2022-2023

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

COUNTER-TERRORISM AND OTHER LEGISLATION AMENDMENT BILL 2023

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, the Hon Mark Dreyfus KC MP)

ABBREVIATIONS USED IN THE EXPLANATORY MEMORANDUM

2017 Review                            Independent National Security Legislation Monitor, Review of Division 3A of Part IAA of the Crimes Act 1914: Stop, Search and Seize Powers (Report 2017)

AAT                                         Administrative Appeals Tribunal

ADJR Act                                 Administrative Decisions (Judicial Review) Act 1977

AFP                                          Australian Federal Police

ASIO                                        Australian Security Intelligence Organisation

Bill, the                                     Counter-Terrorism and Other Legislation Amendment Bill 2023

CAT                                                       Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

CDO                                         Continuing detention order

CRC                                         Convention on the Rights of the Child

Crimes Act                               Crimes Act 1914

Criminal Code                          Criminal Code Act 1995

ESO                                          Extended supervision order

ICCPR                                                  International Covenant on Civil and Political Rights

INSLM                                     Independent National Security Legislation Monitor

PCO                                          Prohibited contact order

PDO                                         Preventative detention order

PJCIS                                        Parliamentary Joint Committee on Intelligence and Security

PJCIS AFP Powers Review     Parliamentary Joint Committee on Intelligence and Security, Review of police powers in relation to terrorism, the control order regime, the preventative detention order regime and the continuing detention order regime (Report 2021)

COUNTER-TERRORISM AND OTHER LEGISLATION AMENDMENT BILL 2023

GENERAL OUTLINE

1.                   The Bill would implement part of the Government response to the Parliamentary Joint Committee on Intelligence and Security’s (PJCIS) Review of police powers in relation to terrorism, the control order regime, the preventative detention order regime and the continuing detention order regime (PJCIS AFP Powers Review) [1] and facilitate consideration of criminal liability for non-disclosure duties as part of the Government’s response to the Review of Commonwealth Secrecy Provisions.

2.                   The Bill would amend the Crimes Act 1914 (Crimes Act) to:

·          Extend the operation of Division 3A of Part IAA of the Crimes Act (which provides for police powers in relation to terrorism) for a further three years to 7 December 2026.

·          Require the Minister to consider particular matters before declaring a ‘prescribed security zone’, including the reasonableness and proportionality of the impact of a declaration on the rights of persons in that location, the duration of the declaration, and the availability and effectiveness of any Commonwealth or State or Territory powers that would assist in preventing or responding to a terrorist act.

·          Require the Australian Federal Police (AFP) Commissioner to notify the Commonwealth Ombudsman, the Independent National Security Legislation Monitor (INSLM), and the PJCIS of any declaration of a ‘prescribed security zone’ as soon as practicable, but within 72 hours after the Minister has made the declaration.

·          Require the Minister to give the PJCIS a written statement of reasons in relation to the making of a declaration of a ‘prescribed security zone’ as soon as practicable after the declaration is made.

·          Require a police officer exercising powers under section 3UD, which allows police to stop and search for a terrorism-related item, to inform the person who is searched of their right to make a complaint to the Commonwealth Ombudsman or applicable State or Territory police oversight body or bodies, unless informing the person is not reasonably practicable due to circumstances of urgency.

3.                   The Bill would amend the Criminal Code Act 1995 (Criminal Code) to:

·          Extend the operation of the control order and preventative detention order (PDO) regimes in Divisions 104 and 105 respectively for a further three years to 7 December 2026.

·          Amend the definition of ‘issuing court’ in relation to control orders to include only the Federal Court of Australia.

·          Require an issuing court, before making an interim control order, to consider whether each of the conditions, and the combined effect of all the conditions imposed, are reasonably necessary, appropriate, and adapted for the purpose for which the order is issued.

·          Align the conditions that can be imposed as a part of a control order with those that can be imposed as part of an extended supervision order (ESO) - in other words, provide that a court can impose any conditions it considered appropriate so the control order can be better tailored to addressed the risk profile of the individual concerned. This would also include conditions from which the controlee may apply for a temporary exemption.

·          Introduce provisions that would enable the variation of a control order, including the addition of new conditions, by consent.

·          Limit the classes of persons who may be appointed as an issuing authority for PDOs to superior court judges only .

·          Require the AFP Minister to include information in their annual report under section 105A.22 on the detention arrangements that applied to terrorist offenders who were subject to a continuing detention order (CDO), rehabilitation or treatment programs made available to terrorist offenders subject to a post-sentence order, and funding for the administration of Division 105A during the year.

·          Extend the operation of section 122.4 (Unauthorised disclosure of information by current and former Commonwealth officers) by 12 months to 29 December 2024.

4.                   Australia’s current National Terrorism Threat Level is ‘possible’. [2] This means there is credible intelligence that, whilst Australia is a possible target of terrorists, there is limited intention or capability to conduct an attack. [3] In speaking about the threat level, the Director-General of the Australian Security Intelligence Organisation (ASIO) has noted that lowering the threat level does not mean that the threat of terrorism is extinguished, and that terrorism is an enduring and evolving threat. [4]

5.                   The amendments in this Bill would support Australia’s counter-terrorism framework, ensuring that the Government and agencies continue to have appropriate tools to protect the community from the risk of terrorism, and improve the operational effectiveness of, and safeguards that apply in relation to the use of, those tools.

Police powers in relation to terrorism (stop, search and seize powers)

6.                   Division 3A of Part IAA of the Crimes Act allows a police officer to stop, question and search persons, and seize items, in a Commonwealth place (such as an airport). These powers are exercised without a warrant. In order to exercise these powers, the police officer must suspect on reasonable grounds that the person may have just committed, might be committing, or might be about to commit, a terrorist act (paragraph 3UB(1)(a)).

7.                   A police officer may also exercise these powers in a ‘prescribed security zone’, without requiring any suspicion on reasonable grounds that the person may have just committed, might be committing, or might be about to commit, a terrorist act (paragraph 3UB(1)(b)).

8.                   The Minister can declare in writing a Commonwealth place to be a ‘prescribed security zone’ if they consider that the declaration would assist in preventing a terrorist act occurring, or in responding to a terrorist act (subsection 3UJ(1)).

9.                   Section 3UEA in Division 3A of the Crimes Act provides the power for a police officer to enter premises and search them for a thing, and seize the thing, if the police officer suspects on reasonable grounds that:

·          it is necessary to exercise a power in order to prevent the thing that is on the premises from being used in connection with a terrorism offence, and

·          it is necessary to exercise the power without the authority of a search warrant because there is a serious and imminent threat to a person’s life, health or safety.

10.               The application of section 3UEA of the Crimes Act is not limited to Commonwealth places or ‘prescribed security zones’.

11.               The police powers under Division 3A of Part IAA of the Crimes Act achieve the legitimate purpose of protecting Australia’s national security, including in particular, by preventing and responding to terrorist acts.

Extending the operation of Division 3A of Part IAA

12.               Division 3A of Part IAA of the Crimes Act will sunset on 7 December 2023. The Bill would extend the operation of the Division by a further three years, until 7 December 2026.

