• right to equality and non-discrimination;
• right to liberty;
• right to freedom of movement;
• right to a fair trial and fair hearing;
• right to privacy;
• right to freedom of expression;
• right to freedom of association;
• right to the protection of the family;
• right to work;
• right to social security and an adequate standard of living; and
• rights of children.

1.17        The statement of compatibility acknowledges that the bill engages a range of human rights.[15] These rights may be subject to permissible limitations providing they pursue a legitimate objective and are rationally connected and proportionate to that objective.

1.18        The committee's previous reports have raised serious concerns as to whether control orders constitute permissible limitations on human rights.[16] Noting that the control orders regime was not previously subject to a foundational assessment of human rights, the committee previously recommended that a statement of compatibility be prepared for the control orders regime that set out in detail how the coercive powers provided for by control orders impose only a necessary and proportionate limitation on human rights having regard to the availability and efficacy of existing ordinary criminal justice processes (e.g. arrest, charge and remand).[17] As set out below, the statement of compatibility for the 2018 bill provides some of this information.

Extending control orders - legitimate objective

1.19        In relation to whether extending the control orders regime pursues a legitimate objective, the statement of compatibility states that:

The control order regime achieves the legitimate objective of preventing serious threats to Australia's national security interests, including in particular, preventing terrorist acts. In the current national security landscape, it is critical that law enforcement agencies have access to preventative powers such as control orders to proactively keep the Australian community safe.[18]

1.20        In this respect, the statement of compatibility also provides some information as to the importance of this objective as a pressing concern.[19] Based on this information, the initial analysis stated that the objective of preventing serious threats to Australia's national security interests, including preventing terrorist acts, is likely to constitute a legitimate objective for the purposes of international human rights law. The committee has previously considered that the objective of the measure constituted a legitimate objective.[20] 

Extending control orders—rational connection to a legitimate objective

1.21        As set out above, a measure that limits human rights must be rationally connected to (that is, effective to achieve) its legitimate objective. In this respect, the human rights assessment in the committee's previous reports noted that there was doubt as to whether control orders are rationally connected to their stated objective. This was because it was unclear whether control orders were an effective tool to prevent terrorist acts noting the availability of regular criminal justice processes (including for preparatory acts).[21]

1.22        It was noted that since the committee's last report on control orders,[22] the current Independent National Security Legislation Monitor (INSLM), James Renwick SC, had reported that control orders may be effective in preventing terrorism, based on recent court cases.[23] This contrasted with the findings of a previous INSLM, Bret Walker SC, who found that 'control orders in their present form are not effective, not appropriate and not necessary'.[24]

1.23        On this issue, the statement of compatibility notes that since control orders were introduced in 2005 they have been used only six times. However, rather than indicating that control orders are ineffective or not necessary, the statement of compatibility argues that this indicates that the control order regime has been used judiciously to date.[25] It refers to the findings of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) that 'the limited use of the provisions reflects the AFP's position that, in circumstances where there is enough evidence to formally charge and prosecute a person, the AFP will take this approach over seeking the imposition of a control order'.[26] While this may be the case as a matter of policy and practice, there is no legal requirement that control orders be restricted in this manner.

1.24        It was acknowledged that there is some evidence that the imposition of a control order could be capable of being effective in particular individual cases.[27] However, some questions remain as to whether the control order regime as a whole is rationally connected to its objective, noting in particular the availability of the regular criminal processes. 

Extending control orders—proportionality

1.25        In relation to proportionality, the human rights assessment in the committee's previous reports on the control orders regime noted that there may be questions as to whether control orders are the least rights restrictive approach to preventing terrorist-related or hostile activities, and whether control orders contain sufficient safeguards to appropriately comply with Australia's human rights obligations.[28]  

1.26        The previous human rights assessment raised concerns that control orders could be sought in circumstances where there is not necessarily an imminent threat to personal safety. The previous report stated that protection from imminent threats had been a critical rationale relied on for the introduction and use of control orders rather than ordinary criminal processes. It further stated that, in the absence of an imminent threat, it is difficult to justify as proportionate the imposition of significant limitations on human rights without criminal charge or conviction.[29]

1.27        As noted above, the issuing criteria for a control order set out in section 104.4 of the Criminal Code require that each proposed condition of a control order must be reasonably necessary, and reasonably appropriate and adapted, to the purpose of protecting the public from the threat of a terrorist act, or support for terrorist or hostile activities. The issuing court must also have regard to the impact of the obligations on the person's circumstances.[30] The statement of compatibility explains that this threshold ensures that any restrictions on human rights are 'reasonable, necessary and proportionate'.[31] However, while this criterion may act as a relevant safeguard, there is no explicit requirement that the conditions be the least rights restrictive measures for the person subject to the control order to protect the public.[32] In this respect, it was noted that the impact on the individual is given the status of 'additional consideration', while the effect on preventing or providing support to terrorism is to be a 'paramount consideration' of the issuing court.[33]

1.28        As noted in the previous human rights assessment of control orders, a less rights restrictive approach would not mean that public protection would become a secondary consideration in the issuance of a control order. Rather, it would require a decision-maker to take into account any possible less invasive means of achieving public protection as an equally paramount consideration. In the absence of such requirements, it may be difficult to characterise the control orders regime as the least rights restrictive approach for protecting national security, and to assess the proposed measures as a proportionate way to achieve their stated objective.[34]

1.29        The statement of compatibility also outlines some additional safeguards relating to the application of the control orders regime against children (aged 14 to 17 years). This includes, subject to exceptions, the requirement that the court must appoint a lawyer to act for a young person (aged 14 to 17 years) in control order proceedings if the young person does not already have a lawyer. Additionally, when considering whether to impose a particular condition under a control order on a child, the court is required to consider the best interests of the child as a primary consideration and the safety and security of the community as a paramount consideration.[35] Overall, while these safeguards are relevant to the proportionality of the limitations imposed on human rights, the initial analysis stated that questions remain as to whether they are sufficient to ensure that the application of the control orders regime to children is a proportionate limit on human rights. This includes questions as to whether applying a coercive regime to children (noting their maturity and particular vulnerabilities as children) constitutes a least rights restrictive approach.   

1.30        In order to constitute a proportionate limitation on human rights, coercive powers must also be no more extensive than is strictly necessary to achieve their legitimate objective. In this respect, the initial analysis stated that there were questions about how the coercive powers provided for by control orders impose only a necessary and proportionate limitation on human rights having regard to the availability and efficacy of existing ordinary criminal justice processes (e.g. arrest, charge and remand). The committee's previous human rights assessment of control orders noted there are a range of offences in the Criminal Code that cover preparatory acts to terrorism offences, which allow police to detect and prosecute terrorist activities at early stages.[36] In the absence of further information, and as indicated in the committee's previous assessment, the control orders regime is likely to be incompatible with a number of human rights.[37]

1.31        In light of the proposed extension of the regime, the committee sought further advice as to:

• how the control orders regime as a whole is effective to achieve (that is, rationally connected to) its stated objective; and
• whether the limitation is a reasonable and proportionate measure to achieve the stated objective (including whether it is necessary, whether it is the least rights restrictive approach and whether there are adequate and effective safeguards in place in relation to its operation).

Minister and Attorney-General's response

Legitimate objective

1.32        The minister and Attorney-General's response notes that the committee has accepted that the control orders regime pursues a legitimate objective for the purposes of international human rights law.

Rational connection 

1.33        As to how the measures are effective to achieve (that is, rationally connected to) the stated objective, the response provides the following context: 

Control orders are a measure of last resort, which are only relied upon when traditional law enforcement options such as arrest, charge and prosecution are not available. As noted by the PJCIS Powers Report, the limited use of the control order regime demonstrates that the preference of law enforcement agencies is to employ traditional law enforcement methods to more comprehensively address the threat posed by an individual.

1.34        Noting the serious limitation on human rights that may be imposed by control orders, it is relevant that as a matter of policy and practice their use has been restricted. However, as noted above, there may still be questions about the potential application of the regime given there is no legal requirement that the use of control orders be restricted to circumstances where traditional law enforcement options are not available. In relation to evidence of effectiveness, the response refers to the report by INSLM Renwick and notes that he found that examples from recent cases demonstrate the effectiveness of control orders in pursuing the objects of the regime. The response does not directly address the findings by previous INSLM Walker which queried the effectiveness of the regime.

