2. Consideration of the Bill

Concerns raised around presumptions against bail and parole

2.1
Submitters raised the following concerns around presumptions against bail and parole:
lack of nationally consistent principles,
expansion for broader group of offenders,
exceptional circumstances test, and
rights of the child.

Lack of nationally consistent principles

2.2
As set out in the previous chapter the rationale for the Bill is that it seeks to implement an agreement arising out of the Special Meeting of COAG on 5 October 2017. The Communiqué from that meeting stated that:
leaders agreed a package of legislative and practical measures that will further strengthen our nationally consistent approach to countering the evolving terrorist threat and help make Australians safer.1
2.3
The Law Council of Australia and Dr Ananian-Welsh, Dr McGarrity, Dr Tulich and Professor Williams pointed to a large number of inconsistencies in the presumption against bail in each Australian jurisdiction.2 Each submitted that the amendments were not justified.3

Expansion for broader group of offenders

2.4
The Law Council’s submission provided the Committee with a detailed explanation of the kinds of offenders that, in their view, could be captured by the expansion of the presumption against bail provisions. Some of the criticism the Law Council had of the expanded offences were that the offences had ‘tenuous, incidental links to terrorism’, are subject to civil orders being control orders or that they capture a ‘broad range of conduct.’ 4
2.5
These concerns were echoed by Dr Ananian-Welsh et al, who concluded that
rather than extending the categories of people to whom the presumption against bail applies, our preferred approach is to include in the Crimes Act a specific list of factors, including any material support that the person has provided for terrorism, that the bail authority must take into account in deciding whether to grant bail.5
2.6
With regard to the presumption against parole for terrorism related activities being introduced by the Bill, Dr Ananian-Welsh et al argued that such a presumption would affect ‘facilitating the reintegration of the offender back into the community’ and that the breadth of the categories
have the potential to capture people who have merely a tenuous connection with terrorism and/or who may have posed a real risk to the community in the past but have since rehabilitated.6
2.7
Further concerns in relation to the presumption against bail and parole are discussed below in relation to the exceptional circumstance test.

Exceptional circumstances test

2.8
One particular concern centered around the concept of an exceptional circumstances test before bail or parole can be granted
2.9
The exceptional circumstances test is currently part of section 15AA of the Crimes Act which provides that provides that a bail authority must not grant bail to a person charged with or convicted of a terrorism offence (other than an offence against section 102.8 of the Criminal Code), unless the bail authority is satisfied that exceptional circumstances exist to justify bail.7
2.10
The Attorney-General’s Department and Department of Home Affairs emphasised that, although the test does not prevent bail being granted ‘it is a very high threshold for the applicant to meet’ (emphasis added).8
2.11
Proposed section 19ALB will extend the test to parole.
2.12
The Australian Human Rights Commission (AHRC) argued that the exceptional circumstances test:
directly and significantly impacts a person’s right to liberty and may allow for the arbitrary detention of individuals, contrary to article 9(1) of the ICCPR.9
2.13
The Law Council drew a distinction between the presumption against bail and the exceptional circumstances test. It explained that presumption against bail is a lower test than that of exceptional circumstances10 and concluded that:
the current exceptional circumstances test in section 15AA is a higher test that what was agreed to being implemented at the Special Meeting of COAG on the 5 October 2017.11
2.14
In relation to the proposed presumption against parole the Law Council argued that an exceptional circumstances test is not justified when, in their view, there may only be tenuous links to terrorism such as with those who are the subject of a control order within the meaning of Part 5.3 of the Criminal Code, and persons who have made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of Part 5.3 of the Criminal Code.12
2.15
This was echoed by Dr Ananian-Welsh et al who stated that:
[t]he reality is that the burden of proving exceptional circumstances means that most prisoners falling into one of the three categories will have little hope of parole. Whilst there is no legislative definition, it has been interpreted by the courts as ‘something unusual or out of the ordinary in the circumstances relied on by the applicant before those circumstances can be characterised as exceptional’.13
2.16
In addition the Law Council noted that:
such a proposed test for terrorist-related activities does not encourage rehabilitation or deradicalisation efforts.14
2.17
The Law Council recommended that the exceptional circumstances test for parole should be ‘limited to offenders who seek parole following conviction for a terrorism offence.’15

