interoperability of
divisions 104 and 105A): control orders and preventative detention orders,
Independent National Security Legislation Monitor, Canberra, September 2017.
[3].
Ibid., pp. 67–77.
[4]. Attorney-General’s
Department and the Department of Home Affairs (AGD and DHA), Submission
to the PJCIS Review of the Counter-Terrorism Legislation Amendment (High Risk
Terrorist Offenders) Bill 2020, [Submission no. 5, Attachment 4], October 2020.
The table is best printed on A3 paper.
[5]. M
Biddington, Criminal
Code Amendment (High Risk Terrorist Offenders) Bill 2016, Bills digest,
48, 2016–17, Parliamentary Library, Canberra, 29 November 2016.
[6]. G
Brandis, ‘Second
reading speech: Criminal Code Amendment (High Risk Terrorist Offenders) Bill
2016’, Senate, Debates, 15 September 2016, pp. 1029–36; Renwick,
Review of
Divisions 104 and 105 of the Criminal Code, op. cit., p. 68.
[7]. C
Porter, ‘Second
reading speech: Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020’, House of Representatives, Debates,
3 September 2020, p. 6477. Counter-terrorism legislation passed in
the 44th and 45th Parliaments is listed in C Barker, National
security legislation in the 44th and 45th Parliaments: a quick guide,
Research paper series, 2018–19, Parliamentary Library, Canberra, 28 June
2019. The CDO scheme is set out in Division 105A of the Criminal Code Act
1995 (Criminal Code).
[8]. Biddington,
Criminal
Code Amendment (High Risk Terrorist Offenders) Bill 2016,
op. cit., pp. 6–7; Porter, ‘Second
reading speech: Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020’, op. cit.; R Kershaw (AFP Commissioner) in
Senate Legal and Constitutional Affairs Legislation Committee, Official
committee Hansard, 2 March 2020, p. 33; M Burgess
(Director-General of Security) in Senate Legal and Constitutional Affairs
Legislation Committee, Official
committee Hansard, 2 March 2020, p. 83; P Maley, ‘Cops’
legal battle to keep terrorists locked up’, The Australian,
12 February 2020, p. 1; P Maley, ‘Some
terrorists unfit for release, says judge’, The Australian,
14 February 2020, p. 2; E Whinnett, ‘Terrorists
on the loose: Legal bungle allows jihadis out unsupervised’, The Herald
Sun, 9 May 2020, p. 5.
[9]. C
Porter (Attorney-General), Strengthening
controls on high-risk terrorists offenders, media release,
3 September 2020.
[10]. T
Renard, ‘Overblown:
exploring the gap between the fear of terrorist recidivism and the evidence’,
CTC Sentinel, April 2020, pp. 19–29 (this article examined
recidivism in a Belgian sample, but also provides an overview of the findings
of other studies and reports published between 2004 and 2020).
[11]. Porter,
‘Second
reading speech: Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020’ op. cit.
[12]. R
Shanahan, ‘Terrorism:
the recidivist risk’, The Interpreter, Lowy Institute blog, 2 December
2019; N Bucci and R Olding, ‘States
of imprisonment: jailing jihadists’, The Sydney Morning Herald,
23 September 2017, p. 24.
[13]. P
Maley, ‘Aussie
acquitted over terror plot surfaces in Syrian jail’, The Australian,
26 October 2019, p. 3.
[14]. C
Houston and C Vedelago, ‘Killer’s
path to terror’, The Age, 2 June 2017, p. 1; C Knaus
and M Davey, ‘ISIS
claims responsibility for Melbourne siege that left two people dead’, The
Guardian, 6 June 2017.
[15]. Renard,
‘Overblown:
exploring the gap between the fear of terrorist recidivism and the evidence’,
op. cit.
[16]. See
for example: Booth v Kaya [2020]
FCA 25 (22 January 2020); Booth v Namoa (No 2) [2020] FCA 73 (3 February 2020); Booth v Kadir Kaya [2020] FCA 764 (28 May 2020); Booth v Dacre [2020] FCA 751 (14 May 2020); Booth v Granata [2020] FCA 768 (29 May 2020).