1.35        The response further reiterates that while only six control orders have been made to date:

...there will be circumstances where law enforcement agencies may have sufficient information or intelligence to establish a serious concern regarding the threat posed by an individual that falls short of the evidentiary burden to commence criminal prosecution. However, without an appropriate preventative mechanism, law enforcement agencies have limited means to manage the threat in the short to medium term. Use of a control order is considered in conjunction with, and is complementary to, criminal prosecution, and allows a balance to be achieved between mitigating the risk to community safety and allowing criminal investigations to continue.

1.36        Further, in relation to how the control order regime is rationally connected to 'preventing a terrorist act', the response from the minister and the Attorney-General points to specific legislative requirements: 

When determining which conditions to impose on an individual under a control order, the issuing court must consider whether the proposed obligation, prohibition or restriction is 'reasonably necessary, and reasonably appropriate and adapted' for the purposes of achieving one of the permitted purposes for a control order, such as protecting the public from a terrorist act (paragraph 104.4(1 )(d)). This requires the issuing court to be satisfied that each condition under a control order must be effective in addressing the risk posed by the individual. Where a condition is not effective or necessary in addressing this threat, the issuing court may not impose that condition, or if it does impose the condition, may at a later time, upon application by the subject of the control order, determine that that condition is no longer necessary or effective to address the threat posed by the individual.

Accordingly, the control order regime ensures that each of the limitations on a human right that may be imposed under a control order is rationally connected to minimising serious threats to Australia's national security, including in particular, the prevention of terrorist acts.

1.37        On the basis of the information provided, it appears that the control order regime may be rationally connected to its stated objective. However, much may depend on how the control orders are used in practice and how they interact with regular criminal justice processes. Noting that they have only been used six times to date, there is limited evidence in this respect.   

Proportionality

1.38        The response identifies a number of safeguards which it states ensure that the control order regime 'represents the least restrictive way to achieve the legitimate purpose of preventing a serious threat to Australia's national security interests, including in particular, the prevention of terrorist acts.' The response states that these safeguards include that the control order is made by a judicial officer and that under section 104.4(1)(d) of the Criminal Code the court must be satisfied on the balance of probabilities that each of the obligations, prohibitions or restrictions to be imposed on the person by the control order is reasonably necessary, and reasonably appropriate and adapted for the purpose of achieving one of the permitted purposes for a control order, such as protecting the public from a terrorist.

1.39        The response states that this requirement in subsection 104.4(1)(d) of the Criminal Code ensures that only the obligations, prohibitions and restrictions directly capable of achieving the objective of the control order are imposed by the issuing court. The response argues that this means that the control order is no more restrictive than it needs to be for the purpose of achieving the legitimate objective. That is, the response appears to suggest that while there is no explicit requirement that the conditions in the control order be the least rights restrictive approach, the requirement that each obligation, prohibition or restriction be 'reasonably necessary, and reasonably appropriate and adapted' to a permitted purpose is an equivalent test.

1.40        However, the provision as drafted would seem to permit conditions to be imposed in circumstances where this is not the least rights restrictive approach. This is because while the court is required to take into account the effect on preventing or providing support to terrorism as a 'paramount consideration',[38] it is not required to take into account any possible less invasive means of achieving public protection as an equally paramount consideration. As a result, it is difficult to characterise the control orders regime as the least rights restrictive approach for protecting national security, and to assess the proposed measures as a proportionate way to achieve their stated objective.[39] This is the case particularly in light of the fact that, under section 104.4, the impact on the subject of the control order is only given the status of 'additional consideration'.[40]

1.41        The response does, however, point to some other mechanisms to assist with the proportionality of the regime including the ability to treat individual cases differently:

...the control order regime allows for each application to be dealt with flexibly, and based on the circumstances of each case. For instance, for control order applications in relation to young persons between the age of 14 and 17, the issuing court must consider the best interests of the young person when determining whether each of the obligations, prohibitions or restrictions to be imposed on the individual is reasonably necessary, and reasonably appropriate and adapted to the protecting the public from a terrorist act (paragraph 104.4(2)(b)). Subsection 104.4(2A) outlines specific matters that the issuing court must take into account when determining what is in the best interest of the young person, including their age, maturity, background, the right of the person to receive an education, the benefit to the person of having a meaningful relationship with his or her family and friends and the physical and mental health of the individual.

In addition, paragraph 104.4(2)(c) provides that the issuing court must consider the impact of each of the proposed obligations, prohibitions or restrictions on the person's circumstances (including the person's financial and personal circumstances). This enables the control order regime to provide sufficient flexibility to treat the circumstances of each control order application differently, rather than imposing a blanket restriction on human rights without regard to the specific needs of the individual, or the threat they pose.

1.42        The flexibility to take individual circumstances into account is relevant to the proportionality of the regime. The response further explains that the control order regime contains mechanisms for assessing the ongoing need for a control order, and each of its obligations:

An individual subject to a control order may apply at any time to have a confirmed control order revoked or varied. The issuing court can revoke a control order if it is no longer satisfied on the balance of probabilities that the control order would substantially assist in the prevention of a terrorist act. Alternatively, the issuing court may remove certain obligations, prohibitions and restrictions in relation to an individual if it is no longer satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted to achieving the purpose of protecting the public from a terrorist act. These review mechanisms ensure that the intrusions on human rights that may be occasioned by a control order are no greater than necessary to achieve the legitimate objective.

... The restrictions on human rights occasioned by a control order are not indiscriminate or disproportionate intrusions, but rather tailored to the specific threat being mitigated, and the individual circumstances of the individual who is the subject of the restrictions.

1.43        While these mechanisms for oversight and review are important safeguards in relation to the operation of the regime, it is unclear that they will be sufficient to ensure that it imposes a proportionate limit on human rights in all circumstances. In this context, it is important to bear in mind that control orders will be used in cases where there is insufficient evidence to charge someone with an offence. It is not clear from the response that other less rights restrictive mechanisms, such as engagement or de-radicalisation, would not be sufficient to address the stated objectives of the measure, rather than imposing conditions under a control order, a breach of which constitutes a criminal offence.[41] This is particularly the case given that, as noted above, control orders may be sought in circumstances where there is not necessarily an imminent threat to personal safety. This means that there is a risk that the potential threat could be more remote. In these circumstances, the imposition of significant limitations on human rights without criminal charge or conviction may be difficult to characterise as permissible as a matter of international human rights law. For these reasons, the control order regime does not appear to be a proportionate limitation on human rights.

Committee response

1.44        The committee thanks the minister and the Attorney-General for their response and has concluded its examination of this issue.

1.45        While the control order regime pursues a legitimate objective and may be rationally connected to that objective, the preceding analysis indicates that the regime does not impose a proportionate limit on human rights.

1.46        Consistent with the concerns raised in the previous human rights assessment relating to the control orders regime, the committee draws the human rights implications of the bill (now Act) to the attention of the Parliament.[42]

Compatibility of extending the minimum duration of time between the interim control order and the confirmation proceedings with the right to a fair hearing 

1.47        As noted above, currently, an interim control order is subject to confirmation by the court as soon as practicable but at least 72 hours after the interim control order is made. The bill would extend this minimum period of time from 72 hours to seven days.[43] As interim control orders are made ex parte (that is, without the person subject to the control order being present), this means that the person will, generally, be subject to the conditions of the control order until the confirmation proceeding, without having an opportunity to be heard. In this context, while it was acknowledged that both parties to a confirmation proceeding may require sufficient time to prepare their case,[44] the extension of the minimum period raises other questions about the compatibility of the measure with the right to a fair hearing. This is because a delay in confirmation hearing may have significant implications for a person who remains subject to an interim control order while awaiting this hearing.   

1.48        The explanatory memorandum explains the timing of confirmation hearings further in the context of the measure:

Confirmation proceedings have to date occurred many months after the making of an interim control order. However, under existing subsection 104.5(1A), it remains open to the issuing court to set the confirmation date only 72 hours after the making of an interim control order. This would leave both parties potentially unprepared to make detailed submissions to the court at the confirmation proceeding.[45]

1.49        While this may be the case as a matter of practice, it was unclear why it is insufficient to leave it to the court to set a confirmation date as soon as reasonably practicable. It would have been useful if the statement of compatibility had provided further information in this respect.