Rights of the child

2.18
The Bill’s proposed amendments seek to change the way alleged and convicted offenders under the age of 18 are treated in relation to bail and parole.
2.19
Children enjoy all rights guaranteed by the International Covenant on Civil and Political Rights (ICCPR), as well as particular and special protections under the Convention on the Rights of the Child (CRC). Australia ratified the CRC in 1990.
2.20
Article 3 of the CRC protects the best interests of the child:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.16
2.21
Article 37 of the CRC provides that the arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time. Article 40 of the CRC recognises the right of a child accused of a criminal offence to be treated in a manner consistent with the promotion of the child’s sense of dignity and which takes into account the child’s age and the desirability of promoting the child’s reintegration into society.
2.22
Relevantly, in relation to the amendments proposed by the Bill, the United Nations (UN) Committee on the Rights of the Child has stated:
The protection of the best interests of the child means … that the traditional objectives of criminal justice, such as repression/retribution, must give way to rehabilitation and restorative justice objectives in dealing with child offenders.17
2.23
The Law Council, in discussing the changes in proposed section 19ALB, stated that they were concerned:
that this provision will have application to children and proposed subsection 19ALB(3) serves to limit and fetter the discretion of the Attorney-General when considering the decision to release a child to parole. The comments of the INSLM in relation to section 19AG are also relevant this proposed section in that exempting children from this provision would again provide the Attorney-General with a ‘greater degree of flexibility in relation to the parole of juvenile terrorist offenders’.18
2.24
The Law Council of Australia and the Australian Human Rights Commission, recommends that children should be exempt from the application of section 19ALB.19

INSLM’s report: The prosecution and sentencing of children for Commonwealth terrorist offence