13.               In reviewing the operation, effectiveness and implications of Division 3A of Part IAA, the PJCIS found that these powers are an important part of Australia’s

counter-terrorism response framework. The PJCIS recognised that although the Division 3A powers have not been used since their introduction, there is a continued need for the powers. [5]

14.               In his 2017 Review of Division 3A of Part IAA of the Crimes Act 1914: Stop, Search and Seize Powers (2017 Review), the then INSLM, Dr James Renwick SC, also supported the ongoing utility and importance of these powers. The INSLM’s 2017 Review concluded that the police powers are consistent with Australia’s human rights, counter-terrorism and international security obligations, contain appropriate safeguards for protecting the rights of individuals, are proportionate to the current threats of terrorism and to national security, and are necessary. [6]

Prescribed Security Zones

15.               In line with the recommendations of the PJCIS AFP Powers Review, the Bill would require the Minister to consider, in deciding whether to declare a ‘prescribed security zone’, whether the impact of a declaration on the rights of persons in the Commonwealth place would be reasonable and proportionate; and have regard to the appropriate duration of the declaration.

16.               Where the ground giving rise to the proposed declaration relates to preventing a terrorist act from occurring, the Minister must consider the availability and effectiveness of any powers conferred by a law of the Commonwealth, State or Territory that would assist in preventing the terrorist act from occurring.

17.               Where the ground giving rise to the proposed declaration relates to responding to a terrorist act that has occurred, the Minister must consider the availability and effectiveness of any powers conferred by a law of the Commonwealth, State or Territory that would assist in responding to a terrorist act that has occurred.

18.               Where the declaration is one of a series of successive declarations in relation to the Commonwealth place, the Minister must also consider the impact and proportionality of successive declarations.

19.               The PJCIS indicated in its AFP Powers Review that a list of particular matters to consider could assist the Minister in considering whether to declare a ‘prescribed security zone’ and could also support agencies to quickly and effectively prepare advice for the Minister’s consideration.

20.               The Bill would also require the AFP Commissioner to notify the Commonwealth Ombudsman, the INSLM, and the PJCIS of any declaration of a ‘prescribed security zone’ as soon as practicable, and within 72 hours after the Minister has made the declaration. The notification would need to advise that the declaration has been made and identify the ‘prescribed security zone’. The Minister would also be required to give the PJCIS a written statement setting out the reasons for making the declaration as soon as practicable after the declaration is made. A failure to comply with these requirements would not make the declaration ineffective.

21.               These new requirements would assist the relevant oversight bodies in performing their critical monitoring and review functions in relation to the declaration of ‘prescribed security zones’ and the conduct of police therein.

Informing a person of a right to make a complaint

22.               The Bill would require a police officer exercising their powers under section 3UD to inform that person of their right to make a complaint about the conduct of the police officer in exercising the stop and search powers to the Commonwealth Ombudsman or State or Territory police oversight body, unless it is not reasonably practicable for the police officer to do so due to circumstances of urgency. This would ensure that persons whose rights have been affected by the purported exercise of section 3UD powers are empowered to request that the conduct of the police officer is investigated or reviewed by the body responsible for oversight of the relevant policing agency, in the event that the person considers that the powers were exercised inappropriately.

Control orders

23.               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:

·          protecting the public from a terrorist act

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

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

24.               The control order process consists of two stages: an interim control order and a confirmed control order.

25.               Subject to the written consent of the AFP Minister, a senior member of the AFP can apply to an issuing court for an interim control order. The issuing court may make the interim control order if it is satisfied, on the balance of probabilities, that the requirements outlined in paragraphs 104.4(1)(a) to 104.4(1)(c) of the Criminal Code have been met and that each of the obligations, prohibitions and restrictions imposed by the control order are reasonably necessary, and reasonably appropriate and adapted to meet the purposes set out above (paragraph 104.4(1)(d) of the Criminal Code).

26.               The Criminal Code provides a list of obligations, prohibitions and restrictions that may be imposed on a controlee. The current list includes a prohibition or restriction on the controlee being at specified areas or places, a prohibition or restriction on leaving Australia, a requirement that the controlee remain at specified premises between specified times of the day but no more than 12 hours within any 24 hour period, a requirement that the person wear a tracking device, and a prohibition or restriction on the person accessing or using specified forms of telecommunication or other technology (including the internet).

27.               An interim control order is subject to confirmation by the court as soon as practicable, but at least seven days after the interim control order is made (subsection 104.5(1A) of the Criminal Code). An interim control order is subject to a confirmation hearing where the issuing court considers the ongoing need for the control order and the obligations, prohibitions and restrictions imposed by the order. In determining whether to confirm the interim control order, the issuing court must consider the original request for the interim control order, and any evidence adduced and any submissions made by the parties to the proceeding. Following a confirmation hearing, the issuing court can confirm (with or without variation) the interim control order, revoke the interim control order, or declare the interim control order void.

28.               A control order can last up to 12 months (or three months if the person is aged between 14 and 17) from the day after the interim control order is made, and successive orders may be issued. A control order cannot be made in relation to a person who is under the age of 14.

29.               The control order regime achieves the legitimate objective of protecting Australia’s national security interests, including preventing terrorist acts. In the current threat environment, it is critical that law enforcement agencies have access to preventative powers such as control orders to proactively keep the Australian community safe.

30.               The control order regime contains safeguards that ensure the regime is reasonable, necessary and proportionate. These safeguards include the following:

·          The AFP Minister must consent to a senior AFP member making an interim control order application to an issuing court (section 104.2).

·          A control order can only be issued by an independent judicial authority.

·          The issuing court must be satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions imposed on the controlee are reasonably necessary, and reasonably appropriate and adapted to achieving the purpose of the control order (paragraph 104.4(1)(d)).

·          When the issuing court is considering whether each of the obligations, prohibitions and restrictions are reasonably necessary, and reasonably appropriate and adapted, the issuing court must consider the impact of the obligations, prohibitions and restrictions on the person’s circumstances, including the person’s financial and personal circumstances (paragraph 104.4(2)(c)).

·          When an issuing court is considering whether to impose obligations, prohibitions and restrictions on a young person between the age of 14 and 17, the issuing court must consider the best interests of the young person (as a primary consideration), the objects of the control order regime (as a paramount consideration), and the impact of the obligations, prohibitions and restrictions on the young person’s circumstances, including the young person’s financial and personal circumstances (as an additional consideration) (subsection 104.4(2)).

·          The issuing court must appoint a lawyer to act for a young person aged between the age of 14 and 17 in control order proceedings if the person does not have a lawyer acting for them, unless the proceedings are ex parte or if the person has previously refused a lawyer (subsections 104.28(4) and (5)).

·          The controlee may apply to vary or revoke a control order at any time after the order is served on them (section 104.18).

·          A control order can only last up to 12 months from the day the interim control order is made, and only three months in the case of young persons between the age of 14 and 17.

·          The AFP Minister must table in Parliament an annual report about matters relating to the operation of the regime, including the number of control orders made, confirmed, revoked, varied and declared void (section 104.29).

Extending the operation of the control order regime

31.               The control order regime in Division 104 of the Criminal Code will sunset on 7 December 2023. The Bill would extend the operation of the Division by a further three years, until 7 December 2026. This would ensure these powers do not sunset, in line with the recommendations of the PJCIS’s AFP Powers Review.

