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Counter-Terrorism Legislation Amendment (AFP Powers and Other Matters) Bill 2022



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ISSN 1328-8091

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BILLS DIGEST NO. 17, 2022-23 23 SEPTEMBER 2022

Counter-Terrorism Legislation Amendment (AFP Powers and Other Matters) Bill 2022 Dr Shannon Torrens Law and Bills Digest Section

Key points

• This Bill extends for 12 months (from 7 December 2022 until 7 December 2023) the sunsetting dates for stop, search and seizure powers, control orders and preventative detention orders.

• The Government believes that these powers are critical to support Australia’s counter-terrorism framework.

• The Parliamentary Joint Committee on Intelligence and Security (PJCIS) conducted a statutory review of these powers and presented its report in October 2021. The PJCIS recommended extending these powers until 2025, subject to certain amendments, including the introduction of additional safeguards.

• In order to respond to the PJCIS’s recommendations, as well as consult with states/territories and prepare draft legislation, the Government is seeking to extend the relevant sunsetting dates.

• Stakeholders, including the Law Council of Australia and the Australian Human Rights Commission, have previously raised concerns about extending these powers.

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Contents

Purpose of the Bill ........................................................... 3

Background ..................................................................... 3

Australia’s counter terrorism framework ................... 3 Key laws ..................................................................... 3

Key bodies ................................................................. 4

Parliamentary Joint Committee on Intelligence and Security review ..................................................... 5

Government response to the PJCIS Review .............. 6 Other reviews of Australia’s counter-terrorism laws.............................................................................. 7

Committee consideration ................................................ 8

Senate Standing Committee for Selection of Bills ...... 8 Senate Standing Committee for Scrutiny of Bills ........ 8 Policy position of non-government parties/independents...................................................... 8

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

Financial implications ...................................................... 9

Statement of Compatibility with Human Rights................ 9

Parliamentary Joint Committee on Human Rights ... 10 Key issues and provisions .............................................. 10

Stop, search and seizure powers .............................. 10

Control order regime ................................................ 11

Preventative detention order regime ....................... 12

Date introduced: 8 September 2022

House: House of Representatives

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 Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at September 2022.

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Purpose of the Bill The Counter-Terrorism Legislation Amendment (AFP Powers and Other Matters) Bill 2022 extends the following Australian Federal Police (AFP) counter-terrorism powers for 12 months:

• the stop, search, and seizure powers in Division 3A of Part IAA of the Crimes Act 1914 (Crimes Act)

• the control order regime in Division 104 of the Criminal Code Act 1995 (Criminal Code)

• the preventative detention order (PDO) regime in Division 105 of the Criminal Code.

These powers are currently scheduled to sunset on 7 December 2022 with the amendments in the Bill extending the operation of these provisions until 7 December 2023.

Background

Australia’s counter terrorism framework

Key laws Responsibility for the counter-terrorism laws of Australia is shared between the Attorney-General’s Department (AGD) and the Department of Home Affairs ( Home Affairs). Policy responsibility for most counter-terrorism laws lies with Home Affairs while the AGD has administrative responsibility.

These counter-terrorism laws focus on:

• terrorist act offences

• terrorist organisations

• preventing the financing of terrorism

• urging violence and advocating terrorism offences

• foreign incursions and recruitment offences

• control orders

• preventative detention orders.

Australia’s main terrorism laws are contained in Part 5.3 (terrorism) of the Criminal Code which were introduced after the 11 September 2001 terrorist attacks in the United States of America. Part 5.3 contains offences relating to terrorism, terrorist organisations and the financing of

terrorism.

Prominently, the Security Legislation Amendment (Terrorism) Act 2002 amended the Criminal Code and in doing so:

• defined a ‘terrorist act’

• introduced offences that criminalise acts involving the planning and committing of a terrorist act

• introduced offences that criminalise a person’s involvement or association with a terrorist organisation

• gave the Government the power to proscribe (list) an organisation as a terrorist organisation by way of regulation in limited circumstances.

