Overview of the provisions
Under Division 104 of the Criminal Code, an issuing court (the Federal Court or the Federal Circuit Court) may make a control order in relation to a person for one or more of the following purposes:
protecting the public from a terrorist act,
preventing the provision of support for or the facilitation of a terrorist act,
preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
The court must be satisfied, on the balance of probabilities, that each of the obligations, prohibitions and restrictions to be imposed on the person is reasonably necessary, and reasonably appropriate and adapted for the purposes above.
The obligations, prohibitions and restrictions that may be imposed under a control order include:
a prohibition or restriction on the person being at specified areas or places,
a prohibition or restriction on the person leaving Australia,
a requirement for the person to wear a tracking device,
a prohibition or restriction on the person communicating or associating with specified individuals, accessing or using specified technologies (including the internet), possessing or using specific things, or carrying out specified activities,
a requirement that the person report to specified persons at specified times and places, and allow himself or herself to be photographed or fingerprinted, and
a requirement that the person participate in specified counselling or education.
The maximum penalty for contravening a condition of a control order is five years imprisonment.
A control order may be made in relation to any person who is 14 years of age or older. A control order may remain in force for up to 12 months; however, if the subject is under 18 years of age, then the order may remain in force for up to three months.
Control orders are initially made in an interim form. Interim control orders are applied for by a senior AFP member, with the Attorney-General’s consent, and made by an issuing court through an ex parte proceeding. The terms of the interim control order must specify the date for the court to consider confirmation of the interim order, which may be contested by the subject. This date must be as soon as practicable but at least 72 hours after the interim order was made.
2012 INSLM review
In his 2012 review of the control order provisions, former INSLM, Bret Walker SC, observed that control orders are perhaps the ‘most striking’ of Australia’s counter-terrorism laws:
They are striking because of their provision for restraints on personal liberty without there being any criminal conviction or even charge. They may superficially resemble the familiar bail jurisdiction of criminal courts, but fundamentally differ on this account. That is, although a CO is founded on the connexion of the person against whom it is sought with the commission of a terrorist offence, there need not be any pending charge or any charge ever at all. COs are therefore radically different from remand in custody or conditional bail, which are judicial powers available only because a trial of pending charges is in prospect.
INSLM Walker continued
Because COs do not require the established safeguards of a criminal trial according to law and because they may be very restrictive in their effect on a person’s way of life – personally, socially and occupationally – it is critical that these provisions be scrutinized.
INSLM Walker found that control orders in their present form were not effective, not appropriate and not necessary.
INSLM Walker argued that the flaws and problems associated with control orders are most evident where controls are proposed to be made against persons before charge and trial, after trial and acquittal or against those who will never be tried. INSLM Walker argued that, for persons who fall in these categories, the proper course is as follows:
First, investigate, arrest, charge, remand in custody or bail, sentence in the event of conviction, with parole conditions as appropriate. Second, and sometimes alternatively, conduct surveillance and other investigation with sufficient resources and vigour to decide whether the evidence justifies arrest and charge. (And, meantime, surveille as intelligence priorities justify.)
However, INSLM Walker formed the view that the powers ‘may be effective, would be appropriate and might be regarded as necessary in the case of persons already convicted of terrorist offences whose dangerousness at the expiry of their sentences of imprisonment can be shown.’
Ultimately, INSLM Walker recommended that the control order provisions be repealed. He recommended consideration should be given to replacing them with ‘Fardon type’ provisions authorising control orders against terrorist convicts ‘who are shown to have been unsatisfactory with respect to rehabilitation and continued dangerousness’.
2013 COAG review
In its 2013 review of the control order regime, the COAG Committee concluded as follows:
The Committee has concluded that, based on the material before it, the control order system should continue at the present time. We believe that the clear purpose of protecting the community and preventing a terrorist attack in Australia presently warrants the continuance of the legislation. There remains a genuine risk of terrorist activity in this country, although its level should not be exaggerated. On that basis, control orders are, for the time being, necessary and justified in the counter-terrorism legislative scheme. We consider however that the present safeguards are inadequate and that substantial change should be made to provide greater safeguards against abuse and, in particular, to ensure that a fair hearing is held.
On that basis, the COAG Committee recommended, amongst other things,
that the Commonwealth Ombudsman be empowered to provide general oversight of interim and confirmed control orders,
that, whenever a control order is imposed, any obligations, prohibitions and restrictions to be imposed constitute the least interference with the person’s liberty, privacy or freedom of movement that is necessary in all the circumstances,
that the person who is subject to an interim control order be given information as to all appeal and review rights available to that person or to the applicant in the event that an interim order is confirmed, varied or revoked, and
that the Government give consideration to amending the legislation to provide for the introduction of a nationwide system of ‘special advocates’ to participate in control order proceedings.
The COAG Committee formed the view that control orders have three possible areas of operation:
where a person has been convicted of a terrorist offence, has served his or her sentence, but where upon release his or her renunciation of extremist views has not been demonstrated,
where a prosecution for a terrorist offence is not a feasible or possible alternative, or
where a person has been acquitted of a terrorist offence on a purely technical ground, or where the intelligence/evidence pointing to terrorist activity has been rejected otherwise than on the merits.
Review by the Committee of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014
In its 2014 advisory report on the Foreign Fighters Bill, the Committee considered and supported amendments to lower the threshold for the AFP to request a control order and to broaden the grounds upon which a control order could be requested and issued. The Committee, though not conducting a comprehensive review of the control order regime, found that it was necessary and appropriate for the AFP to continue to have access to control orders in the fight against terrorism. The Committee made a small number of recommendations relating to the control order regime, including that the sunset date for the provisions be extended from 15 December 2015 to 7 September 2018.
Parliamentary Joint Committee on Human Rights
In its review of proposed amendments to the control order regime via the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, the Parliamentary Joint Committee on Human Rights (the PJCHR) undertook an assessment of whether the control order powers were compatible with human rights. The PJCHR considered that
the control order regime engages a number of human rights, including the right to security of the person and the right to be free from arbitrary detention; the right to a fair trial; the right to freedom of expression; the right to freedom of movement; the right to privacy; the right to protection of the family; the rights to equality and non-discrimination; and the right to work.
The PJCHR concluded that
The control orders regime involves very significant limitations on human rights. Notably, it allows the imposition of a control order on an individual without following the normal criminal law process of arrest, charge, prosecution and determination of guilt beyond a reasonable doubt.
The committee considers that, notwithstanding the safeguards identified, the control orders regime may not satisfy the requirement of being reasonable, necessary and proportionate in pursuit of their legitimate objective. There are a range of offences that cover preparatory acts to terrorism offences currently prescribed by the Criminal Code Act 1995, which allow police to detect and prosecute terrorist activities at early stages.
The committee considers that, in the absence of further information regarding its necessity and proportionality, the control order regime is likely to be incompatible with the human rights set out...above.
Review by the Committee of the Counter-Terrorism Legislation Amendment Bill (No.1) 2014
In its 2014 advisory report on the Counter-Terrorism Legislation Amendment Bill, the Committee considered a range of operational amendments put forward to expand AFP powers related to control orders. These amendments included further broadening the grounds upon which a control order could be requested and issued.
While supporting the control order regime and the intention of the amendments, the Committee recommended:
finalisation of the appointment of the INSLM and instigation of the INSLM review of safeguards recommended in the 2013 COAG review, with particular consideration of the introduction of special advocates,
further clarity of the terms ‘supports’ and ‘facilitates’ in the proposed new grounds for issuing a control order,
that the Attorney-General be provided with a statement of facts by the AFP when an interim control order is sought,
an eight hour requirement for the consent of the Attorney-General be required when an urgent control order is requested, and
that an issuing court retain the authority to examine all elements of a request for a control order, and that the AFP be required to explain why each obligation, prohibition and restriction should be imposed on a person.