Issuing courts

32.               As noted above, one of the safeguards under the control order regime is that control orders can only be issued by an independent judicial authority. In line with the recommendations of the PJCIS AFP Powers Review, the Bill would amend the definition of ‘issuing court’ to include only the Federal Court of Australia, with the effect that the Federal Circuit and Family Court of Australia will no longer be able to issue control orders.

33.               Limiting the power to issue control orders to the Federal Court of Australia reflects the serious and extraordinary nature of those orders, and the Federal Court of Australia’s expertise in considering matters that involve a significant volume of evidence.

Aligning control order conditions with extended supervision conditions

34.               In line with recommendations made by the PJCIS in the AFP Powers Review, the Bill would align the control order conditions (currently termed ‘prohibitions, restrictions and obligations’) with the conditions that may be imposed under an ESO. Conditions available under existing Division 104 have been retained. Consistent with the ESO regime, the Bill would not limit the conditions that the issuing court may impose on a person, but rather, offer clarity about the types of conditions that may be appropriate to achieve the order’s purpose and which are enforceable by police. 

35.               These include conditions that: the controlee reside or not begin to reside at a premises without permission of the specified authority (that is, a police officer or any other person that the court is satisfied is appropriate in relation to the condition); that the controlee not leave the State or Territory in which their residence is located; that the controlee provide their passport to a specified authority; that the controlee not change their name or use another name not specified in the order; that the controlee not apply for certain travel documents or licences relating to the use of equipment, machinery or weapons; that the controlee not engage in specified work or classes or work; that the controlee not engage in any training or education without the approval of the specified authority; that the controlee allow the results of interviews and assessments undertaken in compliance with the orders to be provided to the specified authority; that the controlee comply with any reasonable direction given to the specified authority; that the controlee submit to testing in relation to possession or use of specified articles or substances; and that the controlee allow a specified authority to enter a specified premises and search the person, the premises and seize any items found during those searches. The Bill would set out requirements in relation to the treatment of photographs or an impression of fingerprints and monitoring devices, where conditions are included in a control order relating to these materials and devices.

36.               These conditions would enable police officers and other authorities specified in an order to effectively exercise powers (such as entry, search and seizure), where it is reasonably necessary to do so to give effect to the order or to ensure the safety and protection of the community.

37.               As part of aligning the control order regime with the ESO regime, the Bill would amend the control order regime to refer to ‘conditions’ rather than ‘obligations, prohibitions and restrictions’ to ensure consistency between the frameworks. The Bill would additionally provide that the combined effect of all the control order conditions should also be considered by the court in addition to the appropriateness of the individual conditions, as this will ensure that the totality of the conditions under control orders are appropriate in response to the controlee’s risk.

38.               The Bill would also enable the issuing court to include ‘exemption conditions’ in a control order - that is, conditions from which the offender may apply to a specified authority for a temporary exemption. This would provide more flexibility to support the day to day management of the offender subject to control orders.

Variations by consent

39.               The Bill would allow the AFP or the controlee to apply to a court to vary a control order or interim control order, including to add new conditions to the order, and allow the court to make the variation if it is appropriate in the circumstances. The application may be withdrawn at any time before the issuing court decides whether or not to vary the order.

40.               Variations by consent would be available for all controlees, in relation to interim and confirmed control orders. However, the Bill would include a requirement that, where the controlee is under 18 years of age, the court must consider the best interests of the child in determining whether each new or varied control order condition is appropriate, and that the child’s views must be taken into account for the purposes of determining what is in their best interests alongside the consent of a parent or guardian.

Preventative detention orders

41.               A PDO under Division 105 of the Criminal Code allows a person to be taken into custody for up to 48 hours for the purposes of either preventing a terrorist attack that is capable of being carried out, and could occur within the next 14 days, or preserving evidence of, or relating to, a recent terrorist act. There are two types of PDOs: initial PDOs, which can last up to 24 hours, and continued PDOs, which can extend detention by a further 24 hours.

42.               The key elements of the PDO regime are as follows:

·          A PDO has a limited duration, being a maximum of 48 hours with the requirement to seek the approval of an issuing authority for an extension beyond the initial 24 hours.

·          Where a PDO is issued for the purpose of preventing a terrorist act, the AFP applicant and the issuing authority must be satisfied of three matters: the terrorist act is capable of being carried out and could occur within the next 14 days, the making of the order would substantially assist in preventing a terrorist act occurring, and detaining the person is reasonably necessary to prevent a terrorist act occurring.

·          Where a PDO is issued for the purpose of preserving evidence of a terrorist act, the AFP member and issuing authority must be satisfied that the terrorist act has occurred within the last 28 days, that it is necessary to detain the person to preserve evidence of, or relating to the terrorist act, and that detention is a reasonably necessary step in achieving this outcome.

·          An AFP member may apply to an issuing authority for a continued PDO which may only be issued after fresh consideration of the merits of the application and the statutory criteria.

·          A prohibited contact order (PCO) may be sought where it is reasonably necessary to prevent serious harm to a person, to avoid a risk to action being taken to prevent the occurrence of a terrorist act, or to avoid other specified risks outlined in subsection 105.14A(4).

·          The key review mechanisms include: the detainee’s right to seek merits review of the decision to make or extend an order in the Security Division of the Administrative Appeals Tribunal (AAT), and the detainee’s right to bring proceedings in a court relating to the issuing of the order or their treatment in detention (both rights arise after the order expires).

43.               The PDO regime supports the legitimate objective of protecting Australia’s national security interests, including preventing terrorist acts. In recent years, there has been an increase in the threat of smaller-scale, opportunistic attacks by lone actors. Law enforcement agencies have had less time to respond to these kinds of terrorist threats than other terrorist plots. In these circumstances, PDOs are a proportionate and necessary measure that enable police to disrupt and respond to terrorist activity at an early stage.

44.               The PDO regime contains safeguards that ensure the regime is reasonable, necessary and proportionate. These safeguards include:

·          An issuing authority may only make a PDO if satisfied that there are reasonable grounds to suspect the person will engage in a terrorist act; or possesses a thing connected with the preparation for, or engagement of a person in, a terrorist act; or the person has done an act in preparation for, or planning, a terrorist act (section 105.4).

·          The issuing authority must be satisfied that it is reasonably necessary for the person to be detained under the order (section 105.4(6)(c)).

·          The issuing authority may refuse to make a PDO unless the AFP provides further information at the request of the issuing authority about the grounds on which the order is sought (section 105.4(7)).

·          A PDO cannot be applied for, or made, in relation to a person who is under 16 years of age (section 105.5(1)).

·          Special assistance must be provided to a person under a PDO if the police officer has reasonable grounds to believe that the person is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency (section 105.5A). This includes arranging for an interpreter and assisting the person to choose and contact a lawyer.

·          If a person is under an initial PDO, a subsequent one cannot be made for the same period to assist with preventing the same, or a different, terrorist act (section 105.6). This includes if a person is being detained under a corresponding State preventative detention law (subsections 105.6(4) - (6)).

·          An initial PDO can only be extended if the issuing authority is satisfied that detaining the person under the order for the period is reasonably necessary (section 105.10).