Part 5.5 (foreign incursions and recruitment) of the Criminal Code prohibits individuals from engaging in hostile activity in a foreign country and from preparing to do so. Part 5.5 also prohibits individuals from intentionally entering or remaining in an area designated as a declared area by the Minister for Foreign Affairs.

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Part 5.1 (treason and related offences) also contains terrorist offences.

For the purposes of this Bill, the passage of the Anti-Terrorism Act (No. 2) 2005, following the July 2005 terrorist attacks in London, introduced Division 3A into the Crimes Act, and Divisions 104 and 105 into the Criminal Code.

Key bodies The Australian Federal Police (AFP) has responsibility for investigating and preventing crime including terrorism. On counter-terrorism measures, the AFP has said:

Counter Terrorism contributes to safeguarding Australia's national security, through a whole of government approach, facilitated by national and international cooperation, coordination and collaborative working arrangements.

Terrorism remains a major security challenge for Australia. In recent years, a number of plots have been disrupted by the coordinated efforts of Australia’s security and law enforcement agencies, as well as our international partners.

The AFP has further highlighted Australia’s multi-layered approach to counter-terrorism:

Australia’s national strategic approach to countering terrorism (prepare for, prevent, respond to and recover from a terrorist act) requires a multi-layered and collaborative approach based on strong relationships between governments, private industry, members of the community and international partners.

The Department of Foreign Affairs and Trade (DFAT) has said on Australia’s counter-terrorism strategy:

Underpinning Australia's fight against terrorism is Australia's Counter-Terrorism Strategy, which is based on partnerships between all levels of government, communities and the private sector.

The purpose of Australia’s counter-terrorism effort is to safeguard Australia, its people and its interests from the harms of terrorism and violent extremism. This will be achieved through:

1. countering violent extremism in all its forms by preventing radicalisation of individuals before an attack takes place, and rehabilitating and reintegrating violent extremist offenders

2. equipping our law enforcement, security intelligence and other operational agencies with the resources and powers to tackle terrorist threats

3. ensuring our counter-terrorism arrangements are resilient, collaborative, consistent and proportionate both nationally and internationally.

The Commonwealth Director of Public Prosecutions has outlined its work on counter-terrorism prosecutions:

Counter-terrorism prosecutions play an important part in deterring those who seek to cause harm to persons or property, with the intention of coercing or intimidating Australia or its people and advancing a political, religious or ideological cause.

There has been an increase in the number of counter terrorism prosecutions conducted by the CDPP since 2014. The matters prosecuted by the CDPP include domestic terrorism plots, matters in which support has been provided to international terrorist organisations and matters where the offender has engaged in, or prepared to engage in, hostile activity in a foreign country.

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Parliamentary Joint Committee on Intelligence and Security review As required under subparagraphs 29(1)(bb)(i) and (ii) of the Intelligence Services Act 2001, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) commenced a review of AFP powers, sp ecifically examining:

• Division 3A of Part IAA of the Crimes Act (police powers in relation to terrorism) and any other provision of the Crimes Act as it relates to that Division

• Divisions 104 and 105 of the Criminal Code (control orders and preventative detention orders in relation to terrorism) and any other provision of the Criminal Code as it relates to those Divisions.

The review was announced on 18 June 2020 and the examination into these two issues was due to be completed by 7 January 2021.

The scope of the review was then expanded in August 2020 to include:

• a review into the operation, effectiveness, and implications of Division 105A of the Criminal Code (continuing detention orders) and any other provision of that Code as far as it relates to that Division.

These three reviews were completed as one inquiry with the PJCIS presenting its report to Parliament in October 2021.

Upon the release of the report the PJCIS Chair Senator James Paterson said: ‘The committee has assessed the use and effectiveness of these powers and has found they will continue to provide law enforcement the tools they need to counter the threat of terrorism’.

The PJCIS recommended that the following powers be extended to 7 December 2025 (Recommendations 3, 7 and 14):

• stop, search and seizure powers under subsections 3UK(1), (2) and (3) of the Crimes Act

• control order regime under Division 104 of the Criminal Code

• preventative detention order regime in Division 105 of the Criminal Code.