[17]. K
Gair, ‘Convicted
DIY terrorist who praised bin Laden accused of control breach’, The
Australian, 1 May 2021, p. 7.
[18]. Department
of Home Affairs, Control
orders, preventative detention orders, and continuing detention orders: annual
report 2017–18, Commonwealth of Australia, 2018; Department of Home
Affairs, Control
orders, preventative detention orders, and continuing detention orders: annual
report 2018–19, Commonwealth of Australia, 2020; Whinnett, ‘Terrorists
on the loose: Legal bungle allows jihadis out unsupervised’, op. cit.;
P Garvey, ‘Row
over release of “tinnie terrorist”’, The Australian, 9 March
2020, p. 3; E Whinnett, ‘Jihadis
walk free’, The Herald Sun, 17 February 2020, p. 5.
[19]. Minister
for Home Affairs v Benbrika [2021]
HCA 4.
[20]. Australian
Citizenship Act 2007, sections 36B and 36D. We have referred to
dual citizens for the sake of simplicity; However, the Australian
Citizenship Amendment (Citizenship Cessation) Act 2020 reduced the
threshold concerning citizenship, so that the Minister must not make a
citizenship cessation determination under section 36B or section 36D if ‘satisfied
that the person would, if the Minister were to make the determination, become a
person who is not a national or citizen of any country’ (subsections 36B(2) and
36D(2)). For information on the change to the ‘statelessness test’, see C Barker
and C Petrie, Australian
Citizenship Amendment (Citizenship Cessation) Bill 2019, Bills digest,
58, 2019–20, Parliamentary Library, Canberra, 25 November 2019, pp. 25–27.
[21]. Australian
Citizenship Act 2007, section 36D.
[22]. P
Dutton (Minister for Home Affairs), Press
conference, Brisbane, 25 November 2020; Barker and Petrie, Australian
Citizenship Amendment (Citizenship Cessation) Bill 2019, op. cit.,
pp. 8–9; Parliamentary Joint Committee on Intelligence and Security, Advisory
report on the Australian Citizenship Amendment (Citizenship Cessation) Bill
2019, PJCIS, Canberra, August 2020, p. 66.
[23]. Dutton,
Press
conference, Brisbane, 25 November 2020, op. cit.
[24]. Renwick,
Review
of Divisions 104 and 105 of the Criminal Code, op. cit.,
p. 68.
[25]. Ibid.,
p. 69.
[26]. Ibid.,
pp. 69–75.
[27]. Ibid.,
p. 76.
[28]. Ibid.,
pp. 76–77.
[29]. PJCIS,
Review of
police stop, search and seizure powers, the control order regime and the
preventative detention order regime, PJCIS, Canberra, February 2018,
pp. 73‑79 (recommendation 10).
[30]. Australian
Government response to Parliamentary Joint Committee on Intelligence and
Security and Independent National Security Legislation Monitor reports,
24 May 2018.
[31]. D
Richardson, Comprehensive review of the legal framework of the national intelligence
community (Richardson Review), Commonwealth of Australia, Canberra, 7
December 2019. Published in four volumes: Volume
1: recommendations and executive summary; foundations and principles; control,
coordination and cooperation; Volume
2: Authorisations, Immunities and Electronic Surveillance; Volume
3: Information, Technology, Powers and Oversight; Volume
4: Accountability and Transparency.
[32]. Commonwealth
Government response to the Comprehensive review of the legal framework of the
national intelligence community, December 2020.
[33]. Richardson
Review, op. cit., Volume
1: recommendations and executive summary; foundations and principles; control,
coordination and cooperation, Commonwealth of Australia, Canberra, 7
December 2019.
[34]. Richardson
Review, op. cit., Volume
2: Authorisations, Immunities and Electronic Surveillance.
[35]. Richardson
Review, op. cit., Volume
3: Information, Technology, Powers and Oversight.
[36]. Richardson
Review, op. cit., Volume
4: Accountability and Transparency.
[37]. Richardson
Review, Volume 1, op. cit., p. 32 [3.1].
[38]. Richardson
Review, Volume 1, op. cit., pp. 32–35.