2.25
In the previous inquiry the INSLM’s report The prosecution and sentencing of children for Commonwealth terrorist offence20 (the report) was available to the Committee as an embargoed copy. At that time submitters did not have an opportunity to comment on the recommendations made by the INSLM.
2.26
In relation to the report the Explanatory Memorandum asserts that
Schedule 1 of the Bill responds to two of the issues considered by the INSLM, namely the application to children of the existing presumption against bail, and, the minimum non-parole period for terrorist offenders under section 19AG of the Crimes Act.21
2.27
The INSLM’s report recommended
section 19AG be amended so that s 19AG no longer applies to offenders who were under 18 at the time of offending, and
section 15AA of the Crimes Act be amended so that, in the case of children, and within the exceptional circumstances test, it expressly provides for additional consideration of the best interests of the child in every case as a primary consideration, and protection of the community as a paramount consideration.
2.28
In relation to section 19AG the INSLM concluded that
the application of s 19AG to children is inconsistent with Australia’s international obligations, and that consequently such application is not necessary or proportionate to the threat posed by juvenile terrorist offenders.22
2.29
The proposed amendment to s 15AA in the Bill implements the INSLM’s recommendation in full. The amendment to s 19AG which requires a judge to find exceptional circumstances in order to avoid imposing the three quarter rule on children, does not adopt the INSLM’s recommendation in relation to 19AG, though the Attorney-General’s Department submitted that the amendment is intended to address “concerns” raised by the INSLM.
2.30
At the first public hearing officials confirmed that the Explanatory Memorandum quoted above should not be taken as indicating that the Bill fulfils the recommendations of the INSLM. Rather, the Attorney-General’s Department stated:
It does so in the way that one of the issues raised in the monitor's report relates to the rights of the child. We have included explicit provisions within the bill that relate to children under 18 years—taking the best interests of the child into account. That's intended to pick up on those concerns raised by the INSLM. It doesn't fully address all the recommendations raised by the INSLM. I don't know whether it addresses them in the way that the INSLM would prefer, but it is intended to response to concerns raised by the INSLM about protecting the rights of the child; hence that reference within the legislation to, if a child is under 18 years of age, taking their best interest into account.23
2.31
In relation to the requirement in Article 3 of the CRC that the ‘best interests of the child shall be a primary consideration’ the Explanatory Memorandum states that:
The amendments make it explicit that the best interests of the child are a primary consideration, with the protection of the community the paramount consideration, for the decision maker when determining whether exceptional circumstances exist to rebut the presumption against bail or parole, where the person is under the age of 18 years. The amendments make it clear that these same factors are also to be considered by the sentencing court when determining whether exceptional circumstances exist to justify a departure from the minimum non-parole period for a terrorism offence, where the offender is under the age of 18 years.24
2.32
Commenting on the use of the phrase ‘paramount consideration’ as opposed to the phrase ‘primary consideration’ the AHRC quoted the High Court decision in Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh as follows:
The concluding words of Art.3.1 … give[s] those interests first importance along with such other considerations as may, in the circumstances of a given case, require equal, but not paramount, weight.25
2.33
The AHRC conclude that
A consideration that may be trumped by a ‘paramount’ consideration cannot be a ‘primary’ consideration.26
2.34
Dr Ananian-Welsh et al, differ with the AHRC and acknowledge that the ‘paramount / primary drafting formulation does not explicitly contravene’ the CRC.27 They, however, stated that the problem with the Bill
is that by directing the decision-making that the protection of the community is the paramount consideration, it makes it extremely difficult (if not impossible) for a minor to rely upon their ‘best interests’ as extraordinary circumstances to be granted bail or parole, or to have a parole period of less than three quarters of the head sentence imposed.28
2.35
After discussing the importance of allowing ‘the exercise of unfettered discretion by the decision-maker taking into account the full range of relevant factors’ they recommend that:
the protection of the community and the best interests of the person be placed on an equal footing, each as ‘primary’ considerations to be considered in the decision-making process.29
2.36
In its supplementary submission, having had the benefit of reviewing the INSLM’s recommendations, the Law Council of Australia considered:
that this approach regarding mandatory non-parole in the case of children except where there are ‘exceptional circumstances’ is inconsistent with Australia’s international obligations in relation to the sentencing of children for criminal offences, as acknowledged by the INSLM, and does not support the proposed amendments contained in the Bill in relation to section 19AG. The sentencing discretion is still unduly restricted by the requirement for the high test of ‘exceptional circumstances’ to be applied. This restriction fetters the courts ability to ensure the sentence applied to a child remains proportionate to their individual circumstances and the nature of the offending conduct as required under international law and in particular the CRC.30
2.37
Further, the Law Council stated that:
the amendments in the Bill will retain a problematic degree of inflexibility when sentencing children for terrorism offences and maintains the primary position that children should be exempt from the operation of section 19AG in accordance with the recommendation of the INSLM. This exemption is necessary in order to provide a Court with the discretion to mould a sentence in relation to a child, which is appropriate in relation to a particular case.31

Concerns around continuing detention orders

Cumulative and concurrent sentencing

2.38
The Law Council and Dr Ananian-Welsh et al submitted as to their opposition to the existence of the Continuing Detention Order (CDO) regime. However, both submitters acknowledged that the proposed changes in the Bill relating to sentencing are consistent with the objective of the CDO regime.32
2.39
In addition, the Law Council pointed to an issue around retrospectivity and stated that
offenders whose sentences for an ‘eligible offence’ have expired and would not have previously been subject to an application for a CDO, would be subject to an application for a CDO if they are still in custody serving a sentence or on remand for another unrelated offence, invoking a retrospective application of legislation to sentences that have expired.33
2.40
The remainder of concerns expressed by submitters were in relation to the exclusion of exculpatory material.