Including these, 19 recommendations were made in the final report (pp. xiii-xvii):

• the amendment of Division 3A of the Crimes Act regarding notifications relating to declarations of a prescribed security zone (Recommendation 1)

• the amendment of the Crimes Act relating to matters that the Minister must consider before declaring a prescribed security zone (Recommendation 2)

• that the stop, search and seizure powers under the Crimes Act, subsections 3UK(1), (2) and (3) be extended to 7 December 2025 (Recommendation 3)

• that the Intelligence Services Act be extended to provide the PJCIS with the option to conduct a further review prior to the sunset date into Division 3A of Part IAA of the Crimes Act relating to the operation, effectiveness, and implications of the stop, search, and seizure powers (Recommendation 4)

• that the AGD consider the appropriateness of implementing a duty judge system for expedited applications for search warrants (Recommendation 5)

• that section 3UEA of the Crimes Act be amended to require any agency that enters premises relating to this section to obtain an ex post facto warrant as soon as possible (Recommendation 6)

• that the control order regime in Division 104 of the Criminal Code be extended to 7 December 2025 (Recommendation 7)

• that the definition of ‘issuing court’ in the Criminal Code be amended to only the Federal Court of Australia (Recommendation 8)

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• that section 29 of the Intelligence Services Act be amended to provide that the PJCIS may commence a review of Division 104 of the Criminal Code prior to the sunset of the provisions (Recommendation 9)

• that subsection 104.5(3) of the Criminal Code be amended to align the conditions that can be imposed as part of the control orders scheme with the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders Bill 2020) (Re commendation 10). Note that this Bill has since been enacted as the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2021

• that the Government review the range of conditions that could be imposed as part of a control order and report back to the PJCIS (Recommendation 11)

• that Division 104 of the Criminal Code be amended so that the AFP may provide conditions on control orders with the consent of both parties (Recommendation 12)

• that the AGD investigate the cost of providing legal aid for those subject to proceedings under Division 104 of the Criminal Code including continuing detention orders and control orders and provide a report to the PJCIS within 12 months of the tabling of the PJCIS’s report into AFP powers (Recommendation 13)

• that the preventative detention order regime in Division 105 of the Criminal Code be continued for a period of three years and sunset on 7 December 2025 (Recommendation 14)

• that Division 105 of the Criminal Code relating to issuing authorities be amended to remove: a member of the Administrative Appeals Tribunal (other than the AAT President or a Deputy President who also holds a commission as a Federal Court Judge); and a Judge of the Federal Circuit Court (Recommendation 15)

• that section 29 of the Intelligence Services Act be amended to provide that the Committee may commence a review of the provisions of Division 105 of the Criminal Code prior to the sunset date of the provisions (Recommendation 16)

• that section 29 of the Intelligence Services Act be amended to provide that the Committee may conduct a further review into the operation, effectiveness, and implications of the continuing detention order regime in Division 105A of the Criminal Code prior to the sunset date (Recommendation 17)

• that Home Affairs coordinates with relevant state and territory departments to source appropriate accommodations to facilitate interim and confirmed continuing detention orders (Recommendation 18)

• that the Criminal Code be amended to require public reporting requirements on the use and implementation of Division 105A (Recommendation 19).

Government response to the PJCIS Review The Government has not yet finalised its response to the report and has not fully implemented changes to support the recommendations which is why the Bill is seeking to extend the sunsetting dates for the relevant AFP counter-terrorism powers.

In his second reading speech on the Bill, the Attorney-General, Mark Dreyfus KC, justified the extension of the sunsetting dates, saying:

The Parliamentary Joint Committee on Intelligence and Security conducted a statutory review of these powers during the term of the last parliament and presented its report in October 2021. The committee unanimously supported the extension of the powers subject to certain amendments, including the introduction of additional safeguards.

The Attorney-General highlighted the need for additional time to consider the PJCIS’s recommendations:

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Due to the complexity of a number of the committee's proposed amendments, and the need to consult with states and territories in relation to any proposed amendments to part 5.3 of the Criminal Code Act 1995.

