The Counter-Terrorism Legislation Amendment Bill (No. 1) 2018 (the Bill) was introduced into the House of Representatives on 24 May 2018. The Attorney-General referred the Bill to the Committee for review the same day.
In his letter, the Attorney-General stated that the Bill’s primary purpose is to extend the operation of ‘critical counter-terrorism provisions’ in the Criminal Code, Crimes Act 1914 and Australian Security Intelligence Organisation (ASIO) Act 1979 ahead of their scheduled sunset date of 7 September 2018. The Bill also implements the Government’s response to recommendations of the Committee and the Independent National Security Legislation Monitor (INSLM) in separate reports.
In his second reading speech, the Attorney-General noted that:
The measures in this bill implement the first part of the government’s response to the recommendations of the PJCIS and INSLM’s recent reviews. The second part of the government’s response to these reports—which concerns creation of an extended supervision order regime—will form part of a further bill to be introduced later in 2018.
The Committee agreed to complete its inquiry and report to the Attorney-General, Minister for Home Affairs and the Parliament by June 2018.
Notice of the Committee’s review was included on its website, together with links to the Bill and Explanatory Memorandum. Noting that the Bill addressed matters already considered and reported on by the Committee, the Committee resolved that it would not seek public submissions or conduct hearings in relation to the review.
Context of the inquiry
The Bill responds to most of the recommendations in two recent Committee reports:
Review of police stop, search and seizure powers, the control order regime and the preventative detention order regime: Division 3A of Part IAA of the Crimes Act 1914; Divisions 104 and 105 of the Criminal Code, and
Review of the ‘declared area’ provisions: Sections 119.2 and 119.3 of the Criminal Code.
The Bill responds to one recommendation in the Committee’s report on ASIO’s questioning and detention powers: Review of the operation, effectiveness and implications of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979. The Committee notes that its other recommendations in this report remain under consideration by the Government.
The Bill also responds to some of the recommendations in the following INSLM reports from September 2017:
Review of Division 3A of Part IAA of the Crimes Act 1914: Stop, Search and Seize Powers,
Sections 119.2 and 119.3 of the Criminal Code: Declared Areas, and
Review of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders.
Overview of the Bill
Extension of sunset provisions
Consistent with the Committee’s recommendations, items 7, 11, 13 and 17 of the Bill will extend the sunset date for the following regimes by three years to 7 September 2021:
control order regime in Division 104 of the Criminal Code,
preventative detention order regime in Division 105 of the Criminal Code,
declared area provisions in sections 119.2 and 119.3 of the Criminal Code, and
stop, search and seizure powers in Division 3A of Part IAA of the Crimes Act 1914.
Item 18 of the Bill extends the sunset date for ASIO’s questioning and detention powers in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 by 12 months to 7 September 2019. The Committee notes that its recommendation was intended to allow sufficient time for a reformed ASIO compulsory questioning framework to be developed in response to the Committee’s report and then reviewed by the Committee. In his second reading speech, the Attorney-General stated that extending the sunset date ‘will enable the government to consider the PJCIS’s recommendation in relation to ASIO’s powers.’
Control order regime
Items 1 to 6 of the Bill will amend the control order regime.
Item 1 amends Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to provide that decisions of senior Australian Federal Police (AFP) members to provide or refuse consent to vary interim control orders under new section 104.11A of the Criminal Code will not be reviewable under the ADJR Act.
Item 2 amends subsection 104.5(1A) of the Criminal Code to provide that the court issuing the interim control order must specify a date for the confirmation proceeding as soon as practicable, but at least seven days, after the interim control order is made.
Item 3 would insert a new section 104.11A in new Subdivision CA of the Criminal Code to enable a court to vary the terms of an interim control order where there is written agreement between a senior AFP member and a controlee. According to the Explanatory Memorandum, this new section is designed to facilitate ‘minor and uncontroversial’ variations to an interim control order, such as a changed mobile telephone number, change of residential arrangements or change in educational or employment arrangements of a controlee.
Proposed paragraph 104.11A(2)(b) provides that the issuing court may vary the order if the court is satisfied:
the variation does not involve adding any obligations, prohibitions or restrictions to the order;
The court must also be satisfied under proposed subsection 104.11A(3) that ‘the variation is appropriate in the circumstances’.
Items 4 and 5 insert new subsection 104.14(3) into the Criminal Code to clarify the evidential weight that is to be given to the original interim control order request when the issuing court is considering taking an action in a confirmation proceeding under section 104.14.
The Explanatory Memorandum provides the following explanation of this provision:
New paragraph 104.14(3A)(a) provides that in confirmation proceedings, the issuing court must take judicial notice of the fact that the original request for the interim control order was made in particular terms. This avoids the AFP having to adduce the original interim control order request as evidence to meet the requirements of paragraph 104.14(3)(a), only to have parts of the interim control order request subsequently challenged by the controlee.
New paragraph 104.14(3A)(b) provides that the issuing court can only take action based on evidence adduced, and submissions made, under subsection 104.14(1) in relation to revoking, confirming or declaring void the interim control order. The effect of this paragraph is to only allow the issuing court to consider evidence admissible under the Evidence Act, when making a decision under section 104.14. Those aspects of the original interim control order request on which the AFP seeks to rely must be adduced under subsection 104.14(1) and must comply with the rules of evidence. Based on the evidence adduced by both parties under subsection 104.14(1), the issuing court can determine the appropriate action to take in the confirmation proceeding.