Exclusion of exculpatory material

2.41
The Bill proposes to exclude any information, material or facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the AFP Minister or any other person) where that information is exculpatory material and should currently be included in a CDO application.
2.42
The Bill provides that where information has been excluded on this basis, the applicant must give written notice to the offender stating the information has been excluded when the applicant provides the offender with a copy of the application.
2.43
The AHRC, Dr Ananian-Welsh et al and the Law Council all held significant concerns with the Bill’s proposal to exclude exculpatory material being provided to the subject of a CDO.
2.44
The AHRC set out their broad concerns as follows:
In denying a person access to information, materials and facts that would reasonably be regarded as supporting a finding that a continuing detention order should not be made, the Bill may infringe a respondent’s fair trial rights. Withholding exculpatory information from a person undermines their ability to effectively oppose the legitimacy and necessity of a continuing detention order.34
2.45
Dr Ananian-Welsh et al stated that:
The proposed exclusion of exculpatory material is of significant concern. The existing provisions relating to exculpatory material were carefully considered by the Committee and the Senate when the amendments were agreed to by the Government and included in the 2016 Bill. They constitute important safeguards that protect the fairness of CDO proceedings by ensuring that the offender and the Court are apprised of all relevant material and, in particular, material that is difficult to independently source or challenge. These safeguards are commensurate with the extraordinary nature of the regime. We submit that the amendments made by the Bill should be rejected.35
2.46
The Law Council noted that the onus will be on the terrorist offender to choose to contest the public interest immunity claim and stated that
it is an unworkable proposition for a terrorist offender to seek to disprove a public interest immunity claim over information which will not be known to the offender or the legal representative. Such a proposition may unduly interfere with the fair trial hearing rights of the offender. It may also mean that, should the terrorist offender not contest the claim, the Court may be placed in the invidious position of granting a CDO without the benefit of being aware of relevant exculpatory information. The onus should therefore be on the AFP Minister or relevant operational agencies to satisfy the Court of the public interest immunity claim.36
2.47
The Attorney-General’s Department and Department of Home Affairs point to the significant risk surrounding information gathered in relation to terrorist offenders and state that
evidence gathered relating to the risks posed by a terrorist offender needs to be managed with additional extreme care. Disclosure of certain information to the terrorist offender can compromise sensitive sources and capabilities, with severe consequences for the safety of human sources, the integrity of law enforcement and security operations, and ultimately, public safety.37

The continuing detention order regime

2.48
The Committee sought information on the continuing detention order regime in relation to:
training in the Violent Extremist Risk Assessment 2 Revised (VERA-2R) tool;
expert witnesses;
progress on rehabilitation programs associated with the CDO regime;
process of considering individuals and potential CDO applications; and
housing.

Training in the Violent Extremist Risk Assessment 2 Revised tool

2.49
The VERA-2R tool is described as:
a risk-assessment instrument specifically designed to assess risks related to terrorism and violent extremism.38
2.50
The VERA-2R has been developed to support the ‘judgement of risk assessment and risk management of terrorists and violent extremists’39. It is is an important tool in such assessments as
[E]xisting instruments for conventional individual violence are not sensitive to known characteristics of terrorists and violent extremists. A specific instrument is therefore essential.40
2.51
When asked as to the development of the VERA-2R in Australia the Department of Home Affairs stated that it
facilitates training in the VERA-2R tool, delivered by two expert individuals trained and certified by the author of the tool. This includes awareness training, which supports individuals who may need a working knowledge of the tools but will not be using it on a regular basis, such as judges and magistrates.41
And that it
maintains a governing body to provide expert advice and assistance in the governance and training of the tool. The governing body also assists with retraining and building further capacity in existing users. The Department has developed and maintained a pool of over 130 users since mid-2017, nine of which have substantial expertise in the instrument. This pool covers every state and territory, and also New Zealand.42

Expert witnesses

2.52
Beyond the training of specialist staff; the Committee was concerned about the availability of experts that could come before an Australian court to explain the body of expert knowledge upon which a continuing detention order is going to need to be based. On this issue the Department stated:
While a CDO application has yet to be made under the HRTO scheme, the Department nonetheless considers its system of experts to be well placed for such an application. The Department draws this confidence from the common usage of both the VERA-2R methodology and personnel in the similarly constructed NSW Terrorist High Risk Offender (THRO) scheme.
A number of experts successfully supporting the operation of the THRO scheme are also part of the pool and governing body of experts who will support CDO applications. Their expertise has been further developed by using the VERA-2R tool with convicted terrorist offenders and other offenders assessed as radicalised to violent extremism. The outcomes in the THRO scheme have informed the Department’s judgement as to the level of readiness of our system of experts.43