[39]. Richardson
Review, Volume 1, op. cit., pp. 44–45.
[40]. Recommendation
170, Richardson Review, op. cit., Volume
3: Information, Technology, Powers and Oversight, discussed at pp. 264–267.
[41]. Commonwealth
Ombudsman, Submission
to the PJCIS Review of the Counter-Terrorism Legislation Amendment (High
Risk Terrorist Offenders) Bill 2020, [Submission no. 1], October 2020.
[42]. Minister
for Home Affairs v Benbrika [2021]
HCA 4.
[43]. Ibid.,
p. 19 [36] [emphasis added].
[44]. Ibid.,
p. 21 [40] [emphasis added, citations removed].
[45]. Ibid.,
p. 22 [41] [ citations removed].
[46]. Senate
Standing Committee for the Scrutiny of Bills (Scrutiny Committee), Scrutiny
digest, 14, 2020, The Senate, Canberra, 16 October 2020, pp. 12–15.
[47]. Ibid.,
p. 14.
[48]. Ibid.
[49]. C
Porter (Attorney-General), Response
to the Scrutiny Committee—Scrutiny Digest 14 of 2020 Counter-Terrorism
Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, reference
MC20–031882, n.d.
[50]. Ibid.,
p. 3. AGD and DHA provide a table comparing the state and territory extended
supervision order schemes as Attachment B to Submission
to the PJCIS Review op cit., [Submission no. 5, Attachment 2].
[51]. Scrutiny
Committee, Scrutiny
digest, 16, 2020, The Senate, Canberra, 20 November 2020, p. 32.
[52]. Scrutiny Committee, Scrutiny
digest, 14, 2020, op. cit., p. 15.
[53]. Scrutiny
Committee, Scrutiny
digest, 16, 2020, op. cit., pp. 31–40.
[54]. Scrutiny
Committee, Scrutiny
digest, 14, 2020, op. cit., p. 15.
[55]. Ibid.,
p. 18.
[56]. Ibid.,
p. 18.
[57]. Ibid.,
p. 20.
[58]. Parliamentary
Joint Committee on Human Rights (PJCHR), Human
rights scrutiny report, 11, 2020, 24 September 2020, pp. 5–20
(quote taken from p. 18).
[59]. Ibid.,
pp. 18–20.
[60]. Ibid.,
pp. 20–26.
[61]. Ibid.,
pp. 26–29. The PJCHR noted that many of the relevant powers proposed to be
available (search, surveillance and interception) were legislated before the
committee was established, so had not been subject to a foundational human
rights compatibility assessment. It stated that in the absence of such an
assessment, it was difficult for the committee to assess the compatibility of
extending those powers to the ESO scheme.
[62]. C
Porter (Attorney-General), Response
to the PJCHR—Report 11 of 2020 Counter-Terrorism Legislation Amendment
(High Risk Terrorist Offenders) Bill 2020, reference MC20–030581, n.d.
[63]. Commonwealth
Ombudsman, [Submission no. 1] op. cit., p. 3.
[64]. Ibid.,
pp. 3–4.
[65]. Australian
Lawyers Alliance (Lawyers Alliance), Submission
to the PJCIS Review of the Counter-Terrorism Legislation Amendment (High
Risk Terrorist Offenders) Bill 2020, [Submission no. 2], 27 October 2020.
[66]. Law
Council of Australia (Law Council), Submission
to the PJCIS Review of the Counter-Terrorism Legislation Amendment (High
Risk Terrorist Offenders) Bill 2020, [Submission no. 6], 6 November 2020.
[67]. Ibid.,
p. 6.
[68]. Ibid.,
p. 6.
[69]. Ibid.
[70]. Ibid.
[71]. Australian
Human Rights Commission (AHRC), Submission
to the PJCIS Review of the Counter-Terrorism Legislation Amendment (High
Risk Terrorist Offenders) Bill 2020, [Submission no. 3], 29 October 2020.
[72]. Ibid., p. 4.
[73]. Ibid.,
p. 6.
[74]. Ibid.,
pp. 5–6.
[75]. Ibid.,
pp. 7–11.
