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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015



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BILLS DIGEST NO. 80, 2015-16 15 FEBRUARY 2016

Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 Cat Barker Foreign Affairs, Defence and Security Section

Jonathan Mills and Jaan Murphy Law and Bills Digest Section

Contents

The Bills Digest at a glance ................................................... 4

Purpose and structure of the Bill .......................................... 5

Background ......................................................................... 5

Committee consideration .................................................... 7

Parliamentary Joint Committee on Intelligence and Security .................................................................................... 7

Senate Standing Committee for the Scrutiny of Bills .............. 7

Policy position of non-government parties/independents ..... 8

Position of major interest groups ......................................... 8

Control orders ......................................................................... 8

Lowering the minimum age to 14 years old .......................... 9

Monitoring powers ................................................................ 9

National security information in control order proceedings ......................................................................... 10

Other measures ..................................................................... 11

Preventative detention orders ............................................ 11

Offence of advocating genocide .......................................... 11

Classification of publications ............................................... 11

Financial implications ........................................................ 11

Statement of Compatibility with Human Rights .................. 11

Parliamentary Joint Committee on Human Rights ................ 11

Amendments relating to control orders (Schedules 2, 3, 4 and 15) ........................................................................... 12

Date introduced: 12 November 2015

House: Senate

Portfolio: Attorney-General

Commencement: The day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

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Lowering the minimum age for a control order to 14 years old (Schedule 2) ...................................................... 13

Policy position ..................................................................... 13

Counter-arguments ............................................................. 14

Maximum period for control orders imposed on minors ... 14

Court appointed advocates for minors ............................... 15

Consideration of the best interests of the child .................. 16

Reporting ............................................................................. 17

Additional comment ............................................................ 17

Tracking devices (Schedule 3)................................................ 17

Issuing courts (Schedule 4) .................................................... 18

Protecting national security information in control order proceedings (Schedule 15) .................................................... 18

Amendments ....................................................................... 19

Procedural fairness issues relating to new section 38J ....... 19

Monitoring, protective and preventative powers when a person is subject to a control order (Schedules 8, 9 and 10) .................................................................................... 20

Purposes for which monitoring, protective and preventative powers would be available .............................. 20

Threshold for warrants authorising powers .......................... 21

Whether powers should be available in relation to interim control orders ........................................................... 22

Use of things, information and documents obtained where control order is later declared void ............................ 22

Schedule 8: Entry, search, seizure and related powers ......... 23

Safeguards ........................................................................... 24

Issue: no reporting, record-keeping or inspection powers ................................................................................. 25

Issue: role for Public Interest Monitor? .............................. 25

Use, sharing and retention of things, documents and information obtained .......................................................... 25

Things seized ..................................................................... 25

Documents obtained ......................................................... 25

Answers given ................................................................... 26

Issue: breadth of use and sharing provisions, including with foreign agencies .......................................................... 26

Telecommunications interception warrants (Schedule 9) .... 27

Issues arising from control order interception warrants .... 27

The arguments for certain proposed amendments may be overstated ............................................................ 27

The proposed amendments will facilitate quicker investigations and act as a preventative measure ............ 28

Privacy protections ............................................................ 29

A control order warrant can be issued prior to the control order being served ................................................ 30

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Changes to reporting requirements .................................. 30

Surveillance devices (Schedule 10) ........................................ 31

Issues arising from control order surveillance device warrants .............................................................................. 32

Use of certain surveillance devices without a warrant ..... 32

Privacy protections ............................................................ 32

A control order warrant can be issued prior to the control order being served ................................................ 32

Changes to reporting requirements .................................. 32

Role for the Public Interest Monitor? ............................... 33

Offence of advocating genocide (Schedule 11) .................... 33

Preventative detention orders (Schedules 5 and 6) ............. 35

Other provisions ................................................................ 36

Delayed notification search warrants (Schedule 14) ............. 36

Security assessments by ASIO (Schedule 12) ........................ 36

Dealing with national security information in proceedings (Schedule 16) .................................................... 37

Exemptions to terrorism organisation offences: funds for legal representation (Schedule 1) ......................................... 38

Classification of publications et cetera (Schedule 13) ........... 38

Disclosures by taxation officers (Schedule 17) ...................... 38

Concluding comments ....................................................... 39

Appendix : Summary of powers exercisable under proposed Part IAAB of the Crimes Act as inserted by Schedule 8 of the Bill ......................................................... 40

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The Bills Digest at a glance The Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 (the Bill) is the fifth Bill to be introduced since mid-2014 in a series of reforms to national security and counter-terrorism laws. The Government states the Bill would address issues that have come to light through recent counter-terrorism investigations and operational activity.

Many of the proposed amendments relate to control orders. Key amendments relating to control orders include:

• lowering the minimum age at which a control order may be imposed from 16 to 14 years of age (Schedule 2)

• where a person is required under a control order to wear a tracking device, requiring the court to impose a specific set of additional requirements on the person that is designed to ensure the device remains in good working order (Schedule 3)

• introducing new ‘monitoring powers’ that would allow police to use entry, search and seizure, telecommunications interception and surveillance device powers in relation to a person subject to a control order to monitor their compliance with the order and prevent terrorist related conduct (Schedules 8, 9 and 10)

• allowing courts to consider information that is not disclosed to the person subject to a control order or their representative for security reasons, in control order proceedings (Schedule 15).

Key issues for debate relating to the proposed amendments to the control order regime include:

• whether lowering the minimum age is justified, reasonable and appropriate

• the adequacy and appropriateness of the additional safeguards introduced alongside the reduced minimum age, including the proposed scheme for court-appointed advocates

• the appropriateness of providing police access to coercive powers normally restricted to investigations or monitoring compliance with regulatory schemes for broader preventative and protective purposes, and whether the associated thresholds are adequate

• whether the proposed monitoring powers are accompanied by sufficient safeguards and accountability mechanisms and

• the impact of restricting access to information in control order proceedings on procedural fairness, and whether additional safeguards such as a system of security-cleared ‘special advocates’ should be considered.

Schedule 11 of the Bill would introduce a new offence of advocating genocide. Stakeholders have questioned the need for the offence, which would appear to overlap with several existing offences, and raised concerns about the potential for the offence to limit legitimate discussions of genocide related topics.

Other measures in the Bill include amending the threshold for imposing a preventative detention order by redefining when a terrorist attack is considered imminent (Schedule 5); amending how thresholds relating to the application and issue of delayed notification search warrants apply (Schedule 14); amending the definition of advocating the doing of a terrorist act for the purpose of refusing classification to a publication, film or computer game (Schedule 13); allowing the Australian Security Intelligence Organisation to provide security assessments directly to state and territory governments and authorities (Schedule 12); and allowing taxation officers to disclose protected taxation information to Australian Government agencies for national security-related purposes (Schedule 17).

Recent reforms to Australia’s already strong legislative framework for protecting national security and countering terrorism have included new and expanded offences, additional and broader powers for law enforcement and intelligence agencies, and new grounds on which dual nationals may lose their Australian citizenship. It is important for the measures proposed in the Bill to be considered in the broader context of both continually evolving national security threats and the cumulative impacts of the most recent series of reforms on personal freedoms, privacy, court processes and social cohesion.

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Purpose and structure of the Bill The purpose of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 (the Bill) is to:

• amend the Criminal Code Act 1995 (Criminal Code) to:

- expand the control order regime, including by lowering the minimum age at which a control order may be imposed from 16 to 14 years of age (Schedules 2, 3, 4 and 7) - modify the preventative detention order regime, including by amending the threshold for imposing a preventative detention order (Schedules 5, 6 and 7) - introduce a new offence of advocating genocide (Schedule 11) and - include additional exemptions relating to legal representation for certain terrorist organisation offences

(Schedule 1)1 • amend the Crimes Act 1914 (Schedule 8), Telecommunications (Interception and Access) Act 1979 (Schedule 9) and Surveillance Devices Act 2004 (Schedule 10) to introduce new monitoring powers in relation to persons subject to control orders2

• amend the Australian Security Intelligence Organisation Act 1979 and the Administrative Appeals Tribunal Act 1975 to allow the Australian Security Intelligence Organisation (ASIO) to provide security assessments directly to state and territory governments and authorities (Schedule 12)3

• amend the Classification (Publications, Films and Computer Games) Act 1995 (Classification Act) to amend the definition of advocating the doing of a terrorist act (for the purpose of refusing classification) to be the same as the definition in the Criminal Code (Schedule 13)4

• amend the Crimes Act to amend how thresholds relating to the application and issue of delayed notification search warrants apply (Schedule 14)

• amend the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act) and the Public Interest Disclosure Act 2013 to allow courts in control order proceedings to consider information that is not disclosed to the controlee or their representative for security reasons (Schedule 15)5

• amend the NSI Act to provide that orders made by a court under that Act in relevant security related circumstances will override any disclosure requirements provided by the regulations (Schedule 16) and

• amend the Taxation Administration Act 1953 to allow taxation officers to disclose protected taxation information to Australian Government agencies for national security-related purposes (Schedule 17).6

Background The Bill is the latest in a series of national security and counter-terrorism laws introduced since mid-2014. Previous reforms have included new and expanded offences, additional and broader powers for law enforcement and intelligence agencies, and new grounds on which dual nationals may lose their Australian citizenship.7

In his second reading speech, the Attorney-General stated that the measures in this Bill ‘reflect lessons learned from recent counter-terrorism investigations and operational activity’.8

1. Criminal Code Act 1995 (Criminal Code), accessed 25 January 2016. 2. Crimes Act 1914; Telecommunications (Interception and Access) Act 1979 (TIA Act); Surveillance Devices Act 2004 (SD Act); all accessed 25 January 2016. 3. Australian Security Intelligence Organisation Act 1979 (ASIO Act); Administrative Appeals Tribunal Act 1975; both accessed 25 January 2016. 4. Classification (Publications, Films and Computer Games) Act 1995, accessed 25 January 2016. 5. National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act); Public Interest Disclosure Act 2013; both accessed

25 January 2016. 6. Taxation Administration Act 1953, accessed 25 January 2016. 7. National Security Legislation Amendment Act (No. 1) 2014; Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014; Counter-

Terrorism Legislation Amendment Act (No. 1) 2014; Australian Citizenship Amendment (Allegiance to Australia) Act 2015; all accessed 18 December 2015. 8. G Brandis, ‘Second reading speech: Counter-Terrorism Legislation Amendment Bill (No. 1) 2015’, Senate, Debates, 12 November 2015, pp. 8425-27, accessed 25 January 2016.

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On 12 September 2014, Australia raised its terror threat level from medium to high.9 In November 2015, the revised National Terrorism Threat Advisory System altered this to ‘probable’, meaning there is credible intelligence indicating individuals or groups have both the intent and capability to conduct an attack.10 Since the threat level was raised, there has been the stabbing of two police officers in Melbourne (September 2014), the Martin Place siege (December 2014) and the murder of a police accountant in Parramatta (October 2015).11 Over the same period, the Australian Federal Police (AFP) and state police have conducted ten counter-terrorism operations, resulting in over 30 people being charged with terrorism and other offences.12 ASIO was managing around 400 high priority counter-terrorism investigations as at June 2015, compared to around 200 in June 2014.13

At the time of the Bill’s introduction, estimates indicated there were around 110 Australians fighting or engaged with terrorist groups in Iraq and Syria and 190 providing support or facilitation from Australia, and that at least 41 Australians had lost their lives in the conflict.14 As at July 2015, around 30 Australians had returned from the conflict, none of whom had since been ‘involved in activities of security concern’ or convicted for terrorism-related offences.15 As at December 2015, 145 Australian passports had been cancelled, 26 suspended and 22 refused to prevent Australians travelling to Iraq and Syria to take part in the conflict.16

The increase in operational activity has meant that agencies are gaining experience with powers that have been available since 2005, but were rarely used, or not used at all, until recently. Four control orders were issued in the twelve months from December 2014 to December 2015, having previously been used only twice—once in 2006 and once in 2007.17 Preventative detention orders (PDOs) were used for the first time in September 2014 as part of Operation Appleby. Three men were detained under PDOs issued under NSW law on 18 September 2014 and released the next day, reportedly without charge.18 In April 2015, an 18 year old was detained for several days under a PDO issued under Victorian law in relation to his alleged involvement in the ANZAC Day plot. The PDO was revoked when he was charged with a terrorism offence.19 The prosecution for that charge was dropped in August 2015, but the man remains subject to a control order issued in September 2015 and was sentenced to a 12 month good behaviour bond without conviction for weapons offences in November 2015.20

9. T Abbott (Prime Minister), National Terrorism Public Alert Level raised to high, media release, 12 September 2014, accessed 7 December 2015. 10. Australian Government, ‘National Terrorism Threat Advisory System’, Australian national security website, accessed 7 December 2015. 11. C Houston, T Mills, J Silvester and D Wroe, ‘Teen suspect was in touch with Islamic State’, The Age, 25 September 2014, p. 2; Department of

the Prime Minister and Cabinet and NSW Department of Premier and Cabinet, Martin Place siege: joint Commonwealth—New South Wales review, Australian and NSW Governments, Canberra, January 2015; N Ralston, A Benny-Morrison and R Olding, ‘Teen shooter unknown to police’, The Sydney Morning Herald, 4 October 2015, p. 3; all accessed 7 December 2015. 12. M Turnbull, ‘Ministerial statements: national security’, House of Representatives, Debates, 24 November 2015, pp. 13483-86; Australian Federal Police (AFP), Update on additional charges in Operation Appleby investigation, media release, 10 December 2015; A Zammit, ‘Australians charged under Joint Counter-Terrorism Team operations since 2013’, The Murphy Raid, blog, updated 12 October 2015; AFP, Update: two men charged in latest Operation Appleby arrests, media release, 23 December; all accessed 22 January 2016. 13. Australian Security Intelligence Organisation (ASIO), ASIO report to Parliament 2014-15, ASIO, 2015, p. 3, accessed 7 December 2015. 14. G Brandis, Second reading speech, op. cit. 15. Council of Australian Governments (COAG), Australia’s Counter-Terrorism Strategy: Strengthening our resilience, Commonwealth of Australia, 2015, p. 3, accessed 7 December 2015. 16. E Whinnett, ‘Terrorist suspects’ passports shredded’, The Daily Telegraph, 5 December 2015, p. 11, accessed 7 December 2015. 17. Department of the Prime Minister and Cabinet and NSW Department of Premier and Cabinet, Martin Place siege: joint Commonwealth—New South Wales review, op. cit., p. viii; D Box and M McKenna, ‘Control orders used for raid pair’, The Australian, 20 December 2014, p. 1; P Farrell, ‘Judge confirms first control order in more than eight years on man, 20’, The Guardian, (online edition), 1 December 2015; R Baxendale, ‘Teenager walks free of Anzac Day plot charges’, The Australian, 13 November 2015, p. 3; B Walker, Declassified annual report, Independent National Security Legislation Monitor (INSLM), Canberra, 20 December 2012; all accessed 12 February 2016. 18. Australian Federal Police (AFP), Clarification of Operation Appleby numbers, media release, 20 September 2014; P Farrell, ‘Detention orders obtained before anti-terrorism raids were carried out’, The Guardian, (online edition), 19 September 2014; R Olding, ‘Almost a decade to standardise Preventative Detention Orders’, The Sydney Morning Herald, (online edition), 3 December 2014; all accessed 8 December 2015. Little information is available on these orders due to a non-publication order: P Farrell, ‘Indefinite ban on reporting of counter-terrorism preventative detention order’, The Guardian, (online edition), 23 September 2014, accessed 8 December 2015. 19. IMO an Application for a Preventative Detention Order in respect of CAUSEVIC [2015] VSC 248 (3 June 2015); AFP, Counter terrorism operation update, media release, 21 April 2015; T Minear and K McMahon, ‘Anzac Day terror plot: Hampton Park teen Harun Causevic charged’, The Herald Sun, (online edition), 21 April 2015; all accessed 8 December 2015. 20. AFP, Update to charges from JCTT Operation Rising, media release, 25 August 2015; R Baxendale, ‘Teenager walks free of Anzac Day plot charges’, The Australian, p. 3, 13 November 2015; both accessed 8 December 2015.