1.50        The committee therefore sought further advice as to the compatibility of extending the minimum duration of time between the interim control order and the confirmation proceedings with the right to a fair hearing.

Minister and Attorney-General's response

1.51        In relation to the compatibility of the measure with the right to a fair hearing, the response acknowledges that the measure has the potential to limit the subject of the control order's right to contest the interim control order as soon as practicable. However, the response argues that the measure also provides greater opportunity for the subject of the control order to prepare to present their case to the court:

Confirmation proceedings are complex, and may take both parties a substantial amount of time to prepare for. While subsection 104.5(1B) allows the issuing court to consider a range of factors when determining the date of the confirmation hearing, subsection 104.5(1A) enables the issuing court to set the confirmation date as early as 72 hours after the making of an interim control order. This could prevent both the subject of the control order and the AFP from being adequately prepared for the confirmation hearing.

To date, the issuing court, the AFP and the subject of the control order application, have been satisfied in holding confirmation proceedings several months after the making of an interim control order. In light of this reality, the proposed extension of time between the making of an interim control order and the confirmation date from 72 hours to seven days is unlikely to amount to an undue delay in an individual's right to contest the interim control order.

1.52        An important aspect of the right to a fair hearing is for there to be adequate time for an individual to prepare their case. It is further noted that, to date, the issuing court has set the date for confirmation proceedings sometimes many months after the making of the interim control order. It is acknowledged that this means that from a practical perspective the measure is unlikely to lead to delay in an individual's ability to contest the control order. However, as noted above, while this may be the case as a matter of practice, it is unclear why it cannot be left to the court to set a confirmation date as soon as 'practicable'. This issue was not addressed in the response. Noting this, there is a concern that the measure may result in a delay to the confirmation hearing in an individual case. This may have significant implications for a person who remains subject to an interim control order while awaiting this hearing.   

Committee response

1.53        The committee thanks the minister and the Attorney-General for their response and has concluded its examination of this issue.

1.54         Based on the information provided, from a practical perspective the measure is unlikely to lead to delay in an individual's ability to contest the control order. However, noting the potential for delay, there may be a risk in relation to the right to a fair hearing in the individual case.

Preventative detention orders

1.55        The committee has previously considered the Preventative Detention Orders (PDO) regime as part of its consideration of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, and the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016.^[46]

1.56        The AFP can apply for a PDO which allows a person to be taken into custody and detained[47] if it is suspected, on reasonable grounds, that a person will engage in a terrorist act, possesses something in connection with preparing for or engaging in a terrorist act, or has done an act in preparation for planning a terrorist act.[48] The terrorist act must be one that 'is capable of being carried out, and could occur, within the next 14 days'.[49]

1.57        The 2018 bill sought to extend the operation of the PDO regime for a further three years, noting the regime was due to sunset on 7 September 2018.[50]

1.58        The police must not question the person subject to a PDO while they are detained subject to limited exceptions.[51]

1.59        There are restrictions on who the subject of the PDO can contact while detained.[52] A person subject to a PDO may contact a family member or employer. However, contact can be monitored by police and can only occur for the purposes of letting the contacted person know that the subject being detained is safe but is not able to be contacted for the time being.

Compatibility of extending the operation of the PDO with multiple human rights

1.60        The PDO regime engages and may limit a number of human rights, including:

• right to liberty;
• right to security of the person;
• right to a fair hearing and fair trial;
• right to freedom of expression;
• right to freedom of movement;
• right to privacy;
• right to be treated with humanity and dignity;
• right to protection of the family; and
• right to equality and non-discrimination.

1.61        In particular, as PDOs are administrative orders made, in the first instance, by a senior AFP member, which authorise an individual to be detained without charge, the extension of the PDO regime engages and limits the right to liberty. Further, as there are restrictions on who a person can contact while detained under a PDO and what they can say to those they contact, the regime also engages and limits the right to freedom of expression. Being held in a form of detention, which is in effect incommunicado, may also have implications for a number of other human rights.  

1.62        The statement of compatibility acknowledges that PDOs engage and limit a number of these rights.^[53] These rights may be subject to permissible limitations providing they pursue a legitimate objective and are rationally connected and proportionate to that objective.

1.63        Noting that the PDO regime was not previously subject to a foundational assessment of human rights, the committee previously recommended that a statement of compatibility be prepared for the PDO regime,[54] setting out in detail how the necessarily coercive powers impose only a necessary and proportionate limitation on human rights having regard to the availability and efficacy of existing ordinary criminal processes (e.g. arrest and charge).[55] As set out below, the statement of compatibility for the 2018 bill provides some of this information.

Extending the operation of the PDO regime – legitimate objective

1.64        In relation to the objective of the PDO regime, the statement of compatibility explains:

The PDO regime supports the legitimate objective of preventing serious threats to Australia’s national security and, in particular, preventing terrorist acts. In recent years, there has been an increase in the threat of smaller-scale, opportunistic attacks by lone actors. Law enforcement agencies have had less time to respond to these kinds of attacks than other terrorist plots.[56]

1.65        Consistent with the committee's previous analysis, the objective of preventing serious terrorist attacks is likely to constitute a legitimate objective for the purposes of international human rights law.

Extending the operation of the PDO regime – rational connection

1.66        Since the committee's last report on PDOs,[57] current INSLM Renwick reported that PDOs 'have the capacity to be effective'.[58] This contrasts with the findings of previous INSLM Walker who found that '[t]here is no demonstrated necessity for these extraordinary powers, particularly in light of the ability to arrest, charge and prosecute people suspected of involvement in terrorism'.[59] The PJCIS has also recommended that the PDO regime continue.[60] There is therefore conflicting evidence as to whether the PDO regime is effective to achieve its stated objective.

1.67        The statement of compatibility notes that to date no PDOs have been issued since the commencement of the regime in 2005.[61] However, it argues that this:

...reflects the policy intent that these orders should be invoked only in limited circumstances where traditional investigative powers available to law enforcement agencies are inadequate to respond to a terrorist threat.[62]

1.68        However, as stated in the initial analysis, while this may be the policy intention of the measure, the fact that no PDOs have been issued also raised questions as to whether the PDO regime is effective to achieve its stated objective. Further, noting in particular the availability of the regular criminal processes, additional questions remained as to whether the PDO regime as a whole is rationally connected to its objective. It would have been useful if the statement of compatibility had provided further information about this issue.  

Extending the operation of the  regime – proportionality

1.69        In relation to proportionality, the previous human rights assessment of the PDO regime stated that the PDO regime involves very significant limitations on human rights. Notably, it allows the imposition of a PDO on an individual without following the normal criminal law process of arrest, charge, prosecution and determination of guilt beyond a reasonable doubt.

1.70        The previous assessment noted that it was unclear that the PDOs were necessary to achieve their stated objective, noting the availability of ordinary criminal justice processes including the criminalisation of preparatory terrorism offences.[63]  In this respect, the UN Human Rights Committee has indicated that, in order to justify preventative detention, the state must show that the threat posed by the individual cannot be addressed by alternative (less rights restrictive) means.[64] This issue was not fully addressed in the statement of compatibility. 

1.71        In terms of proportionality, the statement of compatibility for the 2018 bill argues that the 'high threshold' for making a PDO ensures that it is 'inextricably linked to preventing an imminent terrorist incident' and is a proportionate limit on human rights.[65] However, the previous human rights assessment noted that given a PDO could be sought even where there is not an imminent threat to life, it was unclear that the regime imposes a proportionate limitation on the right to liberty in the pursuit of national security.[66] In this respect, it was noted that the regime would potentially allow for detention of a person, who may not themselves pose a risk to society, for the purpose of preserving evidence. This kind of power is an extraordinary one in the context of the right to liberty and appears not to be a least rights restrictive approach.

1.72        In light of the proposed extension of the regime, the committee sought further advice as to:

• how the PDO regime is effective to achieve (that is, rationally connected to) its stated objective; and
• whether the limitation is a reasonable and proportionate measure to achieve the stated objective (including whether it is necessary, whether it is the least rights restrictive approach and whether there are adequate and effective safeguards in place in relation to its operation).

Minister and Attorney-General's response

Legitimate objective

1.73        The minister and Attorney-General's response notes that the committee has accepted that the PDO regime pursues a legitimate objective for the purposes of international human rights law.

