Chapter 4 - Control Orders
Introduction
4.1
This chapter will outline the key provisions and issues
raised in relation to Schedule 4 of the Bill, which seeks to introduce a regime
of ‘control orders’ to authorise the overt close monitoring of terrorist
suspects.
Outline of the control order regime
4.2
Item 24 of Schedule 4 inserts new Division 104 into the
Criminal Code to authorise the issue of control orders for the express purpose
of protecting the public from terrorist attack.[233] The scheme provides for four types of
control orders:
-
interim control orders;
-
urgent interim orders (electronic);
-
urgent interim order (in person); and
-
confirmed control orders.[234]
4.3
An interim control order may be requested by a senior
member of the AFP, but the written consent of the Commonwealth Attorney-General
must be obtained before the application is made.[235] In urgent circumstances, a senior AFP member
may apply directly to the Court for an urgent interim control order.[236] The application may be by electronic
means or in person.[237] If an urgent
interim control order is sought and made, the Attorney-General's consent to the
order must be obtained within 4 hours of the order being made.[238]
Grounds for application
4.4
The AFP may only seek the Attorney-General's consent if
the AFP member:
-
considers on reasonable grounds that the order
in the terms to be requested would substantially assist in preventing a
terrorist act; or
-
suspects on reasonable grounds that the person
has provided training to, or received training from, a listed terrorist
organisation.[239]
4.5
For the reasons explained below, the senior AFP member will
also have to be satisfied that a court would find that the order being sought
is reasonably necessary to protect the public from a terrorist act (see
paragraphs 4.8 to 4.9 below).
4.6
In seeking the Attorney-General's consent, the member
must provide the Attorney-General with a draft request that includes:
-
a draft of the interim control order to be
requested;
-
a statement of facts relating to why the order
should be made;
-
a statement of any facts that the member is
aware of as to why the order should not be made;
-
an explanation as to why each of the obligations,
prohibitions and restrictions being sought should be imposed on the person
concerned;
-
a statement of any facts that the member is
aware of as to why any of the obligations, prohibitions and restrictions being
sought should not be imposed;
-
the outcomes and particulars of all previous
requests for interim control orders (including the outcomes of the hearings to
confirm the orders);
-
the outcomes and particulars of all previous
requests for applications for revocations of control orders made in respect of
the person;
-
the outcomes and particulars of all previous
requests for applications for preventative detention orders in respect of the
person, including information, if any, the member has about any periods for
which the person has been detained under State preventative detention law; and
-
any information the members have about the
person's age.[240]
The
Attorney General's consent may be made subject to changes being made to the
draft request, including the draft interim control order.[241]
Court procedure
4.7
A control order may be issued by the Federal Court, the
Family Court of Australia or the Federal Magistrates Court.[242] The Bill provides that the Court in
question may make the order if the senior AFP member has requested it in
accordance with above requirements and the court has received and considered any
further information required by the court.[243]
4.8
To make the order, the Court must be satisfied on the
balance of probabilities that:
-
making of the order would substantially assist
in preventing a terrorist act; or
-
the person to be subjected to the order has been
trained by, or provided training to, a listed terrorist organisation.[244]
4.9
The Court must also be satisfied on the balance
of probabilities that each of the obligations, prohibitions or
restrictions to be imposed on the person is 'reasonably
necessary' and 'reasonably appropriate and adapted for the purpose of
protecting the public from a terrorist act'.[245]
4.10
In making that determination, the Court must take into
account the impact of each proposed obligation, prohibition and restriction on
the person's circumstances, including the
person's financial and personal circumstances.[246]
The Bill expressly provides the Court with the discretion not to include an
obligation, prohibition or restriction if the Court is not satisfied
that a term of the order sought by the AFP is reasonably necessary and
reasonably appropriate and adapted for the purpose of protecting the public
from a terrorist act.[247]
4.11
If the Court makes an interim control order, that order
must, among other things, specify the period during which the confirmed control
order is to be in force (which must not be more than 12 months from the date
that the interim order is made). The interim order must also specify the day on
which the court will determine whether to confirm, vary, declare void or revoke
the interim control order.[248] Proposed
subsection 104.5(2) clarifies that, while the period of a confirmed order
cannot be more than 12 months, there is no prohibition on the making of
successive control orders in relation to the same person.