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The Attorney-General also noted the Bill would give effect to ‘a number of recommendations from the Council of Australian Governments [COAG] Review of Counter-Terrorism Legislation’.21 However, the extent to which recommendations from that review are reflected in the Bill is minimal. Schedules 1 and 4 will partially implement recommendations 20 and 28 respectively, as outlined in the ‘Other provisions’ and ‘Control orders’ (see ‘Issuing court’) sections of this Digest below. COAG released its response to the COAG Review in October 2014.22 Of the 44 recommendations relevant to Commonwealth legislation, 15 were supported (five of which were for no change), four were supported in part, and six were supported in principle.23 While some recommendations were addressed through the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Foreign Fighters Act), several of the recommendations supported or partially supported would remain outstanding if this Bill is passed.24

Committee consideration Parliamentary Joint Committee on Intelligence and Security The Bill has been referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for inquiry and report by 15 February 2016. Details of the inquiry are at the inquiry homepage.25

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) raised concerns in relation to Schedule 2 (control orders for people 14 to 17 years of age), Schedule 5 (preventative detention orders), Schedules 8-10 (monitoring powers for persons subject to control orders), Schedule 11 (offence of advocating genocide), Schedule 14 (amendments to delayed notification search warrants), Schedule 15 (restricting access to national security information in control order proceedings) and Schedule 17 (disclosure of protected tax information).26 Among the key concerns it raised were:

• the impact of proposed restrictions on access to national security information in control order proceedings on access to natural justice, including the right to a fair hearing, and the potential need for further safeguards in these situations 27

• the operation of the proposed court-appointed advocate scheme for minors subject to control orders, including how independence will be secured in practice, and in what circumstances an advocate should be permitted to disclose information contrary to a child’s wishes28

• in relation to preventative detention orders, the proposed shift in the test that applies to when a terrorist attack is considered imminent ‘from an expectation that an attack will occur to a conclusion about the capability for an attack to be carried out’29 and

• the ability to use things seized, information obtained or a document produced under the proposed monitoring powers for persons subject to control orders in certain circumstances where the relevant interim control order has been declared void by a court.30

The Scrutiny of Bills Committee also included general comments on the appropriateness of extending the control order regime before the Independent National Security Legislation Monitor (INSLM) has completed a current inquiry into safeguards ‘attaching to the control order regime’, and on the significant impact the proposed

21. G Brandis, Second reading speech, op. cit. The Attorney-General was referring to Council of Australian Governments, Council of Australian Governments review of counter-terrorism legislation (COAG Review), Australian Government, 2013, accessed 25 January 2016 22. COAG, ‘COAG meeting, 10 October 2014’, COAG website, accessed 8 October 2015. 23. COAG, ‘COAG response to the COAG Review of Counter-Terrorism Legislation’, COAG, 2014, accessed 8 October 2015. 24. C Barker, M Biddington, M Coombs and M Klapdor, Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, Bills digest, 34,

2014-15, Parliamentary Library, Canberra, 2014, accessed 8 December 2015. No amendments have been made to address recommendations 1-3, 5, 7, 9-10, 18, 24, or 33, despite a positive response from COAG. 25. Parliamentary Joint Committee on Intelligence and Security (PJCIS), ‘Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015’, Australian Parliament website, accessed 7 December 2015. 26. Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), Alert digest, 13, 2015, The Senate, 25 November 2015,

pp. 4-27, accessed 7 December 2015. 27. Ibid., pp. 22-26. 28. Ibid., pp. 7-9. 29. Ibid., pp. 10-12. 30. Ibid., pp. 14-15.

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expansion of telecommunication interception and surveillance device powers may have on personal rights and liberties.31 The INSLM has since completed an interim report on control order safeguards, as noted in the ‘Position of major interest groups’ section below.

Policy position of non-government parties/independents As at the time of writing this Digest, the Opposition did not appear to have publicly stated its support or otherwise for the measures in the Bill. However, it had indicated its continued willingness to work with the Government on proposed national security measures through the Parliamentary committee process.32

In October 2015, ahead of the Bill’s introduction, the Australian Greens questioned the need to lower the minimum age at which control orders may be imposed and called on the Government to provide evidence to support its proposal.33

Position of major interest groups The views of major interest groups, in particular law groups and legal experts, civil liberties and human rights organisations and the Inspector-General for Intelligence and Security (IGIS), are set out in their submissions and evidence to the PJCIS’s inquiry into the Bill.

In addition, on 5 February 2016, the Attorney-General released an interim report by the INSLM on his inquiry into the safeguards that attach to control orders.34 The report addresses only whether security-cleared ‘special advocates’ should be introduced to participate in control order proceedings—an issue of particular relevance in the context of proposed amendments in Schedule 15 to how national security information is dealt with in those proceedings.35 The INSLM also commented in the report on lowering the minimum age for control orders and the proposed monitoring powers.

A summary is provided below, with stakeholder views also incorporated into the analysis of the Bill’s Schedules where relevant.

Control orders Councils for civil liberties (in a joint submission), the Law Council of Australia (LCA), Gilbert + Tobin Centre of Public Law (Gilbert + Tobin), Amnesty International, and the Victorian Bar and Criminal Bar Association of Victoria (Victorian Bar and CBA) restated their ongoing opposition to the control order regime as a whole in their submissions to the PJCIS inquiry into the Bill.36 A number of submitters also considered any further changes to the regime should be deferred until after the INSLM has concluded his current inquiry into safeguards.37

31. Ibid., pp. 4-7, 15-16. 32. See, for example, T Plibersek, Transcript of interview with Julie Doyle: ABC Capital Hill, media release, 19 November 2015; M Dreyfus, Transcript of interview with Patricia Karvelas: Radio National Drive, media release, 6 November 2015; both accessed 7 December 2015. 33. N McKim, Control orders on children will not make us safer, media release, 13 October 2015; N McKim, Attorney-General offers no evidence

for draconian laws, media release, 14 October 2015; both accessed 7 December 2015. 34. G Brandis (Attorney-General), Government tables INSLM’s report on control order safeguards, media release, 5 February 2016, accessed 10 February 2016. 35. R Gyles, Control order safeguards—(INSLM report) special advocates and the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015,

Independent National Security Legislation Monitor (INSLM), Canberra, January 2016, accessed 10 February 2016. 36. Law Council of Australia (LCA), Submission to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, 10 December 2015, p. 6; Gilbert + Tobin Centre of Public Law (Gilbert + Tobin), Submission to PJCIS, Inquiry into the Counter-Terrorism

Legislation Amendment Bill (No. 1) 2015, 8 December 2015, pp. 1-2; Amnesty International, Submission to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, 11 December 2015; Victorian Bar and Criminal Bar Association of Victoria (Victorian Bar and CBA), Submission to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, 11 December 2015, p. 1; New South Wales Council for Civil Liberties, Liberty Victoria, Queensland Council for Civil Liberties, South Australia Council for Civil Liberties and the Australian Council for Civil Liberties (joint submission), Submission to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 (Joint submission by Australian councils for civil liberties), 16 December 2015, p. 4, all accessed 21 January 2016. 37. Amnesty International, op. cit.; Victorian Bar and CBA, op. cit., p. 3; Blueprint for Free Speech (Blueprint), Submission to PJCIS, Inquiry into the

Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, 11 December 2015, p. 8; Australian Human Rights Commission (AHRC), Submission to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, 9 December 2015, pp. 6-9; both accessed 18 December 2015. The LCA did not suggest the Bill be deferred, but did recommend the Government give prompt and due regard to the INSLM’s forthcoming report: LCA, Submission to PJCIS, op. cit., pp. 8-9.

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Lowering the minimum age to 14 years old The proposal to lower the minimum age for control orders attracted a lot of attention when it was first formally announced in October 2015.38

Several Muslim community representatives expressed concerns that extending control orders to people as young as 14 years of age could be counterproductive, further alienating already disaffected teenagers and damaging community-police relations.39 Those concerns were shared by the National Children’s Commissioner, who also considered control orders had the potential to disrupt children’s education and participation in community life and argued it was preferable to work with communities to divert children from antisocial pathways.40 Similar objections are set out in the submissions of the Muslim Legal Network (NSW), the Victorian Bar and CBA and councils for civil liberties to the PJCIS inquiry into the Bill.41

The former INSLM, Bret Walker SC, stated that in terms of an appropriate minimum age, there is no ‘magic number’, but that there was no evidence on which to reasonably argue that this measure would make Australia safer.42 The LCA and some other legal experts have raised similar questions about the likely efficacy of the measure.43

Professor Greg Barton argued that control orders could play a legitimate role in diverting young people from a violent extremist path, but that they could only be effective if used alongside community-based solutions: ‘Control orders are a temporary measure, not a permanent solution, and if not used wisely can cause more harm than good. Working with family and community, however, they may just make a vital difference’. 44 Levi West considered control orders the ‘least bad’ option compared to alternatives such as lowering the evidentiary threshold for prosecution, and their application to some young people an ‘unfortunate necessity’.45

Human rights and legal organisations and councils for civil liberties consider the amendments as introduced do not properly implement Australia’s obligations under the United Nations Convention on the Rights of the Child (CRC), including ensuring the interests of the child are a primary consideration in all proceedings.46

While the introduction of court appointed advocates for minors is intended to operate as a safeguard, some human rights and legal organisations raised concerns in relation to the proposed scheme, including that it could adversely impact the child instead of helping to protect his or her interests.47 The INSLM agreed, stating ‘[i]t is not unreasonable’ to see the provisions as drafted ‘as potentially being an aid to investigation by the authorities’.48

Monitoring powers The Australian Human Rights Commission (AHRC) and the Muslim Legal Network (NSW) are opposed to the proposed monitoring powers in Schedules 8, 9 and 10. They do not consider persons subject to control orders

38. G Brandis (Attorney-General), National security legislation, media release, 12 October 2015, accessed 10 December 2015. 39. S Martin, ‘Child control orders “will do nothing to keep Australia safe”’, The Australian, 14 October 2015, p. 4; D Ellery, ‘Muslim leaders slam anti-terrorism bill’, The Canberra Times, 19 October 2015, p. 6; both accessed 10 December 2015. 40. M Mitchell (National Children’s Commissioner, Australian Human Rights Commission), ‘The human rights of children are at risk if control

orders are placed on 14-year-olds’, The Sydney Morning Herald, (online edition), 16 October 2015, accessed 10 December 2015. 41. Muslim Legal Network (NSW), Submission to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, 10 December 2015, pp. 10-11, accessed 18 December 2015; Victorian Bar and CBA, op. cit., p. 2, Joint submission by Australian councils for

civil liberties, op. cit., pp. 4-6. 42. E Alberici, ‘Interview with Bret Walker SC’, Lateline, transcript, Australian Broadcasting Corporation (ABC), 13 October 2015. 43. LCA, Submission to PJCIS, op. cit., pp. 6-7; LCA, Control order regime needs proper safeguards to protect children, media release,

13 October 2015; M Koziol, ‘Under control: Should 14-year-olds be targeted by terror laws?’, The Sydney Morning Herald, (online edition), 16 October 2015; both accessed 10 December 2015. See also Joint submission by Australian councils for civil liberties, op. cit., pp. 4-6. 44. G Barton (Chair in Global Islamic Politics, Deakin University), ‘Anti-terror laws: If used properly, control orders could help prevent radicalisation’, The Drum, 13 October 2015, accessed 10 December 2015. 45. LJ West (Lecturer, Terrorism and National Security, Charles Sturt University), ‘Control orders are a sad and unfortunate necessity in a

globalised world’, The Australian, 16 October 2015, p. 27, accessed 10 December 2015. 46. AHRC, op. cit., pp. 10-14; LCA, Submission to PJCIS, op. cit., pp. 9-10; Gilbert + Tobin, op. cit., pp. 3-4; Joint submission by Australian councils for civil liberties, op. cit., pp. 7-8; UNICEF Australia, Submission to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1)

2015, 10 December 2015, accessed 18 December 2015; Australian Lawyers for Human Rights (ALHR), Submission to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, 8 December 2015, pp. 4-5, accessed 18 December 2015 47. Muslim Legal Network (NSW), op. cit., pp. 7-8; Gilbert + Tobin, op. cit., pp. 4-6; AHRC, op. cit., pp. 13-14; LCA, Submission to PJCIS, op. cit., p. 10. 48. R Gyles, Control order safeguards, op. cit., p. 3.

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should be subject to powers such as entry, search and seizure, telecommunications interception and surveillance devices in the circumstances proposed in the Bill.49 The Muslim Legal Network (NSW) considers Schedule 8 goes well beyond monitoring compliance with orders and ‘is clearly designed to operate as an investigative extension of the control order provisions’.50 The INSLM took a similar view, stating ‘[t]he details of the potential monitoring blur, if not eliminate, the line between monitoring and investigation’.51 The INSLM further considered:

The case for control orders is weakened if control orders are of little utility without such far reaching surveillance. It is difficult to imagine such provisions being applied to an accused on bail. The significance for present purposes is to emphasise the seriousness of the impact upon a person of the grant of a control order if these changes come into force and the consequent necessity for proper safeguards of the interests of a potential controlee.

52

While not opposing the monitoring powers entirely, the LCA and Gilbert + Tobin consider the proposed thresholds at which they could be accessed to be too low and the powers themselves too broad, including in their potential impact on third parties.53 Councils for civil liberties raised similar concerns, and recommended the provisions not proceed in their current form.54

Gilbert + Tobin also considers the amendments could make it more likely for a court to conceive of the control order regime as punitive and therefore unconstitutional.55

National security information in control order proceedings The AHRC, Gilbert + Tobin, the Muslim Legal Network, Australian Lawyers for Human Rights (ALHR) and the LCA also stated concerns with Schedule 15. In particular, that withholding information from the defence in control order proceedings posed a threat to procedural fairness by not allowing a defendant to rebut allegations or otherwise adequately defend themselves. 56

Gilbert + Tobin stated support for the recommendation from the 2013 COAG Review that ‘(t)he applicant must be given sufficient information about the allegations … to enable effective instructions to be given.’57 Gilbert + Tobin also noted the difficulties inherent in creating a special advocate system and the fact that the United Kingdom model has been criticised for not affording fairness.58

The LCA recommended that the consideration of a special advocate regime in the forthcoming report of the INSLM should be taken into consideration.59

The AHRC called for a special advocates system, as well legal representatives with appropriate security clearance to be permitted to take part in control order proceedings, and for a legislated minimum standard of information to be provided to a control order subject in order to permit allegations to be challenged.60

The INSLM, while acknowledging debate in the UK over the success of the system, also expressed support for a special advocates system. The INSLM Report recommended that amendments relating to special court orders for control order proceedings should not come into force until a system of special advocates had been established for the control order regime. 61

49. AHRC, op. cit., pp. 16-18; Muslim Legal Network (NSW), op. cit., pp. 22-34. 50. Muslim Legal Network (NSW), op. cit., p. 24. 51. R Gyles, Control order safeguards, op. cit., p. 3. 52. Ibid.

53. LCA, Submission to PJCIS, op. cit., pp. 16-23; Gilbert + Tobin, op. cit., pp. 9-10. 54. Joint submission by Australian councils for civil liberties, op. cit., pp. 12-17. 55. Gilbert + Tobin, op. cit., p. 10. The submission points out that one of the reasons the legislation was upheld in a 2007 challenge was that control orders are not punitive, so do not breach the separation of powers.

56. AHRC, Submission to PJCIS, op. cit., pp. 18-20; Gilbert + Tobin, Submission to PJCIS, op. cit., pp. 12-18; Muslim Legal Network (NSW), op. cit., p. 41; ALHR, op. cit., p. 6; LCA, Submission to PJCIS, op. cit., pp. 30-35. 57. Gilbert + Tobin, op. cit., pp. 17-18, quoting COAG Review, op. cit., Recommendation 31, 59-60. 58. Gilbert + Tobin, op. cit., pp. 13-14. 59. LCA, Submission to PJCIS, op. cit., pp. 34-35. 60. AHRC, op. cit., pp. 18-20. 61. R Gyles, Control order safeguards, op. cit., p. 10.

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Other measures

Preventative detention orders Some stakeholders raised concerns about the proposed change to when a terrorist act is considered to be imminent for the purposes of the preventative detention order (PDO) regime. The amendment in Schedule 5 is characterised in the Explanatory Memorandum as clarifying the threshold that must be met.62 However the AHRC, LCA and councils for civil liberties consider it would lower the threshold in such a way as to make PDOs available in a much broader range of circumstances, taking the scheme beyond the purpose for which it was enacted.63

Gilbert + Tobin continues to object to the PDO regime as a whole, but does not oppose this amendment.64

Offence of advocating genocide Some stakeholders raised concerns that the offence of advocating genocide proposed in Schedule 11 may infringe on free speech and could limit legitimate discussions of related topics. Submissions also pointed out that several existing related offences appeared to adequately criminalise the behaviour and it was not clear what benefit the new offence would provide.65

Stakeholders also noted that the threshold required for proving the offence was inappropriately low, particularly as the person need not intend that the genocide be committed, and should be in line with those for incitement and urging violence.66

Classification of publications The LCA, Blueprint for Free Speech and councils for civil liberties raised concerns with the proposal to amend the definition of advocating the doing of a terrorist act in the Classification Act (for the purpose of refusing classification) to be the same as the current, broader definition in the Criminal Code. Concerns centred on the potential for the more expansive definition to limit freedom of expression by also restricting legitimate discussion of the issues. Blueprint for Free Speech also questioned whether the change would have the desired impact on public safety and the LCA suggested that if the offence is to remain, it ought to be consistent with a revised, narrower definition in the Criminal Code.67

Financial implications The Explanatory Memorandum states that the Bill will not have a financial impact.68

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.69 However, the Bill’s compatibility with those human rights and freedoms has been questioned by the Parliamentary Joint Committee on Human Rights (as per below) and several human rights organisations (as per ‘Position of major interest groups’ above).