Rational connection

1.74        In relation to whether the PDO regime is effective to achieve its stated objective, the response explains the scope of the PDO regime in the context of the type of risks that may occur:

Under a Commonwealth PDO, a person can be detained for up to 48 hours to:

• prevent a terrorist act that is capable of being carried out, and could occur, within the next 14 days from occurring, or
• preserve evidence of, or relating to, a recent terrorist act.

In the current threat environment, there is a heighted risk of smaller-scale opportunistic attacks, undertaken principally by lone actors or small groups. While there is still the need to prepare for more complex attack plots, simple attack methodologies that enable individuals to act independently and with a high degree of agility remain the more likely form of terrorism in Australia. The simple nature of these attacks means preparation may not involve activity that is concerning enough to come to the attention of authorities immediately. In such circumstances, law enforcement agencies need to act quickly and decisively to disrupt terrorist acts and prevent catastrophic consequences to the community.

1.75        This information indicates that there may be challenges in preventing and responding to simple attack methodologies using traditional investigative methods. In this respect, the response reiterates that the PDO is a measure of last resort, which is only sought in exceptional circumstances before a terrorist act occurs, or after an act of terrorism occurs to preserve evidence. The response further states the lack of use of the PDO regime reflects the understanding by the AFP that the PDO regime is only anticipated to be used 'in times of an unfolding emergency (or in its immediate aftermath) and when the traditional investigative powers available to law enforcement are inadequate to contain the threat'. The response explains that while the PDO regime is yet to be used, there are scenarios when its use will be effective to achieve its stated objectives. The response cites the following hypothetical situation of when use of the PDO regime may be necessary and appropriate:

In its supplementary submission to the PJCIS, the Attorney-General's Department (AGD) and the AFP provided the following example of when a PDO is an effective means of responding to a terrorist act:

Consider there has been an explosion in a crowded place in the Melbourne central business district. There are significant casualties. Police arrest a person suspected of causing the explosion and establish that the terrorist suspect had called an unknown associate around the time of the attacks. The associate is previously unknown to police, and at this stage, there is insufficient information to reach the threshold for arrest, and further investigation is required. A Commonwealth PDO is issued by a senior AFP member to the associate.

In this scenario, the detention of the associate is rationally connected to the prevention of a further terrorist act. The rational connection to the prevention of a terrorist act is outlined in the legislation itself which requires an analysis by the AFP member and the issuing authority of whether the PDO would 'substantially assist' in preventing a terrorist act occurring (paragraph 105.4(4)(c)). This ensures that a PDO can only be made if it is likely to be effective in achieving its objective of addressing a serious terrorist threat.

1.76        This hypothetical scenario shows how the PDO could be capable of being used in a way that is rationally connected to its stated objective. However, the hypothetical also raises questions as to the effectiveness of the PDO regime. This is because there is a question about whether the threshold for arrest and the issue of a PDO will be different in the type of circumstances canvassed in the scenario. In this respect, the threshold for affecting the arrest of the 'associate' for a terrorism offence is set out in section 3WA of the Crimes Act 1914 and provides that a person may be arrested if a constable suspects on reasonable grounds the person has committed or is committing an offence.[67] To make a PDO in relation to the 'associate' the AFP member would be still be required to suspect, on reasonable grounds, that the person will engage or has engaged in a terrorist act, the planning of such an act, or possesses a thing that is connected with such an act.[68] This means that, at least in relation to activity that has already been engaged in by the 'associate', the threshold for arrest and issue of a PDO would appear to be quite similar. It is difficult to reach conclusions in relation to questions of effectiveness in circumstances where PDOs have not been used and the hypotheticals provided do not appear to completely address the issue.  

1.77        The response further argues that each of the restrictions on human rights occasioned by the making of a PDO (including restrictions on communications) are rationally connected with preventing a terrorist act, or preserving evidence in the immediate aftermath of a terrorist act. It would have been useful if the response had explained how these restrictions would be effective in preventing a terrorist act or preserving evidence. On this basis, it appears that there are some outstanding questions as to whether PDOs are effective to achieve their stated objective.

Proportionality

1.78        In relation to whether the limitation is proportionate, the response points to safeguards in relation to the operation of the PDO regime. This includes the threshold requirements under subsection 105.4(4) that to obtain a PDO the AFP member must suspect on reasonable grounds that the subject of the PDO:

• will engage in a terrorist act, or
• possesses a thing connected with the preparation for, or the engagement of a person in, a terrorist act, or
• has done an act in preparation for, or planning, a terrorist act.

1.79        In addition, the AFP member must:

• be satisfied that making the PDO would substantially assist in preventing a terrorist act occurring, and
• be satisfied that detaining the individual for the period for which the individual is to be detained under the PDO is reasonably necessary for the purpose of preventing a terrorist act.

1.80        These thresholds are relevant to the proportionality of the PDO regime. Further, the response states that the test for seeking and making a PDO also requires both the AFP member and the issuing authority to undertake a proportionality analysis:

The PDO can only be sought and made where it would 'substantially assist' in preventing a terrorist act occurring. The AFP member and issuing authority must also consider whether detention of the individual under a PDO is 'reasonably necessary' for the underlying purpose of making a PDO. These criteria require the AFP member and issuing authority to weigh the effectiveness of the PDO against other measures that are available to prevent or respond to a terrorist threat.

Accordingly, the test for seeking and making a PDO is targeted and narrowly framed, to ensure it is only used where it is likely to be effective, and in circumstances where it can prevent terrorist acts which are likely to occur within a short period of time.

1.81        These requirements are relevant safeguards in relation to making a PDO. However, the particular assessment required in 105.4(4) is not necessarily equivalent to the test of proportionality for the purposes of international human rights law. In order to be a proportionate limitation on human rights, a measure must be the least rights restrictive approach, reasonably available, to achieve the stated objective. Concerns remain because it is possible that an AFP member may be satisfied that the PDO may 'substantially assist' preventing a terrorist act occurring and that the PDO is 'reasonably necessary', even though less rights restrictive approaches may be available. On this issue of proportionality, it is important to note that the threshold would appear to allow a PDO to be sought even where there is not an imminent threat to life.[69]

1.82        The response further argues that a similar proportionality analysis is undertaken where a PDO is sought and made for the purposes of preserving evidence in the immediate aftermath of a terrorist act:

In such circumstances, the AFP member and issuing authority must be satisfied that a terrorist act has occurred within the last 28 days, that it is necessary to detain the person to preserve evidence of, or relating to the terrorist act, and that detention is reasonably necessary to achieve this objective (subsect 105.4(6)).

1.83        However, again, this assessment in subsection 105.4(6) is not equivalent to the test of proportionality for the purposes of human rights law. As noted above, the test under international human rights law requires consideration of whether the measure is proportionate to achieve the stated objective of 'preventing serious threats to Australia’s national security and, in particular, preventing terrorist acts.' The specific concern is that the regime would allow for detention of a person, who may not themselves pose a risk to society, for the purpose of preserving evidence. As noted in the initial analysis, this kind of power is an extraordinary one in the context of the right to liberty and appears not to be a least rights restrictive approach.

1.84        The response explains that once a person is detained under a PDO they are subject to a number of safeguards:

• after 24 hours the AFP must apply to an issuing authority, such as a judge, to have the detention continued for a further 24 hours;
• there are additional protections for those under 18 or incapable of managing their own affairs to contact their parent or guardian;
• while a person subject to a PDO is prevented from communicating, they may still inform specified individuals they are safe or make a complaint to the Commonwealth;
• an individual detained under a PDO has the right to be treated with humanity and respect for human rights, and not to be subject to cruel, inhuman or degrading treatment;
• after the PDO has expired, the person subject to the PDO may apply to the Security Division of the Administrative Appeals Tribunal to seek merits review of the decision to make or extend a PDO. The person may also bring proceedings in a court for a remedy in relation to the PDO, or for their treatment under the PDO.

1.85        These are important and relevant safeguards in relation to the proportionality of the measure. However, despite these safeguards and the considerations to be made by the issuing authority, serious questions remain as to the proportionality of the PDO regime. As noted above, in its current form, the breadth of the PDO regime extends to detaining people who may have committed no crime and pose no threat, for the purpose of securing evidence. As noted in the initial analysis, the UN Human Rights Committee has indicated that, in order to justify preventative detention, the state must show that the threat posed by the individual cannot be addressed by alternative (less rights restrictive) means.^[70] The information provided in the response does not completely address this issue. Accordingly, the PDO regime does not appear to impose a proportionate limit on human rights.