2016 INSLM review of control order safeguards
In January and April 2016, former INSLM, the Hon Roger Gyles AO QC, completed two reports on the safeguards recommended by the 2013 COAG review that had not been implemented.
INSLM Gyles’ review commenced prior to introduction of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 (see below), but was completed ‘taking into account’ those provisions of the Bill that related to his review.
The first report considered the advisability of introducing the system of special advocates recommended by COAG. INSLM Gyles made two recommendations, supporting adoption of a special advocates regime.
The second report considered other outstanding recommendations regarding:
the basis for seeking the Attorney-General’s consent to grant an interim control order regarding a person’s training with a listed terrorist organisation,
the definition of an issuing court for control orders,
cooperation and information sharing between the AFP and the Commonwealth Director of Public Prosecutions,
the minimum standard of disclosure of information to a controlee,
the conditions of imposing a relocation requirement or a curfew requirement on a controlee,
restricting communications of a controlee
ensuring that obligations, prohibitions and restrictions imposed on a controlee constitute the least interference with the person’s liberty, privacy or freedom of movement that is necessary in all the circumstances, and
oversight by the Commonwealth Ombudsman.
INSLM Gyles supported some of the COAG Committee recommendations but, in relation to several others, found that they were either not necessary, had already been accepted or were already implemented. He also noted that the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 addressed the matter of disclosure of information to a controlee.
Review by the Committee of the Counter-Terrorism Legislation Amendment Bill (No.1) 2015
In its February 2016 advisory report on the Counter-Terrorism Legislation Amendment Bill, the Committee considered a wide range of amendments to the control order regime proposed in the bill. These amendments included lowering the minimum age of persons for which a control order could be sought from 16 to 14 years; new provisions for the monitoring of compliance with control orders, including telecommunications interception and surveillance; new obligations on a person required to wear a tracking device under a control order; and new provisions for the protection of national security information in control order proceedings.
The Committee’s report noted the findings of INSLM Gyles’ first report. The Committee supported passage of the bill subject to a number of recommendations, including the introduction of a system of special advocates to represent the interests of persons subject to control order proceedings where they and their legal representative have been excluded.
2017 INSLM review
In his review, INSLM Renwick found that control orders were necessary to reduce the risk to the Australian community posed by potential terrorist acts and that the orders have the capacity to be effective. This conclusion was based on the following findings:
the current threat from terrorism ‘is of great and ongoing concern’,
set against those threats, the objectives of Division 4 ‘are all legitimate, important and presently relevant policy aims,’
law enforcement agencies provided ‘assurances that they prefer to arrest, charge, prosecute and obtain convictions, rather than seeking a control order’,
controlling the movements, associations and communications of individuals outside the criminal justice system by court order have become more widely used and accepted,
although ‘control orders are rarely sought, they are always considered as a possible option in counter-terrorism investigations,’ and
recent cases of control orders demonstrate their effectiveness in pursuing the objectives of the regime.
INSLM Renwick also found that control orders are proportionate to the terrorist threat. This conclusion was formed on the basis of:
the finding of necessity, as detailed above,
at both the interim and confirmation stage, the making of a control order is a matter for a court,
at both the interim and confirmation stage, the issuing court must be satisfied, on the balance of probabilities, that each of the controls to be imposed by the control order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of, for example, protecting the public from a terrorist act,
the issuing court is required ‘to strike a balance between the purpose for which the particular controls are sought and the interests of the controlee’ and
vesting this task in a court ‘ensures an independent judicial assessment of the case for the controls, which are tailored to the purpose of the order and the personal circumstances of the controlee. It ensures that the order addresses the threat as revealed by the evidence’.
INSLM Renwick recommended a number of technical and minor amendments to Division 104. Provided that those recommended amendments were made, INSLM Renwick recommended the control order provisions continue for a further period of five years.
INSLM Renwick also made recommendations concerning the interoperability between the control order regime and the continuing detention order regime that was introduced via the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2016.
Use of the provisions
There have been six control orders made since the introduction of the regime in 2005.
Necessity of the provisions
The Attorney-General’s Department and the AFP provided the following explanation as to the role of control orders:
The control order regime plays an important role in circumstances where an investigation has not yet progressed to the point where there is sufficient evidence to arrest and charge, and yet the suspect presents an unacceptable risk to the community. In this situation, the control order regime is a way of mitigating the risk presented by the individual while the AFP continues to collect admissible evidence for a criminal prosecution.
The control order regime plays a different role in Australia’s counter terrorism legislative framework to other key preventative measures, such as preventative detention orders, surveillance and countering violent extremism programs, as it allows a court to place tailored obligations, prohibitions and restrictions on an individual for a period of up to 12 months (and it is an offence to breach these conditions).
At a public hearing, the AFP elaborated on the role of control orders in relation to other options available to disrupt terrorist plots:
In the current environment, strong preventative powers are essential. Wherever possible, we disrupt terrorist plots using conventional criminal justice methods—being investigation, arrest and prosecution. However, the paramount objective of the AFP is always community safety. If there is an imminent threat to the community, police will act quickly to disrupt the threat. The trade-off of early overt action can be that insufficient evidence is collected to support a criminal prosecution. Where there is strong intelligence that a person presents a risk to the community, we may need to apply for a preventative detention order to contain that risk, while we continue to progress the investigation. Where prosecution has not progressed nevertheless there is a strong intelligence to indicate the person continues to pose a terrorist threat, a control order may be necessary to manage that threat.
A number of submitters to this inquiry disputed the necessity of the control order regime. For example, the Australian Lawyers Alliance submitted that the lack of use of control orders suggests that they are not necessary to combat terrorism:
A number of terrorist plots have been uncovered in the years since these measures were introduced. Despite the rhetoric employed at the time that they were passed, that these measures were essential to ensuring that terrorism did not take hold in Australia, the fact that they have not been regularly used demonstrates this argument to be false.
The Law Council of Australia noted that the powers are infrequently used and that, given the expansion of the range of preparatory terrorism offences, it is more appropriate that a person is charged and tried in court than relying on the control order provisions. The Law Council considered that the control order regime should therefore be repealed. Dr David Neal SC, a member of the Law Council, shared with the Committee his experience representing a controlee through the control order process:
It seems, in practice, that what’s occurring, really, is that the prosecuting authorities are using acts in preparation for a terrorist act to deal with those situations, and we think that’s the most appropriate way to deal with them, because that gives a range of scope which really provides that information obtained by the police or the security agencies only has to cross a fairly low threshold to get to the point of establishing that there’s an act in preparation for a terrorist act. Then the charge can be tried and tested in the courts in the normal way, rather than the more obscure provisions of control acts and the open-ended nature of them.
I say that in relation to the open-ended nature of control orders having defended in the cause of each case a young man who was detained for five months initially on the charge of an act in preparation for a terrorist act in a high-security prison. The case was then dropped by the DPP because the evidence was not sufficient. The AFP then issued a control order based on that same information, which resulted in him being subjected to a number of conditions. In particular, the one that really was the most concerning was that he was required to wear an ankle bracelet for—it was intended to be for the balance of the control order.
That was the case that was contested in the Federal Circuit Court, and the judge found against the AFP in relation to each of the principal factual allegations that were made and ordered that the tracking device be removed. We think that case is an example of the problems, running almost to the extent of abuse of the control order process, when the DPP had concluded that the evidence did not support the case that they were making, namely that he was knowingly involved in the Anzac Day event. On testing in evidence during the control order proceeding, the AFP was not able to produce any evidence of his knowledge of those things, and that’s what the judge found, and ordered that the tracking device be removed. Two months later, when the time of the control order had expired, there was no attempt to renew it.