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (PJCHR) limited its consideration to the most serious human rights issues in Schedule 2 (control orders for people 14 to 17 years of age), Schedule 5 (preventative

62. Explanatory Memorandum, Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, pp. 22, 60, accessed 7 December 2015. 63. AHRC, op. cit., pp. 14-16; LCA, Submission to PJCIS, op. cit., pp. 15-16; Joint submission by Australian councils for civil liberties, op. cit., pp. 11-12. 64. Gilbert + Tobin, op. cit., p. 7. 65. Muslim Legal Network (NSW), op. cit., pp. 35-38; Gilbert + Tobin, op. cit., pp. 11-12; AHRC, op. cit., pp. 20-22; LCA, Submission to PJCIS,

op. cit., pp. 23-26; Joint Media Organisations, Submission to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, 10 December 2015, p. 2, accessed 25 January 2016; Joint submission by Australian councils for civil liberties, op. cit., p. 17. 66. Muslim Legal Network (NSW), op. cit., p. 36; Gilbert + Tobin, op. cit., p. 11. 67. LCA, Submission to PJCIS, op. cit., pp. 28-29; Joint submission by Australian councils for civil liberties, op. cit., pp. 17-18; Blueprint, op. cit., pp. 3-6. 68. Explanatory Memorandum, p. 2. 69. The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the Bill.

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detention orders), Schedules 8-10 (monitoring powers for persons subject to control orders) and Schedule 15 (restrictions on access to national security information in control order proceedings) of the Bill. 70 The Committee considered there were ‘pervasive shortcomings’ in the Statement of Compatibility in terms of the justification and reasoning provided for the proposed measures.71 Accordingly, it sought additional justification from the Attorney-General on whether the limitations on human rights imposed in those Schedules are reasonable and proportionate and for Schedules 2, 5 and 15, evidence also of the particular problems the measures are designed to address and whether there is a rational connection between those problems and the proposed measures.72

In relation to control orders, the PJCHR noted concerns it had about the proportionality of the control order regime more broadly before addressing the amendments proposed in the Bill.73 The Committee’s key concerns about the amendments to the control order regime were:

• the lack of detailed explanation as to why terrorism threats posed by 14 to 15 year olds cannot be addressed through existing measures

• the fact that the interests of the child are not required to be a primary consideration (as stipulated by the CRC)

• limitations on young people’s right to liberty, which could potentially extend to separation from a person’s family or a requirement not to attend a particular school and

• the impact of the proposed court-appointed advocate scheme on the rights of children to be heard in judicial and administrative proceedings.74

In relation to the proposed restrictions on access to national security information in control order proceedings, the PJCHR noted that the restrictions would limit the right to a fair hearing and sought advice from the Attorney-General as to whether there is evidence to show a genuine need for the changes, particularly whether the existing powers to redact information or exclude witnesses under the NSI Act and the Criminal Code are insufficient.75

In addition, the PJCHR expressed concerns over the suitability of excluding a security-cleared legal representative from a hearing and for allegations to be made without providing sufficient information for the subject to rebut the allegations.76

The PJCHR disagreed with the Government’s assessment that the proposed amendments to the preventative detention order regime do not impact the right to freedom from arbitrary detention and arrest, arguing that they lower rather than clarify the test that applies to when a terrorist attack is considered imminent.77

The PJCHR also sought additional information to assist it in determining whether limitations on the right to privacy and a fair trial and hearing resulting from the new monitoring powers proposed in relation to persons subject to control orders are proportionate.78

Amendments relating to control orders (Schedules 2, 3, 4 and 15) Control orders have been part of Australian anti-terrorism legislation since December 2005.79 Reforms passed in 2014 expanded both the grounds on which orders may be sought and the purposes for which they may be granted.80 There are now several grounds on which an order may be sought, most of which relate not to what

70. Parliamentary Joint Committee on Human Rights (PJCHR), Thirty-second report of the 44th Parliament, 1 December 2015, p. 6, accessed 7 December 2015. 71. Ibid.

72. Ibid., pp. 7-37. 73. Ibid., pp. 10-13. 74. Ibid., pp. 13-20. 75. Ibid., pp. 31-37. 76. Ibid.

77. Ibid., pp. 20-24. 78. Ibid., pp. 24-31. 79. Anti-Terrorism Act (No. 2) 2005, Schedule 4, accessed 25 January 2016. 80. Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, Schedule 1; Counter-Terrorism Legislation Amendment Act (No. 1)

2014, Schedule 1. For further information see: C Barker, M Biddington, M Coombs and M Klapdor, Counter-Terrorism Legislation Amendment

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might be prevented by an order, but to what the police and the court are satisfied a person has already done (such as having trained with a terrorist organisation, having engaged in hostile activity in a foreign country or provided support for someone else to do so).81 Further, while the obligations, prohibitions and restrictions to be imposed on a person under a control order must still serve some protective or preventative purpose, that now extends to preventing support for, or facilitation of, a terrorist act or engagement in hostile activity in a foreign country.82 The types of obligations, prohibitions and restrictions that may be imposed under a control order include a curfew at a particular address, wearing of an electronic tracking device, restrictions on use of telecommunications, prohibitions or restrictions on associating or communicating with certain people and regular reporting to police.83

Lowering the minimum age for a control order to 14 years old (Schedule 2) Currently, a control order may not be applied to anyone under 16 years of age.84 Schedule 2 of the Bill will lower the minimum age at which a control order may be imposed from 16 to 14 years of age.85

Policy position Australian security intelligence and law enforcement agencies have advised that terrorist organisations, particularly ISIL, are targeting propaganda and recruitment activities at a younger audience than was previously the case.86 The Attorney-General told the Senate he had signed warrants under the ASIO Act in relation to people as young as 14 years of age ‘on more than one occasion’.87 The AFP Commissioner confirmed in October 2015 that a twelve year old boy was ‘on the police radar’ in relation to possible terrorist activity.88 While not previously on the agencies’ radar and therefore not a candidate for a control order, the shooter who killed NSW Police accountant Curtis Cheng, Farhad Jabar, was 15 years old.89 Another 15 year old was charged with conspiracy to conduct an act in preparation for a terrorist act on 10 December 2015.90

The AFP considers that control orders have a role to play in diverting young people who are beyond the point where they might be receptive to voluntary intervention from contact with the formal criminal justice system:

Lower intensity interventions such as voluntary participation in community-based programs are appropriate where a person is not considered to pose a risk to public safety. However, as valuable as such programs are, they are not appropriate when a person is not willing to voluntarily change their behaviours, and their activities indicate that the person is further down the path of radicalisation and is at risk of engaging in terrorist activity. Control orders can play an important role in providing a mechanism to manage and mitigate the risk posed by an individual where laying charges is not justified by the evidence available at a particular point in time, and the person would otherwise be unwilling to take steps to change their behaviour.

91

(Foreign Fighters) Bill 2014, op. cit. and C Barker, Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, Bills digest, 50, 2014-15, Parliamentary Library, Canberra, 2014, accessed 11 February 2016. 81. Criminal Code, subsection 104.2(2), section 104.3 and paragraph 104.4(1)(c). 82. Ibid., section 104.1 and subsection 104.4(1). 83. Ibid., subsection 104.5(3). 84. Ibid., subsection 104.28(1). 85. Item 43 of Schedule 2, amendment to subsection 104.28(1). 86. ASIO, Report to Parliament 2014-15, op. cit., pp. ix, 3-4; S Lane, ‘Prime Minister meets states and territories to address radicalisation of young people’, 7.30, transcript, ABC, 15 October 2015; AAP, ‘Boy, 12, on terror list’, West Australian, 15 October 2015, p. 6; L Wilson, ‘Fresh-faced westerners are being lulled into terrorism by ISIS propaganda’, News.com.au, 16 March 2015; all accessed 25 January 2016. 87. G Brandis, ‘Answer to Question without notice: national security’, [Questioner: N McKim], Senate, Debates, 14 October 2015, p. 7626, accessed 25 January 2016. 88. S Lane, ‘Prime Minister meets states and territories to address radicalisation of young people’, op. cit. 89. N Ralston, A Benny-Morrison and R Olding, ‘Parramatta shooting: gunman identified as Farhad Khalil Mohammad Jabar’, The Sydney Morning Herald, (online edition), 4 October 2015, accessed 25 January 2016. 90. AFP, Two men charged in Operation Appleby investigation, media release, 10 December 2015, accessed 10 December 2015. 91. AFP, Submission to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, December 2015, p. 5, accessed 18 December 2015.

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The age of criminal responsibility under Australia federal law is generally set at 14 years of age (though a child aged 10 years or more may be held criminally responsible if it can be proven that the child knew his or her conduct was wrong).92

Counter-arguments As noted in the ‘Position of major interest groups’ section above, some stakeholders have questioned the efficacy of control orders generally, and therefore the expansion of the regime, and cautioned that using control orders against younger teenagers could be counter-productive.

The PJCHR notes there is some doubt about whether control orders are an effective tool to begin with, but concedes there have been ‘significant recent developments in the counter-terrorism space’.93 Nonetheless, the PJCHR expressed serious concerns about whether the extension of the scheme to children aged 14 and 15 years is a proportionate response, rationally connected to a legitimate objective.94 In relation to proportionality, it notes the rejection (by the Australian Government and COAG) of the COAG Review’s recommendation that a court be required to be satisfied that any obligations, prohibitions and restrictions ‘constitute the least interference with a person’s liberty, privacy or freedom of movement that is necessary in all the circumstances’.95 The PJCHR also questions any justification of extending the regime to 14 and 15 year olds on the basis that it is intended to be rarely used, stating:

… a control order may be granted in circumstances that are much broader than seeking to stop a terrorist act. In this respect, to characterise the regime as providing for 'extraordinary measures' does not reflect the breadth of circumstances in which a control order may be granted, including that such an order would substantially assist in the prevention of, the support for, or the facilitation of, a terrorist act. Such support or facilitation does not need to be direct or critical to the carrying out of the terrorist act, and the terrorist act does not need to be imminent.

96

Concerns about the necessity and proportionality of imposing control orders on young people were also raised in submissions to the PJCIS by human rights and legal organisations, including the AHRC and the LCA.97

Prior to legislative amendments made in 2014, orders could be made only for the purpose of protecting the public from a terrorist act and only where a court was satisfied it would substantially assist in preventing a terrorist act or that the person had provided training to, or received training from, a listed terrorist organisation.98 Parliament may wish to consider whether control orders should be available for younger people only in those more limited circumstances instead of the much broader range of circumstances in which they are now available.

Maximum period for control orders imposed on minors The only additional protection currently in place for minors subject to a control order is the maximum time the order may be in effect, which is three instead of twelve months for persons 16 or 17 years of age.99 A maximum period of three months will continue to apply to control orders imposed on persons under 18 years of age. As is currently the case, this does not prevent the making of successive control orders in relation to the same person.100 Councils for civil liberties recommended there be a limit of one successive control order able to be made against a person under 18 years of age, while the Muslim Legal Network (NSW) recommended they not be permitted at all in relation to young people.101 AGD responded to those suggestions, stating that ‘[t]he function

92. Criminal Code, sections 7.1 and 7.2. Doli incapax will act as a rebuttable presumption in these circumstances. 93. PJCHR, Thirty-second report of the 44th Parliament, op. cit., p. 11. 94. Ibid., pp. 7-17. 95. Ibid., pp. 12-13. See COAG, COAG Review, op. cit., p. 63 (Recommendation 37). 96. Ibid., p. 17. 97. AHRC, op. cit., pp. 9-10; LCA, Submission to PJCIS, op. cit., pp. 6-7; Amnesty International, op. cit.; Victorian Bar and CBA, op. cit., p. 2;

UNICEF Australia, op. cit. 98. See C Barker, Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, op. cit. 99. Criminal Code, subsection 104.28(2). 100. Ibid., section 104.28(3). 101. Joint submission by Australian councils for civil liberties, op. cit., p. 8; Muslim Legal Network (NSW), op. cit., p. 11. It is unclear from the

submission whether ‘young people’ is intended to refer only to 14 and 15 year olds, or also 16 and 17 year olds.

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and purpose of control orders would be seriously hindered’ if successive orders could not be made when the relevant thresholds were met.102

Court appointed advocates for minors The Bill will introduce independent court appointed advocates for persons 14 to 17 years of age. If a court makes an interim control order in relation to a person 14 to 17 years of age, it must appoint a lawyer to be the ‘court appointed advocate’ of that person.103 The court must make an order appointing the advocate as soon as practicable after making an interim control order. As the AHRC points out, this will mean the advocate has no ability to represent the child’s interests in the initial decision to make an interim order.104

The matters in relation to which a lawyer must be appointed as the person’s advocate are:

• the interim control order and

• any proceedings under Division 104 of the Criminal Code Act 1995 (Criminal Code) relating to confirmation of the control order, and if it is confirmed, a variation or revocation of the order.105

The court may also make any other orders it considers appropriate to secure independent advocacy for the person in relation to the above matters.106

The advocate’s role is set out in proposed subsections 104.28AA(2) and (3). The advocate must form and act on an independent view of what is in the child’s best interests. While the advocate must ensure any views expressed by the child are fully put before an issuing court, the advocate is not the child’s legal representative and is not obliged to act on the child’s instructions. The appointment of the advocate does not affect the child’s rights concerning their own legal representation.

The scheme for court appointed advocates for children in the Bill is entirely separate and distinct from the system of special advocates recommended by the COAG Review of Counter-Terrorism Legislation in 2013 (Recommendation 30) and supported more recently by the INSLM. The COAG Review recommended the introduction of special advocates with security clearance who could have access to national security information not disclosed to the subject of an order and could advocate on the person’s behalf in closed proceedings (this is discussed below in the context of proposed changes to the NSI Act).107 In contrast, court appointed advocates will receive the same information as the subject of the control order.

While the scheme for court appointed advocates is intended to operate as a safeguard, the PJCHR and submitters to the PJCIS inquiry into the Bill have raised issues in relation to the proposed scheme, including that it could adversely impact the child instead of helping to protect his or her interests.

The Explanatory Memorandum states that the independent advocate scheme is modelled on provisions in the Family Law Act 1975 that enable the appointment of an independent children’s lawyer.108 However, as the INSLM, Gilbert + Tobin and the Muslim Legal Network (NSW) point out, the position of a child in family law proceedings is entirely different to that of a child the subject of a control order in related proceedings:

Basically, the independent children’s lawyer provides the child with a voice in proceedings where they would otherwise not have one. By contrast, an application by the AFP to an issuing court for the making of a control order over a child is a proceeding in which the child is without doubt the primary party, confronted by the power of the state.

109

Two aspects have attracted the greatest criticism for their potential to hamper the right of a child to be heard in judicial proceedings, the right to silence and the privilege against self-incrimination: the advocate is not required

102. Attorney-General’s Department (AGD), Supplementary submission to the PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No.1) 2015, January 2016, p. 13, accessed 21 January 2016. 103. Item 46 of Schedule 2, proposed section 104.28AA. 104. AHRC, op. cit., p. 13. 105. Item 46 of Schedule 2, proposed paragraph 104.28AA(1)(a). 106. Item 46 of Schedule 2, proposed paragraph 104.28AA(1)(b). 107. COAG, COAG Review, op. cit., pp. 59-60. See also R Gyles, R Gyles, Control order safeguards, op. cit., p. 10. 108. Explanatory Memorandum, p. 17; Family Law Act 1975, sections 68L and 68LA, accessed 18 December 2015. 109. Gilbert + Tobin, op. cit., p. 4. See also R Gyles, Control order safeguards, op. cit., p. 3; Muslim Legal Network (NSW), op. cit., pp. 7-8.

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to act on the child’s instructions, and may disclose information to an issuing court against the child’s wishes.110 Further, the advocate is not required to consider the child’s maturity and capacity before acting against his or her wishes.111

The AHRC and Gilbert + Tobin have also queried what sort of qualifications and experience a lawyer would be required to have in order to be appointed as a child’s advocate in this context, and on what information the advocate would be basing his or her independent view on what is in the child’s best interests.112 The latter suggests the proposed scheme should be abandoned and replaced with a requirement for the issuing court to receive evidence directly from a court appointed child welfare officer.113 In a supplementary submission, the Attorney-General’s Department (AGD) indicated it may be possible to address Gilbert + Tobin’s concerns ‘by amending the current role of the court appointed advocate and providing that the court may call for evidence from an expert (such as a child psychologist or community welfare officer) concerning what is in the best interests of the young person’.114

Muslim Legal Network (NSW) recommends the scheme not go ahead, but that instead there be a requirement for all children capable of providing instructions to have their own legal representation.115

The Scrutiny of Bills Committee sought the Attorney-General’s advice on how the advocate’s independence will be secured in practice, and further detail on the intended professional obligations of advocates. The Committee questioned the lack of detail in the proposed provisions in those respects.116

Consideration of the best interests of the child A court imposing an interim control order on a person 14 to 17 years of age will be required to take into account the best interests of the child when determining whether each proposed obligation, prohibition or restriction is reasonably necessary and reasonably appropriate and adapted to the purpose of control order.117 This does not mean that an order may only be made if it is in the best interests of the child. In giving consideration to the best interests of the child, the court must consider particular rights and characteristics, including the right to receive an education and the benefit of meaningful relationships with family and friends, along with any other relevant matter.118

The requirement to take account of the child’s best interests would also be applied to variations that would add further obligations, prohibitions or restrictions to an existing control order.119

The PJCHR has questioned the compatibility of the provisions with children’s rights, both because the child’s best interests are not required to be a primary consideration (as per the CRC) and because they are considered only in the context of the proposed obligations, prohibitions and restrictions, not the initial determination of whether the order is necessary.120 Those concerns are echoed in submissions to the PJCIS by the AHRC, LCA, Gilbert + Tobin, UNICEF Australia, ALHR and councils of civil liberties.121 In a supplementary submission, AGD states that the best interests of the child should not be a consideration in that initial determination, as it would ‘fundamentally change the purpose of the test. This is why the Explanatory Memorandum referred to the safety and security of the community as the paramount consideration.’122

110. PJCHR, Thirty-second report of the 44th Parliament, op. cit., pp. 18-19; R Gyles, Control order safeguards, op. cit., p. 3; LCA, Submission to PJCIS, op. cit., p. 10; AHRC, op. cit., pp. 13-14; Muslim Legal Network (NSW), op. cit., pp. 7-8; Joint submission by Australian councils for civil liberties, op. cit., pp. 8-10.