Committee response

1.86        The committee thanks the minister and the Attorney-General for their response and has concluded its examination of this issue.

1.87        While the PDO regime pursues a legitimate objective for the purposes of human rights law, the preceding analysis indicates that the regime as drafted is likely to be incompatible with human rights.

1.88        Consistent with the concerns raised in the previous human rights assessment relating to the PDO regime, the committee draws the human rights implications of the bill (now Act) to the attention of the Parliament.[71]

Australian Federal Police – stop, search and seize powers

1.89        The committee has previously considered stop, search and seize powers as part of its consideration of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014.[72]

1.90        Part IAA Division 3A of the Crimes Act 1914 was first introduced in 2005 to provide 'a new regime of stop, question, search and seize powers...exercisable at airports and other Commonwealth places to prevent or respond to terrorism'.[73]

1.91        Division 3A provides a range of powers for the AFP and state and territory police officers that can be exercised if a person is in a 'Commonwealth place' (such as an airport)[74] and:

• the officer suspects on reasonable grounds that the person might have just committed, might be committing or might be about to commit a terrorist act; or
• the Commonwealth place is a 'prescribed security zone'.[75]

1.92        In these circumstances, the powers that the officers may exercise include: 

• requiring a person to provide their name, residential address and reason for being there;
• stopping and searching persons, their items and vehicles for a terrorist related item; and
• seizing terrorism related items.[76]

1.93        Division 3A, section 3UEA also allows a police officer to enter and search premises without a search warrant and to seize property without the occupier's consent in certain circumstances.[77] These powers are not limited in their application to Commonwealth places.[78] 

1.94        The 2018 bill sought to extend the operation of stop, search and seize powers for a further three years noting the regime was due to sunset on 7 September 2018.[79]

Compatibility of extending the stop, search and seize powers with multiple human rights 

1.95        The stop, search and seize powers engage and may limit a number of human rights, including:

• the right to privacy;
• the right to freedom of movement; 
• the right to security of the person and the right to be free from arbitrary detention;
• the right to a fair trial and fair hearing.[80]

1.96        These rights may be subject to permissible limitations providing they pursue a legitimate objective and are rationally connected and proportionate to that objective.

1.97        The committee's previous reports have raised concerns as to whether the stop, search and seize powers constitute permissible limitations on human rights.^[81] Noting that the stop, search and seize powers were not previously subject to a foundational assessment of human rights, the committee previously recommended that a statement of compatibility[82] be prepared.[83] As set out below, the statement of compatibility for the 2018 bill provides some of this foundational assessment.

Extending stop, search and seize powers – legitimate objective

1.98        The statement of compatibility states that the powers 'achieve the legitimate purpose of protecting Australia's national security, including in particular, preventing and responding to terrorist acts'. This is likely to constitute a legitimate objective for the purposes of international human rights law.

Extending stop, search and seize powers – rational connection

1.99        The statement of compatibility acknowledges that the powers have not been used to date.^[84] However, it points to recent reviews of the powers by INSLM Renwick and the PJCIS which recommended that the powers be continued as evidence of their importance.[85] Other than pointing to these other reviews, the statement of compatibility does not further explain how the powers are effective. Accordingly, it was unclear from the information provided how the powers are rationally connected to their stated objective.

Extending stop, search and seize powers – proportionality 

1.100        The human rights assessment of the powers in the committee's previous report raised concerns about the proportionality of the limitation. The assessment noted that these powers are coercive and highly invasive in nature. For example, once a 'prescribed security zone' is declared, everyone in that zone is subject to stop, search, questioning and seizure powers, regardless of whether or not the police officer has reasonable grounds to believe the person may be involved in the commission, or attempted commission, of a terrorist act. In deciding whether to declare a prescribed security zone, the minister need only 'consider' that such a declaration would assist in preventing a terrorist act occurring or responding to a terrorist act that has occurred.[86]

1.101        There were further questions about whether the powers are more extensive than is strictly necessary to achieve their stated objective. The previous assessment noted that the powers are in addition to existing police powers under Commonwealth criminal law, including a range of powers to assist in the collection of evidence of a crime.[87] For example, Division 2 of Part IAA of the Crimes Act 1914 sets out a range of search and seizure powers, including the primary Commonwealth search warrant provisions that apply to all offences against Commonwealth law. Under these provisions, an issuing officer can issue a warrant to search premises and persons if satisfied by information on oath that there are reasonable grounds for suspecting that there is, or will be in the next 72 hours, evidential material on the premises or in the possession of the person. An application for such a search warrant can be made by telephone in urgent situations.^[88] A warrant authorises a police officer to seize anything found in the course of the search that he or she believes on reasonable grounds to be evidential material of an offence to which the warrant relates (or another indictable offence) and seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.[89] The statement of compatibility does not explain how these ordinary powers are insufficient to protect national security.

1.102        The statement of compatibility argues that the powers are proportionate, pointing to restrictions on their use and noting they are subject to oversight by the ombudsman. The 2018 bill also proposes to introduce additional requirements for the AFP to report to the PJCIS after the AFP exercises such powers. These matters assist with the proportionality of the limitation. However, as noted above, questions remain as to whether the powers are more extensive than is strictly necessary and so may not represent the least rights restrictive approach.

1.103        The committee therefore sought advice as to the compatibility with international human rights of each of the stop, question, search and seizure powers, and their proposed extension, including:

• whether each of the stop, question, search and seizure powers, and their proposed extension, is effective to achieve (that is, rationally connected to) its stated objective; and
• whether each of the stop, question, search and seizure powers, and their proposed extension, is a reasonable and proportionate measure for the achievement of that objective (including whether it is necessary, whether it is the least rights restrictive approach and whether there are adequate and effective safeguards in place in relation to its operation).

Minister and Attorney-General's response

Legitimate objective

1.104        The minister and Attorney-General's response notes that the committee has accepted that the stop, search and seizure powers in Division 3A of Part IAA of the Crimes Act pursue a legitimate objective for the purposes of international human rights law.

Rational connection

1.105        The response explains that the scope of the powers in Division 3A is mostly confined to Commonwealth places. It states that 'Commonwealth places' 'are generally places of national significance, or areas of mass gathering (or both), where a terrorist act could have potentially catastrophic consequences.' The response notes that only section 3UEA, which provides that a police officer may enter premises without a warrant in certain circumstances, may be exercised by law enforcement agencies outside of a Commonwealth place.  

1.106        In relation to how the powers are rationally connected to (that is, effective to achieve) the stated objective, the response explains:

As noted in the PJCIS Powers Report, the stop, search and seize provisions are emergency powers which are only likely to be used 'in rare and exceptional circumstances' to enable police to 'respond rapidly to terrorism incidents'. While these powers have not yet been used by law enforcement agencies, they 'fill a critical, albeit narrow, gap in state and territory emergency counter-terrorism powers, by enabling law enforcement agencies to act immediately in the event of a terrorist threat to, or terrorism incident within, a Commonwealth place'. In the joint submission from AGO and the Australian Federal Police (AFP) to the PJCIS, a hypothetical scenario was outlined in which the stop, search and seize powers would be an effective measure and markedly improve the capability of law enforcement agencies to respond to the threat of a terrorist act:

AFP provides a Uniformed Protection Function at Garden Island Defence Precinct (NSW). The AFP's function in that regard is to provide for the safety and security of the Precinct and its population along with providing a first response capability in the event of a critical incident.

In this hypothetical example, intelligence indicates that an unidentified person is planning to commit an edged weapon terrorist attack at the Precinct. A suspect is identified loitering in the public area for a prolonged period of time, constantly keeping his hands in his pocket and trying to secret himself from view of CCTV cameras with a black and white flag visible in his rear pocket.

In this scenario reasonable grounds to suspect the person might be about to commit a terrorist act exist to exercise powers under Division 3A. The suspect is approached and required to provide their name and reason for being at the Precinct under section 3UC. The person provides their name and shows a NSW driver's licence. Intelligence checks identify that they are an associate of a known terrorism suspect. Meanwhile, police search the person under section 3UD, and seize a knife and Islamic State flag found in their possession. The person is arrested on suspicion of planning a terrorist act.