So, we see that as an abuse, but we also say that the real remedy for the problem lies in charging people with acts in preparation for a terrorist act through the extensive surveillance technology that’s available to the police, and that was overwhelmingly displayed in this case. There were some thousands of pages of intercepts, computer analysis, telephone and physical observations and so on. If that doesn’t establish enough to show that you are preparing to do a terrorist act, we’d say that’s where the balance or the line should be drawn between the need for security and the protection of individuals.
The Australian Human Rights Commission argued that, rather than relying on control orders and similar regimes to prevent terrorism, the preferable course is instead to rely on the prosecution of individuals who pose a threat to the community:
We think that relying on actual offence provisions, of which there’s quite an extensive array, is the most appropriate way of addressing a counterterrorism threat, partly because it enables the police to do what they are best placed to do and what is their core function, which is to investigate crimes. It is much harder, as the Law Council of Australia and others have identified, to predict future behaviour. So I guess what we would strongly urge is that the government focus on the offence provisions—making sure that they’re appropriate—and also sometimes the more difficult issues of resourcing the Federal Police and other security agencies appropriately so that they can investigate and prosecute crimes, and some of the other countering violent extremism measures that can be really important in building a more harmonious community.
Dr Jessie Blackbourn et al argued that the extensive range of preparatory terrorism offences that now exist has meant that preventative control orders (as distinguished from post-sentence control orders) are not necessary. They argued that this is demonstrated by the limited use of control orders to date:
That experience shows that the emphasis that is often placed upon the need to address situations in which there is insufficient evidence to lay charges, is, in practice, barely significant and cannot be used to strongly support the retention of COs.
The Law Council of Australia agreed, suggesting that ‘there appears to have been a growth in the prosecutions relating to preparatory terrorism offences. This may also indicate that, in practice, COs are not needed or have little operational utility.’
Dr Blackbourn et al also added that the redundancy of the control order regime
is demonstrated by over a decade’s operation of the Division and its highly marginal significance to the work of Australian agencies. The value of maintaining Division 104 has long been unclear; the difficulties now posed to its operation and the confusion as to its purpose made plain by the insertion of Division 105A by the HRTO Act provide the strongest reason to date for its repeal.
The Australian Human Rights Commission disputed the argument raised by INSLM Renwick that the present threat environment may justify the retention of the control order regime. The Commission stated
The present INSLM states that control orders may be useful to limit radicalisation and disrupt planning of terrorist attacks. These are legitimate aims of the control order regime. The INSLM also refers to the increased risk of terrorism.
To the extent that it may be argued that the retention of the control order regime is justified by the changed security landscape, it is not self-evident that this justification is particularly relevant to the increased risk posed by lone actors, rapidly radicalised, carrying out simple attacks. In those circumstances, there is, ex hypothesi, limited if any warning that an attack will occur (and hence also of the fact that a person may be liable to radicalisation). There is also limited planning to be disrupted.
Legal Aid New South Wales submitted that
The control order scheme undermines the right to a fair trial and the presumption of innocence. Prior to this scheme, generally speaking, restrictions on liberty could be imposed only after a fair trial, with all its safeguards, and a conviction for an offence. The control order scheme replaces this process with a civil process that allows restrictions on liberty
in the absence of a charge, trial or conviction, or even the suspicion of an offence
based on findings made on the civil standard, rather than the criminal standard, and
based on information that is not fully disclosed to the person subject to the order.
It argued that the need for the powers had not been demonstrated, and they are, therefore, disproportionate. As a result, it recommended that Division 104 should be repealed, or allowed to expire. However, if the provisions are allowed to continue, then Legal Aid New South Wales considered that the recommendations of INSLM Gyles regarding safeguards on the power to make control orders should be implemented.
In contrast with most non-government submitters, Jacinta Carroll of the National Security College supported the control order regime, arguing that control orders ‘provide useful options short of arrest and charging to deal with those involved in terrorism.’ Ms Carroll argued that that an example of the potential usefulness of control orders is in relation to foreign fighters returning from the Iraq/Syria conflict. A further benefit was that control orders could be used as an opportunity for would-be-offenders to remove themselves from violent extremism:
Notably in the case of young offenders—highlighted by authorities as a growing area of concern—control orders provide the option for action short of a custodial sentence and the opportunity for the individual to remove themselves from engagement in violent extremism. This is therefore a particularly valuable tool to support efforts to counter violent extremism and assist at-risk youth.
The Committee put this issue to the AFP at the public hearing. It stated that
the key focus [of a control order] is to mitigate the risk of a terrorist event happening. That’s the lens we look through in terms of the use of control orders, not so much from a CVE perspective—although I dare say, with some of the cases we’d done in the past, there’s been an overlap. From an operational perspective, the core focus is removing that risk and protecting the community
The other thing I might add is, if we were to use it for those purposes, purely, it probably is adaptable to it. But it’s a five-year criminal offence for a breach, which may be a bit of a big stick for someone you’re just trying to deradicalise. There may be other more appropriate ways to do it.
Human rights considerations
The Australian Human Rights Commission submitted that control orders may limit a number of human rights protected under international human rights law. These include:
The conditions of a control order may amount to detention. That may raise questions about whether the prohibition on arbitrary detention in article 9(1) of the ICCPR is engaged,
Restrictions on association may interfere with the right to family life (protected by articles 17 and 23 of the ICCPR) and the right to freedom of association (protected by article 22 of the ICCPR),
Warrants issued to monitor compliance with control orders will interfere with the right to privacy protected by article 17 of the ICCPR,
The ‘chilling effect’ of monitoring may interfere with the right to expression contained in article 19 of the ICCPR,
Restrictions on the material that may be made available to the respondent to control order proceedings may interfere with the right to fair trial protected by article 14(1) of the ICCPR.
The Commission noted that a range of recent amendments to the control order regime, including the ability to obtain warrants to monitor controlees, ‘have exacerbated the extent to which the grant of a control order will interfere with the human rights of its subject.’ As a result,
The Commission urges [the Committee] to consider whether, in light of all available evidence, the control order regime is necessary and proportionate to the legitimate objective of reducing the risk to the Australian community posed by potential terrorist acts. In the absence of compelling evidence that the regime is necessary and proportionate to that goal, the Commission recommends that there be significant amendment to the control order regime to ensure Australia complies with its obligation under international human rights law to ensure that all counter-terror legislative measures are both necessary to achieve a legitimate aim and proportionate to achieving that aim. If [the Committee] is of the view that the regime cannot be amended to achieve human rights compliance, the control order regime should be repealed.
The Commission also submitted that there should be no acceptance of the argument that the retention of control orders is justified in light of the range of other intrusive counter-terrorism powers now in existence:
From the point of view of human rights law, the fact that human rights have been limited in one sphere cannot of itself justify further limitations in another sphere… [C]are must be taken to ensure that legislators and citizens do not inadvertently accept a circular argument for the retention or expansion of particular counter-terrorism measures, and the consequent erosion of fundamental rights and liberties. The necessity and proportionality of each proposed limitation of human rights must be independently assessed.
Further, the Commission stated
the relevant question for the purposes of human rights law is whether the government has demonstrated that there is compelling and objective justification for the measures, including the proportionality of the limitation on rights in light of the likely efficacy of the measure and the magnitude of the risk it responds to.
Domestic terrorism continues to be an alarming feature of the Australian security environment in 2018. The security environment has in fact deteriorated since the control order regime was introduced in 2005, with a proliferation of less sophisticated and ‘lone actor’ terrorist plots occurring alongside an ongoing threat of complex, mass-casualty plots. The Committee continues to support empowering police and security agencies with the necessary and proportionate powers to respond to this environment and to keep the Australian community safe.
The Committee recognises that the control order regime is a serious and contentious power. Subject to judicial oversight, control orders enable significant restrictions to be placed on a person’s rights and liberties without that person being charged, prosecuted and found guilty of a criminal offence. However, in the current environment the Committee considers the control order regime continues to be a necessary and proportionate response.