Progress on rehabilitation programs associated with the CDO regime

2.53
The Committee was concerned to ensure that appropriate rehabilitation programs and opportunities should continue to be made available to all offenders who are subject to a CDO. The Committee sought information on what progress has been made to ensure that there is a rehabilitation de-radicalisation program associated with the CDO regime. The Department of Home Affairs provided the Committee with the following information:
Rehabilitation of violent extremist offenders, including Commonwealth offenders, is the responsibility of state and territory jurisdictions.
Victoria runs the Community Integration Support Program (CISP), a prison-based rehabilitation program for convicted terrorists and prisoners assessed as holding or being vulnerable to radical views. It is funded by the Victorian Government and run by Victoria Police in partnership with a community organisation.
CISP engages participants in a range of pre- and post-release activities involving one-on-one meetings. The program includes engagement to assist preparation for release, and this continues post-release. Participants are supported to reintegrate back into the community through advice and assistance, including help connecting with social security and other services.
Corrective Services New South Wales runs the PRoactive Integrated Support Model (PRISM), a prison-based disengagement program to support the reintegration of ‘at risk’ offenders back into the community, which includes convicted terrorist offenders.
The program is voluntary, run by corrections psychologists, and encompasses a range of services, including religious support. It provides individualised case management plans which target specific factors thought to improve the prospects of disengagement from violent extremism. The VERA-2R risk assessment methodology is used to assess individuals and develop treatment plans, alongside other risk assessment tools.44

Process of considering individuals and potential CDO applications

2.54
The Committee also sought information on the process of considering individuals and potential CDO applications. The Department of Home Affairs provided the Committee with the following information:
The Department of Home Affairs works with Commonwealth, State and Territory agencies to synthesise operational, legal and policy issues that shape the advice to the Minister for Home Affairs on whether or not to seek a CDO.
An eligible offender’s risk is continuously assessed by Commonwealth, State and Territory agencies closely up until the point of their sentence expiry, to ensure the information being considered remains accurate and is up-to-date. Where the offender is not considered a good candidate for a CDO, they will be assessed for alternative post-sentence management options.
Where the Minister considers that an offender poses an unacceptable risk and there are no less restrictive measures to manage the risk effectively, and all other formal legal requirements are satisfied for a CDO, the Minister for Home Affairs may apply to the relevant Court for a CDO within 12 months of the offender’s sentence expiry. The Minister’s decision is informed by advice provided by relevant agencies.
Although no CDO applications have been made to date, all CDO eligible offenders are, and continue to be, considered for the purposes of determining whether the offender poses an unacceptable risk upon sentence expiry.45

Housing

2.55
In addition to information about rehabilitation programs and de-radicalisation, which is part of judicial consideration of whether or not to make a continuing detention order, the other part of the exercise of the judicial discretion about making a continuing detention order is going to be whether or not there is available accommodation.
2.56
This is a matter that the Committee considered when the legislation for continuing detention orders passed in 2016. The Committee sought information about housing for people in respect of whom a continuing detention order is made. The Department of Home Affairs stated:
The detention arrangements for HRTO offenders reflect complex and detailed consultations with a range of agencies, at both a State and Commonwealth level. The arrangements must implement the legislative requirement for these offenders to be housed separately and treated differently to sentenced prisoners (subject to certain exceptions), while respecting the well-established processes and procedures for managing inmates in each state and territory. The availability of opportunities to support the terrorist offender’s disengagement from violent ideologies and rehabilitation are also important considerations.
The Department is well-advanced in terms of negotiating housing arrangements with priority jurisdictions, based on the location and release dates of eligible offenders. The Department is not able to elaborate on ongoing State and Territory negotiations in this area, to avoid prejudicing the conclusion of these arrangements.46

Committee comment

Lack of nationally consistent principles

2.57
The Committee notes the evidence that the regimes for bail and parole across Australian jurisdictions are not uniform or consistent. This Bill seeks to make a set of changes that will bring Australia’s counter-terrorism laws closer to uniformity and consistency. This does not mean that, if this Bill is passed, further work will not need to be done. It is important that Australia’s counter-terrorism laws are under constant review in order to ensure they are necessary, proportionate, fit for purpose, appropriately drafted and contribute to keeping Australians safe.