The Attorney-General stated that more time was needed to:

• finalise the Government's response to the Committee's report and each of its detailed recommendations

• draft legislation to implement the Government's response

• consult with, and obtain the agreement of, state and territory governments to draft legislation and

• introduce and secure passage of the legislation through the Parliament.

In terms of specific amendments, the Attorney-General said: ‘This bill would extend the relevant sunset dates by 12 months so that there is sufficient time to consult on, and then implement, the government's response to the committee's bipartisan recommendations over the coming months’.

The Bill’s Explanatory Memorandum (EM) argues that these powers are ‘critical’ in supporting Australia’s counter-terrorism framework and in ensuring that there are ‘appropriate tools to protect the community from terrorism risks.’ (p. 3)

The EM also notes that these amendments are made in response to Australia’s National Security Threat level being classified as ‘probable’, based on credible intelligence assessed by Australia’s security agencies that individuals and groups have the ‘intent and capability’ to commit terrorism in Australia (p. 3).

Other reviews of Australia’s counter-terrorism laws There have been several other reviews of Australia’s counter-terrorism laws which have focused on the powers the Bill is seeking to extend, notably by the Independent National Security Legislation Monitor (INSLM).

A primary function of INSLM is that the body, ‘independently reviews the operation, effectiveness and implications of national security and counter-terrorism laws; and considers whether the laws contain appropriate protections for individual rights, remain proportionate to terrorism or national security threats, and remain necessary’.

Three relevant reports by INSLM have been released on:

• Review of Division 3A of Part IAA of the Crimes Act: Stop, Search and Seize Powers (September 2017)

• Re view of Divisions 104 and 105 of the Criminal Code (including the Interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders ( September 2017)

• Sections 119.2 and 119.3 of the Criminal Code: Declared Areas (September 2017).

Also relevant is the Report of the Council of Australian Governments (COAG) Review of Counter-Terrorism Legislation. This review evaluated the operation, effectiveness and implications of key Commonwealth, state, and territory counter-terrorism laws. The Review Committee was chaired by Anthony Whealy KC and six members jointly chosen by the Prime Minister, state premiers and territory chief ministers.

COAG had tasked the Committee to review an extensive range of new and amended counter-terrorism legislation passed by the Commonwealth and state and territory Parliaments in 2005 following the London bombings.

The final report was released on 1 March 2013 and was tabled in Parliament on 14 May 2013 by the Attorney-General. There were 47 recommendations (see pp. x-xvi of the report) ranging from

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the definition of a terrorist act through to processing items connected with terrorist acts, the proscription of terrorist organisations, funding a terrorist organisation and associating with terrorist organisations.

The final report focused on the following recommendations in relation to topics of relevance to the Bill:

• control orders and issues (Recommendations 26-38)

• preventative detention (Recommendations 39-40)

• stop, search and seizure powers (Recommendations 43-47).

Committee consideration At the time of writing, the Bill has not been referred to a committee for inquiry.

Senate Standing Committee for Selection of Bills The Senate Standing Committee for the Selection of Bills has deferred consideration of this Bill until its next meeting (Re port no. 4 of 2022).

Senate Standing Committee for Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills has not considered the Bill at the time of writing.

Policy position of non-government parties/independents At the time of writing, non-government parties and independents have not commented publicly on the Bill.

Position of major interest groups The Australian Human Rights Commission (AHRC) has addressed the human rights implications of Australia’s counter-terrorism laws generally, noting:

Aspects of Australia’s counter-terrorism laws have been criticised for containing inadequate safeguards against potential human rights abuses.

Unlike the United Kingdom, Australia does not have a Charter of Rights. The Commission is concerned that some counter-terrorism laws (for example, ASIO’s powers to detain and question non-suspects) do not have adequate safeguards against abuse or to correct mistakes.

The AHRC has said that counter-terrorism laws ‘can have a profound impact on fundamental human rights and freedoms’ which include:

• the right to a fair trial

• the right to freedom from arbitrary detention and arrest

• the right not to be subject to torture

• the right to privacy

• the right to freedom of association and expression

• the right to non-discrimination

• the right to an effective remedy for a breach of human rights.

These rights are outlined in a number of core international human rights treaties to which Australia is a state party.