Notification of interim order and
summary of grounds
4.12
Proposed section 104.12 requires that, as soon as
practicable after the Court issues an interim order, a copy of the order and a
summary of grounds on which it was made must be served on the person subject to
the order. The order must be served on the person at least 48 hours before the
day specified in the order as the day of the confirmation hearing.[249]
4.13
The following must also be explained by the AFP to the
person concerned at the time of service of the above-mentioned documents: the
effect of the order; the right of their lawyer to collect a copy of the order
and summary of grounds; the procedure by which the interim order is to be
confirmed by the court; and the right of the person to apply for a revocation
or variation of a confirmed order.[250]
Confirmation of interim control
order
4.14
The Bill limits the
persons who may appear at a subsequent inter
partes hearing to confirm the control order to:
-
the senior AFP member who requested the order;
-
one or more other AFP members;
-
the person who is the subject of the order;
-
one or more representatives of the person;
-
the Queensland Public Interest Monitor if the
person is a Queensland resident or if the interim order was made in Queensland.[251]
At the confirmation hearing, the Court may confirm the
interim control order if satisfied at the time of the hearing of the requirements
of proposed paragraph 104(1)(c) and (d) (as outlined at paragraphs 4.8 – 4.10
above). Alternatively, the Court may:
-
declare the order void if satisfied that there
were no grounds on which to make the order;[252]
-
revoke the interim order if the Court is not satisfied
that the order would substantially assist in preventing a terrorist act or is
not satisfied that the person has provided training to or received training
from a listed terrorist organisation;[253]
or
-
confirm, but vary the order by removing one or
more obligations, prohibitions or restrictions if satisfied that one of the
grounds mentioned in paragraph 4.8 above exists, but that the obligations,
prohibitions or restrictions concerned are not reasonably necessary or reasonably
appropriate and adapted for the purpose of protecting the public from terrorist
act.[254]
The Court has the discretion to confirm an interim control
order without variation, if the subject of the order does not appear in court
and the court is satisfied, on the balance of probabilities, that the interim order
was properly served on the person.[255]
Scope of control order restrictions
4.15
Proposed section 104.5(3) provides that a control order
may impose any or all of the following restrictions:
-
a prohibition or restriction on the person being
at specified areas or places;
-
a prohibition or restriction on the person
leaving Australia;
-
a requirement that the person remain at
specified premises between specified times each day or on specified days;
-
a requirement that the person wear a tracking
device;
-
a prohibition or restriction on the person
communicating or associating with specified individuals;
-
a prohibition or restriction on the person
accessing or using specified forms of telecommunication or other technology
(including the internet);
-
a prohibition or restriction on the person
possessing or using specified articles or substances;
-
a prohibition or restriction on the person
carrying out specified activities (including in respect of his or her work or
occupation);
-
a requirement that the person report to specified
persons at specified times and places;
-
a requirement that the person allow himself or
herself to be photographed and/or fingerprinted (but only to ensure compliance
with the order – see proposed section 104.22);
-
a requirement that the person participates in
specified counselling or education (but only if the person consents under proposed
subsection 104.5(6)).
Minors
4.16
A control order cannot be requested, made or confirmed
in relation to a person who is under 16 years of age.[256] A confirmed order cannot be made for
a period longer than 3 months if the issuing court is satisfied that the person
is between 16 and 18 years of age.[257]
There is no prohibition on making successive control orders in relation to a
person who is between 16 and 18 years of age.[258]
Key issues
4.17
Concerns were raised that the procedures governing ex parte interim control orders are
inconsistent with the principles of natural justice and procedural fairness.
That is, the Bill allows a court to impose an interim control order without
giving the person concerned an opportunity to be heard.
4.18
Other key concerns included the following:
-
The breadth of the threshold for issuing control
orders. Concerns were expressed as to whether the proposed criteria would
ensure that the least restrictive means to achieve the purposes is employed.
Concerns were also raised over the retrospective application of control orders
to people who have trained with a listed terrorist organisation, but before the
organisation was listed as a terrorist organisation and before training with it
was a criminal offence.
-
The adequacy of procedures to ensure a fair hearing.
Concerns here included: the potential for persons to receive little prior notice
of a confirmation hearing; restrictions on access to evidence upon which the
order is based; the inability to call witnesses; and the absence of any right to
be provided with a detailed set of reasons for the decision to issue a control
order. Also raised was the need to clarify the rules of evidence that would
govern applications for interim and
confirmed control orders.
-
The imposition of a criminal offence for any
breach of a control order. Concerns were raised over the proportionality of
criminalising such conduct irrespective of whether or not the breach related in
some way to the preparation or commission of a terrorism act.
