Under section 29 of the Intelligence Services Act 2001 (IS Act), it is a function of the Parliamentary Joint Committee of Intelligence and Security (the Committee) to review the operation, effectiveness and implications of:
Division 3A of Part IAA of the Crimes Act 1914 (Crimes Act) and any other provision of that Act as far as it relates to that Division,
Divisions 104 and 105 of the Criminal Code Act 1995 (Criminal Code) and any other provision of that Act as far as it relates to those Divisions.
This report is in fulfilment of that function and relates to the Committee’s review of:
the stop, search and seizure powers provided for under Division 3A of Part IAA of the Crimes Act 1914;
the control order regime provided for under Division 104 of the Criminal Code; and
the preventative detention order (PDO) regime provided for under Division 105 of the Criminal Code.
Conduct of the inquiry
The Chair of the Committee, Mr Andrew Hastie MP, announced the review by media release on 10 August 2017 and invited written submissions. Submissions were requested by 22 September 2017.
The Committee received 13 submissions and three supplementary submissions, from government, academia and other stakeholders. A list of submissions received by the Committee is at Appendix A.
The Committee wishes to express its appreciation to all submitters and witnesses for their contributions to this inquiry. The Committee is particularly appreciative of those submitters who provided supplementary submissions at the request of the Committee.
At all times it was the Committee’s preference for submissions and hearings to be made publicly available.
The Committee held one public hearing and two private hearings on 1 December 2017. Details of the hearings are included at Appendix B.
The Committee also received private briefings from the Independent National Security Legislation Monitor (INSLM), the Attorney-General’s Department and the Australian Federal Police (AFP).
Copies of unclassified submissions and transcripts of public hearings can be accessed on the Committee’s website.
This reports consists of four chapters:
This chapter describes the history of the legislation under review, the use of the powers to date, and the current security environment;
Chapter 2 considers the stop, search and seizure powers;
Chapters 3 examines the control order provisions, and considers the interoperability between control orders and the continuing detention order regime; and
Chapter 4 discusses the preventative detention order scheme.
A table comparing the main features of control orders, PDOs and other detention powers related to terrorism is at Appendix C.
Following the July 2005 terrorist attacks in London, the Commonwealth Government introduced Divisions 3A, 104 and 105 into the Criminal Code via the Anti-Terrorism Act (No. 2) 2005 to assist ‘law enforcement and intelligence agencies to effectively prevent and investigate terrorism’. According to the Explanatory Memorandum accompanying the relevant bill, the legislation would, amongst other things, introduce:
a new regime to allow for ‘control orders’ that will allow for the overt close monitoring of terrorist suspects who pose a risk to the community,
a new police preventative detention regime that will allow detention of a person without charge where it is reasonably necessary to prevent a terrorist act or to preserve evidence of such an act,
a new regime of stop, question, search and seize powers that will be exercisable at airports and other Commonwealth places to prevent or respond to terrorism.
During the Minister’s second reading speech, the then Attorney-General, the Hon Philip Ruddock, stated that the Bill would ensure the Government was ‘in the strongest position possible to prevent new and emerging threats, to stop terrorists carrying out their intended acts’. Attorney-General Ruddock also highlighted that the Bill had been the subject of extensive consultation, with its proposed measures agreed to at a special Council of Australian Governments (COAG) meeting held on 27 September 2005. Under the COAG agreement, State Premiers and the Northern Territory and Australian Capital Territory Chief Ministers agreed to introduce complementary legislation providing for preventative detention for a period of up to 14 days and search powers.
On 3 November 2005, the Bill was referred to the Senate Legal and Constitutional Legislation Committee for inquiry and report. After an extensive review of the Bill, in which it received 294 submissions, the Senate Committee recommended that the Senate pass the Bill, subject to a number of amendments designed to improve and strengthen safeguards. A number of the recommendations were supported by the Government, with the Bill passing the Senate and House of Representatives on 6 December and 7 December 2005 respectively. The Anti-Terrorism Act (No. 2) 2005 received Royal Assent on 14 December 2005.
In 2010, section 3UEA (the emergency entry to premises provisions) was added into the Criminal Code by the National Security Legislation Amendment Act 2010. According to the Explanatory Memorandum accompanying the relevant bill, the purpose of section 3UEA was ‘to provide police with a power to enter premises without a warrant in emergency circumstances relating to a terrorism offence where there is material that may pose a risk to the health or safety of the public’.
The provisions have been amended a number of times since their introduction, including extending the sunset date—originally to be 15 December 2015—to 7 September 2018. In 2014, the Committee recommended that the sunset dates for the powers under this review sunset 24 months after the date of the next Federal election, and that the Committee be required to complete a review of those powers 18 months after the next Federal election. The Committee also recommended that the INSLM be required to finalise a review of those powers 12 months after the next Federal election in order to allow time for the INSLM’s report to be taken into account by the Committee. Those recommendations were accepted and implemented.
Use of powers
To date, the powers have been used as follows:
the AFP has obtained six control orders since the introduction of the regime,
the stop, search and seizure powers have not yet been used, and
no PDO has been made under Division 105.
The current security environment
The AFP advised that in 2005, when the powers subject to this review were introduced, the terrorist threat in Australia was primarily from large-scale operations involving substantial, organised networks. The most prominent example at the time was the 7 July 2005 London attack. However, the threat to Australia has since changed considerably:
The terrorism threat environment changed significantly in 2014-15 with the rise of Islamic State of Iraq and Syria (ISIS) and the ease of online radicalisation. Since then, the occurrence of smaller-scale lone actor style attacks has significantly increased in Western countries. This threat is characterised by low cost, locally financed plots using relatively simple tactics and readily available weapons.
The threat of terrorism has increased considerably. On 12 September 2014, the National Terrorism Threat Level was raised to ‘probable’. This means that credible intelligence, assessed by Australian security agencies, indicates that individuals or groups continue to possess the intent and ability to conduct a terrorist attack in Australia. Since the elevation of this Threat Level, there have been five attacks, as well as a number of major terrorism disruption operations in response to potential attack planning in Australia.
Jacinta Carroll of the National Security College, Australian National University, stated that effective counter-terrorism efforts had prevented a number of additional attacks:
Were it not for effective counter-terrorism action in stopping planned attacks, Australia might have experienced 20 or more terrorist attacks in the past three years, instead of five, including potentially more than a dozen mass-casualty events. While law enforcement and intelligence agencies have done well, they have also advised that the number of plots and short turnaround times from planning to action mean that disruption won’t always be possible. At least four recent disruptions have occurred within one to three hours before the planned attack.
In his review, the current INSLM, Dr James Renwick SC, considered the current security environment at length, ultimately finding:
the credible threat of one or more terrorist attacks will remain a significant factor in the Australian national security and counter-terrorism landscape for the reasonably foreseeable future,
while more complex or extensive attacks cannot be ruled out and must be prepared for, attacks by lone actors using simple but deadly weapons, with little if any warning, are more likely,
there can be no guarantee that the authorities will detect and prevent all attacks.