The Committee accepts the AFP’s evidence that there are occasions in which it is necessary for police to act quickly to disrupt and prevent an imminent threat. This action may come at the cost of admissible evidence to support a criminal prosecution. In such circumstances, the Committee considers it appropriate that where strong intelligence indicates that person continues to pose a threat to the community, police may seek a control order to manage that threat.
The making of control orders is rightly subject to oversight by the courts, with avenues available for persons to contest the making of an order. Control orders also require the consent of the Attorney-General, and are subject to oversight by the Commonwealth Ombudsman and this Committee.
Control orders have been made sparingly to date, with only six orders being made since the introduction of the regime. Rather than indicating that control orders are not necessary, the Committee considers 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 always take this approach over seeking the imposition of a control order. The limited use to date of the powers may also indicate some operational issues with the provisions—matters raised will be discussed in the following section.
The Committee therefore considers that the control order regime should continue, subject to the additional recommendations discussed below.
INSLM Renwick recommended that the control order regime continue for a further five years. The Committee considers, however, that a sunset period of three years would be more appropriate, with the Committee required to conduct a further statutory review prior to the sunset date. This further review will provide an opportunity to examine the appropriateness and effectiveness of the control order regime with regard to the security environment and legislative framework at that time.
The Committee recommends that the control order regime provided for under Division 104 of the Criminal Code Act 1995 be continued, with the provisions sunsetting after three years.
The Committee recommends that the Intelligence Services Act 2001 be amended to require the Committee to conduct a further review into the operation, effectiveness and implications of the control order regime in Division 104 of the Criminal Code Act 1995 prior to the sunset date.
Potential revisions and safeguards
The AFP advised that, in its experience, control orders ‘are an effective tool for managing persons who present a significant terrorism risk’. However, the AFP also noted that ‘operational experience has demonstrated that the process is complex and resource-intensive’. The AFP acknowledged that it has ‘experienced some challenges with the control order regime and consider there is room for improvement’.
The AFP and the Attorney-General’s Department summarised their concerns as follows:
[E]xperience has demonstrated that in order to meet the control order threshold a significant body of police holdings must be produced and converted into an admissible form. For example, a person’s online communications over a long period of time may cumulatively demonstrate their ideology and it may not be possible to convince a court to issue a control order unless all of that information is presented …
(i) There is no ability under the current legislation to amend the conditions of an interim control order. Under paragraph 104.14(7)(b) when a control order is confirmed, the order can be varied by removing a condition at the time of confirmation. The Criminal Code does not permit it to be varied by amending the condition, for example where a respondent seeks to amend particulars in order to facilitate a change of residential, educational or employment arrangements.
(ii) It is not clear the extent to which the Federal Court Rules apply to control order proceedings, and there are instances where the Rules appear to be in conflict with the procedures articulated for control orders in the Criminal Code. For example, there is uncertainty about whether evidence should be led by affidavit or in person, and whether the respondent is required to comply with rules regarding notices to admit and agreed statements of facts.
(iii) The full civil rules of evidence do not apply to interim control order proceedings, but do apply to confirmation proceedings. This is problematic because:
At confirmation stage, the court is required under sub-section 104.13(3) to consider the material put forward in the interim proceedings; but as the court cannot take into account information not in admissible form, the exact status of this material in the confirmation proceedings is unclear. This creates a tension for the court.
Control orders are a preventative measure designed to protect the community where there is strong intelligence and information to suggest that the person poses a risk. Operational sensitivities surrounding the capability, methodology or nature of intelligence or other information means certain information or intelligence may not be available in admissible form.
The AFP and the Department added that recommendations made by INSLM Renwick would clarify issues raised by the AFP in points (i) and (iii) above, but that the INSLM had not made any specific recommendations addressing the concerns raised in point (ii).
The Law Council submitted that while it does not support the continuation of the control order scheme, if the scheme is to be retained, it ‘requires revising and updating to ensure that it is a necessary and proportionate response to the threat of terrorism’. The Law Council noted its support for a number of the recommendations in INSLM Renwick’s report, including:
the power to vary interim control orders,
retention of the rules of evidence,
provision of legal aid, and
The Law Council also submitted that ‘it is essential that the recommendations of the second INSLM be implemented’. Specifically, INSLM Gyles:
accepted recommendation 28 of the COAG Review Committee that only the Federal Court have jurisdiction to make control orders, but recommended in turn that it be given the power to remit a request for an interim control order to the Federal Circuit Court,
supported recommendation 33 of the COAG Review Committee that s 104.5(3)(a) be amended to ensure that a control imposed by a control order not constitute a relocation order, noting that the current wording ‘would literally permit de facto relocation by excluding the place of residence of the controlee’,
recommended early consideration to including an overnight residence requirement, similar to that provided for in the United Kingdom (see sch 1 pt 1 to the Terrorism Prevention and Investigation Measures Act 2011 (UK)),
supported a variation of recommendation 37 of the COAG Review Committee (advocating a least interference test) to the effect that the issuing court be required to consider ‘whether the combined effect of all of the proposed restrictions is proportionate to the risk being guarded against’ in addition to the existing requirement to assess each restriction individually, and
recommended that withholding national security information from the controlee be dealt with only by the NSI [National Security Information] Act, and that div 104 be amended accordingly.
The Law Council further suggested that a number of INSLM Walker’s recommendations in relation to control orders should be implemented:
if COs are to be retained in general, the onus of showing that grounds exist and, if challenged, that they existed when a control order was first made, should clearly be imposed on the authorities applying for confirmation of an interim control order (Recommendation II/1),
if COs are to be retained in general, the prerequisites for making an interim control order, including on an urgent basis, should include satisfaction that proceeding ex parte is reasonably necessary in order to avoid an unacceptable risk of a terrorist offence being committed were the respondent to be notified before a control is granted (Recommendation II/2),
if control orders are to be retained in general, the provisions governing confirmation hearings should expressly impose, perhaps by a presumption, the onus on the AFP to show the control order should continue in force (Recommendation II/3).
Finally, the Law Council indicated the inclusion of special advocates in the control orders regime is ‘an important safeguard: they are a component of the balance struck between measures necessary to respond to counter-terrorism and national security threats on the one hand, and protecting the rights of individuals on the other’.
Dr Neal of the Law Council agreed with the AFP as to the burden the control order processes place on legal counsel:
The resource intensiveness of control orders exists on both sides. We received a 50-page notice to respond to a series of questions that the police issued in that case. The resources involved in that were massive. I don’t think that’s avoidable when it’s dependent on the collection of thousands and thousands of pages of transcripts and so on.
The Committee asked the Law Council whether the relative infrequency of the control order process makes it difficult to engage properly as a defence and to anticipate what might be needed at each stage of the court process. Dr Neal responded
There are evidentiary problems—which Stephen Donoghue and I argued about through the [Causevic] case—about admissibility of evidence … There are rules about the drawing of inferences in cases which apply in civil proceedings which are much more lax than they are in criminal proceedings. We think that the drawing of inferences at a lower standard than the criminal standard in this atmosphere, which is very hot, is, too, something that shouldn’t happen. I’m a traditionalist on those things. I think that the prosecution ought to have to prove the case on the rules of evidence and beyond reasonable doubt. I feel happy with that traditional position.
Rules of evidence
In its submission to the 2017 INSLM Review, the AFP submitted that the rules of evidence should be applied consistently across both the interim and confirmation stage of control order proceedings, and supported ‘streamlining the system to allow a final order to be made on the same evidential basis as an interim order’. The AFP noted in its submission to this inquiry that
intelligence may not always be in a form required for admissible evidence. Law enforcement continues to face challenges regarding converting intelligence material into an evidentiary form in a variety of contexts, including in relation to counter-terrorism operations.