Regarding control orders, the AHRC has said:

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Criticisms of Australia’s control order scheme have focused on the lack of safeguards to ensure the restrictions imposed by control orders do not breach basic human rights, and the ex-parte nature of interim control order hearings.

The AHRC made a submission in 2020 to the PJCIS in relation to its review of AFP powers (discussed above). In doing so, the AHRC said in relation to the stop, search and seize powers:

If the PJCIS decides to recommend that the stop, search and seize powers continue, the Commission submits that they should continue to be viewed as temporary, emergency powers and subject to a further sunsetting period.

Further, in relation to control orders the AHRC said:

The Commission submits that if a control order regime is retained in some form, it should be more tightly targeted to people demonstrated to be a risk to the community. It should be limited to people who have been convicted of a terrorist offence and who would still present unacceptable risks to the community at the end of their sentence if they were free of all restraint upon release from imprisonment.

On the PDOs, the AHRC said:

On the basis of publicly available evidence, this is a clear example of a power that is not necessary. The Commission’s submission [concludes] … that in every case where relevant authorities have suggested a PDO might be used, there are alternative, less restrictive options available that are just as effective.

As part of its anti-terrorism reform project, the Law Council of Australia has consolidated previous advocacy it has undertaken with respect to Australia’s anti-terrorism laws, including over 50 separate submissions to Parliamentary inquiries, the Australian Law Reform Commission and other national and international bodies.

Key issues raised by the Law Council of relevance to this Bill include:

• terrorist offences in Part 5.3 of the Criminal Code

• extended search and seizure powers in Part 1AA, Division 3A of the Crimes Act

• control orders and preventative detention orders in Divisions 104 and 105 of the Criminal Code.

The Law Council provided a submission to the PJCIS in September 2020 to its review of the counter-terrorism powers of the AFP. The Law Council said:

For the reasons set out in this submission, the Law Council’s primary position is that, with the exception of certain powers under Division 3A of Part IAA of the Crimes Act, the powers under review are not necessary or proportionate responses to the threat of terrorism and should not be renewed beyond their sunset dates.

Alternatively, if some or all of these powers are to remain in force, the Law Council recommends several amendments to strengthen applicable safeguards, particularly in issuing thresholds and procedural requirements governing their execution. In addition, the Law Council’s recommendations (particularly with respect to CDOs) are intended to promote community safety by ensuring that offenders are rehabilitated.

Financial implications The EM states that the Bill ‘would have no financial impact on Government expenditure or revenue’ (p. 2).

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in

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the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible (see EM, p. 2).

While the Government believes that the Bill is compatible with human rights, the Explanatory Memorandum no tes that the Bill engages a range of rights including (pp. 3-4):

• the right to freedom from arbitrary detention and arrest, and the right to liberty and security of the person (International Covenant on Civil and Political Rights (ICCPR), Art 9)

• the right to freedom of movement (ICCPR, Art 12)

• the right to a fair trial, the right to minimum guarantees in criminal proceedings and the presumption of innocence (ICCPR, Art 14)

• the right to protection against arbitrary and unlawful interference with one’s privacy or home (ICCPR, Art 17)

• the right to freedom of expression (ICCPR, Art 19)

• the right to freedom of association (ICCPR, Art 22)

• the prohibition on cruel, inhuman or degrading treatment or punishment (ICCPR, Art 7; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Arts 2 and 16)

• the right of the child to have the child’s best interests as a primary consideration by the courts, administrative authorities or legislative bodies (Convention on the Rights of the Child (CRC), Art 3).

Parliamentary Joint Committee on Human Rights The Committee has not reported on the Bill at the time of writing.

Key issues and provisions The three primary amendments contained in the Bill are the extension of the current sunsetting provisions for a period of twelve months:

• Item 1 of the Bill amends the sunsetting provisions contained in subsections 3UK(1), (2) and (3) of the Crimes Act to extend the operation of the stop, search and seizure powers in Division 3A by omitting “7 December 2022” and substituting “7 December 2023”

• Item 2 of the Bill amends the sunsetting provisions contained in subsections 104.32(1) and (2) of the Criminal Code to extend the operation of the control order regime by omitting “7 December 2022” and substituting “7 December 2023”

• Item 3 of the Bill amends the sunsetting provisions contained in subsections 105.53(1) and (2) of the Criminal Code to extend the operation of the PDO regime by omitting “7 December 2022” and substituting “7 December 2023”.