Expansion for broader group of offenders

2.58
Expanding the presumptions against bail and parole to include the breadth of terrorism offences and to those who are the subject of a control order and persons who have made statements or carried out activities supporting, or advocating support for, terrorist acts will increase the consistency of responses available in relation to terrorist offenders and those who would seek to support the activities or terrorist offenders.

Exceptional circumstances

2.59
The ‘exceptional circumstances’ test currently forms a part of section 15AA of the Criminal Code in relation to the existing presumption against bail, and the Committee notes that the INSLM did not recommend that the test be repealed. Subject to the comments below in relation to the application of s 19AG to children, the Committee is persuaded that the extension of the exceptional circumstances test in the manner contemplated by the Bill is appropriate.

Rights of the child

2.60
Crime carried out by children and how to deal with it is a difficult issue. Balancing rights of the child, the rights of the community to feel safe and the right of victims to feel heard by the justice system needs careful policy and legislative consideration. These are issues on which people of good faith will often disagree. This task is made all the more difficult when terrorist acts are involved which couple criminality with extreme ideological views. The Committee notes that terrorist acts carried out by a child have the same horrific consequences for the victims and the Australian community. Nowhere is this more evident than when, on 2 October 2015, Farhad Khalil Mohammad Jabar, a 15-year-old boy, shot and killed Curtis Cheng, an unarmed police civilian finance worker, outside the New South Wales Police Force headquarters in Parramatta, Sydney.
2.61
The Committee has given careful consideration to the Bill’s amendments to section 19AG and notes that the INSLM’s position differs from that of the Bill. With respect to the INSLM, the Committee supports the position as set out in the Bill.
2.62
The Committee considers that the discretion afforded the position of the Attorney-General is appropriate in determining how to best protect the rights of the child and the protection of the community.
2.63
The Committee notes that, in any consideration in relation to the granting of parole for High Risk Terrorist Offenders who were children at the time of sentencing, parole authorities need to be satisfied that the offender does not poses an unacceptable risk of committing a serious terrorist offence if released into the community. The Committee notess that parole authorities need to take into account whether an offender has continuing support for any terrorist organisation and any violence associated with furthering the aims of such terrorist organisations.

Exclusion of exculpatory material

2.64
The Committee notes the concerns of submitters that withholding exculpatory material from a person who could be subject to a CDO. However, the Committee considers that the protection of Australia’s national security, the safety of human sources, the integrity of law enforcement and security operations, and ultimately, public safety must be held paramount.
2.65
However, the Committee notes the Law Council’s submission that it is likely to be “an unworkable proposition for a terrorist offender to seek to disprove a public interest immunity claim over information which will not be known to the offender or the legal representative”. To address that concern, while also ensuring that exculpatory material may be withheld from a person in appropriate circumstances, the Committee believes that the Bill and Explanatory Memorandum should be amended so that the onus is on the AFP Minister to satisfy the Court that any exculpatory information that is excluded from an application for a CDO is protected by public interest immunity.This is an appropriate mechanism that safeguards against – and appropriately balances - the concerns raised.
2.66
The Committee therefore recommends that the Bill and Explanatory Memorandum be amended so that, in respect of any application for a continuing detention order, the onus is on the AFP Minister to satisfy the Court that any exculpatory information that is excluded from an application is protected by public interest immunity.

Recommendation 1

2.67
The Committee recommends that the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019 and Explanatory Memorandum be amended so that, in respect of any application for a continuing detention order, the onus is on the Australian Federal Police Minister to satisfy the Court that any exculpatory information that is excluded from an application is protected by public interest immunity.