[76]. Australian
Federal Police (AFP), Submission
to the PJCIS Review of the Counter-Terrorism Legislation Amendment (High
Risk Terrorist Offenders) Bill 2020, [Submission no. 4], October 2020, p.
5.
[77]. Ibid.,
p. 8.
[78]. Ibid.,
p. 8–9.
[79]. Ibid.
[80]. Explanatory
Memorandum, Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020, p. 2.
[81]. The
Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory
Memorandum to the Bill.
[82]. Criminal Code, section 105A.2.
[83]. Scrutiny
Committee, Scrutiny
digest, 14, 2020, op. cit., p. 14.
[84]. Scrutiny
Committee, Scrutiny
digest, 16, 2020, op. cit., p. 32.
[85]. Scrutiny
Committee, Scrutiny
digest, 16, 2020, op. cit., pp. 32–33.
[86]. Definition
proposed to be inserted into section 105A.2 of the Criminal Code by item
53 of Schedule 1 to the Bill.
[87]. Proposed
section 105A.3.
[88]. Proposed
subsections 105A.3A(1)–(5).
[89]. Proposed
subsections 105A.3A(6)–(8).
[90]. Explanatory
Memorandum, p. 60.
[91]. Criminal Code, subsection 105A.7(1) as amended
by item 83 of Schedule 1; proposed subsection 105.7A(1).
The unacceptable risk threshold for a CDO will be amended by omitting the words
‘if the offender is released into the community’.
[92]. Chu
Kheng Lim v Minister for Immigration [1992]
HCA 64; (1992) 176 CLR 1.
[93]. Benbrika
per Gordon J at p. 56 [134] [citations removed, emphasis added].
[94]. Criminal
Code, section 105A.1.
[95]. Benbrika
per Gordon J at p. 68 [163]
[96]. See
Benbrika
per Gordon J at pp. 68 [163]–71 [168].
[97]. Benbrika
p. 71 [168] [citation removed].
[98]. Benbrika
per Gordon J at p. 73 [177]
[99]. Benbrika
per Gageler J at p. 37 [79]. See also Gageler J at p. 39 [85].
[100]. Benbrika
per Gageler J at p. 43 [97].
[101]. Kiefel
CJ, Bell, Keane and Steward JJ in a joint judgment, pp. 1–27, [1]–[53].
[102]. Benbrika
per Kiefel CJ and Bell, Keane and Steward JJ at pp. 19 [36], 25 [46].
[103]. Ibid.,
at pp. 23 [44]–25 [46] .
[104]. Lodhi
v The Queen [2006] NSWCCA 121
per Spigelman CJ at [66] [emphasis added].
[105]. Benbrika
per Kiefel CJ and Bell, Keane and Steward JJ at pp. 25 [46] [citations removed,
emphasis added],
[106]. Law
Council, Submission
no. 6 to the PJCIS, op. cit., p. 12.
[107]. Ibid.
[108]. Ibid.
[109]. Benbrika, p. 72 [174].
[110]. Benbrika,
p. 25 [46].
[111]. Ibid.
[112]. Ibid.
[113]. Renwick,
Review
of Divisions 104 and 105 of the Criminal Code, op. cit.,
p. 76–77.
[114]. Explanatory
Memorandum, pp. 3, 67.
[115]. Scrutiny
Committee, Scrutiny
digest, 14, 2020, op. cit., p. 13.
[116]. Ibid.,
p. 15.
[117]. C
Porter (Attorney-General) letter to Senator Polley, reference MC20–031882, no
date, published with Scrutiny
digest, 16, 2020, The Senate, Canberra, 20 November 2020. The
Committee’s consideration of the Attorney-General’s response is at pages 31 to
40. The Attorney-General’s quote is at p. 33.
[118]. Attachment
B to Submission
to the PJCIS Review, op. cit., [Submission no. 5, Attachment 2].
[119]. This
section of the Digest does not consider state ESO laws that apply only to
sexual offenders.
[120]. Crimes
(High Risk Offenders) Act 2006 (NSW), section 5B; Terrorism
(High Risk Offenders) Act 2017 (NSW), section 20.
[121]. Criminal
Law (High Risk Offenders) Act 2015 (SA),
subsection 7(4).