111. PJCHR, Thirty-second report of the 44th Parliament, op. cit., p. 19. 112. AHRC, op. cit., p. 14; Gilbert + Tobin, op. cit., p. 5. 113. Gilbert + Tobin, op. cit., pp. 5-6. 114. AGD, Supplementary submission op. cit., pp. 9-11. 115. Muslim Legal Network (NSW), op. cit., p. 8. 116. Scrutiny of Bills Committee, Alert digest, 13, op. cit., pp. 8-10. 117. Item 4 of Schedule 2, amendment to subsection 104.4(2). 118. Item 5 of Schedule 2, proposed subsection 104.4(2A). 119. Items 37 and 38 of Schedule 2, amendment to subsection 104.24(2) and proposed subsection 104.24(2A). 120. PJCHR, Thirty-second report of the 44th Parliament, op. cit., pp. 14-15. 121. AHRC, op. cit., pp. 12-13; LCA, Submission to PJCIS, op. cit., p. 9; Gilbert + Tobin, op. cit., pp. 3-4; UNICEF Australia, op. cit., p. 2; Joint

submission by Australian councils for civil liberties, op. cit., pp. 7-8; ALHR, op. cit., pp. 4-5. 122. AGD, Supplementary submission, op. cit., p. 7.

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The PJCHR and Gilbert + Tobin also pointed out that while the Explanatory Memorandum states that a child ‘will not be separated from family and will be able to attend school’, there is nothing in the legislation to prevent an order requiring a child not to attend a particular school or to be separated from their family.123

Reporting The Attorney-General is required to table an annual report detailing statistical information relating to control orders made in each financial year.124 The Bill will require that report to include those statistics specifically for control orders made in relation to persons 14 to 17 years of age.125

Additional comment The role of independent advocates, a key safeguard in relation to young people, may be hampered by other changes proposed in Schedule 15 of the Bill, which will limit the access of the subject of a control order (and their representatives) to sensitive information on the basis of which an order is made.

While some additional safeguards are being provided in terms of the making of a control order in relation to someone 14 to 17 years of age, the ‘monitoring’ powers proposed in Schedules 8, 9 and 10 of the Bill and the offence for intentionally breaching a control order (with a maximum penalty of five years imprisonment) will apply to minors in the same way as adults.

Tracking devices (Schedule 3) One of the obligations that may be imposed on a person under a control order is the wearing of a tracking device.126

Schedule 3 of the Bill will provide that when a court requires a person subject to a control order to wear a tracking device, it must also impose a specific set of requirements (listed in proposed subsection 104.5(3A)) on the person that is designed to ensure the device remains in good working order. The requirements include authorising entry to premises for the purpose of installing equipment necessary for the operation of the device, reporting for inspections of the device and notifying the AFP within four hours if the person becomes aware the device or related equipment is not in good working order. One of the existing obligations that may be imposed on a person subject to a control order is that of reporting to specified persons at specified times. While it is possible police could attempt to use the new provisions to add to the number of occasions on which a person must report to police, the decision as to how often a person must report rests with the issuing court.127

The additional requirements are to be imposed ‘by the order’ (in the control order, as opposed to a separate order of the court). This means that the offence of contravening a control order, punishable by up to five years imprisonment, would apply to an intentional contravention of any of those requirements.128

The Queensland Government is concerned about the application of this measure to 14-17 year olds. In particular, it does not consider it appropriate that a court not have the discretion to amend the requirements to take account of the particular circumstances of a child.129 In response, AGD stated that given the requirement for a court to be satisfied that all the obligations imposed in an order are reasonably necessary, appropriate and adapted, a court would only require a child to wear a tracking device if it was satisfied that all of those supplementary requirements met that threshold.130

The LCA and Gilbert + Tobin have concerns about the lack of clarity around what constitutes ‘reasonable steps’ (which the person will be required to take to ensure the device and any associated equipment remain in good working order).131 Muslim Legal Network (NSW) and Gilbert + Tobin also object to the requirement to alert the AFP if a person becomes aware that the device or any associated equipment is not in good order within four

123. PJCHR, Thirty-second report of the 44th Parliament, op. cit., pp. 15-16; Gilbert + Tobin, op. cit., p. 4; Explanatory Memorandum, p. 15. 124. Criminal Code, section 104.29. 125. Item 48 of Schedule 2, proposed paragraph 104.29(2)(g). 126. Criminal Code, paragraph 104.5(3)(d). 127. Criminal Code, subsection 104.4(3). 128. Criminal Code, section 104.27 (offence) and subsection 5.6(1) (default fault element for a physical element consisting of conduct is intent). 129. Queensland Government, Submission to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, n.d., pp. 2-3,

accessed 21 January 2016. 130. AGD, Supplementary submission, op. cit., pp. 13-14. 131. LCA, Submission to PJCIS, op. cit., pp. 13-14; Gilbert + Tobin, op. cit., p. 6.

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hours, arguing that a person may not have the technical knowledge to fulfil such a requirement.132 Gilbert + Tobin suggest that if the amendments are proposed to address concerns about devices being disabled, the more appropriate solution would be a clear prohibition on interference with the device.133

Issuing courts (Schedule 4) Schedule 4 of the Bill will remove the Family Court from the list of courts authorised to make control orders. This partially implements a recommendation of the COAG Review. Recommendation 28 was that both the Family Court and the Federal Circuit Court of Australia be removed, leaving the Federal Court as the only issuing court.134 Gilbert + Tobin support the amendment, but argue the Government should adopt the COAG Recommendation in full.135 AGD stated that doing so ‘would limit the geographic locations for making applications and could delay consideration of a control order application, resulting in ongoing risk to the community’.136

ALHR takes a different view. It considers that the Family Court would be the most appropriate issuing court for control orders imposed on minors, as its members have more experience considering the best interests of children, including their human rights.137

Protecting national security information in control order proceedings (Schedule 15) Schedule 15 of the Bill will amend the NSI Act to introduce new provisions providing courts with the power to make three new types of orders in control order proceedings (under Division 104 of the Criminal Code), allowing the court to consider information that is not disclosed to the subject of the control order or their representative for national security reasons (Schedule 16 will also amend the NSI Act, but those amendments are not specific to control order proceedings, so are discussed separately beginning page 37 of this Digest).

The Explanatory Memorandum states:

The objective of the NSI Act is to prevent the disclosure of information in federal criminal proceedings and civil proceedings where disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice. “National security” means “Australia’s defence, security, international relations or law enforcement interests” (section 8).

138

The NSI Act already contains protections for sensitive information, such as the closed hearing requirements in existing section 38I, non-disclosure certificates under section 38F or witness exclusion certificates under section 38H.139 However, if a court determines to exclude information under the existing provisions, under section 38L, such information cannot be used as evidence in the substantive hearing.

The Explanatory Memorandum states that it may be necessary to present such sensitive material to a court in order for a control order to be obtained, that the existing protections may be inadequate in some circumstances and that these issues, combined with the speed of counter-terrorism investigations, necessitate the proposed changes:

In some circumstances, information will be so sensitive that existing protections under the NSI Act are insufficient. For example, critical information supporting a control order may reveal law enforcement or intelligence sources, technologies and methodologies associated with gathering and analysing information. The inadvertent or deliberate disclosure of such material may endanger the safety of individuals as well as the general public, or jeopardise sources and other intelligence methods. However, the inability to provide such information to a court may mean that a control order is unable to be obtained.

132. Gilbert + Tobin, op. cit., p. 6; Muslim Legal Network (NSW), op. cit., p. 12. 133. Gilbert + Tobin, op. cit., p. 6. 134. COAG Review, op. cit., p. 58. 135. Gilbert + Tobin, op. cit., pp. 6-7. 136. AGD, Supplementary submission, op. cit., p. 15. 137. ALHR, op. cit., p. 4. 138. Explanatory Memorandum, p. 119. 139. NSI Act.

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… In order for control orders to be effective, law enforcement need to be able to act quickly, and be able to present sensitive information (which is in the form of admissible evidence) to a court as part of a control order proceeding without risking the integrity, safety or security of the information or its source. 140

Amendments Proposed subsection 38J(2) of the NSI Act will set out the circumstances under which courts may control information in documents in non-disclosure certificate hearings required by existing subsection 38G(1) (civil non-disclosure certificates), and provides courts with the power to order the non-disclosure of the information to anyone but the court and impose closed hearing requirements as set out in existing section 38I. This subsection will permit redacted versions of the documents to be disclosed if ordered.

Proposed subsection 38J(3) will provide similar powers relating to information in any form, and so does not deal with the deleting of information from documents as provided in subsection 38J(2).

Proposed subsection 38J(4) will provide that where a hearing is required under subsection 38H(6) (regarding an Attorney-General’s civil witness exclusion certificate), the court has the ability to order that a witness not be called by a person or their representative, or that the closed hearing requirements in 38I must apply.

In making these decisions, proposed subsection 38J(5) will require the court to consider whether there would be a prejudice to national security if information was disclosed or a witness called, or if an order would have a substantial adverse effect on the substantive hearing. The court may also consider any other matter it considers relevant. The Explanatory Memorandum notes that there is no requirement in revised section 38J for the court to give the greatest weight to the need to protect national security. 141

Noting that the object of the NSI Act is ‘to prevent the disclosure of information in federal criminal proceedings and civil proceedings where the disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice’, section 3 of the Act also provides that courts must have regard to this object when exercising powers or performing functions under the Act.142 This requirement would continue to operate in guiding the court’s exercise of its discretion under the proposed changes.

Procedural fairness issues relating to new section 38J An article in The Conversation has referred to this provision as ‘the Bill’s most concerning aspect’.143 The article goes on to point out the inherent threats to procedural fairness, claiming that allowing the court to consider evidence that is not provided to the defence and cannot be challenged is unfair and the Bill does not provide sufficient safeguards to ensure a fair hearing. The article quotes UK Supreme Court Justice Lord Kerr in a 2011 secret evidence case:

The central fallacy of the argument, however, lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead.

144

As noted in the ‘Position of major interest groups’ section of this Digest, many stakeholders voiced similar concerns.

AGD responded to the concerns raised in submissions, highlighting the continued role and discretion of the court and stating that ‘it is important to consider the proposed amendments as a whole rather than considering the sections in isolation. There are several protections built into the legislation that mitigate any procedural unfairness.’145 In particular, proposed subsection 38J(1) requires the court, before making a special court order,

140. Ibid. 141. Explanatory Memorandum, p. 123. 142. NSI Act, section 3. 143. T Tulich and J Blackbourn, ‘National security bill opens the door to expanded control orders and secret evidence’, The Conversation,

13 November 2015, accessed 25 January 2016. 144. Al Rawi and others (Respondents) v The Security Service and others [2011] UKSC 34, accessed 25 January 2016. 145. AGD, Supplementary submission, op. cit., p. 35.

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to be satisfied that the person has been given notice of the allegations, even if the supporting information is withheld.

The AFP’s submission acknowledged the concerns relating to the threat to a fair hearing, but noted various existing safeguards and stated that such proceedings would not be brought unless the AFP considered there to be a significant risk posed by the subject. The AFP also highlighted the vulnerability of people who assist police with information and the need to protect them from retaliation.146

The COAG Review considered this situation, and recommended that special advocates, as used in the UK, should be provided to assist in cases where sensitive information must be withheld from the accused in control order hearings, and that as a minimum standard ‘the applicant must be given sufficient information about the allegations against him or her to enable effective instructions to be given in relation to those allegations.’147

The INSLM also supported this position, and recommended that proposed section 38J should not come into force until a system of special advocates had been established for the control order regime. The Monitor noted that this provision of the Bill, given its focus on withholding information from the accused, would have the most direct relation to the role of a special advocate.148

The INSLM stated a system of special advocates would be a reasonable means to address the information imbalance the proposed court orders would create, and the consequent threats to ‘the principles of open justice, a fair trial, a fair hearing and the equality of arms.’149

The Government, in the Explanatory Memorandum, claims that existing statutory protections in the Criminal Code will preserve the procedural rights of the person subject to the control order.150

Monitoring, protective and preventative powers when a person is subject to a control order (Schedules 8, 9 and 10) As noted above, the purpose of the control order regime is preventative. Obligations, prohibitions or restrictions are imposed so as to protect the public and mitigate the likelihood of a person engaging in terrorism-related activity. However, police do not currently have access to specific powers to monitor the compliance of someone subject to a control order with the obligations, prohibitions or restrictions it imposes.

Schedules 8, 9 and 10 will provide access to powers normally used to investigate offences—entry, search and seizure; telecommunications interception; and use of surveillance devices—for the purpose of determining whether the conditions of a control order have been, or are being, complied with.

However, as outlined below, those Schedules will also provide for the use of those powers in relation to a person subject to a control order for broader protective and preventative purposes. In addition, information and evidence derived from the use of those powers can be used for a range of purposes beyond monitoring compliance with the control order and combating terrorism, even when a control order to which the relevant warrant is linked is subsequently declared void.

Purposes for which monitoring, protective and preventative powers would be available The justification for the introduction of the powers proposed in Schedules 8, 9 and 10 in the Explanatory Memorandum and AGD’s and the AFP’s submissions to the PJCIS inquiry focuses largely (in the case of the AFP, solely) on the need to ensure police have adequate powers to properly monitor compliance with control orders.151 However, that justification concerns only one of four purposes for which the powers will be available.

The new powers proposed for the Crimes Act, Telecommunications (Interception and Access) Act 1979 (TIA Act) and Surveillance Devices Act 2004 (SD Act) will also be available in relation to a person subject to a control order for the purpose of:

146. AFP, Submission to PJCIS, op. cit., p. 12. 147. COAG Review, op. cit., pp. 59-60 (Recommendations 30 and 31). 148. INSLM Report, op. cit., p. 10. 149. Ibid., pp. 3-5. 150 Explanatory Memorandum, pp. 119-120. 151 Explanatory Memorandum, pp. 10, 25-26, 34-35, 66, 82 and 95; AGD, Submission to PJCIS, Inquiry into the Counter-Terrorism Legislation

Amendment Bill (No. 1) 2015, December 2015, p. 7, accessed 12 February 2016; AFP, Submission to PJCIS, op. cit., pp. 9-11; AGD, Supplementary submission, op. cit., pp. 18-20.

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• protecting the public from a terrorist act

• preventing the provision of support for, or the facilitation of, a terrorist act and/or

• preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country.152

In a law enforcement context, entry, search and seizure powers are provided either in the context of determining compliance with legislative requirements (monitoring powers, generally granted to regulatory agencies) or investigating a criminal offence, and telecommunications interception and surveillance device powers only for the purposes of investigating criminal offences.153 The amendments proposed by the Bill will expand the purposes for which such powers may be used other than for investigations (which could be argued to be reactive or protective in nature) and compliance, to uses that are largely preventative in nature. Making those powers available to police to protect the public from, or prevent commission of, a terrorist act or offence, albeit in the limited context of persons subject to control orders, would be a significant new development.

Parliament may wish to seek further justification for the proposed ‘monitoring powers’ for purposes other than monitoring compliance with a control order, particularly in light of the existing availability of those powers to investigate terrorism offences relating to preparatory acts and the offence of breaching a control order.154

Threshold for warrants authorising powers A related but somewhat separate issue is the particular threshold that must be satisfied before the powers in Schedules 8, 9 and 10 may be used for one or more of the four purposes outlined in the preceding section of this digest.