In his report, INSLM Renwick noted
Division 104 does not expressly state that confirmation proceedings are civil proceedings for the purposes of the rules of evidence, nor does it specify the rules of evidence and procedure that are to apply. In part 2 of his report on control order safeguards, the second INSLM expressed the view that the proceedings were civil in character, that the role of the court was the same as for all federal civil proceedings, and that the rules of evidence in civil rather than criminal proceedings, as prescribed in the Evidence Act 1995 (Cth), applied to their resolution. I agree generally with this proposition.
INSLM Renwick explained
The requirement for the issuing court, in the confirmation proceedings, to consider the original request, which was given to it in the interim proceedings, appears to be motivated by a presumption that making the interim control order and confirming the control order are two stages in the same proceedings, and that a control order would be confirmed (or otherwise dealt with) within a short period of time after the interim order is made. This presumption is reflected in ss 104.5(e) and 104.5(1A), which provide that the interim control order must specify a day for the controlee to attend court to confirm the order, which day must be ‘as soon as practicable, but at least 72 hours’ after the order is made. If the issuing court is to take action at the confirmation stage within a short period of time after it makes the interim control order, there is some sense in requiring the court to consider the material that was given to it at the interim stage.
As proceedings in relation to a request for an interim control order are treated as interlocutory proceedings, it is unclear as a matter of principle why the original request would need to be tendered as evidence in confirmation proceedings, rather than being judicially noticed as the originating court document, with the applicant at the confirmation hearing tendering admissible evidence (which may or may not be new) to seek to satisfy the issuing court of the matters in s 104.4(c) and (d). This appears to be the intention of s 104.14(3), which distinguishes between evidence tendered on the one hand, and the original request on the other. Because of the seriousness of confirmation proceedings, the issuing court should only act on the basis of evidence received in accordance with the Evidence Act 1995 (Cth).
For these reasons, I do not recommend any amendment to div 104 regarding the applicable rules of evidence. However, I recommend that s 104.14 be amended to clarify that:
The original request for an interim control order need not be tendered as evidence of the proof of its contents.
The issuing court may take judicial notice of the fact that an original request in particular terms was made, but it is only to act on evidence received in accordance with the Evidence Act 1995 (Cth).
The Law Council of Australia supported this recommendation.
The Committee asked the Department and the AFP for their view on INSLM Renwick’s recommendation that the rules of evidence for civil proceedings should continue to apply to control order confirmation proceedings, but that it be clarified that the issuing court ‘may take judicial notice of the fact that the original request in particular terms was made’. They responded
The INSLM made this recommendation because of a perceived tension with the current control order provisions. Under paragraph 104.14(3)(a), the court is required to consider the original interim control order request before deciding whether to confirm that control order. An interim control order proceeding is an interlocutory proceeding for the purposes of the Evidence Act 1995 and not all the rules of evidence apply. That is, the Court may rely on the sworn testimony (usually by affidavit), which contains indirect evidence. In contrast, a confirmation proceeding is not an interlocutory proceeding and the rules of evidence apply, meaning a Court may only consider admissible evidence put before the court in a proceeding. This means that although the court is required under paragraph 104.13(3)(a) to consider the interim control order request, as it is not in an admissible form and likely to contain hearsay (to which exceptions to the hearsay rule are unlikely to apply), there is uncertainty as to the role of the interim control order request in the confirmation hearing and the weight or level of judicial notice which may be given to that request in accordance with paragraph 104.13(3)(a).
The INSLM’s recommendation would clarify this issue. In practice, this is consistent with the approach that the AFP already adopts in relation to control order confirmation proceedings. That is, the AFP does not seek to rely on the interim control order request in confirmation proceedings, instead, leading admissible evidence to support its submissions in a confirmation proceeding.
The AFP elaborated on this issue at the public hearing:
I think what we are looking for is some clarification that the rules of civil proceedings apply. It sounds as though the Law Council is asking for some sort of modified criminal-type rules to govern the proceedings and that’s a path which we would say, if we did that, we would need to be in the criminal space. This is a civil proceeding—yes, it is different to other types of civil proceedings and, yes, there are very serious consequences—but the balance of probabilities and the other rules of civil procedure would actually help frame all of the different steps that the court [and] the parties have to go to, and that would give some clarity.
In response to further questions from the Committee, the AFP provided supplementary comments regarding the application of rules of evidence and associated procedures:
Control order proceedings can be complex, being civil proceedings in relation to which the conduct is governed by provisions in the Criminal Code. The INSLM’s report noted that civil rules of evidence apply to control order proceedings. However, the novelty of the regime as compared with traditional civil proceedings, means that in practice, there may be differing expectations as to how matters should be conducted.
Some of the practical considerations that have arisen include differing expectations by parties around:
The obligation to seek documents through the usual discovery process in civil proceedings. Uncertainty around the correct process for obtaining documents, including where a party considers that pre-trial disclosure obligations from criminal procedure apply, can cause delays to proceedings.
Processes for narrowing the facts in contention, including through pleadings, an agreement as to facts in dispute, or a notice to admit facts or documents. Certainty around the scope of issues in dispute could significantly reduce the length and complexity of proceedings.
The form of evidence for a confirmation hearing, including whether written material should be in affidavit form and the requirement for expert witness reports to appropriately qualify the expert witness. Such uncertainty can also cause delays in proceedings.
In addition to any amendments required to implement the INSLM’s recommendations, there may be benefit in considering whether any further improvements could be made to ensure there is clarity around how civil procedure rules apply in a control order proceeding. The views of the Federal Circuit Court and Federal Court would be important in informing these considerations.
Standard of proof
The standard of proof applied to control order proceedings, being civil proceedings and not criminal, is the lower ‘balance of probabilities’ standard. This standard was contested by a number of submitters to this inquiry as well as to INSLM Renwick’s 2017 review; however, it has been affirmed in the Courts in the cases of Thomas v Mowbray and Gaughan v Causevic (No 2).
Australian Lawyers for Human Rights noted that control orders allow restrictions to be placed on a person who has not been charged, tried or convicted of an offence. It suggested the available restrictions are of a magnitude only previously seen in relation to a convicted criminal. It therefore argued that to adequately protect human rights, ‘the imposition of the orders should be subject to the same safeguards as exist in relation to a person charged with a criminal offence. The legislation should provide for the right to a fair trial as per Article 14 ICCPR.’ It continued
ALHR submits that the control order regime violates the right to a fair trial on a number of bases. The ex parte nature of the interim control order proceedings violates the right of the person to be tried in his or her presence and to be informed of the case against him or her. The inter partes proceedings to confirm the order also violate the right to a fair trial as there is a lack of complete disclosure of the case against the person. The onus of proof is also reversed and the onus is on the person to prove that the order should be revoked.
ALHR submits that the orders should be subject to the same safeguards as for a person charged with a criminal offence. The criminal standard of proof should apply, not the balance of probabilities.
The Australian Lawyers Alliance suggested that the control orders regime be repealed. Failing that,
we believe that the Criminal Code Act should be amended to significantly limit the circumstances in which control orders are available, and the conditions that they can impose. Controlees should be afforded the opportunity to rebut allegations prior to the order being made, and it should not be possible to obtain a control order merely on circumstantial evidence. Control orders should never be, or be seen to be, a convenient means of avoiding more rigorous criminal standards of proof.
The Department and the AFP disputed this assertion, arguing that ‘in circumstances where there is enough evidence to formally charge and prosecute a person, the AFP will always take this approach over seeking the imposition of a control order’.
The Law Council of Australia similarly submitted to the 2017 INSLM Review that the burden of proof should be raised to the higher ‘beyond reasonable doubt’ standard. The Law Council raised concerns regarding the application of the rule in Jones v Dunkel to control order proceedings.