Extending the operation of the PDO regime

45.               The PDO regime in Division 105 of the Criminal Code will sunset on 7 December 2023. The Bill extends the operation of the Division by a further three years, until 7 December 2026, in line with the recommendation of the PJCIS’s AFP Powers Review. The PJCIS concluded that in light of the current national security threat environment the PDO powers should be extended, noting that non-use of the powers does not indicate a lack of usefulness.

Issuing authorities

46.               The Bill would limit the classes of persons who may be appointed as an issuing authority for PDOs to Judges of the Federal Court of Australia or the Supreme Court of a State or Territory only, in line with the recommendations of the PJCIS’s AFP Powers Review. Limiting the power to issue PDOs to judges of superior courts reflects the serious and extraordinary nature of those orders, and the significant volume and complexity of evidence that a court considers as part of these proceedings.

Post-sentence orders

47.               Section 105A.3 of the Criminal Code provides that a post-sentence order (a CDO or an ESO) may be made in relation to a person who has been convicted of an offence specified in paragraph 105A.3(1)(a) where the person is at least 18 years of age at the time their sentence ends, provided that one of the preconditions listed under section 105A.3A applies to that person.

48.               The CDO scheme enables the continued detention of eligible terrorist offenders after the conclusion of their custodial sentence. A State or Territory Supreme Court may impose a CDO if satisfied to a high degree of probability, based on admissible evidence, that the eligible offender poses an unacceptable risk of committing a serious terrorism offence. A decision to grant a CDO also requires the Court to be satisfied that no other less restrictive measure available under Part 5.3 of the Criminal Code would be effective in preventing the unacceptable risk to the community.

49.               The ESO scheme complements the CDO scheme by enabling the Court to make an ESO as a less restrictive alternative to a CDO. ESOs enable the Court to impose a broad range of conditions that can be tailored to address the specific circumstances and specific risk posed by an offender.

50.               The AFP Minister must, as soon as practicable after each 30 June, cause a report to be prepared about the operation of Division 105A during the year ended on that 30 June. The report must currently include specified statistical information relating to applications for, and the issuing, variation, revocation and reviews of, orders made under the Division.

Annual reporting

51.               Without limiting the existing requirement to report on the operation of the Division, the Bill would introduce additional mandatory reporting requirements in relation to the detention arrangements that applied to offender’s subject to a CDO during the relevant reporting period, the rehabilitation or treatment programs that were made available to offender’s subject to any post-sentence order during that period, and the funding for the administration of the Division during the period. Consistent with recommendation in the PJCIS’s AFP Powers Review, these requirements support transparency in relation to the use and implementation of Division 105A.

52.               The Bill would provide that the annual report is not to include this additional information where the information has been given to the Minister or an officer in the employ of the Commonwealth by a Minister, officer or employee of a State or Territory and that person has not consented to the inclusion of the information in the report. Where this consent requirement prevents reporting on certain information, the report must contain a statement acknowledging this.

53.               The Bill also makes several consequential amendments to other Commonwealth legislation, specifically:

·          Administrative Decisions (Judicial Review) Act 1997 (ADJR Act)

·          Australian Security Intelligence Act 1979 (ASIO Act), and

·          Crimes Act.

FINANCIAL IMPACT

54.               Nil.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Counter-Terrorism and Other Legislation Amendment Bill 2023

1.                   This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

2.                   The Bill would implement part of the Government response to the Parliamentary Joint Committee on Intelligence and Security’s (PJCIS) Review of police powers in relation to terrorism, the control order regime, the preventative detention order regime and the continuing detention order regime (PJCIS AFP Powers Review) [7] and facilitate Government and Parliamentary consideration of reform of Commonwealth secrecy provisions.

3.                   The Bill would amend the Crimes Act 1914 (Crimes Act) to:

·          Extend the operation of Division 3A of Part IAA of the Crimes Act (which provides for police powers in relation to terrorism) for a further three years to

7 December 2026.

·          Require the Minister to consider particular matters before declaring a ‘prescribed security zone’, including the reasonableness and proportionality of the impact of a declaration on the rights of persons in that location, the duration of the declaration, and the availability and effectiveness of any Commonwealth or State or Territory powers that would assist in preventing or responding to a terrorist act.

·          Require the Australian Federal Police (AFP) Commissioner to notify the Commonwealth Ombudsman, the Independent National Security Legislation Monitor (INSLM), and the PJCIS of any declaration of a ‘prescribed security zone’ as soon as practicable, but within 72 hours after the Minister has made the declaration.

·          Require the Minister to give the PJCIS a written statement of reasons in relation to the making of a declaration of a ‘prescribed security zone’ as soon as practicable after the declaration is made.

·          Require a police officer exercising powers under section 3UD, which allows police to stop and search for a terrorism-related item, to inform the person who is searched of their right to make a complaint to the Commonwealth Ombudsman or applicable State or Territory police oversight body or bodies, unless informing the person is not reasonably practicable due to circumstances of urgency.

4.                   The Bill would amend the Criminal Code Act 1995 (Criminal Code) to:

·          Extend the operation of the control order and preventative detention order (PDO) regimes in Divisions 104 and 105 respectively for a further three years to 7 December 2026.

·          Amend the definition of ‘issuing court’ in relation to control orders to include only the Federal Court of Australia.

·          Require an issuing court, before making an interim control order, to consider whether each of the conditions, and the combined effect of all the conditions imposed, are reasonably necessary, appropriate, and adapted for the purpose for which the order is issued.

·          Align the conditions that can be imposed as a part of a control order with those that can be imposed as part of an extended supervision order (ESO) - in other words, provide that a court can impose any conditions it considered appropriate so the control order can be better tailored to addressed the risk profile of the individual concerned. This would also include conditions from which the controlee may apply for a temporary exemption.

·          Introduce provisions that would enable the variation of a control order, including the addition of new conditions, by consent.

·          Limit the classes of persons who may be appointed as an issuing authority for PDOs to Judges of the Federal Court of Australia only.

·          Require the AFP Minister to include information in their annual report under section 105A.22 on the detention arrangements that applied to terrorist offenders who were subject to a continuing detention order (CDO), rehabilitation or treatment programs made available to terrorist offenders subject to a post-sentence order, and funding for the administration of Division 105A during the year.

·          Extend the operation of section 122.4 (Unauthorised disclosure of information by current and former Commonwealth officers etc.) by 12 months to 29 December 2024.

5.                   The Bill also makes several consequential amendments to other Commonwealth legislation, specifically:

·          Administrative Decisions (Judicial Review) Act 1997 (ADJR Act)

·          Australian Security Intelligence Act 1979 (ASIO Act), and

·          Crimes Act .

6.                   Australia’s current National Terrorism Threat Level is ‘possible’. [8] This means there is credible intelligence that, whilst Australia is a possible target of terrorists, there is limited intention or capability to conduct an attack. [9] In speaking about the threat level, the Director-General of Australian Security Intelligence Organisation (ASIO) has noted that lowering the threat level does not mean that the threat of terrorism is extinguished, and that terrorism is an enduring and evolving threat. [10]

7.                   The amendments in this Bill would support Australia’s counter-terrorism framework, ensuring that the Government and agencies continue to have the appropriate tools to protect the community from the risk of terrorism, and improve the operational effectiveness of, and safeguards that apply in relation to the use of, those tools.