Under proposed sections 3ZZOA and 3ZZOB of the Crimes Act in Schedule 8, a monitoring warrant may be issued for one or more of the four purposes where the issuing officer is satisfied that a search is ‘reasonably necessary’ for one of those purposes. The provisions were modelled on the monitoring warrant provisions in the Regulatory Powers (Standard Provisions) Act 2014, which were developed for monitoring compliance with legislative requirements.155

Under changes to the TIA Act and the SD Act in Schedules 9 and 10 respectively, a control order warrant may be issued where the relevant issuing authority is satisfied that information to be obtained under a warrant ‘would be likely to substantially assist’ in connection to one of those purposes.156

Several stakeholders considered the proposed thresholds to be too low. The LCA suggested that before a warrant could be issued under Schedule 8, 9 or 10 in relation to a person subject to a control order, there should ‘as a minimum be a reasonable suspicion that the order is not being complied with or that the individual is engaged in terrorist related activity’.157 Gilbert + Tobin and the AHRC also suggested amendments to make the thresholds more stringent.158

AGD responded to the LCA’s and Gilbert + Tobin’s suggestions, stating that requiring ‘reasonable suspicion’ would effectively bring the threshold into line with that required to access powers for the purpose of an investigation, meaning the provisions would no longer fill the gap they are being proposed to address.159 While that argument is appropriate to the context of availability of the powers to monitor compliance with a control

152. The same purposes apply throughout many provisions of Schedules 8, 9 and 10. See for example proposed sections 3ZZKA, 3ZZLA, 3ZZOA and 3ZZOB of the Crimes Act (Schedule 8), items 19 and 22 of Schedule 9 (TIA Act) and items 1, 8, 11 and 13 of Schedule 10 (SD Act). 153. AGD, Guide to framing Commonwealth offences, infringements notices and enforcement powers, AGD, Canberra, September 2011, Chapters 7 and 10 and p. 87, accessed 10 February 2016; TIA Act, Part 2-5, particularly Division 4; SD Act, Parts 2 and 4. 154. Search warrants, telecommunication interception and surveillance devices could all be sought in the context of an investigation for the

preparatory offences in sections 101.4 (possessing things connected to terrorist acts), 101.5 (collecting or making documents likely to facilitate terrorist acts) and 101.6 (any act in preparation for, or planning, a terrorist act) of the Criminal Code, and the offence of breaching a control order in section 104.27 of the Criminal Code. 155. Regulatory Powers (Standard Provisions) Act 2014, section 32, accessed 11 January 2016. 156. Items 19 and 22 of Schedule 9, amending sections 46 and 46A of the TIA Act respectively and item 11 of Schedule 10, amending subsection 16(1) of the SD Act. 157. LCA, Submission to PJCIS, op. cit., p. 17. 158. Gilbert + Tobin, op. cit., pp. 9-10; AHRC, op. cit., pp. 17-18. See also Joint submission by Australian councils for civil liberties, op. cit., pp. 12- 17. 159. AGD, Supplementary submission, op. cit., pp. 18-19.

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order, it highlights the difficulties associated with extending the proposed scheme to other purposes (as discussed in the section above). In particular, the novelty of introducing powers to serve a purpose somewhere in between the two well established purposes of monitoring compliance with conditions and investigating a suspected offence makes it difficult to establish an appropriate threshold at which they should be available.

Whether powers should be available in relation to interim control orders The powers in Schedules 8, 9 and 10 will be available in relation to a person subject to an interim control order or a confirmed control order.160 An interim control order is made by a court in ex parte proceedings at which the person in relation to whom the order is proposed is not represented. Once an interim order is made, an AFP member must serve the order on the person and inform the person of various matters, including the person’s right to attend court for the court to decide whether to confirm, void or revoke the order.161 The person and one or more of their representatives is entitled to adduce evidence and make submissions in relation to confirmation of the order at a hearing held to determine whether the order should be confirmed.162

Accordingly, allowing the powers outlined below to be exercised before a control order is confirmed means those powers may be exercised before the person subject to the order has a chance to contest it. Further, while an AFP member is required to serve the person with the interim control order ‘as soon as practicable’ the Bill would allow the proposed telecommunications interception and surveillance device powers to be exercised even before that occurs, so before the person is aware they are subject to an interim control order.163

There may be sound justification for allowing the exercise of these powers in relation to a person subject only to an interim control order. However, the issue is not addressed in the Explanatory Memorandum. In terms of how long an interim order may be in place, the court that makes the order must specify a day on which the person may attend court for the court to decide whether to confirm, void or revoke the order. That day must be ‘as soon as practicable, but at least 72 hours, after the order is made’.164 A 13 November 2015 article in The Guardian stated that the four control orders made since December 2014 remained interim orders.165 The interim control order imposed on Ahmad Naizmand on 5 March 2015 specified a court date of 9 June 2015, but was not confirmed until 30 November 2015.166

Use of things, information and documents obtained where control order is later declared void Schedules 8 (monitoring powers), 9 (telecommunications interception) and 10 (surveillance devices) each make provision for how things, information and documents obtained through the use of those powers may be dealt with if the relevant interim control order is declared void by a court. The Bill limits, but does not prevent, the use of those things, information and documents.

Under proposed section 3ZZTC of the Crimes Act, in Schedule 8, a person may:

• adduce the thing, information or document as evidence in a proceeding or

• use or communicate the information, or use or communicate the contents of a document

if:

• the person reasonably believes that doing so is necessary to assist in preventing, or reducing the risk of the commission of a terrorist act, serious harm to a person or serious harm to property or

160. Schedule 8, proposed section 3ZZJB of the Crimes Act; Item 1 of Schedule 9, proposed amendments to subsection 5(1) of the TIA Act; Item 3 of Schedule 10, proposed amendments to subsection 6(1) of the SD Act. 161. Criminal Code, subsection 104.5(1) and section 104.12. 162. Ibid., subsection 104.14(1). 163. The monitoring powers in Schedule 8 are premised on the control order being in force (proposed subsections 3ZZOA(5) and 3ZZOB (5)).

Under paragraph 104.5(1)(d) of the Criminal Code, a control order only enters into force once it is served on the person. Proposed sections 6T of the TIA Act (item 10 of Schedule 9) and proposed section 6C of the SD Act (item 7 of Schedule 10) displace that particular provision of the Criminal Code. 164. Criminal Code, subsections 104.5(1) and (1A). 165. P Farrell, ‘Government could retrospectively use secret evidence in anti-terror hearings’, The Guardian, (online edition), 13 November 2015, accessed 10 December 2015. 166. Interim control order (Ahmad Saiyer Naizmand) File no. (P)SYG562/2015, Federal Circuit Court, 5 March 2015; Control order (Ahmad Saiyer Naizmand), File no. (P)SYG562/2015, Federal Circuit Court, 30 November 2015; both accessed 10 December 2015.

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• the person does so for purposes connected with the performance of a function or duty, or exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, specific legislation so far as it relates to a preventative detention order (under Commonwealth, state or territory law).167

Similar provisions are set out in Schedules 9 and 10 with respect to information obtained under a telecommunications interception warrant relating to an interim control order or the use of a surveillance or tracking device in relation to an interim control order respectively.168

As a result, information, evidence and documents obtained under a warrant linked to an interim control order later declared void by a court will have a range of potential applications beyond combating terrorism or monitoring a person’s compliance with a control order.

Clearly, serious harm to a person or serious damage to property may encompass a wide range of conduct beyond terrorist acts. The Evidence Act 1995 provides that evidence obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or of a contravention of an Australian law, is generally not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in such a way.169 One view is that where a control order is subsequently declared void, any evidence or information obtained in reliance on the order should be classified as either improperly obtained or obtained in contravention of an Australian law. As a result, these provisions have attracted criticism, with the Muslim Legal Network (NSW) stating that allowing information and evidence to be used in the manner proposed is a ‘violation of the principle requiring that only legally obtained information may be used as evidence against an individual’.170

These provisions have also been highlighted by the PJCHR and the Scrutiny of Bills Committee, both of which have asked the Attorney-General for information outlining the rationale and providing further justification in light of the implications for peoples’ rights and liberties.171

In a supplementary submission, AGD stated:

The Surveillance Devices Act 2004 and Telecommunications (Interception and Access) Act 1979 impose strict prohibitions on when material obtained under those Acts may be admitted into evidence. It is a criminal offence for a person to deal in information obtained under these Acts for any purpose, unless the dealing is expressly permitted under one or more of the exceptions to that general prohibition. These prohibitions expressly override the discretion of the judiciary, both at common law and under the Evidence Act 1995 (Cth), to admit information into evidence where the public interest in admitting the evidence outweighs the undesirability of admitting it, given the manner in which it was obtained.

172

AGD concluded that the amendments proposed by the Bill will permit agencies to use and adduce information in evidence in proceedings, but will not remove a court’s discretion to refuse to admit evidence, or its duty to refuse to admit improperly obtained evidence in particular circumstances.173

Schedule 8: Entry, search, seizure and related powers Schedule 8 will insert proposed Part IAAB into the Crimes Act to provide a scheme under which Commonwealth and state or territory police may exercise certain powers in relation to a person subject to a control order, or a premises to which the person has a ‘prescribed connection’ for the purpose of:

• protecting the public from a terrorist act

• preventing the provision of support for, or the facilitation of, a terrorist act

167. Proposed section 3ZZTC of the Crimes Act in Schedule 8. 168. Proposed section 299 of the TIA Act at item 53 of Schedule 9 and proposed section 65B of the SD Act at item 39 of Schedule 10. 169. Evidence Act 1995 (Cth), subsection 138(1), accessed 12 January 2016. However, the general prohibition on the admission of improperly or illegally obtained evidence is subject to a number of exceptions.

170. Muslim Legal Network (NSW), op. cit., p. 30. See also pp. 26-27 and 34. 171. Scrutiny of Bills Committee, Alert digest, 13, op. cit., pp. 14-15; PJCHR, Thirty-second report of the 44th Parliament, op. cit., pp. 29-31. 172. AGD, Supplementary submission, p. 24. 173. Ibid.

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• preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country and/or

• determining whether the control order has been, or is being, complied with. 174

‘Prescribed connection’ with premises will be defined in proposed section 3ZZJC. It will include, for example, the person’s residence, (paid or voluntary) workplace, business or educational institution. The Explanatory Memorandum states that the definition is designed to capture even temporary connections between premises and a person subject to the control order ‘for example, where the person is merely staying with friends for a short period of time’.175 It is not clear whether the proposed definition would achieve this. 176

The definition would not generally capture other premises the person regularly visits, such as the homes of friends or family members or places of worship. However, searches of prescribed premises and powers exercisable thereon, such as questioning people, potentially impact many third parties, including colleagues and fellow students and depending on the nature of the person’s employment (for example retail or hospitality), members of the public.

Broadly, the powers included under proposed Part IAAB are:

• entry to premises and exercise of ‘monitoring powers’, including a search, either by consent or under a monitoring warrant177

• conducting an ordinary or frisk search of a person subject to a control order, either by consent or under a monitoring warrant178

• searching any recently used conveyance and recording fingerprints, and taking samples, from things found in a search, without the need to obtain further consent or an additional warrant179

• powers to ask questions and request or require documents following entry to premises 180

• powers to seize things believed to be evidential material, tainted property or seizable items following a search of a person or premises under a warrant181 and

• the ability to use and share things seized, documents produced and answers provided for certain purposes. 182

More extensive powers are available under a warrant than by consent. A monitoring warrant can only be issued by a magistrate, as is the case with a search warrant under Part IAA of the Crimes Act for offence-related search warrants.183 The magistrate must be satisfied that a warrant is reasonably necessary for one or more of the purposes outlined above.184 See the Appendix for a table summarising the powers available in relation to premises and persons with and without a warrant.

Safeguards The proposed safeguards include:

• explicit preservation of legal professional privilege and the privilege against self-incrimination 185

• a prohibition on strip searches and searches of a person’s body cavities 186

174. Proposed sections 3ZZJA, 3ZZKA, 3ZZLA, 3ZZOA, and 3ZZOB of the Crimes Act. 175. Explanatory Memorandum, p. 68. 176. In the absence of another of the prescribed connections a person must ‘occupy or reside’ on the premises, or have ‘possession or control’ of the premises. These terms are not defined, so would be interpreted on the basis of their ordinary meanings and any relevant case law.

177. Proposed sections 3ZZKA, 3ZZKB and 3ZZKC of the Crimes Act. 178. Proposed sections 3ZZLA and 3ZZLB of the Crimes Act. 179. Ibid. 180. Proposed section 3ZZKE of the Crimes Act. 181. Proposed sections 3ZZKF and 3ZZLC of the Crimes Act. 182. Proposed Division 8, Part IAAB of the Crimes Act. 183. Proposed section 3ZZJB and Division 5, Part IAAB of the Crimes Act. 184. Proposed sections 3ZZOA and 3ZZOB of the Crimes Act. 185. Proposed 3ZZJD of the Crimes Act. 186. Proposed section 3ZZOC of the Crimes Act.

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• a general prohibition on executing a monitoring warrant and exercising consequential powers if the control order is revoked, declared void or varied to remove one or more obligations, prohibitions or restrictions187

- Note: If a warrant is executed in breach of the prohibition, evidence, information and documents seized are not admissible in criminal proceedings (other than those concerning misconduct or corruption). However, the Bill does not provide such material is not admissible in civil proceedings188 • procedural protections outlined in proposed Division 4, Part IAAB, including that consent must be informed

and voluntary, and may be limited or withdrawn; compensation for damage to electronic equipment; and the occupier of premises and the person subject to the control order being entitled to be present and observe searches of premises.189

Issue: no reporting, record-keeping or inspection powers Schedule 8 does not include any proposed record-keeping or reporting obligations and makes no provision for the inspection of records and warrants associated with the new regime by the Ombudsman. A model on which such provisions could be based can be found in Divisions 6 and 7 of Part IAAA of the Crimes Act, which apply to the delayed notification search warrant regime.

Issue: role for Public Interest Monitor? The Queensland Government notes the Public Interest Monitor’s role in applications for control orders and suggests that be extended to applications for monitoring warrants. It recommends that where an application is made in Queensland, the issuing authority be required to have regard to any submissions made by the Public Interest Monitor.190

Use, sharing and retention of things, documents and information obtained Proposed Division 8, Part IAAB makes different provision for the use, sharing and retention of things seized, documents obtained and answers to questions obtained under the Part. The Explanatory Memorandum does not explain why each is to be treated differently, or why the purposes for which it is proposed material may be used, shared and retained are appropriate.

Things seized Things seized under proposed Part IAAB will be able to be used, shared and retained as if they had been seized under a search warrant issued for investigation of an offence (under Division 2 of Part IAA of the Crimes Act).191 This will mean things seized can be used or made available to constables, Commonwealth officers, state and territory police and anti-corruption agencies and foreign law enforcement, intelligence and security agencies for a broad range of purposes, including:

• preventing, investigating or prosecuting an offence under Commonwealth or state or territory law

• use in various types of proceedings (such as proceeds of crime and forfeiture proceedings) under Commonwealth or state or territory law or

• when use or sharing of the things is required or authorised by a state or territory law.192

Documents obtained Documents obtained under proposed Part IAAB will be able to be used, shared and retained as if they had been obtained under notice to produce provisions used for investigation of serious offences (under Division 4B of Part IAA of the Crimes Act).193 This will mean they can be used and shared with the same persons and agencies, and for the same purposes, as outlined above in relation to things seized.194

187. Proposed section 3ZZOD of the Crimes Act. 188. Proposed subsections 3ZZOD(2), (3) and (4) of the Crimes Act. 189. Proposed Division 4, Part IAAB of the Crimes Act. 190. Queensland Government, op. cit., pp. 3-4. 191. Proposed section 3ZZRB of the Crimes Act. 192. Crimes Act, section 3ZQU. 193. Proposed section 3ZZRC of the Crimes Act. 194. Crimes Act, section 3ZQU.

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In addition, documents may also be shared with constables, Commonwealth officers, state and territory police and anti-corruption agencies and foreign law enforcement, intelligence and security agencies for the purposes of:

• 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 and/or

• determining whether the control order has been, or is being, complied with. 195

These additional purposes considerably expand the circumstances in which a document may be shared. The existing preventative ground is specific to preventing a Commonwealth or state or territory offence.196 The proposed additional grounds are framed instead around the broader concepts of ‘terrorist act’ (for which the definition is independent of the offence of committing a terrorist act)197 and ‘engaging in a hostile activity’ (for which the definition is independent of the foreign incursions offences).198 Given documents may be shared with foreign law enforcement, intelligence and security agencies, the breadth of purposes for which documents may be shared, and lack of any requirement that the conduct to be prevented constitute an Australian offence, is significant.

Answers given Answers given to questions asked under proposed Part IAAB will only be able to be used for the purposes of:

• 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

• determining whether the control order has been, or is being, complied with and/or

• preventing, investigating or prosecuting an offence. 199

As with the document use provisions, the first three purposes are not defined by reference to preventing conduct that would constitute an offence.

The scope of proposed section 3ZZRD is unclear in several other respects. It lists the purposes for which an answer may be used, but does not specify who may use them, whether they may be shared, and if so, with whom. Under proposed section 3ZZKE, questions may be asked by a constable who has entered premises by consent or under a warrant. However, given answers may be used in a prosecution for an offence, it appears there is some intention that answers be used by officers other than constables (and, accordingly, that they may be shared). It is also unclear how retention of information obtained from answers is governed.