Information sought on High Risk Terrorist Offenders

2.68
The Attorney-General’s Department informed the Committee that, as at 22 August, 52 offenders are serving periods of imprisonment for terrorism offences and may be eligible for continuing detention at the end of their sentences. The Committee sought further information on these offenders from the Attorney-General’s Department and the Department of Home Affairs, and asked that – to the extent possible – the information be provided in the form of a public submission.
2.69
In response, the Department of Home Affairs provided the Committee with a classified supplementary submission that outlined the following information in respect of each of the 52 offenders:
Name
Arrest date
Where they were convicted (e.g. Victoria)
Convictions (for Commonwealth terrorism offence)
Sentencing date
Sentence length
Sentence start date
Expiry of head sentence
Expiry of non-parole period
Whether they are eligible to be considered a High Risk Terrorist Offender
Earliest date for Continuing Detention Order application
2.70
The Committee notes that almost all of this information is available on public databases. In fact, most of this information is readily available – in a consolidated form – on the website of the Commonwealth Director of Public Prosecutions (CDPP), an agency that forms a part of the Attorney-General’s Department.
2.71
It is the strong preference of the Committee that it be able to report in as transparent a manner as possible. The Committee was therefore disappointed by the lack of support the Department of Home Affairs showed the Committee and the Parliament in its repeated refusal to provide any of the requested information in a public submission.
2.72
The Committee subsequently received a further submission from the Department of Home Affairs to this inquiry. That submission annexed the document from the CDPP’s website, and included some additional information about offenders who had been sentenced for terrorism offences after the CDPP document was compiled. The Committee resolved to accept this as a public submission.
2.73
For the benefit of members of the public, the media and the Parliament, and in the interests of encouraging an informed public debate on counter-terrorism issues, the Committee has included the Department’s submission in Appendix C of this report.
2.74
Following implementation of the recommendation in this report the Committee recommends that the Counter Terrorism Legislation Amendment Bill 2019 be passed.

Recommendation 2

2.75
The Committee recommends that, following implementation of the recommendations in this report, the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019 be passed.
2.76
Mr Andrew Hastie MP
2.77
Chair
2.78
October 2019