In the current terrorism threat environment, an attack on a Commonwealth place is not unlikely. It is therefore vital that law enforcement agencies have appropriate and targeted powers to prevent or respond to terrorist acts in Commonwealth places. The stop, search and seize powers are rationally connected to the legitimate purpose of preventing serious threats to Australia's national security and, in particular, preventing terrorist acts.

1.107        Although the powers have not been used to date, the information provided indicates that there may be circumstances where these powers would be effective to achieve the legitimate objective of protecting Australia's national security, including in particular, preventing and responding to terrorist acts.

Proportionality

1.108        In relation to whether each of the stop, question, search and seizure powers, and their proposed extension, is a proportionate measure for the achievement of the stated objective, the response states:

The stop, search and seize powers contain a number of safeguards to ensure that they represent the least restrictive way to achieve the legitimate purpose of preventing serious threat of Australia's national security interests, including in particular, preventing terrorist acts.

Firstly, as noted in the PJCIS Powers Report, the stop, search and seize powers are only likely to be exercised in emergency scenarios. Under such circumstances, it is anticipated that traditional law enforcement powers are unlikely to be as effective in responding to the terrorist threat. In a rapidly evolving threat scenario, the stop, search and seize powers are likely to represent the most effective means of responding to a terrorist threat, and therefore may represent the least restrictive way to achieve the legitimate objective of safeguarding the community from a terrorist act.

Secondly, the stop, search and seize powers are, with the exception of the emergency entry into premises power in section 3UEA, narrowly confined in their application to Commonwealth places. Accordingly, these powers are not broadly applicable and are limited in their exercise to locations which are generally of national significance or places of mass gathering (or both). Similarly, while section 3UEA is not limited in its application to a Commonwealth place, the circumstances in which it may be applied are narrowly confined to emergency scenarios, where rapid law enforcement action is necessary because there is a serious and imminent threat to a person's life, health or safety.

Thirdly, in exercising the stop and search power in section 3UD, a police officer must not use more force, or subject the person to greater indignity, than is reasonable and necessary in order to conduct the search (subsection 3UD(2)). Furthermore, a person must not be detained longer than is reasonably necessary for a search to be conducted (subsection 3UD(3)). Similarly, in searching a thing (including a vehicle), a police officer may use such force as is reasonable and necessary in the circumstances, but must not damage the thing by forcing it, unless the person has been given a reasonable opportunity to open the thing, or it is not possible to give that opportunity (subsection 3UD(4)). These safeguards ensure that the stop, search and seize powers are exercised in a proportionate manner and cause the least amount of interference with an individual's rights.

Fourthly, a police officer who is responsible for an item seized under section 3UE or section 3UEA must, within seven days, serve a seizure notice on the owner of the thing (or, if the owner cannot be found, the person from whom the thing was seized), to enable the owner to request for the return of the item (section 3UF).

Fifthly, where the Minister makes a declaration for a prescribed security zone in respect of a Commonwealth place, the Minister is subject to an ongoing requirement to revoke the declaration as soon as there is no longer a terrorism threat that justifies the declaration being continued, or if it is no longer required to respond to a terrorist act that has already occurred (subsection 3UJ(4)). This ensures that the inference with human rights that may be occasioned through the making of a prescribed security zone declaration does not last any longer than necessary to achieve the legitimate objective of the preventing or responding to a terrorist act.

Finally, the stop, search and seize powers are subject to important oversight mechanisms. For instance, complaints on the use of these powers by the AFP could be investigated by the Commonwealth Ombudsman or the Australian Commission for Law Enforcement Integrity. Similarly, the use of these powers by state and territory police can be reviewed by the appropriate jurisdictional oversight bodies, such as state and territory Ombudsman. In addition, the INSLM has the power to review the operation of counter-terrorism legislation, which includes the power to request information or produce documents for the purposes of performing the INSLM's function. This enables the INSLM to seek information and review documents associated with the exercise of stop, search and seize powers by the AFP.

The Bill strengthens these oversight arrangements by also requiring that as soon as possible after the exercise of the stop, search and seize powers by an AFP police officer, the Commissioner of the AFP must provide a report about the use of the powers to the Minister, the INSLM and the PJCIS. Furthermore, the Bill also introduces a new annual reporting requirement for the exercise by the AFP of the stop, search and seize powers.

These safeguards ensure that the stop, search and seize powers are targeted in their application and do not cause greater interference with human rights than is necessary to achieve the legitimate objective of preventing serious threat of Australia's national security interests, including in particular, preventing terrorist acts.

1.109        These safeguards are highly relevant to the proportionality of the stop, search and seizure powers. Noting that the powers have not been used to date, it is acknowledged that use of these powers has been approached cautiously. In this respect, in light of the safeguards identified, in circumstances where a police officer believes on reasonable grounds that the person might have just committed, might be committing or might be about to commit a terrorist act, the stop, search and seizure power may be a proportionate limitation on human rights. However, concerns remain as to the proportionality of other aspects of the powers. 

1.110        The response states that the powers are 'only likely to be exercised in emergency scenarios.' While this may be the case as a matter of policy and practice, the provisions themselves appear to be able to apply more broadly. As noted above, once a Commonwealth place is declared by the minister to be a 'prescribed security zone', everyone in that zone is subject to stop, search, questioning and seizure powers, regardless of whether or not the police officer has reasonable grounds to believe the person may be involved in the commission, or attempted commission, of a terrorist act. As Commonwealth places may be areas of public significance such powers could have considerable human rights implications. In deciding whether to declare a prescribed security zone, the minister need only 'consider' that such a declaration would assist in preventing a terrorist act occurring or responding to a terrorist act that has occurred. While the law has not operated so broadly to date, there is a concern that in future such declarations may be made on a more regular basis. This issue is not fully addressed in the response and it appears that the breadth of the powers' potential application may not be the least rights restrictive approach.

1.111        Additionally, in relation to the power to search premises without a warrant, it is unclear from the information provided why these provisions are necessary in light of the ordinary powers of the police. As noted above, under Division 2 of Part IAA of the Crimes Act 1914, an issuing officer can issue a warrant to search premises and persons if satisfied by information on oath that there are reasonable grounds for suspecting that there is, or will be in the next 72 hours, evidential material on the premises or in the possession of the person. An application for such a search warrant can be made by telephone in urgent situations.^[90] A warrant authorises a police officer to seize anything found in the course of the search that he or she believes on reasonable grounds to be evidential material of an offence to which the warrant relates (or another indictable offence) and seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.^[91] The response does not explain how these ordinary powers are insufficient to protect national security. As such, it is unclear that the powers Division 3A, section 3UEA represent the least rights restrictive approach as required to be a proportionate limitation on human rights. 

Committee response

1.112        The committee thanks the minister and the Attorney-General for their response and has concluded its examination of this issue.

1.113         The committee notes that the stop, search and seizure powers have not been used to date.

1.114        Based on the information provided, in circumstances where a police officer believes on reasonable grounds that the person might have just committed, might be committing or might be about to commit a terrorist act the stop, search and seizure powers may be a proportionate limitation on human rights.

1.115        However, the preceding analysis indicates that the scope of other aspects of the stop, search and seizure powers is likely to be incompatible with human rights.

1.116        Consistent with the concerns raised in the previous human rights assessment relating to the stop, search and seizure powers, the committee draws the human rights implications of the bill (now Act) to the attention of the parliament.[92]

Office of National Intelligence Bill 2018

Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018

Background

1.117        The committee first reported on the bills in its Report 7 of 2018, and requested a response from the Prime Minister and the Attorney-General by 29 August 2018.[93]

1.118        A response from the Attorney-General to the committee's inquiries was received on 31 August 2018. The response is discussed below and is reproduced in full at Appendix 3.

Offences for unauthorised use or disclosure of information

1.119        The Office of National Intelligence Bill 2018 (the bill) seeks to create a number of offences related to the unauthorised communication, use or recording of information or matters acquired or prepared by or on behalf of the Office of National Intelligence (ONI) in connection with its functions or that relates to the performance by ONI of its functions (ONI information).