Thresholds
4.19
The breadth of the threshold for issuing interim and
confirmed control orders was the subject of critical comment. For example, the
Queensland Law Society and Queensland Bar Association argued that the first
test of whether the order would substantially assist in preventing a terrorist
act does not require the Court to consider whether the person to be subjected to
the order is in any way involved in a possible terrorist attack:
For example, would it be sufficient that a young person fits the
profile of someone susceptible to being involved in such activities? Thus a
control order can be made when there is no evidence of any planned attack and
on the simple basis that on the balance of probabilities, at some time in the
future there will be an attack.[259]
4.20
They also argued that proposed section 104.4 allows an
order to be made if, on the balance of probabilities, the proposed subject of
the order has provided or received training to or from a listed terrorist organisation
even if the order is not necessary to prevent a terrorist act.[260] In their view, the test is further
confused by the requirement under proposed paragraph 104.4 (1)(d) for the Court
to be satisfied that the obligation, prohibitions and restrictions are
reasonably necessary, appropriate and adapted for the purpose of protecting the
public from a terrorist act:
It would seem that, when the training ground is relied upon, the
Court can only consider the risk to the public in fashioning the terms of the
control order. Otherwise it must make the control order. Also, the Court can
rely on training received may years beforehand.[261]
4.21
Section 101.2 of the Criminal Code makes it an offence
to knowingly or recklessly provide or receive training where the training is
connected with preparation for the engagement of a person in, or assistance in
a terrorist act. By contrast, training for the purpose of Division 104 of the
Bill is not defined. Australian Lawyers for Human Rights argued that:
Training may include a person who receives religious training
from such an organisation but the person trained is not directly involved in
specific training about violence or a terrorist act. The provision does not
contemplate a person who has received non-violent training but presents no risk
in terms of committing a terrorist act. No risk may be posed by the person who
is misled (naively or otherwise) into training but realised its nature and left
the training immediately. The control measures arguably allow for an inference
to be made that because the person has received training the public will necessarily
need to be protected. [262]
Reasonable necessity and
proportionality of restrictions
4.22
The Department pointed to the Bill’s requirement that
the Court take into account the impact of the restriction, prohibition or
obligation on the individual. This, it argued, would provide a sufficient
discretion to ensure that the terms of any control order are proportionate and do
not violate fundamental human rights.[263]
4.23
The issue of proportionality was raised by the ACT
Human Rights Commissioner, who has noted the following concern of the Council
of Europe’s Commissioner for Human Rights:
Control orders are intended to substitute the ordinary criminal
justice system with a parallel system run by the executive ... What is essential
is that the measures themselves are proportionate to the threat, objective in
their criteria, respectful of all applicable rights and, on each individual
application, justified on relevant, objective, and not purely racial or
religious grounds.’[264]
4.24
HREOC considered that, as with preventative detention
orders, a stricter proportionality test is appropriate for control orders.
HREOC stated a clear preference for including an explicit requirement in the
Bill that the issuing Court consider whether there are less restrictive means
of achieving the relevant purpose (that is, protect the public from a terrorist
act).[265] A stricter proportionality
test will, in HREOC's view, reflect the exceptional nature of a control order
and provide an appropriate counterweight to the Bill’s existing tests (which
can be relatively easily satisfied).[266]
Retrospectivity
4.25
Witnesses also raised concerns about the retrospective
aspect of the Bill. An argument here was that
there is an inherent unfairness in imposing 'sanctions' on a person for conduct
which may have taken place many years before and before an organisation was
listed:
As it stands the provision may be criticised because it
effectively punishes a person retrospectively for an act ... which was not
illegal at the time of commission and the person poses no current risk.[267]
Right to a fair hearing
4.26
Many witnesses raised concerns about the procedures for
issuing interim and confirmed control orders. It was argued that:
-
a criminal standard of proof and the minimum
guarantees that exist in criminal trials should apply; or
-
the requirements that apply in civil and public
law matters to ensure a fair hearing should apply.
4.27
The Department advised that it considered that:
The making of a control order does not equate to a determination
of a criminal charge or of the rights and obligations in a suit at law of the
person subject to the order.[268]
4.28
On this view, articles 14.1 and 14.3 of the ICCPR are
not engaged by the procedure for issuing a control order. These require that a
person is entitled to a fair and public hearing before an impartial and
independent court.