The following section will outline the key features of the powers the Bill is seeking to extend.

Stop, search and seizure powers Pursuant to Division 3A of Part IAA of the Crimes Act, the Minister has the power to declare a ‘Commonwealth place’ to be a ‘prescribed security zone’ for the purpose of preventing a terrorist attack, or in response to a terrorist attack (subsection 3UJ(1)). When an area is declared as such, this gives police increased powers within that zone (see EM, p. 3).

Key elements of these powers include:

• a police officer pursuant to this Division can stop, question and search persons and seize items in a Commonwealth place without requiring a warrant to exercise these powers. This can be done if the police officer suspects on reasonable grounds that the person may have just

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committed, be committing or be about to commit, a terrorist act (paragraph 3UB(1)(a); see also EM, p. 4).

• a police officer can exercise these powers in a prescribed security zone even without reasonable grounds to believe that the person may have just committed, be committing or be about to commit a terrorist act (paragraph 3UB(1)(b)).

• further, a police officer can enter premises (even if the premises are not a Commonwealth place or prescribed security zone) if they suspect on reasonable grounds that it is necessary to search the premises for an item and to seize it if they find it there to prevent that item from being used in connection with a terrorism offence and it is necessary to do so without a search warrant because there is a serious and imminent threat to a person’s life, health or safety (section 3UEA).

The Government has noted that ‘Division 3A of the Crimes Act contains safeguards to ensure that police cannot exercise these powers in an arbitrary way’, which it has outlined in the EM (p. 5).

In its submission to the PJCIS review, the AFP noted that these powers have not been used since their introduction in December 2005 (p. 8).

Control order regime The control order regime in Division 104 of the Criminal Code allows an issuing court to impose obligations, prohibitions, and restrictions on a person for the purposes of (see EM, p. 6):

• protecting the public from a terrorist act

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

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

The Government has stated that the aim of these orders is to protect Australia’s national security interests and prevent terrorist acts (see EM, p. 7).

Key elements of the regime include (see EM, pp. 6-7):

• a senior member of the AFP can only apply to an issuing court for an interim control order subject to the written consent of the Minister (sections 104.2 and 104.3).

• the court can make the control order if it is satisfied on the balance of probabilities that the requirements of the Criminal Code have been met (paragraph 104.4(1)(c)) and that the order is ‘reasonably necessary, and reasonably appropriate and adapted’ to meet the purposes of the order (paragraph 104.4(1)(d)).

• the conditions that may be placed on a controlee are outlined in subsection 104.5(3) and include that the controlee must remain in Australia, at certain premises between certain hours and wear a tracking decide, restrictions on the use of communications and technology.

• an order must be confirmed by a court at least seven days after the control order is made (subsection 104.5(1A)). The court will consider the ongoing need for the control order and the conditions that are imposed.

• the control order can be granted for up to 12 months, or three months for a person between 14 and 17 years of age. There is a prohibition on making orders for people under 14 years of age (section 104.28).

The Government has stated that ‘the control order regime contains safeguards that ensure the regime is reasonable, necessary, and proportionate’ which include (see EM, pp. 7-8):

• the Minister must consent before an interim control order application is made (section 104.2)

• the control order must be issued by an independent judicial authority

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• the court must be satisfied each of the conditions imposed by the order are reasonably necessary and reasonably appropriate and adapted to achieving its purpose (paragraph 104.4(1)(d))

• the court must consider the impact of the conditions on a person’s circumstances (paragraph 104.4(2)(c))

• regarding persons between 14 and 17 years of age, a court must consider the best interests of the young person, the objects of the control order and the impact on the person’s circumstances (subsection 104.4(2))

• court must (aside from some exceptions) appoint a lawyer to act for a young person between 14 and 17 if the person has no lawyer (subsections 104.28(4) and (5))

• controlee may apply to vary an interim control order (section 104.11A)

• controlee may apply to vary, revoke, or declare void a control order (section 104.18)

• order can only last up to 12 months and only three months for young people (sections 104.5, 104.16 and 104.28)

• the Minister must table in Parliament an annual report about matters relating to the regime (section 104.29).