  • 1
    Council of Australian Government, Special Meeting of the Council of Australian Governments on Counter-Terrorism Communiqué, 5 October 2017 (emphasis in original) at <https://www.coag.gov.au/meeting-outcomes/special-meeting-council-australian-governments-counter-terrorism-communique> viewed on 14 March 2018.
  • 2
    See Law Council of Australia, Submission 4, p. 8; Dr Rebecca Ananian-Welsh, Dr Nicola McGarrity, Dr Tamara Tulich and Professor George Williams, Submission 2, pp. 4-5.
  • 3
    See Law Council of Australia, Submission 4, p. 8; Dr Rebecca Ananian-Welsh, Dr Nicola McGarrity, Dr Tamara Tulich and Professor George Williams, Submission 2, p. 5.
  • 4
    Law Council of Australia, Submission 4, pp. 9-10.
  • 5
    Dr Rebecca Ananian-Welsh, Dr Nicola McGarrity, Dr Tamara Tulich and Professor George Williams, Submission 2, p. 8.
  • 6
    Dr Rebecca Ananian-Welsh, Dr Nicola McGarrity, Dr Tamara Tulich and Professor George Williams, Submission 2, p. 10.
  • 7
    Explanatory Memorandum, p. 24.
  • 8
    Attorney-General’s Department and Department of Home Affairs, Submission 3, p. 3 (emphasis added).
  • 9
    Australian Human Rights Commission, Submission 1, p. 7.
  • 10
    Law Council of Australia, Submission 4, p. 10. The effect of a presumption against bail is that an applicant must satisfy a court that bail should not be refused. An exceptional circumstances test is different and more onerous. Not only do reasons need to be shown why bail should not be refused but those reasons must be exceptional
  • 11
    Law Council of Australia, Submission 4, p. 11.
  • 12
    Law Council of Australia, Submission 4, p. 12.
  • 13
    Dr Rebecca Ananian-Welsh, Dr Nicola McGarrity, Dr Tamara Tulich and Professor George Williams, Submission 2, p. 9.
  • 14
    Law Council of Australia, Submission 4, p. 12.
  • 15
    Law Council of Australia, Submission 4, p. 12.
  • 16
    United Nations , Convention on the Rights of the Child, Article 3, <https://www.ohchr.org/en/professionalinterest/pages/crc.aspx> viewed on 13 March 2019.
  • 17
    United Nations, Convention on the Rights of the Child, General Comment 10: Children’s rights in juvenile justice, Forty-fourth session Geneva, 15 January-2 February 2007, p. 5.
  • 18
    Law Council of Australia, Submission 4.1, p. 4.
  • 19
    Law Council of Australia, Submission 4.1, p. 4 and Australian Human Rights Commission, Submission 1.1, p. 4.
  • 20
    Independent National Security legislation Monitor, The prosecution and sentencing of children for Commonwealth terrorist offences,2 April 2019.
  • 21
    Explanatory Memorandum, p. 6.
  • 22
    Independent National Security legislation Monitor, The prosecution and sentencing of children for Commonwealth terrorist offences,2 April 2019, p. 61.
  • 23
    Mr Stephen Bouwhuis, Assistant Secretary, International Cooperation Unit, Attorney-General’s Department, Committee Hansard, Canberra, 15 March 2019, p. 31.
  • 24
    Explanatory Memorandum, p. 6. See also Attorney-General’s Department and Department of Home Affairs, Submission 3, p. 5.
  • 25
    Australian Human Rights Commission, Submission 1, p. 10 (emphasis in submission) quoting Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 128 ALR 353; (1995) 69 ALJR 423; (1995) 183 CLR 273 (7 April 1995) per Mason CJ and Deane J [31].
  • 26
    Australian Human Rights Commission, Submission 1, p. 10.
  • 27
    Dr Rebecca Ananian-Welsh, Dr Nicola McGarrity, Dr Tamara Tulich and Professor George Williams, Submission 2, p. 12.
  • 28
    Dr Rebecca Ananian-Welsh, Dr Nicola McGarrity, Dr Tamara Tulich and Professor George Williams, Submission 2, p. 12.
  • 29
    Dr Rebecca Ananian-Welsh, Dr Nicola McGarrity, Dr Tamara Tulich and Professor George Williams, Submission 2, p. 12.
  • 30
    See Law Council of Australia, Submission 4.1, p. 3.
  • 31
    Law Council of Australia, Submission 4.1, p. 4.
  • 32
    See Law Council of Australia, Submission 4, p. 15; Dr Rebecca Ananian-Welsh, Dr Nicola McGarrity, Dr Tamara Tulich and Professor George Williams, Submission 2, p. 14.
  • 33
    Law Council of Australia, Submission 4, p. 16.
  • 34
    Australian Human Rights Commission, Submission 1, p. 7.
  • 35
    Dr Rebecca Ananian-Welsh, Dr Nicola McGarrity, Dr Tamara Tulich and Professor George Williams, Submission 2, p. 16.
  • 36
    Law Council of Australia, Submission 4, p. 17
  • 37
    Attorney-General’s Department and Department of Home Affairs, Submission 3, p. 8.
  • 38
    See https://www.vera-2r.nl/ viewed on 3 September 2019.
  • 39
    See https://www.vera-2r.nl/ viewed on 3 September 2019.
  • 40
    See https://www.vera-2r.nl/ viewed on 3 September 2019.
  • 41
    Department of Home Affairs, Submission 6, p. 9.
  • 42
    Department of Home Affairs, Submission 6, p. 9
  • 43
    Department of Home Affairs, Submission 6, p. 9.
  • 44
    Department of Home Affairs, Submission 6, pp. 11-12
  • 45
    Department of Home Affairs, Submission 6, p. 12.
  • 46
    Department of Home Affairs, Submission 6, p. 14.

 |  Contents  | 

About this inquiry

The Parliamentary Joint Committee on Intelligence and Security has commenced a review of the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019. This is a reintroduced Bill. The Counter-Terrorism Legislation Amendment Bill 2019 lapsed upon this year’s election. At this time the Committee’s review of the Counter-Terrorism Legislation Amendment Bill 2019 also lapsed.

Pursuant to Clause 8 of Schedule 1 of the Intelligence Services Act 2001 the Committee has accepted evidence to its review of the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019 all evidence including submissions and transcripts taken for the Committee’s review of the Counter-Terrorism Legislation Amendment Bill 2019 can be found here.

 


Past Public Hearings

27 Aug 2019: Canberra