4.29
On the question of ensuring parties to control order
proceedings enjoyed 'equality of arms', the
Department advised that challenges to legality of a control order will be heard
by a court both before the control order is confirmed and later when it may be
in force. The Bill contains no restriction on the conduct of these proceedings
(except in so far as national security may be at risk). It also provides that
the person subject to an order may also seek revocation of the order once it is
confirmed.[269]
4.30
There are a number of aspects to proceedings for
control orders which appear to fall short of the basic requirement of a fair
hearing (in civil matters or criminal) and which could be rectified without
disrupting the overall aim or effectiveness of the scheme. The committee notes in this regard the advice
of the AFP that it did not mind how significant the safeguards are in this
legislation so long as its operational capacity was not unduly hindered.[270]
4.31
The features of the procedure which attract particular
comment are as follows:
-
the requirement for ex parte proceedings in all cases of interim control orders;[271]
-
the lack of any time limit on interim orders
obtained ex parte and the possibility
of only 48 hours notice being given in respect of a hearing to confirm an
interim order;[272]
-
the lack of an express right to call witnesses;[273]
-
the possibility of reliance on hearsay evidence
to obtain a control order;
-
restrictions on the right to reasons and the evidence
that is available.[274]
Ex parte hearings
4.32
The Bill provides for ex parte hearings in respect of all
applications for a control order. It does not reserve ex parte hearings only for those cases which require a degree of
urgency. This has been criticised as unnecessary and disproportionate. Professors Charlesworth and Byrne suggested, for
example, that:
As is currently done for domestic
violence orders, an interim order could be made at an inter partes application
(unless there is good reason to make an ex
parte application), and then a date set for a final inter partes hearing to confirm the orders.[275]
4.33
Submitters agreed that ex parte hearings may be appropriate in some circumstance; for
example, where there are grounds for believing that a person would abscond if
he or she had notice of an intended order.[276]
It has been pointed out that control orders were introduced in the UK
in response to a House of Lords' judgment that
rejected indefinite detention of non nationals as discriminatory and a
violation of the fundamental right to liberty.[277] The UK Parliamentary Joint
Committee on Human Rights has criticised the lack of an adversarial procedure
before control orders are issued, but this issue has yet to be tested before
the UK courts.
This process will involve an assessment of the UK
provisions against the standards of the Human
Rights Act 1998 (UK).[278]
Time limits and notice of hearing
4.34
There is no limit to the period in which an interim
control order may be in force. The Bill does provide that the order must be
confirmed at a subsequent hearing, which must be held within 12 months of the
date on which the interim order was issued. Witnesses have highlighted the
distinction between the Bill and provisions for an interim control order under the
Terrorism Act 2000 (UK),
which limits the period of an interim order to 7 days.
4.35
The Department advised that a specific time limit had
not been included in the Bill as it is normal to
leave it to the discretion of the Court to determine the hearing date.[279] The Department put the view that
imposing a time limit may unnecessarily limit the court. However, it agreed
that a requirement of 'as soon as practicable' may be a workable qualification.[280] This would indicate to the Court the
importance of expediting the hearing.
4.36
Concerns were also raised over the requirement to serve
the order at least 48 hours before the day set for the confirmation hearings.
The concern here was that this may leave open the possibility of insufficient
notice and may result in an unnecessary interference with the right to a fair
hearing. It is presumably for these
reasons that a notice period of three days has been held to be insufficient
under the European Convention on Human Rights.[281] It has been suggested that comprehension
of the order and its implications is likely to be more difficult for people with
limited literacy levels or who do not read the English language. Similar
concerns have been raised in relation to domestic violence orders by the
Victorian Law Reform Commission.[282]
No right to call witnesses
4.37
As noted above, proposed subsection 104.14(1) limits
the persons who may appear at a subsequent inter
partes hearing to confirm the control order.[283]
4.38
It was argued that these limitations on who may adduce
evidence and make submissions will have an adverse impact on the ability of the
subject of the order to have real and effective access to the Court. That is,
the principal of 'equality of arms' requires an adequate and proper opportunity
for the respondent to challenge and question witnesses against him or her.