INSLM Renwick acknowledged that the standard of proof could cause issues for a controlee, but did not support raising the standard to the criminal standard of ‘beyond reasonable doubt’:
While I accept that the rule in Jones v Dunkel may be a practical problem for a controlee who does not wish to give evidence at the confirmation hearing, this problem is not unique to control order proceedings. It does not justify such a significant change. Moreover, it seems open to a controlee to contest inferences that may otherwise be drawn by application of the rule in Jones v Dunkel by relying on the privilege against self exposure to a penalty in the form of controls imposed by the control order.
In the current inquiry, the Law Council submitted that an inference should only be drawn in a control order matter if it is the only rational inference.
When asked about this issue, the Attorney-General’s Department provided the following response
The LCA argued that adducing evidence to avoid an adverse inference may, for example, re-enliven criminal charges against the person subject to the control order proceedings. The LCA recommended that the criminal rules of evidence should apply to inference …
Generally, where the Commonwealth is able to meet a higher standard of proof the preferred option will be to arrest, charge and prosecute the person rather than apply for a control order. Requiring the Commonwealth to meet a higher standard than that which currently applies to the control order proceedings reduces the effectiveness of the control order regime and defeats its purpose.
The Committee notes the view expressed by INSLM Gyles, and supported by INSLM Renwick, that control order proceedings are civil in character, that the role of the court is the same as for all federal civil proceedings, and that the rules of evidence in civil rather than criminal proceedings applied to their resolution.
The Committee notes the views of some participants in the review that the criminal standard of proof should apply to control order confirmation proceedings. However, the Committee accepts the INSLM’s conclusion that the civil standard of proof and civil rules concerning inferences should continue to apply.
It is clear from the evidence received that there is a desire for clarity, from both external stakeholders and the AFP, around how control order hearings are intended to be conducted and the procedural rules that should apply. Clarifying these matters has the potential to significantly reduce the duration and complexity of proceedings.
The Committee notes support from both the Law Council and the AFP for the INSLM’s recommendation to clarify the status of the initial request for a control order at a confirmation hearing.
The Committee endorses the INSLM’s recommendation. The Committee also supports the Government undertaking further consideration, in consultation with the relevant courts and other stakeholders, including the Law Council of Australia, as to what further improvements could be made to provide greater clarity around how civil procedure rules apply in control order proceedings.
The Committee recommends that section 104.14 of the Criminal Code Act 1995 be amended to clarify the status of the original request for an interim control order during confirmation proceedings. This is in line with the Independent National Security Legislation Monitor’s recommendation at paragraph 8.61 of his 2017 review.
The Committee further recommends that the Attorney-General consider, in consultation with the Federal Circuit Court, the Federal Court, and appropriate legal stakeholders, what further improvements could be made to provide greater clarity around how civil procedure rules apply in control order proceedings, noting operational sensitivities.
Varying an interim control order
In his review, INSLM Renwick noted that, presently, there is no express capacity for the controlee to apply to vary an interim control order:
This is despite the fact that, of the six control orders that have been made:
three were never confirmed (and the interim control order was in force for the full year)
two involved a delay of over six months between the interim order being made and confirmation of the order.
The reason for this delay is largely due to the time required to prepare for, and participate in, confirmation proceedings. During this time, the parties may agree to vary the controls imposed on the controlee, which the court ostensibly has no power to effect.
Therefore, he recommended that Division 104 be amended so that
the controlee may apply to vary an interim control order prior to confirmation of the control order,
the court has power to amend an interim control order if the AFP Commissioner and controlee agree.
In response to this recommendation, the Attorney-General’s Department and the AFP explained
Under the control order regime an interim control order cannot be varied. This is because when the provisions were originally introduced it was anticipated that the confirmation proceeding would follow soon after the interim control order was made. If the conditions in an interim control order needed to be varied it was intended that the changes could be made in the confirmation process. Any subsequent variations could be made using the variation provisions under Subdivision E or F of Division 104 of the Criminal Code.
However, as noted by the INSLM, experience to date has shown that the confirmation proceeding can occur many months after the interim control order is made. This means that if the obligations, prohibitions or restrictions in an interim control order are no longer appropriate there is no way to vary those conditions. For example, if there is a requirement in the control order that the person remain at their home between specified times, and the person decides to move home.
Allowing an interim control order to be varied would allow some flexibility to be applied to the conditions imposed by the order where those conditions are no longer appropriate. Given the broad range of possible circumstances where it may be appropriate to vary an interim control order, it would seem reasonable for both the subject of the interim control order and the AFP to be able to apply to vary the order. However, care would need to be taken to ensure that the court is not burdened with an unreasonable number of applications for variation.
The Committee notes that while it may have been initially envisaged that an interim control order would remain in effect for only a short period prior to being confirmed (or revoked), the reality has been that all interim orders made to date have stayed in effect for many months.
The Committee therefore supports the INSLM’s recommendation that a controlee be able to apply to vary an interim control order prior to its confirmation, and the court have the power to make such an amendment if the AFP and the controlee agree. The Committee agrees with the AFP that restrictions will be required to ensure that the court is not burdened with an unreasonable number of applications for variation by a controlee. The Committee also considers it reasonable for the AFP to similarly be able to apply to the issuing court for a variation.
The Committee recommends that Division 104 of the Criminal Code Act 1995 be amended to allow for either the controlee, or the Australia Federal Police, to apply to the issuing court to vary the terms of an interim control order under section 104.5. In making this recommendation, the Committee notes that restrictions will be required to ensure that the court is not burdened with an unreasonable number of applications for variation by a controlee.
The interval between interim and confirmation proceedings
When making an interim control order, the court must specify a day on which the person who is the subject of the order may attend the court for the court to confirm the order, declare it void, or revoke the order (the confirmation hearing). Under subsection 104.5(1A) of the Criminal Code, this day must be as soon as practicable, but at least 72 hours after the order is made.
The Attorney-General’s Department and the AFP outlined the effect of amendments, passed in 2014, which specified matters which the issuing court must take into account when specifying the dates of a confirmation hearing:
In 2014, the Counter Terrorism Legislation Amendment Act (No. 1) 2014 inserted subsection 104.5(1A) into the Criminal Code. This subsection provides that when specifying a day for the purposes of a confirmation hearing, the issuing court must take into account that a party may need to prepare in order to adduce evidence or make submission to the court in a confirmation proceeding (and any other matter the court considers relevant). The purpose of subsection 104.5(1A) is to provide additional protection to the subject of an interim control order who may, for example, need time to obtain the assistance of a legal representative or contact witnesses.
However, the Department and the AFP advised that the minimum 72 hour period specified in the legislation ‘still creates some difficulty’ for the AFP:
This is because it is always open for a court to specify a date for confirmation proceedings that is as little as 72 hours after the date of the interim order. As a model litigant, it is incumbent on the AFP to be prepared to progress a confirmation application after 72 hours, if ordered by the Court. To mitigate the risk of not being prepared to make a confirmation order, the AFP needs to be in a reasonable position to make a confirmation application when applying for the interim order. This can delay the AFP’s decision to apply for an interim order, and undermines the intended purpose of the interim control order process (as a preventative power).
They explained that both interim and confirmation proceedings ‘tend to be very lengthy’ due to the seriousness of the restrictions involved:
As an example, the Causevic interim control order application was over 140 pages long and attached over 2000 pages of annexures containing primary materials. This material needed to be considered to prepare approximately 15 affidavits for the confirmation hearing. Preparation of material for the confirmation hearing involved one to two AFP lawyers and three investigators working full time between interim and confirmation stages. In the three months prior to the confirmation proceedings, the Australian Government Solicitor (AGS), junior counsel and senior counsel were also engaged in preparation of the confirmation application.
The Department and the AFP suggested that any period of less than 14 days between interim and confirmation proceedings would ‘create significant challenges for the AFP’ and ‘may also create challenges for the respondent in preparing for the confirmation proceeding’.