Police powers in relation to terrorism (stop, search and seize powers)

8.                   Division 3A of Part IAA of the Crimes Act allows a police officer to stop, question and search persons, and seize items, in a Commonwealth place (such as an airport). These powers are exercised without a warrant. In order to exercise these powers, the police officer must suspect on reasonable grounds that the person may have just committed, might be committing, or might be about to commit, a terrorist act (paragraph 3UB(1)(a)).

9.                   A police officer may also exercise these powers in a ‘prescribed security zone’, without requiring any suspicion on reasonable grounds that the person may have just committed, might be committing, or might be about to commit, a terrorist act (paragraph 3UB(1)(b)).

10.               The Minister can declare in writing a Commonwealth place to be a ‘prescribed security zone’ if they consider that the declaration would assist in preventing a terrorist act occurring, or in responding to a terrorist act that has occurred (subsection 3UJ(1)).

11.               Section 3UEA in Division 3A of the Crimes Act provides the power for a police officer to enter premises and search them for a thing, and seize the thing, if the police officer suspects on reasonable grounds that:

·          it is necessary to exercise a power in order to prevent the thing that is on the premises from being used in connection with a terrorism offence, and

·          it is necessary to exercise the power without the authority of a search warrant because there is a serious and imminent threat to a person’s life, health or safety.

12.               The application of section 3UEA of the Crimes Act is not limited to Commonwealth places or ‘prescribed security zones’.

13.               The police powers under Division 3A of Part IAA of the Crimes Act achieve the legitimate purpose of protecting Australia’s national security, including in particular, by preventing and responding to terrorist acts.

Extending the operation of Division 3A of Part IAA

14.               Division 3A of Part IAA of the Crimes Act will sunset on 7 December 2023. The Bill would extend the operation of the Division by a further three years, until 7 December 2026.

15.               In reviewing the operation, effectiveness and implications of Division 3A of Part IAA, the PJCIS found that these powers are an important part of Australia’s

counter-terrorism response framework. The PJCIS recognised that although the Division 3A powers have not been used since their introduction, there is a continued need for the powers. [11]

16.               In his 2017 Review of Division 3A of Part IAA of the Crimes Act 1914: Stop, Search and Seize Powers , the then INSLM, Dr James Renwick SC, also supported the ongoing utility and importance of these powers. The INSLM’s 2017 Review concluded that the police powers are consistent with Australia’s human rights, counter-terrorism and international security obligations, contain appropriate safeguards for protecting the rights of individuals, are proportionate to the current threats of terrorism and to national security, and are necessary. [12]

Prescribed Security Zones

17.               In line with the recommendations of the PJCIS’s AFP Powers Review, the Bill would require the Minister to consider, in deciding whether to declare a ‘prescribed security zone’, whether the impact of a declaration on the rights of persons in the Commonwealth place would be reasonable and proportionate; and have regard to the appropriate duration of the declaration.

18.               Where the ground giving rise to the proposed declaration relates to preventing a terrorist act from occurring, the Minister must consider the availability and effectiveness of any powers conferred by a law of the Commonwealth, State or Territory that would assist in preventing the terrorist act from occurring.

19.               Where the ground giving rise to the proposed declaration relates to responding to a terrorist act that has occurred, the Minister must consider the availability and effectiveness of any powers conferred by a law of the Commonwealth, State or Territory that would assist in responding to a terrorist act that has occurred.

20.               Where the declaration is one of a series of successive declarations in relation to the Commonwealth place, the Minister must also consider the impact and proportionality of successive declarations.

21.               The PJCIS indicated in its AFP Powers Review that a list of particular matters to consider could assist the Minister in considering whether to declare a prescribed security zone and could also support agencies to quickly and effectively prepare advice for the Minister’s consideration.

22.               The Bill would also require the AFP Commissioner to notify the Commonwealth Ombudsman, the INSLM, and the PJCIS of any declaration of a ‘prescribed security zone’ as soon as practicable, and within 72 hours after the Minister has made the declaration. The notification would need to advise that the declaration has been made and identify the ‘prescribed security zone’. The Minister would also be required to give the PJCIS a written statement setting out the reasons for making the declaration as soon as practicable after the declaration is made. A failure to comply with these requirements would not make the declaration ineffective.

23.               These new requirements would assist the relevant oversight bodies in performing their critical monitoring and review functions in relation to the declaration of ‘prescribed security zones’ and the conduct of police therein.

Informing a person of a right to make a complaint

24.               The Bill would require a police officer exercising their powers under section 3UD, to inform that person of their right to make a complaint about the conduct of the police officer in exercising their stop and search powers to the Commonwealth Ombudsman or State or Territory police oversight body, unless it is not reasonably practicable for the police officer to do so due to circumstances of urgency. This would ensure that persons whose rights have been affected by the purported exercise of section 3UD powers are empowered to request that the conduct of the police officer is investigated or reviewed by the body responsible for oversight of the relevant policing agency, in the event that the person considers that the powers were exercised inappropriately.

Control orders

25.               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:

·          protecting the public from a terrorist act

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

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

26.               The control order process consists of two stages: an interim control order and a confirmed control order.

27.               Subject to the written consent of the AFP Minister, a senior member of the AFP can apply to an issuing court for an interim control order. The issuing court may make the interim control order if it is satisfied, on the balance of probabilities, that the requirements outlined in paragraphs 104.4(1)(a) to 104.4(1)(c) of the Criminal Code have been met and that each of the obligations, prohibitions and restrictions imposed by the control order are reasonably necessary, and reasonably appropriate and adapted to meet the purposes set out above (paragraph 104.4(1)(d) of the Criminal Code).

28.               The Criminal Code provides a list of obligations, prohibitions and restrictions that may be imposed on a controlee. The current list includes a prohibition or restriction on the controlee being at specified areas or places, a prohibition or restriction on leaving Australia, a requirement that the controlee remain at specified premises between specified times of the day but no more than 12 hours within any 24 hour period, a requirement that the person wear a tracking device, and a prohibition or restriction on the person accessing or using specified forms of telecommunication or other technology (including the internet).

29.               An interim control order is subject to confirmation by the court as soon as practicable, but at least seven days after the interim control order is made (subsection 104.5(1A) of the Criminal Code). An interim control order is subject to a confirmation hearing where the issuing court considers the ongoing need for the control order and the obligations, prohibitions and restrictions imposed by the order. In determining whether to confirm the interim control order, the issuing court must consider the original request for the interim control order, and any evidence adduced and any submissions made by the parties to the proceeding. Following a confirmation hearing, the issuing court can confirm (with or without variation) the interim control order, revoke the interim control order, or declare the interim control order void.

30.               A control order can last up to 12 months (or three months if the person is aged between 14 and 17 years) from the day after the interim control order is made, and successive orders may be issued. A control order cannot be made in relation to a person who is under the age of 14.

31.               The control order regime achieves the legitimate objective of protecting Australia’s national security interests, including preventing terrorist acts. In the current threat environment, it is critical that law enforcement agencies have access to preventative powers such as control orders to proactively keep the Australian community safe.

32.               The control order regime contains safeguards that ensure the regime is reasonable, necessary and proportionate. These safeguards include the following:

·          The AFP Minister must consent to a senior AFP member making an interim control order application to an issuing court (section 104.2).

·          A control order can only be issued by an independent judicial authority.