Issue: breadth of use and sharing provisions, including with foreign agencies As is clear from the descriptions above, things seized and information obtained under proposed Part IAAB, especially documents, may be used and shared for a broad range of purposes and with a broad range of domestic and foreign agencies, well beyond the purpose for which the monitoring powers are available. The Explanatory Memorandum contains no rationale for, or justification of, the breadth of the proposed provisions. Parliament may wish to seek such justification, and consider whether the provisions should be framed more narrowly so as to better accord with the particular aims and purposes of the Bill. Amendments might, for example, limit use and sharing for protective or preventative purposes to circumstances where the conduct to be prevented would constitute an offence under Australian law.

195. Proposed subsection 3ZZRC(2) of the Crimes Act; Crimes Act, section 3ZQU. 196. Crimes Act, section 3C. The definition of offence for the purposes of Part IAA will apply because proposed section 3ZZRC will apply Division 4C of that Part to documents obtained under proposed Part IAAB. 197. Crimes Act, section 3; Criminal Code, subsection 100.1(1). 198. Proposed section 3ZZJB of the Crimes Act; Criminal Code, subsections 100.1(1) and 117.1(1). 199. Proposed section 3ZZRD of the Crimes Act.

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Parliament may also wish to consider amendments to clarify how answers given to questions may be used, shared and retained.

Telecommunications interception warrants (Schedule 9) The TIA Act creates two types of interception warrants:

• B-party warrants: allow the interception of a telecommunications service likely to be used by another person (a non-suspect) to communicate with the suspect and

• Named person warrants: allow the interception of more than one telecommunications service used or likely to be used by the suspect.200

The amendments in Schedule 9 will allow agencies to obtain both types of warrants to intercept and monitor the telecommunications of a person subject to a control order or a telecommunications service likely to be used by a non-suspect to communicate with the subject of a control order for the purpose of:

• 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 and/or

• determining whether the control order has been, or is being, complied with (such as breaches of a prohibition on communicating with certain individuals).

They will also allow intercepted telecommunications information to be used in any proceedings associated with that control order and any other proceedings related to other serious offences (be they terrorism or non-terrorism related offences).201 The amendments will also introduce new ’deferred reporting’ arrangements that will permit the chief officer of an agency to defer public reporting on the use of a warrant relating to a control order in certain circumstances.202 Finally, the amendments will also permit the use of intercepted telecommunications in connection with PDOs made under state and territory laws to support a nationally consistent prevention scheme.203

Issues arising from control order interception warrants Currently the TIA Act allows the AFP and other enforcement agencies (such as state police forces) to use both types of interception warrants for the purpose of investigating persons suspected of being involved in the commission of serious offences (clearly this includes terrorism offences).204 The amendments proposed by Schedule 9 raise a number of issues.

The arguments for certain proposed amendments may be overstated It would appear that, with the exception of monitoring compliance with a control order, the arguments for the necessity of the proposed powers may be somewhat overstated. This is because if a control order is issued, it is because the AFP had (for example) reasonable grounds to suspect that:

• the order would substantially assist in preventing a terrorist act

• the person had:

- provided training to, received training from or participated in training with a listed terrorist organisation - engaged in a hostile activity in a foreign country - been convicted in Australia or overseas of an offence relating to terrorism, a terrorist organisation or a terrorist act or

- provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country or

200. TIA Act, paragraphs 9(1)(a)(ia) and 46(1)(d)(ii), sections 9A and 46A . 201. Proposed subsection 139B(1) (which links to existing subsections 139(2), 139(4A) and 139A(2) of the TIA Act). 202. Proposed section 103B. 203. Amendments to definitions of ‘permitted purpose’ and ‘preventative detention order’ in subsection 5(1) and proposed section 139B. 204. TIA Act, subsection 5(1) (definition of ‘agency’ and ‘interception agency’), section 34, paragraphs 46(1)(d) and 46A(1)(d).

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• the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act.205

Ultimately, a control order will only be issued where a court is satisfied on the balance of probabilities that the making of the control order would (for example), substantially assist in preventing a terrorist act or preventing the provision of support for or the facilitation of a terrorist act206 and:

• each of the obligations, prohibitions and restrictions imposed by a control order were reasonably necessary, and reasonably appropriate and adapted, for the purpose of:

- protecting the public from a terrorist act

- preventing the provision of support for or the facilitation of a terrorist act or

- preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.207

Therefore it follows from the above that in circumstances where a control order is issued it is probable that the person to whom the control order applies will already be suspected of being involved in the planning or commission of serious offences and hence may already be under investigation.208 If that is the case, then it may be that interception warrants may have already been applied for as part of that investigation. The Inspector-General of Intelligence and Security (IGIS) made a similar point, noting:

While decisions to seek a control order for a young person or a monitoring warrant will be made by law enforcement agencies, they will often relate to persons who have been or continue to be subjects of security investigation. Where this is so, it is likely that there would be regular information sharing, in accordance with relevant legislative frameworks, between ASIO and law enforcement agencies prior to seeking a control order or monitoring warrant. Information sharing is also likely in relation to any developments and information obtained by law enforcement agencies under monitoring warrants that may also be relevant to security. ASIO and law enforcement agencies have established procedures for managing cases where there is overlap in their respective investigative roles, including interaction through the Joint Counter-Terrorism Teams.

209 (emphasis added)

It is therefore logical that an interception warrant could be obtained in relation to that person in most circumstances because there is an overlap between the purposes for which control orders are issued (and hence the offences they are designed to prevent) and the types of offences that can currently be investigated using interception warrants. Further, it is also likely that a person subject to a control order is likely to have been (or is) a subject of an ASIO security investigation. In any case, prior to any interception warrants being approved, the AFP could nonetheless self-authorise access to the person’s historical and prospective telecommunications data (‘metadata’, discussed below).

The proposed amendments will facilitate quicker investigations and act as a preventative measure For the reasons noted above (for example, that a subject of a control order may well be the subject of either an AFP or ASIO investigation at the time a control order is made), with the exception of monitoring compliance with a control order, the arguments around facilitating quicker investigations may overstate the need for the proposed powers.

This is because both the AFP and ASIO can currently obtain both historical and prospective metadata without the need to obtain a warrant.210 Put simply, they can self-authorise the collection and on-going monitoring of a person’s metadata. Given the detailed nature of information that can be obtained from metadata and the degree of information sharing between ASIO and the AFP noted by the IGIS, suggesting that investigations could

205. Criminal Code, subsection 104.2(2). 206. Ibid., paragraphs 104.4(1)(c)(i) and (vi). 207. Ibid., paragraph 104.4(1)(d). 208. Whilst not directly conceding this point, AGD noted that: ‘If there were reasonable grounds to suspect that the control order subject was

contravening the terms of the control order or engaging in terrorism-related conduct, given both categories of conduct constitute criminal offences, law enforcement would be able to apply for warrants under the existing provisions for search, telecommunications interception or surveillance device powers for the purposes of investigating the commission of an offence.’: AGD, Supplementary submission, op. cit., p. 19. 209. Inspector-General of Intelligence and Security (IGIS), Submission to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No.1) 2015, 10 December 2015, p. 3, accessed 18 December 2015. 210. TIA Act, sections 176 and 177 (in relation to ASIO) and 178, 179 and 180 (in relation to the AFP and certain other enforcement agencies).

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not commence quickly enough without the proposed powers appears to be an overstatement. 211 Nonetheless, it is possible that situations may arise where:

• events trigger an application for a control order before the relevant person has been investigated by either ASIO or the AFP (or information obtained through a security investigation is not shared with the AFP) or

• the early stages of an investigation into a person result in an interim control order being made before an interception or named person warrant had been applied for.

Whilst the necessity, efficacy and proportionality of the proposed changes in dealing with such situations is open to debate, it is clear that the amendments would facilitate quicker access and monitoring of the content of the telecommunications of a person subject to the control order than is currently the case.

Privacy protections In relation to B-party warrants, the amendments propose a privacy-balancing test and other restrictions on the issuing of those warrants that reflect those currently in place under the TIA Act.212 The amendments proposed by items 20-23 have the same effect in relation named person warrants.

The effectiveness of the proposed privacy protections has been questioned. For example, the LCA noted that the amendments ‘would significantly broaden the circumstances in which innocent parties may be subjected to surveillance by reason of association’ and would allow the interception of the content of telecommunications made or received ‘by people who are not suspects or who may have no knowledge or involvement in a crime, but who may be in contact with someone who does’.213 Likewise, the AHRC stated:

While there are requirements that issuing authorities take a number of other factors into account, including the extent to which any person’s privacy would be affected and whether there are alternative means of obtaining the information, the Commission considers these requirements are insufficient in circumstances. 214

Of particular concern is the impact on the privacy of non-suspects whose communications are intercepted under a B-party warrant. The LCA pointed to and supported concerns previously expressed by the Australian Law Reform Commission about the ‘potential to collect a large amount of information about non-suspect persons under a B-party warrant, compared with other types of warrant’.215 Councils for civil liberties expressed a similar view.216

For example, the changes proposed to section 67 of the TIA Act by items 33, 34 and 35 of Schedule 9 appear to provide that agencies can only use intercepted information for the purposes of monitoring compliance with a control order or for the more general purposes associated with protecting the ‘the performance of a function or duty, or the exercise of a power… in relation to a matter arising under, Division 104 of the Criminal Code’ (that is, broadly speaking, purposes related to preventing and protecting the public from terrorism). However, proposed section 139B allows lawfully intercepted information to be used in broader ways.

Proposed subsection 139B(1) allows an officer of the AFP or a state or territory police force to:

• communicate lawfully intercepted information to another person and

• make use of lawfully intercepted information

for ‘one or more of the purposes referred to in subsection (2), and for no other purpose (other than a purpose referred to in subsection 139(2) or (4A) or 139A(2), if applicable’ (emphasis added).

211. J Murphy and M Biddington, Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, Bills digest, 89, 2014-15, Parliamentary Library, Canberra, 2015, pp. 11-12, accessed 17 December 2015. 212. See proposed subsections 46(4)-(6) and in particular proposed paragraphs 46(4)(d)(ii), (5)(a), (c) and (6)(a). These are based on existing paragraph 46(1)(d)(ii), 46(2)(a) and (c) and subsection 46(3) of the TIA Act: ‘The Judge or nominated AAT member must not issue a warrant in

a case in which subparagraph (1)(d)(ii) applies unless he or she is satisfied that… (a) the agency has exhausted all other practicable methods of identifying the telecommunications services used, or likely to be used, by the person involved in the offence or offences referred to in paragraph (1)(d); or (b) interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible.’ (emphasis added). 213. LCA, Submission to PJCIS, op. cit., p. 18. 214. AHRC, Submission to PJCIS, op. cit., pp. 17-18. 215. LCA, Submission to PJCIS, op. cit., p. 19. 216. Joint submission by Australian councils for civil liberties, op. cit., pp. 15-16.

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Importantly, subsections 139(2), (3) 217 and (4A) and 139A(2) of the TIA Act encompass much broader purposes than those provided by section 67 (as sought to be amended by items 33, 34 and 35 of Schedule 9). Those purposes include:

• investigating a serious offence218

• investigating an offence punishable by imprisonment for a period, or a maximum period, of at least 12 months or a fine of at least 60 penalty units219

• prosecuting the offences referred to above220

• providing information to a foreign country in relation to a mutual assistance request221 and

• undertaking certain integrity investigations and related proceedings.222

Accordingly, amendments in proposed section 139B will allow information obtained under an interception warrant issued in relation to a person subject to a control order to be used for a wider range of purposes than just monitoring compliance with the control order, or preventing or investigating terrorism and related offences.

Of particular note, proposed section 139B allows an officer or staff member of the AFP or a state or territory police force that intercepts the communications of non-suspect under a B-party warrant to use that information to investigate or prosecute that person (or others) for a range of criminal offences attracting a term of imprisonment greater than 12 months, despite that person not having been previously suspected of doing anything unlawful.

Proposed subsection 139B(2) would also allow ‘lawfully accessed information’ (such as the intercepted contents of the telecommunications of a person subject to a control order) other than foreign intelligence information to be used for purposes related to PDOs under Commonwealth, state and territory laws.

Proposed section 79AA of the TIA Act, at item 37 of Schedule 9, purports to ensure that agencies must destroy information obtained under a control order warrant before the control order to which it relates came into force. The amendments contain several exceptions to the obligation to destroy information obtained under a control order warrant. Those exceptions will ensure that any information obtained as a result of determining if a control order had been complied with that could assist in preventing terrorism (broadly speaking) can be retained and used, thus reflecting the ‘preventative’ thrust of many of the amendments.

Further, as noted above under overarching issues, proposed section 299 will allow the use of information intercepted under a warrant relating to a control order which is subsequently declared void in certain circumstances.

A control order warrant can be issued prior to the control order being served Proposed section 6T will enable an interception warrant to be applied for prior to a person being served with a control order. Whilst this will clearly enable the monitoring the contents of that person’s telecommunications to commence earlier (and prior to them being notified that they are subject to a control order), it also represents a significant intrusion into that person’s privacy. As noted above, proposed section 79AA will impose some restrictions on the retention of information obtained before the relevant control order came into force.

Changes to reporting requirements Currently Part 2-8 of Chapter 2 of the TIA Act deals with the reporting of information related to interception warrants. The Bill will amend a number of provisions. The effect of the amendments is to require that the public reporting of interception warrants relating to a person subject to a control order is deferred until a subsequent report if the chief officer is satisfied that the information, if made public, could reasonably be expected to enable a reasonable person to conclude that:

217. TIA Act, paragraph 139(2)(b): ‘… the purposes are purposes connected with … an investigation by the agency or by another criminal law-enforcement agency of a contravention to which subsection (3) applies …’. 218. TIA Act, paragraph 139(3)(a). 219. TIA Act, paragraph 139(3)(b). 220. TIA Act, paragraph 139(2)(b) and (4). 221. TIA Act, subsection 139(4A) 222. TIA Act, subsection 139A(2).

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• a control order warrant is likely to be, or is not likely to be, in force in relation to a telecommunications service used, or likely to be used, by a particular person or

• a control order warrant is likely to be, or is not likely to be, in force in relation to a particular person. 223

The Government argues that this is necessary because, due to the low number of control orders in existence at any time, public reporting during the period in which a control order warrant is in operation would undermine the purpose and effectiveness of such warrants (for example, by effectively revealing that a particular person who is subject to a control order is or is not also subject to covert surveillance).224

Surveillance devices (Schedule 10) Currently the SD Act provides that surveillance and tracking device warrants are available where an eligible judge or nominated member of the Administrative Appeals Tribunal (AAT) is satisfied that one or more ‘relevant offences’ (usually serious offences) have been, are being, are about to be, or are likely to be, committed.225 They can also be authorised by certain senior officers of law enforcement agencies in emergency situations.226

The amendments in Schedule 10 will amend the SD Act to allow agencies to obtain a warrant to install and use surveillance and tracking devices in relation to a person who is subject to a control order for the purpose of:

• 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 and/or

• determining whether the control order has been, or is being, complied with (such as curfew requirements or visiting a prohibited place).227

The amendments will also extend the circumstances in which agencies may use less intrusive types of surveillance devices without a warrant to include the purposes noted above (including monitoring compliance with a control order). Further, they allow surveillance and tracking device information to be used in a broad range of circumstances beyond investigating compliance with a control order, terrorism offences or prosecuting breaches of control orders and terrorism offences. Those purposes include:

• investigating or prosecuting a ‘relevant offence’ 228

• providing information to a foreign country in relation to a mutual assistance request229 or

• undertaking certain integrity investigations and related proceedings.230

As a result the SD Act will allow information obtained under surveillance or tracking device warrants issued in relation to a person subject to a control order to be used for a range of purposes other than monitoring compliance with the control order, or preventing or investigating terrorism and related offences, even (because of proposed section 65B) where the control order is subsequently declared void (though in the latter case for a relatively more restricted range of purposes).

223. Proposed subsections 103B(2) and (3). 224. Explanatory Memorandum, p. 92. 225. SD Act, sections 11-14 and 16. 226. Ibid., Part 3. 227. Proposed paragraphs 3(aa)-(ab), 16(1)(bc), 16(2)(eb) and proposed subsections 4(5)-(6), 14(3C), 21(3C)-(3D), 37(4), 38(3A), 38(6), and

39(3B).

228. Surveillance Devices Act 2004, subsections 45(3)-(6). Paragraph 45(4)(b) allows protected information to be used, disclosed and published where a person ‘believes on reasonable grounds that the use or communication is necessary to help prevent or reduce the risk of serious violence to a person or substantial damage to property’. Likewise paragraphs 45(5)(a)-(c) allow protected information to be used, communicated and published ‘if it is necessary’ for the investigation or prosecution of a ‘relevant offence’ or for a ‘relevant proceeding’. As such, protected information can be used for a wider set of purposes than investigating or prosecuting terrorism related offences or breaches of control orders.