[122]. Serious
Offenders Act 2018 (Vic), subsection 14(1).
[123]. Crimes
(High Risk Offenders) Act 2006 (NSW), sections 5B and 5C; Terrorism
(High Risk Offenders) Act 2017 (NSW), section 20 and
subsection 34(1); Criminal
Law (High Risk Offenders) Act 2015 (SA),
subsections 7(4) and 18(2) (note that the option of imposing a CDO
only becomes available where a court is satisfied that an individual has
breached an ESO); Serious
Offenders Act 2018 (Vic), subsections 14(1) and 63(1).
[124]. Law
Council, Submission
no. 6 to the PJCIS, op. cit., p. 11.
[125]. Ibid.,
pp. 11 and 13.
[126]. AHRC,
Submission
no. 3 to the PJCIS, op. cit., pp. 21–23.
[127]. Lawyers
Alliance, Submission
no. 2 to the PJCIS, op. cit., pp. 5–6.
[128]. Scrutiny
Committee, Scrutiny
digest, 16, 2020, op. cit., pp. 33–34.
[129]. Ibid.,
p. 34.
[130]. Section 105A.5
as amended by items 61–72 of Schedule 1.
[131]. Section 105A.6
as amended by items 73–81 of Schedule 1.
[132]. Proposed
section 105A.18D.
[133]. Explanatory
Memorandum, p. 96.
[134]. Proposed
subsections 105A.6A(1) and 105A.7A(1), at items 82 and 87
of Schedule 1, respectively.
[135]. Proposed
subsection 105A.7(2) at item 85 of Schedule 1.
[136]. Proposed
subsection 105A.6A(2).
[137]. Subsection
105A.7(6) and proposed subsection 105A.7A(5).
[138]. See
items 115–119 and 121–132 of Schedule 1.
[139]. Ibid.
[140]. Criminal
Code, subsection 105A.5(4).
[141]. Ibid.,
subsections 105A.5(5) to (8).
[142]. Ibid.,
subsections 105A.5(9) to (10).
[143]. Under
the doctrine of public interest immunity, the Government may seek to claim
immunity from requests or orders for the production of documents on the grounds
that disclosure would be prejudicial to the public interest: DR Elder, ed., House
of Representatives practice, 7th edn, House of Representatives,
Canberra, 2018, pp. 625–629. If information is excluded on this ground, a
notice must be given to the offender and their legal representative advising
them of that fact (proposed subsection 105A.14C(2).
[144]. Scrutiny
Committee, Scrutiny
digest, 14, 2020, op. cit., p. 16.
[145]. Ibid.
[citations removed]
[146]. Explanatory
Memorandum, Statement of compatibility with human rights, p. 20.
[147]. Scrutiny
Committee, Scrutiny
digest, 14, 2020, op. cit., p. 18.
[148]. C
Porter (Attorney-General), Response
to the Scrutiny Committee—Scrutiny Digest 14 of 2020 Counter-Terrorism
Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, reference
MC20–031882, n.d., p. 3. Scrutiny Committee, Scrutiny
digest, 16, 2020, op. cit., p. 35.
[149]. C
Porter (Attorney-General), Response
to the Scrutiny Committee—Scrutiny Digest 14 of 2020 Counter-Terrorism
Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, reference
MC20–031882, n.d., p. 3. Scrutiny Committee, Scrutiny
digest, 16, 2020, op. cit., p. 37.
[150]. Ibid.
[151]. Porter,
Response to the Scrutiny Committee, op. cit., pp. 3–4. Scrutiny Committee, Scrutiny
digest, 16, 2020, op. cit., pp. 35–36.
[152]. Scrutiny
digest, 16, 2020, op. cit., p. 38.
[153]. Ibid.
[154]. Ibid.
[155]. Scrutiny
Committee, Scrutiny
digest, 1, 2021, 29 January 2021, pp. 65–66
[156]. Ibid.
[157]. Scrutiny
Committee, Scrutiny
digest, 1, 2021, op. cit., p. 66.
[158]. Ibid.
[159]. Proposed
subsection 105A.9A(1), at item 95 of Schedule 1.