1.120        Proposed section 42 would create an offence for persons to communicate ONI information or matters in circumstances where the person is or was a staff member of ONI, is otherwise engaged by ONI, or is an employee or agent of a person engaged by ONI (in other words, an ONI 'insider').[94] The offence carries a maximum penalty of 10 years' imprisonment.

1.121        Proposed section 43 would create an offence for the subsequent disclosure of ONI information or matters which come to the knowledge or into the possession of a person other than due to their employment or association with ONI[95] (in other words, an ONI 'outsider'), in circumstances where the person intends that the communication cause harm to national security or endanger the health or safety of another person, or where the person knows that the communication will or is likely to cause harm to national security or endanger the health or safety of another person. The offence carries a maximum penalty of 5 years' imprisonment.

1.122        Proposed section 44 would create offences for the unauthorised 'dealing with'[96] or making records of ONI information where the person is an ONI 'insider'. The offences carry a maximum penalty of 3 years' imprisonment.

Defences and exceptions

1.123        There are specific exemptions to the offences in proposed sections 42 and 44 where the communication is made:

• to the Director-General[97] or a staff member by the person in the course of their duties as a staff member or in accordance with a contract, agreement or arrangement; or
• within the limits of authority conferred on the person by the Director-General or with the approval of the Director-General or a staff member having the authority of the Director-General to give such an approval.

1.124        The bill also provides for a number of defences to each of the offences in proposed sections 42, 43, and 44, including where:

• the information or matter is already publicly available with the authority of the Commonwealth;[98]
• the information is communicated to an Inspector-General of Intelligence and Security (IGIS) official for the purpose of the official exercising a power or performing a function or duty as an IGIS official;[99]
• the person deals with, or makes, a record for the purpose of an IGIS official exercising a power or performing a function or duty as an IGIS official;[100] and
• the subsequent communication is in accordance with any requirement imposed by law or for the purposes of relevant legal proceedings or any report of such proceedings.[101]

1.125        The defendant bears an evidential burden in relation to these matters.

Compatibility of the measures with the right to freedom of expression

1.126        The right to freedom of expression requires the state not to arbitrarily interfere with freedom of expression, particularly restrictions on political debate. By criminalising the disclosure of certain information, as well as particular forms of use of such information, the proposed secrecy provisions engage and limit the right to freedom of expression.

1.127        The committee has previously raised concerns in relation to limitations on the right to freedom of expression relating to secrecy offences introduced or amended by the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018; the Australian Border Force Amendment (Protected Information) Bill 2017; the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016; and the National Security Legislation Amendment Bill (No. 1) 2014 (all now Acts).[102] The secrecy offences examined in this report raise similar concerns.

1.128        Measures limiting the right to freedom of expression may be permissible where the measures pursue a legitimate objective, are rationally connected to that objective, and are a proportionate way to achieve that objective.^[103]

1.129        The statement of compatibility for the bill acknowledges that the secrecy offences engage and limit the right to freedom of expression but argues that the measures are reasonable, necessary and proportionate to achieve the objectives of protecting national security; protecting the right to privacy of individuals whose personal information may be provided to ONI; and enabling ONI to perform its functions, including promoting a well-integrated intelligence community.[104] While generally these matters are likely to constitute legitimate objectives for the purposes of international human rights law, the initial analysis stated that it would have been useful if the statement of compatibility provided further information as to the importance of these objectives in the specific context of the secrecy measures.

1.130        As to whether the measures are rationally connected to the stated objective, the statement of compatibility explains that:

By providing a deterrent against the disclosure or handling of information without authorisation, the risk of national security being prejudiced through that disclosure or inappropriate handling is minimised, the risk of a person’s privacy being breached is lowered, and agencies will be more willing to provide information to ONI in the knowledge that there are strict penalties for unauthorised disclosure of that information.[105]

1.131        It was acknowledged that, to the extent that the type of information or matters prohibited from unauthorised use or disclosure under the bill may prejudice national security or contain an individual's personal information, the measures may be capable of being rationally connected to the objectives stated above. However, the breadth of information or matters that the proposed offences may apply to raises questions as to whether the measures would in all circumstances be rationally connected to the stated objectives.

1.132        Similar questions arose in relation to the proportionality of the measures as drafted.

Breadth of information

1.133        As set out at [1.3], the proposed offences apply to information or matters acquired or prepared by or on behalf of ONI in connection with its functions or that relate to the performance by ONI of its functions. ONI's functions are extensive and include leading and evaluating the activities of the 'national intelligence community' (NIC);[106] collecting information and preparing assessments on matters of political, strategic or economic significance to Australia, including of a domestic or international nature; and providing advice to the Prime Minister on national intelligence priorities, requirements and capabilities and other matters relating to the NIC. Under the bill, ONI may receive information on matters of political, strategic or economic significance to Australia from a Commonwealth authority, an intelligence agency or agency with an intelligence role, and may request such information subject to certain restrictions.[107]

1.134        In relation to the type of information prohibited from unauthorised use or disclosure  under the bill, the statement of compatibility explains that:

Such information is likely to be sensitive, and unauthorised disclosure or handling could threaten Australia’s national security. The provisions also provide for NIC agencies to give ONI documents or things that relate to ONI’s functions. This information is likely to relate to highly sensitive information that could prejudice national security if disclosed – for example, information relating to intelligence workforce information, intelligence capabilities or national intelligence priorities.[108]

1.135        While it was acknowledged that the disclosure of some types of ONI information may potentially harm national security, as noted above, proposed section 42 of the bill prohibits the unauthorised disclosure of ONI information or matters generally, regardless of the material's security classification or whether it concerns national security or is otherwise deemed to be potentially harmful. It therefore appears that the 'insider' offence set out in proposed section 42 would criminalise the unauthorised communication of information that is not necessarily harmful to national security, to Australia's interests or to a particular individual, and is not intended to cause harm. This raises concerns that the measures may not be the least rights restrictive way of achieving the stated objectives and may be overly broad.

Breadth of application and definition of 'national security'

1.136        In this context, the breadth of the proposed 'insider' offence in section 44, which prohibits the unauthorised 'dealing with'[109] or recording of ONI information or matters, was also a concern. The initial analysis stated that it appears that a person does not have to publicly communicate the information or matter, or intend to do so, in order to commit an offence. It was unclear whether criminalising unauthorised 'dealing with' all information or matters classified as ONI information, including where the information is not otherwise harmful or sensitive and is not communicated publicly, is rationally connected or proportionate to achieve the legitimate objectives.

1.137        The proposed 'outsider' offence in section 43 relating to the subsequent communication of information or matters by persons other than, for example, ONI employees or contractors, applies to the same broad range of information. However, the offence only applies where the person intends that the communication cause harm to national security or endanger the health or safety of another person, or knows that it will or is likely to. While this may potentially assist with the proportionality of the limitation on the right to freedom of expression, concerns remained that the offence is overly broad with respect to the stated objectives.

1.138        In particular, the scope of information or matters that may be considered as causing harm to Australia's national security if publicly disclosed is potentially broad. Under the bill, national security has the same meaning as in the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act), which provides that 'national security means Australia’s defence, security, international relations or law enforcement interests'.[110] 'International relations' is in turn defined in the NSI Act as the 'political, military and economic relations with foreign governments and international organisations'.[111] In light of these definitions, it appears that the proposed offence in section 43 would apply to a journalist who publishes an article containing ONI information that they know will likely cause harm to Australia's political relations with an international organisation, notwithstanding that the communication may be in the course of reporting on an issue considered to be in the public interest. It would also appear possible that the public disclosure of certain information may endanger the health or safety of another person — for example, a person held in immigration detention — and therefore constitute an offence despite the information being in the public interest, including in circumstances where the affected person consents to the information being made public. It was therefore not clear whether the measure, as drafted, is sufficiently circumscribed in order to be a proportionate limitation on the right to freedom of expression.

1.139        Further, it may not be clear to a person as to whether information or matters that they come to know or possess constitutes ONI information and is therefore protected from subsequent disclosure subject to the exceptions set out above. As noted at [1.17], ONI information may potentially include a very broad range of documents or other matters that may initially have been produced by a range of Commonwealth agencies, including non-intelligence agencies. It is possible that a person may receive information that was originally produced by, for example, the Department of Home Affairs, but may be unaware that the information has also become ONI information by reason of it having been acquired by ONI. Under proposed section 43, the prosecution is only required to prove that the defendant was reckless as to whether information or a matter is ONI information.[112]

Safeguards and penalties

1.140        There were also questions about whether the defences (set out at [1.8]) act as adequate safeguards in respect of the right to freedom of expression. For example, the defences may not sufficiently protect the disclosure of information that is in the public interest or in aid of government accountability and oversight. There is no general defence related to public reporting in the public interest or general protections for whistle-blowers, other than for the communication of information to the IGIS. This raised further questions about the proportionality of the limitation on the right to freedom of expression.