229. Ibid., paragraph 45(4)(f). 230. Ibid., paragraphs 45(5)(d), (e), (h) and (i). See also: section 45A.

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Schedule 10 will also introduce new ’deferred reporting’ arrangements that will permit the chief officer of an agency to defer public reporting on the use of a warrant relating to a control order in certain circumstances and will also makes changes to the reporting requirements around the installation and use of surveillance devices.231

Issues arising from control order surveillance device warrants Currently the SD Act allows the AFP and other enforcement agencies (such as state police forces) to use a range of surveillance and tracking device warrants for the purpose of investigating persons suspected of being involved in the commission of certain types of offences (including terrorism offences). The amendments raise substantially the same issues raised by the amendments proposed in relation to telecommunications interception warrants.

Use of certain surveillance devices without a warrant Part 4 of the SD Act provides for use of surveillance devices without a warrant in certain circumstances.

Items 19-25 of Schedule 10 of the Bill will expand Part 4 of the SD Act to enable law enforcement officers acting in the course of their duties, and persons assisting them, to use certain surveillance and tracking devices without a warrant to obtain information about the activities of the person subject to a control order, for the purpose of:

• 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 and/or

• determining whether the control order has been, or is being, complied with (such as curfew requirements or visiting a prohibited place).232

Privacy protections Items 26-31 will expand the existing offences related to the unlawful use, recording, communication or publication of ‘protected information’ to information obtained via control order surveillance warrants and tracking device authorisations in respect of a person subject to a control order.

Proposed section 46A will operate to ensure that information obtained prior to the control order having been served on a person (that is, before the control order comes into force under the Criminal Code) is destroyed as soon as practicable. However, that requirement does not apply to records or reports that are likely to protect the public from a terrorist act, prevent a person engaging in, providing support for or facilitating a terrorist act or prevent hostile activity in a foreign country.

Further, as noted above under overarching issues, proposed section 65B will allow information obtained through a surveillance or tracking device under a warrant or authorisation, or permitted to be used without a warrant, relating to a control order which is subsequently declared void in to be used for a variety of purposes, in certain circumstances.

A control order warrant can be issued prior to the control order being served Proposed section 6C will enable a surveillance device control order warrant to be applied for prior to a person being served with a control order. Whilst this will clearly enable the commencement of monitoring of that person to commence earlier (and prior to them being notified that they are subject to a control order), it also represents a significant intrusion into that person’s privacy. As noted above, proposed section 46A will impose some restrictions on the retention of information obtained before the relevant control order came into force.

Changes to reporting requirements Currently Division 2 of Part 6 of the SD Act deals with the reporting of information related to surveillance and tracking device warrants and authorisations. The Bill will amend a number of provisions. The effect of the amendments is to require that the public reporting of the use of a surveillance or tracking device to be deferred until a subsequent annual report if the chief officer is satisfied that the information, if made public, could

231. Items 35 and 36. 232. Proposed subsection 37(4), 38(3A), 38(6) and 39(3B).

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reasonably be expected to enable a reasonable person to conclude that a control order surveillance device warrant is likely to be, or is not likely to be, in force, in relation to a particular premises, object or person.233

The Government has advanced essentially the same arguments for the need to defer reporting as made in relation to the interception warrants.234

Role for the Public Interest Monitor? The Queensland Government notes the Public Interest Monitor’s role in applications for control orders and suggests that be extended to applications made for surveillance device warrants in relation to persons subject to control orders. It recommends that where an application is made in Queensland, the issuing authority be required to have regard to any submissions made by the Public Interest Monitor.235

Offence of advocating genocide (Schedule 11) Schedule 11 will introduce the new offence of ‘advocating genocide’ into division 80 of the Criminal Code, with a maximum penalty of seven years imprisonment.

For the purposes of the proposed offence, ‘advocate’ is defined by proposed section 80.2D as ‘counsel, promote, encourage or urge’. This follows a similar definition in the Criminal Code for the advocating of terrorism.236

For the purposes of the proposed offence, ‘genocide’ is defined as the commission of an offence against Subdivision B of Division 268 of the Criminal Code.

The genocide offences in Subdivision B of Division 268 are:

268.3………………… Genocide by killing 268.4………………… Genocide by causing serious bodily or mental harm 268.5………………… Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction 268.6………………… Genocide by imposing measures intended to prevent births 268.7………………… Genocide by forcibly transferring children

These offences are essentially aligned with the definition provided in the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Article II), which defines genocide as ‘any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group …’, including:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group. 237

Division 80 of the Criminal Code currently includes various offences for treason, advocating terrorism (section 80.2C), and urging violence against groups or members of groups (sections 80.2A and 80.2B). Subdivision B of Division 268 of the Criminal Code contains offences for committing genocide. Section 11.4 of the Criminal Code provides for an extension of criminal liability for incitement which could be applied to the existing genocide offences. Accordingly, it is not immediately clear what the practical effect of the proposed offence may be, given that the conduct likely to constitute such an offence would also often constitute an offence against at least one of the abovementioned existing offences.

233. Items 34-36. 234. Explanatory Memorandum, pp. 104-105. 235. Queensland Government, op. cit., pp. 3, 5. 236. Criminal Code, section 80.2C. 237. Genocide Convention Act 1949, accessed 25 January 2016.

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The Explanatory Memorandum points out that current offender behaviour (in particular online) includes making comments that encourage the carrying out of acts by others without making explicit statements that would satisfy the evidential requirement for the existing offences of incitement of genocide or urging violence. It asserts that while the existing offences will continue to be used where evidence allows:

… (t)hese offences require proof that the person intended the crime or violence to be committed, and there are circumstances where there is insufficient evidence to meet that threshold. Groups or individuals publicly advocating genocide can be very deliberate about the precise language they use, even though their overall message still has the impact of encouraging others to engage in genocide.

238

The Explanatory Memorandum also asserts that the proposed offence is required in response to the use of social media to radicalise youths and is intended to specifically create an offence for situations where a person is using social media to encourage others to commit attacks without making explicit statements.239

Some further indication of the reasons for introducing similar new offences in this way was provided in a speech given by the Attorney-General to the Centre for Independent Studies on 6 November 2015.240 The Attorney-General stated that the offence of advocating terrorism, introduced in 2014:

… was done in order to meet a gap in the pre-existing law, whereby it was necessary to demonstrate a relationship between advocacy and a specific act of terrorism. In other words it was based on the old common law crime of incitement. Although there have not yet been any prosecutions brought under the new provision, the Australian Federal Police advise me that its introduction has resulted in a significant reduction in the use of inflammatory language among certain radical elements within the community.

241

The Attorney-General further stated that the proposed offence of advocacy of genocide:

… is consistent with our international obligations as a party to the Genocide Convention. In the Government’s view, the preaching of the genocide of a race or population can never be regarded as being the equivalent of the mere expression of a radical political opinion: it is an injunction to violence and slaughter. Yet advocacy of genocide does go on, unpunished, in Australia today - in particular, directed against Jewish people and against the state of Israel.

242

The proposed offence includes a reference to the existing section 80.3 defence for acts done in good faith. The Explanatory Memorandum claims that ‘(t)his defence protects the implied freedom of political communication.’243

This defence may be particularly necessary in the Australian domestic context in view of ongoing debates over current Indigenous policies,244 and the statements in the Bringing Them Home report and elsewhere asserting that Indigenous assimilation may be considered to fall within the definition of genocide. 245

The proposed offence also includes a double jeopardy safeguard in proposed subsection 80.2D(2) to prevent trial for such an offence where the person has already been convicted or acquitted by the International Criminal Court for an offence based on the same conduct.

As noted in the ‘Position of major interest groups’ section of this Digest, some stakeholders are concerned that the proposed offence may infringe on free speech and could limit legitimate discussions of genocide related

238. Explanatory Memorandum, pp. 108-109. 239. Ibid., p. 109. 240. G Brandis (Attorney-General), Address to the Centre for Independent Studies, Sydney, media release, 6 November 2015, accessed 25 January 2016.

241. Ibid. 242. Ibid. 243. Explanatory Memorandum, p. 109. 244. See for example: J Pilger, ‘Another stolen generation: how Australia still wrecks Aboriginal families’, The Guardian, (online edition), 22 March

2014, accessed 25 January 2016. For an example of recent debate over assimilation including advocacy for the policy, see ‘Q&A’, ABC TV, 9 June 2014, transcript, accessed 25 January 2016. 245. Human Rights and Equal Opportunity Commission (HREOC), Bringing them home: report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, HREOC, Sydney, April 1997, Chapter 13; R Wilson, ‘Human rights and

Indigenous Australians’, address to the Australian Reconciliation Convention, 1997; both accessed 25 January 2016.

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topics, and that the threshold required for proving the offence is inappropriately low. In a supplementary submission, AGD stated that the proposed offence is designed to fill a gap in existing offences, and so proposed alternate formulations aimed at more closely mirroring existing offences would not achieve this.246 AGD also stated that the meaning of ‘advocates’, and ‘publicly’, combined with the good faith defence would result in no infringement of genuine commentary on genocide related issues.247

Preventative detention orders (Schedules 5 and 6) There are two circumstances in which preventative detention orders (PDOs) may be made if relevant thresholds are met: to prevent an imminent terrorist act, and to preserve evidence of or relating to a terrorist act that has already occurred.

Schedule 5 will amend provisions that define when a terrorist attack is to be considered ‘imminent’ for the purpose of applications for and issuing of a PDO to prevent a terrorist attack. Instead of being a terrorist act that is imminent and expected to occur within the next 14 days, it will be one that is ‘capable of being carried out, and could occur, within the next 14 days’ (emphasis added).

Before making a PDO, the issuing authority will still be required to be satisfied that:

• making the order would substantially assist in preventing a terrorist act occurring and

• detaining the person for the proposed period is reasonably necessary for the purpose of preventing that terrorist act.248

The Explanatory Memorandum states that law enforcement agencies may be aware of individuals with the capability and intent to carry out a terrorist act, but no clear timeframe in mind:

The terrorist act could potentially occur within hours, weeks or months. In such circumstances, law enforcement agencies may not be able to obtain a PDO as the issuing authority may not be satisfied that there is an expectation the act will occur within precisely 14 days, despite the clear and ongoing threat posed by the individual. The current focus of 105.4(5) on the timing for when an act will occur within a certain period, rather than the capability for an act to occur within a certain period, is problematic.

249

The Explanatory Memorandum also characterises the change as a clarification of the imminence test.250 However, as the Scrutiny of Bills Committee pointed out, the change in emphasis from an expectation that a terrorist attack will occur to a determination that it realistically could occur, represents a significant shift that would mean PDOs were available in a broader range of circumstances.251 The Scrutiny of Bills Committee sought more detailed justification from the Attorney-General.252 For the same reason, the PJCHR questioned the assertion that the amendment will not impact the right to liberty and sought an explanation from the Attorney-General.253

While objecting to the PDO regime as a whole, Gilbert + Tobin does not oppose this amendment.254 However, the AHRC, LCA and councils for civil liberties share the Scrutiny of Bills Committee’s concern that the proposed new threshold is too low. 255 The AHRC stated:

The requirement that an issuing authority be satisfied there are reasonable grounds to suspect an imminent terrorist attack may not be an easy one to meet. However, that is entirely consistent with the extraordinary nature of the preventative detention order regime …

246. AGD, Supplementary submission, op. cit., p. 27. 247. Ibid., pp. 27-30. 248. Criminal Code, paragraphs 105.4(4)(c) and (d). 249. Explanatory Memorandum, p. 61. 250. Ibid., pp. 22, 60. 251. Scrutiny of Bills Committee, Alert digest, 13, op. cit., p. 11. 252. Ibid., p. 12. 253. PJCHR, Thirty-second report of the 44th Parliament, op. cit., pp. 21-24. 254. Gilbert + Tobin, op. cit., p. 7. 255. AHRC, op. cit., pp. 14-16; LCA, Submission to PJCIS, op. cit., pp. 15-16; Joint submission by Australian councils for civil liberties, op. cit.,

pp. 11-12.

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Further, the purpose of preventative detention orders is to prevent a terrorist act that would occur within a short period of time, by taking a potential perpetrator ‘out of circulation’ in circumstances where the urgency of the case is such that other means of preventing the act are unlikely to be effective. This rationale requires that the potential act be likely to occur within a short space of time.

256

The LCA suggested a more appropriate threshold would be where a terrorist act is capable of being carried out, and is likely to occur, within the next 14 days.257 AGD considers that threshold would present the same difficulties as the current threshold.258

Schedule 6 would make a minor amendment so that a person’s service as a judge in the Family Court does not make them eligible to be appointed as an issuing authority for continued preventative detention orders.

Other provisions Delayed notification search warrants (Schedule 14) A scheme allowing delayed notification search warrants (DNSWs) was enacted in 2014, implementing a recommendation of the former Independent National Security Legislation Monitor.259 DNSWs are only available in relation to suspected terrorism offences punishable on conviction by imprisonment for seven years or more.260

Schedule 14 will amend various provisions in Part IAAA of the Crimes Act to clarify that rather than being required to themselves hold certain suspicions and beliefs, the AFP Commissioner (who must consent to an application being made) and an issuing officer must be satisfied the officer applying for the warrant holds those suspicions and beliefs on reasonable grounds.261 The thresholds that must be met for an officer to seek a warrant will remain unchanged.262 The amendments will bring the provisions for the issue of warrants into closer alignment with the general offence-related search warrant scheme in Part IAA of the Crimes Act.263

Security assessments by ASIO (Schedule 12) ASIO’s security assessment function is set out in Part IV of the ASIO Act. Security assessments are written statements provided by ASIO in relation to:

• the question of whether it would be consistent with the requirements of security for ‘prescribed administrative action’ to be taken in respect of a person or

• the question of whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken in respect of a person.264

‘Prescribed administrative action’ is defined in section 35 of the ASIO Act. The sorts of actions it refers to include, for example, decisions relating to visas, passports and citizenship, and action that relates to or affects a person’s access to information or places to which access is restricted on security grounds.

The definition of ‘security assessment’ in section 35 of the ASIO Act, and section 40 of the Act, currently limit the circumstances in which security assessments may be provided to states and state authorities, and how they may be provided. Currently, a security assessment may be provided to a state or state authority:

256. AHRC, op. cit., p. 15. 257. LCA, Submission to PJCIS, op. cit., p. 16. 258. AGD, Supplementary submission, op. cit., pp. 16-17. 259. Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014; Part IAAA of the Crimes Act; B Walker, Annual report, Australian

Government, Independent National Security Legislation Monitor (INSLM), Canberra, 28 March 2014, pp. 61-63 (Recommendation VI/2), accessed 25 January 2016. 260. Crimes Act, subsection 3ZZAA(4). 261. ‘Eligible issuing officer’ is defined in section 3ZZAD of the Crimes Act. Only certain judges and members of the Administrative Appeals Tribunal fall within the definition. 262. Existing and proposed section 3ZZBA of the Crimes Act. 263. Crimes Act, section 3E(1). The issuing officer is required to be satisfied that there are reasonable grounds for the relevant suspicion, not to hold that suspicion him or herself. 264. ASIO Act, section 35. ‘Security’ is defined in section 4 of the Act.

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• via a Commonwealth agency, where any prescribed administrative action in relation to a person by the state or state authority would affect security in connection with matters within the functions and responsibilities of that Commonwealth agency or

• directly, if the prescribed administrative action would affect security in connection with an event designated in writing by the Minister as a special event, and would affect security in connection with matters within the functions and responsibilities of a Commonwealth agency.265

Schedule 12 will amend Part IV of the ASIO Act so that ASIO would be permitted to provide security assessments directly to states and state authorities, but retain the option of providing them via a Commonwealth agency where appropriate.266

It will also remove the limitation whereby a security assessment may only be provided to a state or state authority where the prescribed action ‘would affect security in connection with matters within the functions and responsibilities of a Commonwealth agency’.267

The amendments will not affect the rights of a person to apply to the AAT for review of an adverse or qualified security assessment under Division 4 of Part IV of the ASIO Act. This is because such a review is of the security assessment itself, not any decision the assessment informed. However, the IGIS has pointed out that section 61 of the ASIO Act requires Commonwealth agencies involved in decisions to which the assessment is relevant to treat any AAT finding that does not confirm the assessment as superseding it, but makes no such requirement of state and territory agencies.268 The LCA recommends the power to provide assessments directly to states and state authorities only be available upon satisfaction that equivalent rights of review of decisions based on an assessment will be available.269 In response, AGD indicated an amendment to also apply section 61 of the ASIO Act to state authorities could be considered.270

ASIO will be prohibited from providing information or advice (whether directly or via a Commonwealth agency) that it knows is intended to be used, or likely to be used, by a state or state authority in considering prescribed administrative action in relation to a person, except in the form of a security assessment.271

Dealing with national security information in proceedings (Schedule 16) Schedule 16 will amend the NSI Act to introduce new provisions to provide that orders made by a court under that Act in relevant circumstances will override any disclosure requirements provided by the regulations.272

The relevant existing provisions in the NSI Act require court orders made under existing subsections 19(1A) and (3A), relating to dealing with national security information in criminal and civil proceedings, to be consistent with both the Act and the regulations. The proposed amendments provide that these orders must be consistent with both the NSI Act and its regulations except where the orders are made on an application by the Attorney-General or a representative. In these situations, the orders would not need to be consistent with the regulations.