[160]. Proposed
subsections 105A.9(1B) and (8) and 105A.9A(4).
[161]. Proposed
subsections 105A.9A(4) and (5).
[162]. Proposed
paragraph 105A.9A(7)(c).
[163]. Proposed
subsection 105A.9A(8).
[164]. Proposed
subsection 105A.7B(1), at item 87 of Schedule 1.
[165]. J
Renwick, Review
of Divisions 104 and 105 of the Criminal Code, op. cit., p. 76.
[166]. Crimes
(High Risk Offenders) Act 2006 (NSW), subsection 11(1); Terrorism
(High Risk Offenders) Act 2017 (NSW), subsection 29(1); Criminal
Law (High Risk Offenders) Act 2015 (SA), section 10
(note that this provision also requires some specific conditions to be imposed);
Serious
Offenders Act 2018 (Vic), section 15 and Division 3 of
Part 3 (see in particular section 38). This note does not list state
ESO laws that apply only to sexual offenders.
[167]. See
subsection 104.5(3) and paragraph 104.16(1)(c) of the Criminal Code.
[168]. Proposed
subsection 105A.7B(7).
[169]. Proposed
section 105A.7E makes further provision in relation to obligations
relating to monitoring devices.
[170]. Item 2
of Schedule 1, amending subsection 100.1(1) of the Criminal
Code. This definition will apply in the context of conditions included in
ESOs and ISOs, and also control orders.
[171]. Proposed
section 105A.7C.
[172]. PJCHR,
Human
rights scrutiny report, op. cit., p. 15.
[173]. Proposed
subsections 105A.9B(1) and 105A.9D(1).
[174]. Proposed
section 105A.9D.
[175]. Proposed
section 105A.9B.
[176]. Proposed
subsections 105A.9C(4)–(6).
[177]. Proposed
section 105A.9A does not make provision for the appointment of a
relevant expert to inform a decision about whether to make an ISO (this is
consistent with section 105A.9, concerning IDOs). This is likely because
ISOs are intended as a short term measure able to be imposed quickly.
Nonetheless, this creates an anomaly.
[178]. Proposed
subsections 105A.9C(1)–(3).
[179]. Items
97–114 of Schedule 1.
[180]. Criminal
Code, section 105A.10 as amended by items 97 to 101 of Schedule
1 to the Bill; proposed subsection 105A.10(1B) at item 102 of
Schedule 1 to the Bill.
[181]. Criminal
Code, section 105A.12 as amended by items 108–113 of Schedule 1;
proposed section 105A.12A at item 114 of Schedule 1.
CDOs or ESOs may be varied on review to specify a shorter period for which the
order will be in force; conditions may also be added, varied or removed from
ESOs.
[182]. Proposed
section 105A.12(5) at item 110 of Schedule 1.
[183]. Proposed
section 105A.18A and proposed subsection 105A.18B(1) at item
133 of Schedule 1.
[184]. Criminal
Code, sections 104.27 and 104.27A.
[185]. TIA
Act, proposed subparagraph 5D(1)(e)(va) (item 326
of Schedule 1).
[186]. Proposed
subsections 105A.18B(2) and (3).
[187]. Criminal
Code, subsection 104.27A(2).
[188]. Items 140–147
of Schedule 1.
[189]. Crimes Act, Part IAAB; key provisions in the SD
Act include subsection 14(3C), paragraph 16(1)(bc) and
subsection 16(2) for surveillance devices, subsection 27A(6),
paragraph 27C(1)(e) and subsection 27C(2) for computer access, and
section 49A for both; key provisions in the TIA Act include
section 38A, subsections 46(4)–(6), subsections 46A(2A)–(2B) and
section 59B.
[190]. Renwick,
Review
of Divisions 104 and 105 of the Criminal Code, op. cit.,
p. 76.
[191]. Scrutiny
Committee, Scrutiny
digest, 14, 2020, op. cit., p. 20.
[192]. Law
Council, Submission
no. 6 to the PJCIS, op. cit., p. 30.
[193]. Items 155–188
of Schedule 1.
[194]. Crimes
Act, sections 3ZZKA, 3ZZKB and 3ZZKC as amended by the Bill.