Item 6 inserts a new section 104.28AA into the Criminal Code to set out limitations on the issuing court’s ability to make cost orders in control order proceedings. Under proposed subsection 104.28AA(1), the issuing court must not make an order for costs against the controlee. However, if the issuing court is satisfied that the controlee has acted unreasonably in the conduct of the proceedings, it may order costs against the controlee to the extent of the unreasonable conduct (proposed subsection 104.28AA(2)).
Preventative detention order regime
Items 8, 9 and 10 will insert new paragraphs into the Criminal Code to provide for the Committee to be notified in writing of the making of an initial preventative detention order, continued preventative detention order, and prohibited contact order.
The Explanatory Memorandum notes that the Committee’s recommendation included a requirement that the AFP brief the Committee if requested, but states:
No legislative amendment is required to give effect to this aspect of Recommendation 13 as the PJCIS already has the authority to monitor and review the AFP’s performance of its functions under Part 5.3 of the Criminal Code under existing paragraph 29(1)(baa) of the Intelligence Services Act 2001.
Declared area provisions
Items 12, 14 and 15 contain amendments to the declared area provisions at sections 119.2 and 119.3 of the Criminal Code.
Item 12 inserts a new exception to the declared area offence in subsection 119.2(1) for individuals performing official duties for the International Committee of the Red Cross.
Item 14 will repeal and replace existing subsection 119.3(6) to provide that the Minister for Foreign Affairs may revoke a declaration if he or she considers it ‘necessary or desirable to do so’.
The Explanatory Memorandum states that, as noted in the Committee’s recommendation,
the Minister should be permitted to remove a declaration in circumstances where the legislative criteria for a declaration remain satisfied, but other non-legislative factors suggest that maintaining the declaration is no longer necessary or desirable.
Item 15 will repeal and replace existing subsection 119.3(7) to provide for the Committee to review a declaration at any time during which the declaration is in effect and report the Committee’s comments and recommendations to each House of the Parliament.
Police stop, search and seizure powers
Item 16 will insert subdivision CA into Division 3 of Part IAA of the Crimes Act 1914 to require:
reporting to the Minister, INSLM and Committee on use of the stop, search and seizure powers under Division 3 of Part IAA as soon as practicable after exercise of a power or powers, and
an annual report from the Minister each year.
The Committee made a number of recommendations concerning future reviews by the Committee and extension of its oversight remit.
Item 19 amends the Intelligence Services Act 2001 to provide for the Committee to review, by 7 January 2021, the operation, effectiveness and implications of:
Division 3A of Part IAA of the Crimes Act (stop, search and seizure powers),
Divisions 104 and 105 of the Criminal Code (control order regime and preventative detention order regime),
sections 119.2 and 119.3 of the Criminal Code (declared area provisions),
and to monitor and review:
the performance by the AFP of its functions under Division 3A of Part IAA of the Crimes Act 1914, and
the basis of the Minister’s declaration of prescribed security zones under section 3UJ of the Crimes Act 1914.
Item 20 of the Bill contains amendments to subsection 105A.5(5) of the Criminal Code to reflect the division of responsibility between the Attorney-General and the AFP Minister for the protection of sensitive information in continuing detention order proceedings.
The Committee has reviewed the Counter-Terrorism Legislation Amendment Bill (No. 1) 2018 and considers that the proposed legislative amendments are consistent with the recommendations made in the Committee’s reports on the police stop, search and seizure powers, control order regime, preventative detention order regime and declared area provisions. The Committee notes that the Bill also implements some of the recommendations of the INSLM in his statutory reviews.
The scope of the Bill does not include implementation of an extended supervision order regime to address interoperability issues between Division 104 and Division 105A of the Criminal Code. The Committee notes the Attorney-General’s statement that this recommendation will be addressed in legislation to be introduced later this year. The Bill is also silent on the Committee’s recommendation that the Attorney-General consider, in consultation with stakeholders, what further improvements could be made to provide greater clarity around how civil procedures rules apply in control order proceedings.
The Committee notes that while the Bill implements one recommendation from the Committee’s report into ASIO’s questioning and detention powers, the remainder of that report (including the Committee’s recommendation for repeal of the questioning and detention warrant power) is still being considered by the Government. As noted above, the intent of this recommendation was that there be sufficient time for a reformed ASIO compulsory questioning framework to be developed and then reviewed by this Committee.
The Committee welcomes acceptance of its recommendations that the police stop, search and seizure powers, control order regime, preventative detention order regime and declared area provisions be continued for a further three years, with reviews by this Committee prior to the new sunset date.
The Committee also welcomes extension of its oversight to include Division 3A of Part IAA of the Crimes Act 1914 together with the additional reporting requirements that will be imposed. As the Committee noted in its earlier report, Committee oversight of the stop, search and seizure powers is in line with other review and oversight functions exercised by the Committee in relation to counter-terrorism.
The Committee’s future reviews will be an opportunity to examine the impact of amendments to the control order regime and declared area provisions. As the Committee noted during its reviews, it will also provide an opportunity to assess the efficacy of the four regimes and, accordingly, the continued need for these powers in the context of the security environment at that time.
The Committee supports the amendments as proposed and recommends that the Bill be passed.
The Committee recommends that the Counter-Terrorism Legislation Amendment Bill (No. 1) 2018 be passed.