Preventative detention order regime Through a preventative detention order, an individual can be taken into custody. The individual can be detained for up to 24 hours for an initial order or up to 48 hours for a continued order. This is intended to prevent a terrorist act from occurring as well as to preserve evidence of, or relating to, a terrorist attack (see EM p. 3).

Key aspects of the PDO regime under Division 105 of the Criminal Code include (see EM, pp. 13- 14):

• Division 105 makes provision for initial PDOs and continued PDOs, with the maximum period a person can be detained being 48 hours.

• an initial PDO authorises detention for up to 24 hours and may be issued by a senior AFP member following an application from an AFP member (sections 105.7 and 105.80). An initial PDO can also be extended but the maximum period a person can be detained is 24 hours (section 105.10).

• a continued PDO authorises detention for up to 48 hours and can only be issued by an issuing authority following an application by an AFP member if it is considered reasonably necessary (sections 105.11 and 105.12).

• the issuing authority can be a judge of a state or territory Court, or a Judge of the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2). An issuing authority can also be someone who has previously served as a judge in a superior court for five years or a legal practitioner of at least five years standing who holds an appointment to the Administrative Appeals Tribunal as President or Deputy President (section 105.2).

• if the PDO is issued to prevent a terrorist attack, the AFP and the issuing authority must be satisfied that: (1) a terrorist act is capable of being carried out and could occur within the next 14 days, (2) the order would substantially assist in preventing the terrorist act from occurring, (3) detaining the person is reasonably necessary to prevent a terrorist act from occurring (subsections 105.4(4) and (5)).

• if the PDO is issued to preserve evidence of a terrorist act, the AFP and issuing authority must also be satisfied: (1) that the terrorist act occurred within the last 28 days, (2) that it is necessary to detain the person to preserve evidence of the act, (3) that detention is a reasonably necessary step in achieving this outcome (subsection 105.4(6)).

• following application by an AFP member, an issuing authority for the PDO may make a prohibited contact order in relation to a person’s detention under a PDO (section 105.14A).

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• a prohibited contact order can be sought to: (1) prevent serious harm to a person, (2) avoid a risk to action being taken to prevent the occurrence of a terrorist act, (3) or other risk (section 105.14A).

The Government has stated that the ‘PDO regime contains safeguards to ensure the regime is reasonable, necessary, and proportionate’, which include (EM, p. 14):

• there must be reasonable grounds to suspect the person subject to the PDO will engage in a terrorist act or possesses an object in relation to a terrorist act or has done an act in preparation for such an act (section 105.4).

• the issuing authority must be satisfied that it is reasonably necessary for the person to be detained (paragraph 105.4(6)(c)).

• a PDO can be refused if the AFP does not provide further information on the request of the issuing authority (subsection 105.4(7)).

• there is a prohibition on PDOs for people under 16 years of age (subsection 105.5(1)).

• if the individual under a PDO has inadequate knowledge of English or a disability which hinders communication, special assistance must be provided (section 105.5A).

• a subsequent PDO cannot be made if there is already one for the same period (section 105.6).

• a PDO can only be extended if it is deemed to be reasonably necessary by the issuing authority (section 105.10).

No Commonwealth PDOs have been issued since 2005 when the regime commenced which ‘reflects the policy intent that these orders should only be invoked only in limited circumstances’ (EM, p. 15).

In its submission to the PJCIS review, the AFP noted that ‘[t]he Joint Counter Terrorism Teams (JCTTs) have, however, relied on complementary State-based equivalent powers on four occasions in 2014 and 2015’ (p. 9). States and territories have enacted their own legislation allowing for the detention of a person for up to 14 days.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Counter-Terrorism Legislation Amendment (AFP Powers and Other Matters) Bill 2022 14

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