This proposal is similar to existing provisions providing for the regulations not to apply to information that is subject to orders under subsections 22(2) or 38B(2), both of which relate to the disclosure of national security information. The principle difference is that the existing provisions relate to situations where the Attorney-General, prosecutor and defendant or their representative have agreed to arrangements about the disclosure of the information.

While the proposed amendments extend the nature of orders able to be inconsistent with the regulations beyond arrangements agreed to by all parties, to also include applications made by the Attorney-General, some safeguard is provided by the requirement that the orders must still be made by the court, and the court must consider the orders to be appropriate in the interest of national security (subsections 19(1A) and (3A)).

265. ASIO Act, section 40. 266. Item 4 of Schedule 12, proposed replacement subsection 40(1). 267. Ibid. 268. IGIS, op. cit., p. 2. See ASIO Act, section 61. 269. LCA, Submission to PJCIS, op. cit., p. 27. 270. AGD, Supplementary submission, op. cit., p. 30. 271. ASIO Act, subsection 40(2), as amended by item 5 of Schedule 12. 272. National Security Information (Criminal and Civil Proceedings) Act 2004, accessed 25 January 2016.

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Proposed subsections 23(2) and 38C(2) also maintain the existing ability for orders made under existing sections 22 and 38B respectively to override any disclosure requirements provided by the regulations, but clarify that the regulations continue to apply to aspects of the information not dealt with by the order.

Exemptions to terrorism organisation offences: funds for legal representation (Schedule 1) Sections 102.6 and 102.8 of the Criminal Code criminalise getting funds to, from or for a terrorist organisation and associating with terrorist organisations respectively.273 The COAG Review recommended an exemption to the offence in section 102.6 for receipt of funds from a terrorist organisation for legal advice or representation in connection with a range of proceedings.274 Schedule 1 of the Bill will partially implement that recommendation by exempting receipt of funds solely for the purpose of ‘legal advice or legal representation in connection with the question of whether the organisation is a terrorist organisation’.275 It will also include an equivalent exemption to the offence in section 102.8 (which the COAG Review recommended, by majority, be repealed).276

Classification of publications et cetera (Schedule 13) Schedule 13 of the Bill will amend the Classification Act to extend the threshold test for the requirement to refuse classification to a publication, film or computer game that advocates the doing of a terrorist act by extending the definition of ‘advocates’.277

At present, paragraph 9A(2)(a) of the Classification Act requires classification to be refused where the publication, film or computer game ‘directly or indirectly counsels or urges the doing of a terrorist act.’ Item 1 will amend this to also refuse classification where the publication, film or computer game ‘promotes’ or ‘encourages’ the doing of a terrorist act.

This extension of the definition of advocating a terrorist act is identical to the recent change to that definition in paragraph 102.1(1A)(a) of the Criminal Code. The definition in the Criminal Code was amended by the Foreign Fighters Act 2014 in December 2014.278

In explaining the addition of these terms to the definition, the Explanatory Memorandum states:

While there may be some overlap with the terms “counsels” or “urges” the doing of a terrorist act, which may include conduct such as inducement, persuasion or insistence, or to give advice about the doing of a terrorist act, the inclusion of the additional terms is designed to ensure coverage of a broader range of conduct that may be considered as advocating the doing of a terrorist act, beyond the existing conduct of “counsels” or “urges”.

279

As noted in the ‘Position of major interest groups’ section of this Digest, some stakeholders were concerned this measure could limit freedom of expression by also restricting legitimate discussion. AGD’s supplementary submission stated:

Schedule 13 is not intended to, and is unlikely to affect, artistic freedom. A publication, film or computer game will not advocate the doing of a terrorist act merely because it depicts, describes or discusses terrorist acts. Under the proposed changes to the definition of advocates, the content must directly or indirectly ‘counsel, urge, promote or encourage’ the doing of a terrorist act.

280

Disclosures by taxation officers (Schedule 17) The amendments in Schedule 17 of the Bill will broaden the range of circumstances in which protected taxation information may be disclosed to Australian government agencies to allow disclosure for security related purposes. This is consistent with other disclosures permitted by the Taxation Administration Act 1953.281

273. Criminal Code, sections 102.6 and 102.8. 274. COAG Review op. cit., pp. 29-31 (Recommendation 20). 275. Item 1 of Schedule 1. 276. Item 2 of Schedule 1; COAG Review, op. cit., pp. 33-37 (Recommendation 23). 277. Classification (Publications, Films and Computer Games) Act 1995, accessed 25 January 2016. 278. Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, accessed 25 January 2016. 279. Explanatory Memorandum, p. 114. 280. AGD, Supplementary submission, op. cit., p. 32. 281. Taxation Administration Act 1953, accessed 25 January 2016.

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While section 355-70 of Schedule 1 to the Taxation Administration Act 1953 already provides for disclosure to law enforcement and related agencies in listed circumstances, the Explanatory Memorandum notes that there is a need for such information to be available to other agencies that may provide counter-terrorism functions. In acknowledgement of the constantly changing nature of counter-terrorism work this could include multi-jurisdictional coordination bodies such as the National Disruption Group.282

Section 355-25 of Schedule 1 to the Taxation Administration Act 1953 provides that it is an offence for former or current taxation officers to release protected information that was acquired by them as a taxation officer. Subsection 355-30(1) defines protected information as information disclosed or obtained under a taxation law that relates to the affairs of an entity and identifies or could identify the entity.

Section 355-65 provides tables listing exceptions to the offences under section 355-25 to allow taxation officers to disclose protected information when performing certain duties. Subsection 355-65(2) provides Table 1, which lists exceptions allowing the disclosure of information ‘relating to social welfare, health or safety’.

Schedule 17 will insert proposed new item 10 to the table in subsection 355-65(2) to provide an exception allowing the disclosure of information to an Australian government agency where the disclosure is for the purposes of ‘preventing, detecting, disrupting or investigating conduct that relates to a matter of security as defined in section 4 of the Australian Security Intelligence Organisation Act 1979’.

This amendment will broaden the range of circumstances in which protected taxation information may be disclosed to Australian government agencies. However, the proposed item may be considered to be in keeping with the intent of the many existing exceptions for law enforcement purposes in section 355-70 and those for government purposes provided in section 355-65, including for example Item 9 of Table 1 which permits disclosures to an Australian government agency where the disclosure is for the purposes of:

preventing or lessening:

(a) a serious threat to an individual’s life, health or safety; or (b) a serious threat to public health or public safety.

Concluding comments Recent reforms to Australia’s already strong legislative framework for protecting national security and countering terrorism have included new and expanded offences, additional and broader powers for law enforcement and intelligence agencies, and new grounds on which dual nationals may lose their Australian citizenship. Those reforms included two sets of amendments to the control order regime passed in 2014 that expanded both the grounds on which orders may be sought and the purposes for which they may be granted.

Most of the key amendments in the Bill also concern the control order regime, either directly, via the proposed reduction of the minimum age for control orders, or indirectly, through proposed changes to control order proceedings and the proposed monitoring powers regime. The latter of these would make coercive powers normally used for investigations or monitoring compliance with regulatory schemes available for broader preventative and protective purposes.

Issues for debate are likely to include whether the measures proposed, particularly lowering the minimum age at which control orders may be imposed, are justified, and further whether they are proportionate. Both the breadth of the proposed amendments, and the adequacy or otherwise of safeguards and accountability measures proposed alongside them, will inform such determinations.

It is important for the measures proposed in the Bill to be considered in the broader context of both continually evolving national security threats and the cumulative impacts of the most recent series of reforms on personal freedoms, privacy, court processes and social cohesion.

282. Explanatory Memorandum, op. cit., p. 134.

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Appendix: Summary of powers exercisable under proposed Part IAAB of the Crimes Act as inserted by Schedule 8 of the Bill Power Premises to which a person subject to a control order has a

‘prescribed connection’

Person subject to a control order

Without a warrant Under a warrant Without a warrant Under a warrant

Entering premises Yes, if the subject of the

control order:

 is the occupier of the premises and

 has consented to the entry283

Yes284 N/A N/A

Searching the premises or person and anything on it or in possession of the person

Yes, if the subject of the control order:

 is the occupier of the premises and

 has consented to the entry285

Yes, with such force as is necessary and reasonable in the circumstances286

Yes, if the subject of the control order has consented to the search287

Yes, with such force as is necessary and reasonable in the circumstances 288

Searching for and recording fingerprints As above. As above. Yes, if the subject of the

control order has consented to the search289

Yes, with such force as is necessary and reasonable in the circumstances 290

Inspecting, examining, taking measurements of, conducting As above. As above. Yes (taking samples only)

if the subject of the

Yes (taking samples only) with such force as is

283. Proposed section 3ZZKA (in particular, proposed paragraph 3ZZKA(2)(a)) of the Crimes Act . 284. Proposed section 3ZZKA (in particular, proposed paragraph 3ZZKA(2)(b)). 285. Proposed section 3ZZKB and proposed subsections 3ZZKC(1) and (4) and 3ZZKD(2). 286. Proposed section 3ZZKB, proposed subsections 3ZZKC(1) and (4) and 3ZZKD(2) and proposed section 3ZZKG (use of force). 287. Proposed section 3ZZLA and proposed paragraph 3ZZLB(a). 288. Proposed section 3ZZLA, proposed paragraph 3ZZLB(a) and proposed section 3ZZLD (use of force). 289. Proposed paragraph 3ZZLB(c). 290. Proposed paragraph 3ZZLB(c) and proposed section 3ZZLD (use of force).

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Power Premises to which a person subject to a control order has a

‘prescribed connection’

Person subject to a control order

Without a warrant Under a warrant Without a warrant Under a warrant

tests or taking samples of things found at the premises or on the person

control order has consented to the search291

necessary and reasonable in the circumstances 292

Examining or observing any activity conducted on the premises, making any still, moving image or recording of anything on the premises

As above. As above. N/A N/A

Inspecting documents at the premises and taking extracts from or making copies of them

As above. As above. N/A N/A

Taking equipment and material onto the premises as necessary to exercise a power

As above. As above. N/A N/A

Securing and operating electronic equipment or data storage devices on the premises (including obtaining expert assistance)

As above. As above. N/A N/A

Asking for or requiring answers to questions and the production of documents

Yes. Can ask the subject of the control order to do so if:

 he or she is the occupier of the premises and

 he or she consented to the

Yes. Can require not only the subject of the control order, but any person on the premises to do so294 (subject to certain protections)295

No No

291. Proposed paragraph 3ZZLB(d). 292. Proposed paragraph 3ZZLB(d) and proposed section 3ZZLD (use of force).

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Power Premises to which a person subject to a control order has a

‘prescribed connection’

Person subject to a control order

Without a warrant Under a warrant Without a warrant Under a warrant

entry onto the premises293

Seizing evidential material, tainted property and seizable items

No Yes, with such force as is

necessary and reasonable in the circumstances296

No Yes, with such force as is

necessary and reasonable in the circumstances297

Conducting an ordinary or frisk search of a person on or near the premises

No Yes, with such force as is

necessary and reasonable in the circumstances298

N/A N/A

Obtaining assistance and using necessary and reasonable force to execute a warrant.

N/A Yes. A constable may use

force against persons and things; a person assisting may only use force against things299

N/A Yes. A constable may use

force against persons and things; a person assisting may only use force against things300

Searching a recently used conveyance Yes, if the conveyance is on the premises to which entry has

been granted by consent of the occupier301

Yes, if the conveyance is on the premises, and with such force as is necessary and reasonable in the

Yes, if the subject of the control order has consented to the search303

Yes, with such force as is necessary and reasonable in the circumstances 304

294. Proposed subsections 3ZZKE(3) and (6) (offence). 295. Proposed subsections 3ZZKE(4) and (5) and proposed section 3ZZJD. 293. Proposed subsection 3ZZKE(2). 296. Proposed sections 3ZZKF and 3ZZKG (use of force). 297. Proposed sections 3ZZLC and 3ZZLD (use of force). 298. Proposed paragraph 3ZZKF(2)(d) and proposed section 3ZZKG (use of force). 299. Proposed section 3ZZKG. 300. Proposed section 3ZZLD. 301. Proposed paragraph 3ZZKB(a).

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Power Premises to which a person subject to a control order has a

‘prescribed connection’

Person subject to a control order

Without a warrant Under a warrant Without a warrant Under a warrant

circumstances 302

Power Premises to which a person subject to a control order has a

‘prescribed connection’

Person subject to a control order

Without a warrant Under a warrant Without a warrant Under a warrant

Entering premises Yes, if the subject of the

control order:

 is the occupier of the premises and

 has consented to the entry305

Yes306 N/A N/A

Searching the premises or person and anything on it or in possession of the person

Yes, if the subject of the control order:

 is the occupier of the premises and

has consented to the entry307

Yes, with such force as is necessary and reasonable in the circumstances308

Yes309 Yes, with such force as is

necessary and reasonable in the circumstances 310

Searching for and recording fingers prints

Yes311 Yes, with such force as is

necessary and reasonable

303. Proposed paragraph 3ZZLB(b). 304. Proposed paragraph 3ZZLB(b) and proposed section 3ZZLD (use of force). 302. Proposed paragraph 3ZZKB(a) and proposed section 3ZZKG (use of force). 305. Proposed section 3ZZKA (in particular, proposed paragraph 3ZZKA(2)(a)). 306. Proposed section 3ZZKA (in particular, proposed paragraph 3ZZKA(2)(b)). 307. Proposed section 3ZZKB and proposed subsections 3ZZKC(1) and (4) and 3ZZKD(2). 308. Proposed section 3ZZKB, proposed subsections 3ZZKC(1) and (4) and 3ZZKD(2) and proposed section 3ZZKG (use of force). 309. Proposed section 3ZZLA and proposed paragraph 3ZZLB(a). 310. Proposed section 3ZZLA, proposed paragraph 3ZZLB(a) and proposed section 3ZZLD (use of force). 311. Proposed paragraph 3ZZLB(c).

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Power Premises to which a person subject to a control order has a

‘prescribed connection’

Person subject to a control order

Without a warrant Under a warrant Without a warrant Under a warrant

in the circumstances 312

Inspecting, examining, taking measurements of, conducting tests or taking samples of things found at the premises or on the person

Yes (taking samples only)313

Yes (taking samples only)314

Examining or observing any activity conducted on the premises, making any still, moving image or recording of anything on the premises

N/A N/A

Inspect documents at the premises and taking extracts from or making copies of them

N/A N/A

Taking and equipment and material onto the premises as necessary to exercise a power

N/A N/A

Securing, and operating electronic equipment or data storage devices on the premises (including obtaining expert assistance)

N/A N/A

Asking for or requiring answers Yes. Can ask the subject of the Yes. Can require not only the No No

312. Proposed paragraph 3ZZLB(c) and proposed section 3ZZLD (use of force). 313. Proposed paragraph 3ZZLB(d). 314. Proposed paragraph 3ZZLB(d) and proposed section 3ZZLD (use of force).

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Power Premises to which a person subject to a control order has a

‘prescribed connection’

Person subject to a control order

Without a warrant Under a warrant Without a warrant Under a warrant

to questions and the production of documents control order to do so if:  he or she is the occupier of

the premises and

 he or she consented to the entry onto the premises315

subject of the control order, but any person on the premises to do so316 (subject to certain protections)317

Seizing evidential material, tainted property and seizable items

No Yes, with such force as is

necessary and reasonable in the circumstances318

No Yes, with such force as is

necessary and reasonable in the circumstances319

Conducting an ordinary or frisk search of a person on or near the premises

No Yes, with such force as is

necessary and reasonable in the circumstances320

N/A N/A

Obtaining assistance and using necessary and reasonable force to execute a warrant.

No Yes. A constable may use

force against persons and things; a person assisting may only use force against things.321

No Yes. A constable may use

force against persons and things; a person assisting may only use force against things.322

Searching a recently used conveyance Yes, if the conveyance is on the premises323

Yes, if the conveyance is on the premises, and with such Yes325 Yes, with such force as is

necessary and reasonable

315. Proposed subsection 3ZZKE(2). 316. Proposed subsections 3ZZKE(3) and (6) (offence). 317. Proposed subsections 3ZZKE(4) and (5) and proposed section 3ZZJD. 318. Proposed sections 3ZZKF and 3ZZKG (use of force). 319. Proposed sections 3ZZLC and 3ZZLD (use of force). 320. Proposed paragraph 3ZZKF(2)(d) and proposed section 3ZZKG (use of force). 321. Proposed section 3ZZKG. 322. Proposed section 3ZZLD. 323. Proposed paragraph 3ZZKB(a).

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Power Premises to which a person subject to a control order has a

‘prescribed connection’

Person subject to a control order

Without a warrant Under a warrant Without a warrant Under a warrant

force as is necessary and reasonable in the circumstances 324

in the circumstances 326

325. Proposed paragraph 3ZZLB(b). 324. Proposed paragraph 3ZZKB(a) and proposed section 3ZZKG (use of force). 326. Proposed paragraph 3ZZLB(b) and proposed section 3ZZLD (use of force).

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