Rules of evidence
4.39
Concerns were raised during the hearings over the
application of the Evidence Act 1995
(Cth) (the Evidence Act) to proceedings concerning applications for control
orders, and over the possible reliance on hearsay evidence to obtain a control
order. As noted earlier, a difference of opinion emerged during the hearings
about whether subsequent hearings to confirm, vary or revoke a control order
were interlocutory or would be treated as trial proceedings for the purpose of
the Evidence Act.[284]
4.40
The Department advised the Committee that an ex parte application for an interim
control order would be regarded as interlocutory proceedings for the purposes
of the Evidence Act. Confirmation hearings would be regarded as 'proceedings
in a federal court' for the purposes of that
Act. Accordingly, subsection 4(1) of that Act would mean that its provisions
would apply to both applications for interim control orders and confirmation
hearings.[285]
4.41
It is possible that hearsay evidence could be relied on
in hearings for the issue of an interim control orders and in confirmation
hearings. As a general rule, hearsay evidence is inadmissible in trial
proceedings. However, there are a number of exceptions that could apply resulting
in hearsay being accepted.[286] Section
75 of the Evidence Act also provides that the hearsay rule does not apply to 'interlocutory
proceedings' if the party adducing evidence
also adduces evidence of its source.
4.42
During the hearings, it was suggested that the Bill
could be amended to clarify that hearsay evidence is not receivable in
proceedings to confirm a control order.[287]
The Department agreed that the exclusion of hearsay evidence would not present
the Department with any difficulty.
Restriction on right to reasons and
access to evidence
4.43
As noted in Chapter 3, submitters and witnesses argued
that a full statement of reasons was critical to exercising the right to
challenge a control order (and a preventative detention order). Mr Bret Walker
SC expressed the view the current provisions provide no guarantee that the
summarised information would reflect all the grounds upon which the issuing
authority had granted the order. It was noted that:
-
information in relation to facts is provided to
the issuing authority without the need for the information or the facts to be
admissible evidence;
-
the issuing authority can require further
information and is required to exercise independent consideration of the facts;
-
orders are not required to set out the grounds on
which the order is made;
-
information additional and perhaps different to
information originally thought to constitute reasonable grounds may be the
actual basis for the order;
-
summarising the grounds is left to the AFP and
not the issuing authority; and
-
the judgement about and omission of information
likely to prejudice national security is made by the police.[288]
4.44
The committee was advised that:
Without any need for alarmist or inappropriate slurs against
members of the AFP or lawyers advising them, it is easy to see that in practice
the contexts of a critical document, viz the summary of the grounds to be
served on the person against whom an order has been made, may well not accurately
represent the real reason why the order was made.[289]
4.45
Mr Walker
stressed to the Committee the importance of practising lawyers being confident
of the grounds upon which their client has been subjected to the order in order
to advise them properly. Additionally, judicial proceedings for review of
orders require evidence rather than warrant style 'information'.
This makes it essential that the statement be a full statement of grounds
produced by the issuing authority itself and any redactions or omission for
national security reasons be the result of the independent and recorded decision
of an issuing Court.[290]
4.46
This view was shared by the Queensland Law Society and
Queensland Bar Association.[291]
4.47
During hearings, the Committee explored with witnesses
the possibility of expanding the obligation to require the material upon which
the order is based being given to the person subject to the order.[292]
HREOC argued that, if a summary of grounds - rather than full reasons -
is to be retained, the Bill should specify that
the summary must be prepared by the issuing authority as opposed to an AFP officer. Mr Walker SC also suggested that the
provision of the ADJR Act would be an appropriate model. It provides for the
provision of a statement of reasons, including the material which provides the
basis for the decision in question.[293]
Extent of restrictions
4.48
Many witnesses expressed their concern about the extent
of restrictions capable of being imposed under a control order:
The terms of control orders may include restrictions and
prohibitions on a person’s movements, activities, work, travel, communication
(eg telephone and internet), association, possession or use of certain articles
or substances, and requirements to report to specified persons and places,
submit to counselling, home detention, and being photographed and
fingerprinted, and use of electronic tracking devices. These restrictions are
much more extensive than those available under current State and Territory
legislation governing apprehended violence orders. They infringe human rights
under the ICCPR by restricting travel (freedom of movement – article 12(1)) and
by imposing tagging devices (privacy and reputation - article 17(1)). By
limiting membership of groups or associations control orders can restrict both
the right to association (article 22) and the right to freedom of religion
(article 18). They can also restrict access to information and limit internet
use, which can be in breach of the right to freedom of expression (article 19
(2)). Control orders subjecting the person to house arrest also engage the
right to liberty in article 9.[294]
4.49
Concerns were raised that restrictions under a control
order could prove more onerous than imposition of a criminal penalty,
especially where those restrictions are imposed over a lengthy period of time. The
Bill does not make any distinction between control orders that impose less
onerous restrictions and those that impose restrictions which might be regarded
as 'higher end'
sanctions. A particular concern here was that prohibitions and restrictions
that impose home detention or place severe restrictions on freedom of movement could
be characterised as a deprivation of liberty without trial.