The AFP further elaborated on its concern at the public hearing:
we haven’t yet had an experience where we’ve had to move from an interim order being granted to confirmation happening within 72 hours. But our experience with what is required—because you are converting essentially what is intelligence and hearsay based into admissible evidence to support the control order—is that 72 hours is quite difficult to meet in that regard. So we would be seeking some more time. Like all things in the Commonwealth realm, it will depend on the Constitution and how far that limit would go. Whether that is seven days or 14 days is something that we would need to explore with the Attorney-General’s Department. Our concern is that three days may just not be enough time.
The concern is that we may delay seeking an interim order until we’re almost ready to confirm. That means that, rather than relying on the controls in the interim order to mitigate the risk posed by the person, we’re relying on intense physical surveillance and other issues, so our risk management tool isn’t available to us because we’re concerned about the next steps. Whether it’s five days, seven days or 14 days, I think we’d be looking to take what is permissible under the Constitution, and that’s not a question I can answer, unfortunately.
While the reality has been that many months have elapsed between the interim and confirmation phases of control orders made to date, the legislation provides for a minimum period of just 72 hours. The Committee is concerned by evidence from the AFP that, due to this relatively short minimum period, it may seek to delay seeking an interim control order under it is almost ready to confirm. This has the potential to significantly impact the effectiveness of the regime and risk community safety.
Balanced against this concern is the importance of a person subject to an interim control order being able to contest the order in a timely manner. The confirmation hearing is an essential safeguard in the legislation that provides a controlee with their first and only opportunity to have an interim order revoked.
These two concerns must be carefully balanced. It is the view of the Committee that a minimum seven day period between the interim and confirmation proceedings would be appropriate. In forming this conclusion, the Committee takes into account the experience for control orders made to date, the complexity and resource-intensiveness of the confirmation process, the existing judicial and other external oversight of the regime, and importantly the previous recommendation that a controlee be able to apply to vary an interim control order prior to confirmation – this provides an additional safeguard.
The Committee is also mindful that any extension to the minimum timeframe may potentially raise constitutional concerns and advice should be sought prior to any amendment. The Committee recommends that the Government seek legal advice regarding the constitutionality of extending the timeframe to seven days.
The Committee recommends that the Government extend the minimum time period between an interim and a confirmation hearing for a control order under subsection 104.5(1A) of the Criminal Code Act 1995 to seven days, subject to legal advice regarding any constitutional concerns arising from this extension.
Costs and legal aid
Based on the experience of the six control orders imposed since the introduction of the regime, concerns have been raised about possible cost orders against a controlee and also their access to appropriate legal assistance.
In his report, INSLM Renwick stated
Although div 104 involves civil proceedings, the proceedings are matters of great seriousness for the controlee as, if an interim order is made or confirmed, significant obligations, prohibitions and restrictions may be placed on a controlee, breach of which are potentially punishable by imprisonment. It is not appropriate that any controlee is additionally at any risk of an adverse costs order and I recommend that div 104 provide that there is to be no order as to costs made by the issuing court in such proceedings. For the same reasons, and also to ensure there is proper assistance to the court and some ‘equality of arms’ in the proceedings, I recommend that the Attorney-General give consideration to the adequacy of legal aid for controlees in control order proceedings.
In response to the INSLM’s recommendation, the Attorney-General’s Department and the AFP advised that, of the six control orders issued, no adverse costs order has been made against the subject of a control order proceeding:
It is anticipated that this approach will continue in relation to any future control order proceedings.
However, there may be a rare occasion where it is appropriate that an adverse costs order be made against a person who is the subject of a control order application. For example, a person subject to a control order application may unreasonably and excessively delay proceedings causing the Commonwealth to incur significant legal costs. The Court should always have discretion to make costs orders should they consider such an order appropriate in all the circumstances.
In relation to legal aid, the Department and the AFP advised the Committee
Under the National Partnership Agreement on Legal Assistance Services 2015-20 (the Agreement), the Commonwealth provides funding for state and territory legal aid commissions and community legal centres to deliver frontline legal assistance services to vulnerable and disadvantaged Australians.
Under the Agreement, legal assistance service providers should prioritise their services to people experiencing financial disadvantage and who fall within one or more priority client groups, including children and young people, people in custody and prisoners, people who are culturally and linguistically diverse, people with a disability or mental illness, and people with low education levels.
Legal aid commissions and community legal centres determine eligibility for their legal services and the extent of assistance they will provide in individual cases.
The Attorney General and the Attorney General’s Department cannot intervene in, or influence, individual decisions made by a legal aid commission or community legal centre.
Dr Neal SC, from the Law Council of Australia, provided an example of the need for proper legal aid assistance in these matters:
In the course of each case the AFP had briefed Stephen Donoghue before his recent elevation, plus a junior. I think there were two AGS solicitors plus AFP backup. The firm instructing me has I think done it entirely pro bono. My junior and I got paid small amounts but had to do vast volumes of work that was unpaid. We consider it part of our pro bono duty to do those sorts of things, but it’s not a good system that would depend on the goodwill of practitioners.
Dr Neal added that the Law Council is seeking ‘something more definite and substantive’ in relation to legal aid:
We understood that, in the Causevic case, there was a scheme within the Attorney-General's Department which would have allowed for legal aid in those cases. That application was rejected on the basis that this case didn’t raise any novel point of law, which we were puzzled by, but there does need to be some genuine and substantial funding to ensure that there is an equality of arms where these control order cases are brought.
Despite being civil proceedings, control order confirmation proceedings have very serious implications for the rights and liberties of the individual in question, akin to criminal proceedings. The Committee notes evidence that, as civil proceedings, control order proceedings may not be granted priority for legal aid.
The Committee notes that legal representation is already guaranteed by section 104.28 of the Criminal Code for any person under the age of 18 years if they are unrepresented.
Similar representation issues were considered by the Committee in its advisory report on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016. In that case, the Committee recommended that the Court have the power to stay proceedings and order for reasonable costs to be funded for the subject to obtain legal representation.
The Committee notes the INSLM’s recommendation that the Attorney-General give consideration to the adequacy of legal aid for controlees in control order proceedings. The Committee also notes the INSLM’s recommendation regarding adverse costs orders for proceedings. The Committee supports the Government’s continued consideration of these recommendations.
Interoperability between control orders and continuing detention orders
The Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 introduced Division 105A into the Criminal Code, providing a regime for the continued detention of terrorist offenders who continue to pose a risk to the community at the end of their sentence. On referring the Bill to the Committee for review in September 2016, the Attorney-General noted that the Court would not be able to make a control order as an alternative to a continuing detention order (as provided for in the Bill) because
the two regimes are distinct with different procedural and threshold requirements (for example, different courts issue control orders, there are different applicants, and different threshold requirements).
The Attorney-General made the following suggestion as to how the Committee should approach this issue:
The Independent National Security Legislation Monitor and the Committee will conduct reviews into the control order regime by 7 September 2017 and 7 March 2018 respectively, which are likely to be relevant to this issue. In light of these proposed reviews, it may be better to defer a detailed consideration of how the control order regime and the regime under the HRTO Bill might better interact with each other until those reviews occur.
In its review of the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, the Committee recommended that the Attorney-General’s Department give further consideration to the interoperability issues raised in that inquiry with a view to developing a preferred solution to be considered as part of the INSLM’s 2017 review and the current review by the Committee.
The issue of interoperability between the two regimes, including the findings and recommendations of INSLM Renwick, is considered in this section.
Continuing detention order provisions
According to the Attorney-General’s Department, as of May 2017 there were 20 persons imprisoned for terrorist offences who may be subject to a continuing detention order under Division 105A of the Criminal Code upon the completion of their custodial sentence.
Division 105A enables the continued detention of terrorist offenders (persons convicted of a defined range of terrorist-related offences) serving custodial sentences who are assessed by a judge in civil proceedings to present an unacceptable risk to the community at the time their sentences finish.