·          The issuing court must be satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions imposed on the controlee are reasonably necessary, and reasonably appropriate and adapted to achieving the purpose of the control order (paragraph 104.4(2)(d)).

·          When the issuing court is considering whether each of the obligations, prohibitions and restrictions are reasonably necessary, and reasonably appropriate and adapted, the issuing court must consider the impact of the obligations, prohibitions and restrictions on the person’s circumstances (including the person’s financial and personal circumstances) (paragraph 104.4(2)(c)).

·          When an issuing court is considering imposing obligations, prohibitions and restrictions on a young person between the age of 14 and 17, the issuing court must consider the best interests of the young person (as a primary consideration), the objects of the control order regime (as a paramount consideration), and the impact of the obligations, prohibitions and restrictions on the young person’s circumstances, including the young person’s financial and personal circumstances (as an additional consideration) (subsection 104.4(2)).

·          The issuing court must appoint a lawyer to act for a young person aged between the age of 14 and 17 in control order proceedings if the person does not have a lawyer acting for them, unless the proceedings are ex parte or if the person has previously refused a lawyer (subsections 104.28(4) and (5)).

·          The controlee may apply to vary or revoke a control order at any time after the order is served on them (section 104.18).

·          A control order can only last up to 12 months from the day the interim control order is made, and only three months in the case of young persons between the age of 14 and 17,

·          The AFP Minister must table in Parliament an annual report about matters relating to the operation of the regime, including outlining the number of control orders made, confirmed, revoked, varied and declared void (section 104.29).

Extending the operation of the control order regime

33.               The control order regime in Division 104 of the Criminal Code will sunset on 7 December 2023. The Bill would extend the operation of the division by a further three years, until 7 December 2026. This would ensure these powers do not sunset, in line with the recommendations of the PJCIS’s AFP Powers Review.

Issuing courts

34.               As noted above, one of the safeguards under the control order regime is that control orders can only be issued by an independent judicial authority. In line with the recommendations of the PJCIS’s AFP Powers Review, the Bill would amend the definition of ‘issuing court’ to include only the Federal Court of Australia, with the effect that the Federal Circuit and Family Court of Australia will no longer be able to issue control orders.

35.               Limiting the power to issue control orders to the Federal Court of Australia reflects the serious and extraordinary nature of those orders, and the Federal Court of Australia’s expertise in considering matters that involve a significant volume of evidence.

Aligning control order conditions with extended supervision conditions

36.               In line with recommendations made in the PJCIS’s AFP Powers Review, the Bill would align the control order conditions (currently termed ‘prohibitions, restrictions and obligations’) with ESO conditions. Conditions available under existing Division 104 have been retained. The Bill would not limit the conditions that the issuing court may impose on a person, but rather, offer clarity about the types of conditions that may be appropriate to achieve the order’s purpose and which are enforceable by police. 

37.               These include conditions that: the controlee reside or not begin to reside at a premises without permission of the specified authority (that is, a police officer or any other person that the court is satisfied is appropriate in relation to the condition); that the controlee not leave the State or Territory in which their residence is located; that the controlee provide their passport to a specified authority; that the controlee not change their name or use another name not specified in the order; that the controlee not apply for certain travel documents or licences relating to the use of equipment, machinery or weapons; that the controlee not engage in specified work or classes or work; that the controlee not engage in any training or education without the approval of the specified authority; that the controlee allow the results of interviews and assessments undertaken in compliance with the orders to be provided to the specified authority; that the controlee comply with any reasonable direction given to the specified authority; that the controlee submit to testing in relation to possession or use of specified articles or substances; that the controlee allow a specified authority to enter a specified premises and search the person, the premises and seize any items found during those searches. The Bill would set out requirements in relation to the treatment of photographs or an impression of fingerprints and monitoring devices where conditions are included in a control order relating these materials and devices.

38.               These conditions would enable police officers and other authorities specified in an order to effectively exercise powers (such as entry, search and seizure), where it is reasonably necessary to do so to give effect to the order or to ensure the safety and protection of the community.

39.               As part of aligning the control order regime with the ESO regime, the Bill would amend the control order regime to refer to ‘conditions’ rather that ‘obligations, prohibitions and restrictions’ to ensure consistency between the frameworks. The Bill would additionally provide that the combined effect of all the conditions of control orders should also be considered by the court in addition to the appropriateness of the individual conditions, as this will ensure that the totality of the conditions under control orders are appropriate in response to the controlee’s risk.

40.               The Bill would also enable the issuing court to include ‘exemption conditions’ in a control order - that is, conditions from which the offender may apply to a specified authority for a temporary exemption. This would to provide more flexibility to support the day to day management of the offender subject to control orders.

Variations by consent

41.               The Bill would allow the AFP or the controlee to apply to a court to vary a confirmed control order or interim control order, including to add new conditions to the order, and allow the court to make the variation if is appropriate in the circumstances. The application may be withdrawn at any time before the issuing court decides whether or not to vary the order.

42.               Variations by consent would be available for all controlees, in relation to interim and confirmed control orders. However, the Bill would include a requirement that, where the controlee is under 18 years of age, the court must consider the best interests of the child in determining whether each new or varied control order condition is appropriate, and that the child’s views must be taken into account for the purposes of determining what is in their best interests alongside the consent of a parent or guardian.

Preventative detention orders

43.               A preventative detention order (PDO) under Division 105 of the Criminal Code allows a person to be taken into custody for up to 48 hours for the purposes of either preventing a terrorist attack that is capable of being carried out, and could occur within the next 14 days, or preserving evidence of, or relating to, a recent terrorist act. There are two types of PDOs: initial PDOs, which can last up to 24 hours, and continued PDOs, which can extend detention by a further 24 hours.

44.               The key elements of the PDO regime are as follows:

·          A PDO has a limited duration, being a maximum of 48 hours with the requirement to seek the approval of an issuing authority for an extension beyond the initial 24 hours.

·          Where a PDO is issued for the purpose of preventing a terrorist act, the AFP applicant and the issuing authority must be satisfied of three matters: the terrorist act is capable of being carried out and could occur within the next 14 days, the making of the order would substantially assist in preventing a terrorist act occurring, and detaining the person is reasonably necessary to prevent a terrorist act occurring.

·          Where a PDO is issued for the purpose of preserving evidence of a terrorist act, the AFP member and issuing authority must be satisfied that the terrorist act has occurred within the last 28 days, that it is necessary to detain the person to preserve evidence of, or relating to the terrorist act, and that detention is a reasonably necessary step in achieving this outcome.

·          An AFP member may apply to an issuing authority for a continued PDO which may only be issued after fresh consideration of the merits of the application and the statutory criteria.

·          A prohibited contact order (PCO) may be sought where it is reasonably necessary to prevent serious harm to a person, to avoid a risk to action being taken to prevent the occurrence of a terrorist act, or to avoid other specified risks outlined in subsection 105.14A(4).

·          The key review mechanisms include: the detainee’s right to seek merits review of the decision to make or extend an order in the Security Appeals Division of the Administrative Appeals Tribunal (AAT), and the detainee’s right to bring proceedings in a court relating to the issuing of the order or their treatment in detention (both rights arise after the order expires).