[195]. Ibid.,
sections 3ZZLA and 3ZZLB as amended by the Bill.
[196]. Ibid.
[197]. Ibid.,
section 3ZZKE as amended by the Bill.
[198]. Ibid.,
sections 3ZZKF and 3ZZLC.
[199]. Ibid.,
Division 8 of Part IAAB as
amended by the Bill.
[200]. Crimes Act, proposed definition of Part 5.3
object in section 3ZZJB (inserted by item 157 of Schedule 1),
and sections 3ZZOA and 3ZZOB as amended by items 170–183 of Schedule 1.
[201]. Proposed
definitions of Part 5.3 object or a Part 5.3 supervisory
order are inserted by item 157 of Schedule 1.
[202]. SD Act, section 18.
[203]. SD Act, Part 4.
[204]. Key
provisions in the SD Act related to use of surveillance devices against
individuals subject to control orders include subsection 14(3C),
paragraph 16(1)(bc) and subsection 16(2).
[205]. SD Act, subsection 14(3C) as amended by items 223–226
of Schedule 1 and paragraph 16(1)(bc) as amended by item 228
of Schedule 1. Eligible Judge and nominated AAT
member are defined in sections 12 and 13 respectively.
[206]. SD Act, paragraphs 16(2)(c) and (d); proposed
subsection 16(4).
[207]. SD Act, section 37 as amended by items 257–259
of Schedule 1 (optical surveillance devices); section 38 as
amended by items 260–266 of Schedule 1 (use of device
to listen to or record words); and section 39 as amended by items 267–269
of Schedule 1 (tracking devices).
[208]. Tracking devices require the authorisation of an appropriate
authorising officer (defined in section 6A).
[209]. SD Act, sections 20 and 21 as amended by items 236–239
of Schedule 1, section 40 as amended by item 270 of Schedule 1,
Part 6 (compliance and monitoring) as amended by items 271–301
of Schedule 1.
[210]. SD Act, section 27E. The target computer
may be a particular computer, a computer on particular premises and/or a
computer associated with, used by or likely to be used by, a person: SD Act,
subsection 27A(15). Computer means all or part of one or
more computers, computer systems or computer networks, or a combination
thereof: SD Act, section 6.
[211]. Key
provisions in the SD Act related to use of computer access warrants
against individuals subject to control orders include subsection 27A(6),
paragraph 27C(1)(e) and subsection 27C(2).
[212]. SD Act, proposed subsection 27A(6) (at item 240 of Schedule 1) and proposed
paragraph 27C(1)(e) (at item 244 of
Schedule 1). Eligible
Judge and nominated AAT member
are defined in sections 12 and 13 respectively.
[213]. SD Act, paragraphs 27C(2)(c) and (d) and proposed
section 27C(4) at item 247 of Schedule 1.
[214]. SD Act, subsection 27E(5) and (8), sections 27G
and 27H as amended by items 253–256 of Schedule 1,
Part 6 (compliance and monitoring) as amended by items 271–301
of Schedule 1.
[215]. Key
provisions in the TIA Act related to use of interception warrants
against individuals subject to control orders include section 38A,
subsections 46(4)–(6), subsections 46A(2A)–(2B) and section 59B.
[216]. TIA Act, subsection 46(4) as amended by items 340–344
of Schedule 1.
[217]. TIA Act, subsection 46A(2A) as amended by items 352–356
of Schedule 1.
[218]. TIA Act, subsection 46(5) as amended by items 345–349
of Schedule 1 and subsection 46A(2B) as amended by items 357–361
of Schedule 1.
[219]. TIA Act, section 57 as amended by item 371
of Schedule 1, section 58, section 59B as amended
by item 372 of Schedule 1, section 79AA as amended
by items 378 and 379 of Schedule 1,
Part 2-7 as amended by items 380–383 of Schedule 1,
Part 2-8 as amended by items 384–388 of Schedule 1.
[220]. Item 215
of Schedule 1 (proposed definition of Part 5.3 object).
[221]. Items 157
and 315 of Schedule 1 (proposed definitions of Part 5.3
object in the Crimes Act and TIA Act respectively).