1.141        Further, the severity of the penalties is also relevant to whether the limitation on the right to freedom of expression is proportionate. In this case, it was noted that the proposed penalties are serious and range from three to 10 years' imprisonment.

1.142        The committee therefore sought advice as to:

• how the measures are effective to achieve (that is, rationally connected to) the stated objectives of the bill; and
• whether the limitations are reasonable and proportionate to achieve the stated objectives (including in relation to the breadth of information subject to secrecy provisions; the range of information or matters that may be considered as causing harm to Australia's national security or the health and safety of another person; the adequacy of safeguards; and the severity of the criminal penalties).

1.143        In relation to the proportionality of the measures, in light of the information requested above, advice was also sought as to whether it would be feasible to amend the secrecy offences to:

• appropriately circumscribe the scope of information subject to the prohibition on unauthorised disclosure or use under proposed sections 42 and 44 (by, for example, introducing a harm element or otherwise restricting the offences to defined categories of information);
• appropriately circumscribe the definition of what causes harm to national security for the purposes of proposed section 43;
• expand the scope of safeguards and defences (including, for example, a general 'public interest' defence); and
• reduce the severity of the penalties which apply.

Attorney-General's response

1.144        In response to the committee's concerns regarding proposed section 43, the Attorney-General states:

The development of the ONI Bill overlapped with the consideration by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 (EFI Bill). Noting the PJCIS' recommendations on the EFI Bill, and the form in which that Bill passed Parliament, the ONI Bill including its Explanatory Memorandum will be amended to remove section 43 (the offence of subsequent communications of certain information) in its entirety. On that basis, this response only deals with clauses 42 and 44 of the Bill.

1.145        In light of the committee's concerns, the committee welcomes the removal of section 43 from the bill.

1.146        In relation to whether the measures in sections 42 and 44 are effective to achieve the stated objectives of the bill, the Attorney-General's response explains:

In order to effectively perform its functions, ONI will need to have access to [a] wider range of information (frequently of a sensitive and classified nature) from a broader range of agencies than is currently required for ONA's functions. The offences in clauses 42 and 44 are part of a range of safeguards contained in the Bill to ensure that this information, as well as information generated by ONI, is appropriately protected from unauthorised disclosure, particularly given the potentially devastating consequences that unauthorised disclosures and compromises of intelligence-related information can have.

1.147        Based on this information, it appears that the measures are capable of being effective to achieve the stated objectives of the bill to protect national security, protect the right to privacy of individuals whose information may be provided to ONI, and enable ONI to perform its functions.

1.148        The Attorney-General's response also provides additional information as to whether the measures constitute a proportionate limitation on the right to freedom of expression. For example, regarding the scope of the offences, the response explains:

The offences in clauses 42 and 44 will only apply where the information or matter came into the person's knowledge or possession by reason of one the following circumstances: that the person is or was a staff member of ONI, that the person has entered into any contract, agreement or arrangement with ONI, or that the person has been an employee or agent of a person who has entered into a contract, agreement or arrangement with ONI.

This is in recognition of the special duties and responsibilities that apply to ONI staff and people with whom the agency has an agreement or arrangement, and the strong and legitimate expectation that those persons will handle all information obtained in that capacity in strict accordance with their authority at all times.

1.149        It is acknowledged that restricting the offence to staff assists with the proportionality of the limitation. However, concerns remain regarding the scope of the information which is subject to the prohibition on disclosure.

1.150        More specifically, in response to the committee's inquiry about the feasibility of circumscribing the scope of information subject to the prohibition on unauthorised disclosure or use under proposed sections 42 and 44, the Attorney-General's response states:

Limiting the scope of the offences to ONI information of a particular security classification would be insufficient to provide adequate protection against harm to national security. It is well-recognised that the information handled by intelligence agencies is so sensitive that even isolated disclosures of seemingly innocuous information could cause harm; as these may be analysed collectively to reveal significant matters. Limiting the scope of the offences to the communication of information would be also insufficient to provide sufficient protection as it would not capture the full continuum of behaviour that may result in the unauthorised disclosure of information, limiting the ability of authorities to take steps to prevent significant harm to national security.

1.151        In light of the potentially significant impact of the proposed measures on the right to freedom of expression, concerns remain as to the proportionality of a measure which makes it a criminal offence to disclose all information to be held by ONI. While it is acknowledged that seemingly innocuous information could be capable of being harmful in particular circumstances, the concern in relation to the proportionality of the measure is that this could also capture the disclosure of information which is not harmful. It is noted in this respect that the offence does not require that the unauthorised disclosure of information 'may cause harm' by itself or when used in combination with other material. In these circumstances, it appears that the offence as drafted may be overly broad.

1.152        In relation to whether the scope of the safeguards and defences could be expanded, for example, by including a general public interest defence, the Attorney-General's response explains:

The offences do not constitute an absolute bar on the disclosure of ONI information and contain appropriate safeguards to facilitate the communication of ONI information in appropriate circumstances including:

• with the approval of the Director-General of National Intelligence (Director-General) or a staff member with authority to give such approval; and
• to an Inspector-General of intelligence and Security (IGIS) official for the purpose of that official exercising a power, or performing a function or duty as such an official. This will include disclosures to the Office of the IGIS under the Public Interest Disclosure Act 2013 that relate to an intelligence agency.

Given the existing exceptions and the limited application of the offences, the inclusion of a general public interest defence is not considered necessary.

1.153        Despite these exceptions, the disclosure of information for public interest purposes appears to be barred in circumstances where the disclosure lacks the approval of the Director-General, or is made to a party other than an IGIS official, due to the operation of the proposed offences in combination with the broad definition of 'intelligence information' in the Public Interest Disclosure Act 2013.[113] Consequently, concerns remain about the apparently limited availability of safeguards and defences.

1.154        Finally, regarding the severity of the penalties, the Attorney-General's response explains:

The maximum penalties are consistent with the penalties that apply to the existing secrecy provisions in the IS Act [Intelligence Services Act 2001] and reflect the higher level of culpability on the part of persons who obtain ONI information in their capacity as an ONI staff member, or through a contract, arrangement or agreement with ONI.

1.155        Whilst similarly severe penalties may exist in other legislation, evidence of consistency with other penalty frameworks does not, of itself, provide an answer to the question of whether the proposed penalties can be reduced to address concerns about whether a measure constitutes a reasonable and proportionate limitation on human rights in pursuit of a legitimate objective.

1.156        The preceding analysis indicates that many of the concerns raised in the initial analysis regarding the proportionality of the limitation imposed on the right to freedom of expression by the offences in sections 42 and 44 remain; particularly with regard to the breadth and scope of information to which the offences apply, and the limited availability of relevant safeguards.

Committee response

1.157        The committee thanks the Attorney-General for his response and has concluded its examination of this issue.

1.158        The committee welcomes the removal of proposed section 43 in its entirety.

1.159        However, noting, in particular, the breadth and scope of information to which the measures in sections 42 and 44 relate, the preceding analysis indicates that the remaining measures may be incompatible with the right to freedom of expression.

Compatibility of the measures with the right to be presumed innocent

1.160        Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR) protects the right to be presumed innocent until proven guilty according to law. The right to be presumed innocent usually requires that the prosecution prove each element of an offence beyond reasonable doubt.

1.161        An offence provision which requires the defendant to carry an evidential or legal burden of proof (commonly referred to as 'a reverse burden') with regard to the existence of some fact also engages and limits the presumption of innocence. This is because a defendant's failure to discharge the burden of proof may permit their conviction despite reasonable doubt as to their guilt. Where a statutory exception, defence or excuse to an offence is provided in legislation, these defences or exceptions may effectively reverse the burden of proof and must be considered as part of a contextual and substantive assessment of potential limitations on the right to be presumed innocent in the context of an offence provision.