45.               The PDO regime supports the legitimate objective of protecting Australia’s national security interests, including preventing terrorist acts. In recent years, there has been an increase in the threat of smaller-scale, opportunistic attacks by lone actors. Law enforcement agencies have had less time to respond to these kinds of terrorist threats than other terrorist plots. In these circumstances, PDOs are a proportionate and necessary measure that enable police to disrupt and respond to terrorist activity at an early stage.

46.               The PDO regime contains safeguards that ensure the regime is reasonable, necessary and proportionate. These safeguards include:

·          An issuing authority may only make a PDO if satisfied that there are reasonable grounds to suspect the person will engage in a terrorist act, or possesses a thing connected with the preparation for, or engagement of a person in, a terrorist act, or the person has done an act in preparation for, or planning, a terrorist act (section 105.4).

·          The issuing authority must be satisfied that it is reasonably necessary for the person to be detained under the order (section 105.4(6)(c)).

·          The issuing authority may refuse to make a PDO unless the AFP provides further information at the request of the issuing authority about the grounds on which the order is sought (section 105.4(7)).

·          A PDO cannot be applied for, or made, in relation to a person who is under 16 years of age (section 105.5(1)).

·          Special assistance must be provided to a person under a PDO if the police officer has reasonable grounds to believe that the person is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency (section 105.5A). This includes arranging for an interpreter and assisting the person to choose and contact a lawyer.

·          If a person is under an initial PDO, a subsequent one cannot be made for the same period to assist with preventing the same, or a different, terrorist act (section 105.6), this includes if a person is being detained under a corresponding State preventative detention law (sub-sections 105.6(4) - (6)).

·          An initial PDO can only be extended if the issuing authority is satisfied that detaining the person under the order for the period is reasonably necessary (section 105.10).

Extending the operation of the PDO regime

47.               The PDO regime in Division 105 of the Criminal Code will sunset on 7 December 2023. The Bill extends the operation of the Division by a further three years, until 7 December 2026, in line with the recommendation of the PJCIS AFP Powers Review. The PJCIS concluded that in light of the current national security threat environment the PDO powers should be extended, noting that non-use of the powers does not indicate a lack of usefulness.

Issuing authorities

48.               The Bill would limit the classes of persons who may be appointed as an issuing authority for PDOs to Judges of the Federal Court of Australia or the Supreme Court of a State or Territory only, in line with the recommendations of the PJCIS’s Review of AFP Powers. Limiting the power to issue PDOs to judges of superior courts reflects the serious and extraordinary nature of those orders, and the significant volume and complexity of evidence that a court considers as part of these proceedings.

Post-sentence orders

49.               Section 105A.3 of the Criminal Code provides that a post-sentence order (a CDO or an ESO) may be made in relation to a person who has been convicted of an offence specified in paragraph 105A.3(1)(a) where the person is at least 18 years of age at the time their sentence ends, and provided that one of the preconditions listed under section 105A.3A applies to that person.

50.               The CDO scheme enables the continued detention of eligible terrorist offenders after the conclusion of their custodial sentence. A State or Territory Supreme Court may impose a CDO if satisfied to a high degree of probability, based on admissible evidence, that the eligible offender poses an unacceptable risk of committing a serious terrorism offence. A decision to grant a CDO also requires the Court to be satisfied that no other less restrictive measure available under Part 5.3 of the Criminal Code would be effective in preventing the unacceptable risk to the community.

51.               The ESO scheme complements the CDO scheme by enabling the Court to make an ESO as a less restrictive alternative to a CDO. ESOs enable the Court to impose a broad range of conditions that can be tailored to address the specific circumstances and specific risk posed by an offender.

52.               The AFP Minister must, as soon as practicable after each 30 June, cause a report to be prepared about the operation of Division 105A during the year ended on that 30 June. The report must currently include specified statistical information relating to applications for, and the issuing, variation, revocation and reviews of, orders made under the division.

Annual reporting

53.               Without limiting the existing requirement to report on the operation of the Division, the Bill would introduce additional mandatory reporting requirements in relation to the detention arrangements that applied to offender’s subject to a CDO during the relevant reporting period, the rehabilitation or treatment programs that we made available to offender’s subject to any post-sentence order during that period, and the funding for the administration of the Division during the period. Consistent with recommendation in the PJCIS’s AFP Powers Review, these requirements support transparency in relation to the use and implementation of Division 105A.

54.               The Bill would provide that the annual report is not to include this additional information where the information has been given to the Minister or an officer in the employ of the Commonwealth by a Minister, officer or employee of a State or Territory and that person has not consented to the inclusion of the information in the report. Where this consent requirement prevents reporting on certain information, the report must contain a statement acknowledging this.

Extension of sunsetting date of section 122.4 of the Criminal Code

55.               The Bill would amend section 122.4 to extend the sunsetting date of this section by 12 months to 29 December 2024.

56.               Section 122.4 creates an offence where: a person communicates information; the person made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; the person is under a duty not to disclose the information; and the duty arises under a law of the Commonwealth. At present, approximately 296 non-disclosure duties enliven the offence in section 122.4.

57.               Criminal liability for a breach these duties would be maintained while each duty is being reviewed through the Commonwealth Review of Secrecy Provisions, which will provide advice to Government by 31 August 2023 on whether each duty should be converted into a stand-alone specific secrecy offence, or whether criminal liability should be removed.

Human rights implications

58.               The Bill engages the following rights:

·          the right to protection against being subjected to torture or to cruel, inhuman or degrading treatment or punishment in Article 7 of the International Covenant on Civil and Political Rights (ICCPR)

·          the right to security of the person in Article 9 of the ICCPR

·          the right to freedom from arbitrary detention and arrest, and the right to liberty in Article 9 of the ICCPR

·          the right to freedom of movement in Article 12 of the ICCPR

·          the right to a fair trial, the right to minimum guarantees in criminal proceedings and the presumption of innocence in Article 14 of the ICCPR

·          the right to protection against arbitrary and unlawful interference with one’s privacy or home in Article 17 of the ICCPR

·          the right to freedom of expression in Article 19 and the right to freedom of association in Article 22 of the ICCPR, and

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

The right to protection against being subjected to torture or to cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR

59.               Article 7 of the ICCPR provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. For an act to be prohibited as torture, it must involve severe pain and suffering, it must be intentionally inflicted, and it must be inflicted for a purpose referred to in the definition in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). While the requirement that the perpetrator be a public official or a person acting in an official capacity is contained in CAT, it is not contained in the ICCPR. Conduct not meeting the threshold of torture may be regarded as cruel, inhuman or degrading treatment or punishment.

60.               As a party to CAT, Australia is obliged to take effective legislative, administrative, judicial and other measures to prevent acts of torture in any territory under its jurisdiction. Australia is also obliged to prevent conduct not meeting the threshold for torture but that may be regarded as other acts of cruel, inhuman or degrading treatment or punishment in any territory under its jurisdiction. Accordingly, no legislation, policy or program should permit the infliction of torture or cruel, inhuman or degrading treatment or punishment.