[222]. Explanatory
Memorandum, pp. 131, 136–137, 150, 154.
[223]. SD Act, proposed subsection 14(3BA) (item
222 of Schedule 1) and proposed paragraph 16(1)(bba) (item
228) (surveillance devices) and proposed subsection 27A(5A) and
proposed paragraph 27C(1)(da) (items 240 and 244)
(computer access).
[224]. SD
Act, subsection 16(2) and proposed subsection 16(3)
(surveillance devices) (item 231 of Schedule 1), and
subsection 27C(2) and proposed subsection 27C(3) (item 247)
(computer access).
[225]. TIA
Act, proposed subsections 46(7) and 46A(2C) (items
351 and 362 of Schedule 1).
[226]. TIA
Act, proposed subsection 46(7) (compared to
subsections 46(1) (offence investigations) and 46(4) (control
order/Part 5.3 supervisory order monitoring).
[227]. TIA
Act, proposed subsections 46(8) and 46A(2D) (items
351 and 362 of Schedule 1) .
[228]. For
the SD Act: Item 217 (definition of relevant
proceeding) and items 272 and 276 (permitted uses of protected
information) of Schedule 1. For the TIA Act: items 317
and 320 (definition of permitted purpose), item 325
(definition of exempt proceeding), item 375 (employee
of carrier may communicate information to agency) and item 390 (proposed
section 139B, dealing for purposes relating to Part 5.3 orders).
[229]. Items 215
and 321 of Schedule 1 (definitions of post-sentence
detention law and post-sentence supervision law in the SD
Act and TIA Act respectively).
[230]. NSI
Act, section 3. National security means ‘Australia’s
defence, security, international relations or law enforcement interests’:
section 8 (security, international relations,
and law enforcement interests are defined in sections 9, 10
and 11).
[231]. NSI
Act, section 38I. See also Explanatory
Memorandum, pp. 112–114.
[232]. NSI
Act, section 38L. See also Explanatory
Memorandum, p. 114.
[233]. Ibid.
[234]. NSI
Act, section 38J.
[235]. Explanatory
Memorandum, Counter-Terrorism Legislation Amendment Bill (No. 1) 2016, p. 142.
For further background to the 2016 amendments, see C Barker and C Raymond, Counter-Terrorism
Legislation Amendment Bill (No. 1) 2016, Bills digest, 20, 2016–17,
Parliamentary Library, Canberra, 10 October 2016.
[236]. Barker
and Raymond, Counter-Terrorism
Legislation Amendment Bill (No. 1) 2016, op. cit., pp. 23–30.
[237]. NSI
Act, Subdivision C of Division 3 of Part 3A.
[238]. Explanatory
Memorandum, pp. 114–115.
[239]. Items 194-198
of Schedule 1.
[240]. NSI
Act, section 7 as amended by item 189 of Schedule 1
(definitions of Division 105A ESO proceeding and ESO
or extended supervision order), section 38I as amended by items 190-193
(closed hearing requirements) and section 38J as amended by items 194–198
(special court orders).
[241]. NSI
Act, paragraph 38J(1)(c) as amended by item 196 of Schedule 1
and subsection 38J(5).
[242]. NSI
Act, section 38PB.
[243]. Ibid.,
subsections 38PA(2) and (3). The appointment requirements are set out in
Regulation 20A of the National Security
Information (Criminal and Civil Proceedings) Regulation 2015.
[244]. Items 200–206
of Schedule 1.
[245]. Renwick,
Review
of Divisions 104 and 105 of the Criminal Code, op. cit.,
p. 76.
[246]. Item 153
of Schedule 1. The Explanatory
Memorandum outlines the Government’s rationale for excluding these
decisions from review under the ADJR Act (pp. 103–104).
[247]. Lawyers
Alliance, Submission
no. 2 to the PJCIS, op. cit., p. 7.
[248]. C
Barker, Telecommunications
Legislation Amendment (International Production Orders) Bill 2020,
Bills digest, 1, 2020–21, Parliamentary Library, Canberra, 3 July 2020.
[249]. Ibid.,
pp. 32–39.
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