The court can only make a continuing detention order if:
it is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious terrorism offence if released into the community, and
it is satisfied that there are no other less restrictive means that would be effective in preventing the unacceptable risk. A note to section 105A.7 (Making a continuing detention order) specifies that a control order is an example of a less restrictive measure.
The Attorney-General (the applicant) bears the onus of satisfying the court of these matters.
The period of detention ordered by the court cannot be more than three years and must be limited to the period reasonably necessary to prevent the unacceptable risk. However, there is no limit on the number of orders that can be made.
INSLM Review of 2017
INSLM Renwick devoted considerable time to this interoperability issue in his review of control orders.
INSLM Renwick summarised the issue as
the current position is that divs 104 and 105A of the Criminal Code potentially give rise to the need for different applicants to make separate applications in respect of the same offender, in different courts, and seeking to satisfy different tests. That is not in the interests of the offender, the agencies responsible for making the respective applications, or the multiple courts which may have to hear them.
INSLM Renwick recommended:
that state and territory supreme courts be authorised to make an extended supervision order (ESO) which would include any of the controls that can be imposed under a control order, and
that Division 105A be amended to allow the state and territory supreme courts, on the application of the Commonwealth Attorney-General, to make either a CDO or an ESO for a period of up to three years (at a time) if satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community without either of those orders being made. The court should only make a CDO if satisfied that an ESO would not be effective in preventing the identified risk.
INSLM Renwick further recommended that:
the Commonwealth Attorney-General also be the applicant for an ESO,
there be no new pre-conditions before the Attorney-General commences div 105A proceedings for an ESO,
an application may be made for an ESO in relation to a person who is already the subject of a CDO or ESO,
the same controls and monitoring regime be available for an ESO made under div 105A as a control order made under div 104,
the government consider making the special advocates regime available for applications under div 105A,
the Attorney-General be unable to give consent under s 104.2 while div 105A proceedings are pending,
in requesting an interim control order in relation to a person, the senior AFP member be required to give the issuing court a copy of any div 105A application made in relation to that person, and any order (including reasons) of the relevant court in respect of that application, and
no control order may be in force in relation to a person while a CDO or ESO is in force in relation to that person.
Comments from participants in the review
In its submission, the Law Council of Australia noted that the INSLM’s recommendation that an ESO may be made for a period of up to three years (at a time) is consistent with the duration for a CDO, and stated that it would not oppose a period of up to three years for an ESO, provided that there are appropriate powers for review applications during that period. However, the three year timeframe is not consistent with the maximum duration of a control order, which is 12 months (with the ability to renew). As a result, the Law Council indicated that it was
concerned that there will be then be a suggestion that, for consistency, the maximum period for COs should then be extended to up to three years. Given the intrusive nature of a CO…the Law Council does not consider that it would be necessary or proportionate to allow a CO to be extended for a three year period.’
The Law Council, in response to further questions from the Committee, submitted that the powers of review under any ESO regime should include the power to:
vary the duration of an ESO;
vary the conditions that have been included in the order; and
review and revoke an order where the purpose of the review is to determine whether the offender should remain subject to the ESO.
State and Territory Supreme Courts should be given the power to at any time vary or revoke an extended supervision order or interim supervision order on the application of the Attorney-General or the person subject to the order.
The period of an order must not be varied so that the period is greater than that of up to three years …
In other words, the Law Council supports a responsive and flexible ESO regime in the case of high-risk terrorist offenders with the inclusion of the full gamut of review powers.
Dr Blackbourn et al submitted support for urgent clarification regarding interoperability of Divisions 104 and 105A of the Criminal Code. They further commented on the current review mandate:
The deferral to post-enactment review processes of the challenge of resolving the interoperability of control orders (COs) and CDOs is, regrettably, not without precedent in Australian anti-terrorism lawmaking. We feel it necessary to emphasise the serious deficiencies of enacting legislative provisions on the basis that their acknowledged shortcomings or uncertain impact alongside existing anti-terrorism powers and processes can be fixed by later review.
Three key issues regarding interoperability were raised in their submission:
Whether an interim CO could be applied for in respect of someone serving a sentence of imprisonment;
The distinct procedural and threshold requirements of each regime; and
The absence of discretion of a court dealing with a CDO application to impose a CO if the court thinks that more appropriate.
The Committee agrees that it is essential to resolve the interoperability issues in order for continuing detention orders under Division 105A and control orders under Division 104 to operate effectively and without duplication.
Both regimes are aimed at protecting the community, with varying degrees of restriction placed on the subject. It is critical that, where a person is found to continue to pose an unacceptable risk to the community at the completion of a term of imprisonment, a court is able to consider a range of options in order to appropriately mitigate that risk without undue restrictions. While a control order is a less restrictive option than a continuing detention order, due to different threshold requirements and procedural arrangements, currently a court cannot in effect consider a control order as an alternative to a continuing detention order.
The ESO model recommended by the INSLM would provide a court with a less restrictive option that has similar controls and monitoring provisions to the control order regime, but with thresholds and procedural arrangements in line with the continuing detention order regime. The INSLM’s recommendation would therefore enable a State or Territory Supreme Court to consider a range of restrictions on a person who continues to pose an unacceptable risk to the community, with the (shorter duration) control order regime continuing to operate separately through the Federal Court. The Committee therefore supports the model recommended by the INSLM, noting that it appears to have broad support from stakeholders.
The Committee acknowledges the Law Council’s concern that regular review be available under the ESO regime. The existing provisions for continuing detention orders in the Criminal Code include provisions for the periodic review of an order every 12 months, and on application by the offender. The Committee considers that the same review requirements should be extended to the ESO regime, including the capacity for the court to amend the conditions of the order.
The Committee recommends that the Criminal Code Act 1995 be amended as required to implement an Extended Supervision Order (ESO) regime which would include any of the controls that can be imposed under a control order, similar review mechanisms, and other associated changes consistent with the model recommended by the Independent National Security Legislation Monitor at paragraphs 9.40 to 9.47 of his 2017 review. This will address interoperability issues between Division 104 and 105A.
Independent National Security Legislation Monitor review
Throughout this inquiry, and especially in relation to control orders, both non-government and government submitters have recognised the importance of the reviews undertaken by the former and current INSLMs.
In his report, however, INSLM Renwick noted that a number of recommendations made by INSLM Gyles in his 2016 review of control order safeguards had not yet been responded to. He stated that these recommendations ‘stand as the views of my office’.
The Committee asked the Attorney-General’s Department about the status of the government response to these recommendations at its public hearing. The Government’s response to INSLM Gyles’ recommendations was provided to the Committee in a supplementary submission. The Committee notes that this Government response is not easily sourced elsewhere.
In its submission, the Law Council noted that government responses to INSLM reports, and implementation of recommendations, had been ad hoc. The Law Council recommended that the Independent National Security Legislation Monitor Act 2010 (the INSLM Act) be amended to require ‘formal and prompt government response to INSLM reports (for example, within six to twelve month timeframe)’.
The Law Council expressed its support for a reform to the INSLM Act that was first noted by INSLM Walker:
There should be an express power for the INSLM to report on a matter or matters within the statutory mandate but more urgently or particularly than by the annual report. The INSLM’s statutory mandate should include an ability to review a range of legislation to the extent that they may impact on national security matters (e.g. the Telecommunications (Interception and Access) Act 1979 (Cth), Telecommunications Act 1997 (Cth), Surveillance Devices Act 2004 (Cth), Part IAAB of the Crimes Act 1914 (Cth), relating to the monitoring of compliance with control orders).
The Committee agrees with stakeholders on the important scrutiny role of the INSLM in reviewing national security legislation. The findings of each INSLMs reports have been given substantial weight by the Committee. In particular, INSLM Renwick’s statutory reviews have been crucial in informing the Committee’s own review of the control order regime, as well as the other powers considered in this report.