4.50
The committee is aware that Ben Emmerson QC, a
leading UK
human rights barrister, has opined that UK
control orders which impose significant deprivations of liberty and other
severe restrictions are liable to be classified as criminal penalties and,
thereby, attract the right to fair trial under Article 6 of the European
Convention on Human Rights.[295]
4.51
The ACT Human Rights Office argued that the Bill's penalty
of 5 years imprisonment for the breach of a control order supports the
interpretation of these orders as 'criminal'
rather than 'civil'
in nature for the purpose of human rights protection. The Office noted that the
House of Lords has held that, in assessing anti-social behaviour orders (which
are similar in nature, but less onerous):
there are good reasons, in the interests of fairness, for
applying a higher criminal standard to these orders where allegations are made
of a criminal or quasi criminal conduct which, if proved, would have serious
consequences for the person against whom they were made.[296]
No limitation on the number of
successive control orders
4.52
The Bill provides that a control order may be made for
up to 12 months and may be repeated without limit against the same person.[297]
Witnesses pointed out that this contrasts with the limits imposed on control
orders issued under equivalent UK
laws. The UK
laws provide that control orders may be made for up to 12 months at a time,
except those which impose 'house arrest'. The
latter are limited to 6 months duration. The renewal of 'house
arrest' orders is limited to a maximum period
of 6 months on each occasion.
The Committee's view
4.53
The committee acknowledges the significant level of
concern raised in submissions and evidence with respect
to the Bill’s provision's relating to control orders, particularly those
relating to the need for strong procedural safeguards. At the same time,
the committee must have regard to the fact that the purpose of the proposed regime
is to protect the community and is the result of exceptional circumstances.
4.54
After careful consideration, the committee agrees that
there is a need to strengthen the safeguards governing control orders. In reaching this view, it noted the above-mentioned
advice from the Australian Federal Police that it had no difficulty with the
inclusion of additional safeguards which would not unduly undermine their
operational capacity to respond to the terrorist threat.
4.55
In light of the above, the committee makes the following
recommendations.
Recommendation 19
4.56
The committee recommends that proposed sections 104.2,
104.4, 104.7-9 and 104.14 be amended to include a requirement that the AFP
officer, the Attorney General and the issuing Court each be satisfied that the
application and making of the control order and the terms in which it is sought
and issued is the least restrictive means of achieving the purpose of the
order.
Recommendation 20
4.57
The committee recommends that proposed section 104.5 be
amended to require that the day of the hearing to confirm, vary or revoke the
order must be set as soon as is reasonably practicable after the making of the
order.
Recommendation 21
4.58
The committee recommends that proposed section 104.12 be
amended to require police officers to arrange access to a detainee by a lawyer
and an interpreter, as necessary, in cases where there are reasonable grounds to
believe that the detainee is unable to understand fully the effect of control
order because of an inadequate knowledge of the English language or a mental or
physical disability.
Recommendation 22
4.59
The committee recommends that the Bill
be amended to prohibit reliance on hearsay evidence in a proceeding for the
grant of continued control order.
Recommendation 23
4.60
The committee recommends that proposed section 104.12 be
amended to provide that the detainee shall be provided with a copy of the order
and the reasons for the decision, including the materials on which the order is
based, subject to any redactions or omissions made by the issuing authority on
the basis that disclosure of the information concerned is 'likely to prejudice
on national security' (as defined in the National
Security Information (Criminal and Civil Proceedings) Act 2004 (Cth))
Recommendation 24
4.61
The committee recommends that proposed section 104.29 be
amended to require the Attorney-General to report to the Parliament on control
orders on a six monthly basis.
Recommendation 25
4.62
The committee recommends that the Bill be amended by
inserting an express requirement for a public and independent 5 year review of
the operation of Division 104, adopting the same mechanism and similar terms to
that provided by section 4 of the Security
Legislation Amendment (Terrorism) Act 2002 (Cth), which established the
Sheller Committee.
Recommendation 26
4.63
The committee recommends that proposed section 104.32
be amended to provide a sunset period of five years.
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