61.               In addition to extending the operation of police officers’ emergency powers in Division 3A of Part IAA of the Crimes Act, the Bill would also extend the corresponding safeguards that promote the right to protection against being subjected to torture or to cruel, inhuman or degrading treatment or punishment. For example, a police officer may only conduct one of four searches for terrorism-related items prescribed at subparagraphs 3UD(1)(b)(i) to (iv), which includes an ordinary search (requiring the person to remove their overcoat, coat or jacket and any gloves, shoes and hat) or a frisk search (a search of a person conducted by quickly running the hands over the person's outer garments). Strict conditions are imposed on searches under section 3UD, including that a police officer who conducts a search of a person must not use more force, or subject the person to greater indignity than is reasonable and necessary in order to conduct the search (subsection 3UD(2)) and that a person must not be detained for longer than is reasonably necessary for a search to be conducted (subsection 3UD(3)).

62.               Similarly, the amended control order and PDO regimes do not perpetuate torture or cruel, inhuman or degrading treatment or punishment. The control order regime, as would be amended by this Bill, exists to enable courts to impose conditions on a person that are reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act (new subparagraph 104.4(1)(d)(iii)), or preventing the provision of support for or the facilitation of a terrorist act (new subparagraph 104.4(1)(d)(iv)), or preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country (new subparagraph 104.4(1)(d)(v)). The relevant conditions a court may impose upon a person would concern their movement, travel and residence, including curfews; travel documents, licenses and changes to or use of different names; communication and the use of technology; possession of specified articles or substances; employment, training, education and other activities, including recreational activities and treatment, rehabilitation and intervention programs or activities; and participation in interviews and assessments and the provision of information, including the sharing of information about them. The PDO regime exists to prevent terrorist attacks that are capable of being carried out, and could occur within the next 14 days, or preserve evidence of, or relating to, recent terrorist acts (section 105.1). It enables a person to be taken into custody and detained for a short period of time for these purposes.

63.               Both regimes are subject to important safeguards to ensure that torture or cruel, inhuman or degrading treatment or punishment would not be imposed upon a person, including:

·          For the control order regime - control orders are considered by judges and prior to such orders being issued, the court must be satisfied on the balance of probabilities that each of the conditions, and the combined effect of all the conditions, to be imposed in a control order are reasonably necessary, and reasonably appropriate and adapted for the intended purpose of the regime.

·          For the PDO regime - section 105.33 requires that a person being taken into custody, or being detained, under a PDO must, amongst other things, not be subjected to cruel, inhuman or degrading treatment by anyone exercising authority under the order or implementing or enforcing the order.

The right to security of the person in Article 9 of the ICCPR

64.               The right to security of the person in Article 9 of the ICCPR requires States to provide reasonable and appropriate measures to protect a person’s physical security, particularly where the Government knows or ought to know of the existence of a real and imminent risk.

65.               The Bill promotes the right to security of the person by extending by three years the operation of police officers’ emergency powers in Division 3A of Part IAA of the Crimes Act to respond to real and imminent risks by permitting them to stop, question and search persons, and seize items, in Commonwealth places (such as airports) where they suspect on reasonable grounds that a person may have just committed, might be committing, or might be about to commit, a terrorist act (paragraph 3UB(1)(a)). A police officer may also exercise these emergency powers in a ‘prescribed security zone’ (paragraph 3UB(1)(b)), being a Commonwealth place declared as such a zone by the Minister they consider that a declaration would assist in preventing a terrorist act from occurring or in responding to a terrorist act that has occurred (subsection 3UJ(1)).

66.               If the emergency power powers in Division 3A of Part IAA of the Crimes Act are extended, police officers will continue to be able to provide security to the community by having the authority to enter premises (not limited to Commonwealth places or ‘prescribed security zones’) if the police officer suspects on reasonable grounds that it is necessary to search the premises for a thing, and to seize the thing if they find it there, in order to prevent it from being used in connection with a terrorism offence, and it is necessary to exercise the power without the authority of a search warrant because there is a serious and imminent threat to a person’s life, health or safety (section 3UEA).

67.               The Bill also promotes the right to security of the person by protecting the community from a terrorist act, preventing the provision of support for or facilitation of a terrorist act and preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country. The Bill is aimed at a cohort of persons who pose a risk to the security of persons by carrying out or facilitating terrorist acts or engaging in hostile activity in a foreign country.

68.               Extending the operation of Division 104 and 105 for another three years enables the court to, respectively, impose control orders tailored to the specific threat posed by an individual or detain an individual for a short period of time to prevent a terrorist act or preserve evidence of a recent terrorist act. The reforms in the Bill would enhance the control order regime in this regard by:

·          Allowing a court to impose any conditions that the court is satisfied are reasonably necessary, and reasonably appropriate and adapted for protecting the community 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 engagement in a hostile activity in a foreign country as part of a control order.

·          Allowing control order conditions to be varied by consent. The flexibility afforded by consensual variations supports and encourages compliance of controlees with their orders, by allowing them to appropriately adapt conditions to their life circumstances.

The right to freedom from arbitrary detention and arrest, and the right to liberty in Article 9 of the ICCPR

69.               Article 9 of the ICCPR provides that no-one shall be subjected to arbitrary arrest or detention or deprived of their liberty except on such grounds and in accordance with such procedure as are established by law.

70.               Article 9 regulates, rather than prohibits, detention. Only detention that is ‘arbitrary’ is prohibited. The United Nations Human Rights Committee has stated that ‘arbitrariness’ includes the elements of inappropriateness, injustice and a lack of predictability. Arrest or detention must be reasonable and necessary in all circumstances with reference to the recurrence of crime, interference with evidence or the prevention of flight. Detention is not considered arbitrary where it is reasonable, necessary and proportionate to achieving a legitimate objective.

71.               The Bill promotes the right to freedom from arbitrary detention because new subsection 3UD(1A) would require that a police officer who stops and detains a person under section 3UD must inform the person of any right they have to make a complaint to the Commonwealth Ombudsman or a State or Territory police oversight body about the conduct of the police officer in exercising the powers conferred by section 3UD. This would ensure that persons whose rights have been affected by the purported exercise of section 3UD powers are empowered to request that the conduct of the police officer is investigated or reviewed by the body responsible for oversight of the relevant policing agency, if the person considers that the powers were exercised inappropriately. Given the extraordinary and invasive nature of section 3UD powers, appropriate oversight of their use is critical to ensure that they do not interfere with citizens’ rights and freedoms other than where this is a necessary and proportionate measure to achieve the legitimate objective of preventing or responding to a terrorist act.

72.               The measures in the Bill amending the control order regime engage the right to freedom from arbitrary detention because they include new section 104.5A which would permit an issuing court may impose a condition by a control order that the person must remain at specified premises between specified times each day, or on specified days, but for no more than 12 hours within any 24 hours (subsection 104.5A(5) of the Criminal Code).

73.               This measure is proportionate to achieving that outcome of preventing a terrorist act. Under new paragraph 104.4(1)(d), before imposing a condition which may restrict liberty of a controlee under a control order, the court must be satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted for the purposes of protecting the public from a terrorist act, preventing the provision of support for or the facilitation of a terrorist act and preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country. The protection of the public from these objectives are the paramount consideration for the court in determining what conditions to impose in a control order (subsection 104.4(2)).

74.               Safeguards outlined at paragraph 31 are designed to ensure, amongst other things, that the application of the condition under new section 104.5A of the Criminal Code will not result in arbitrary detention.

75.               The Bill would also introduce additional safeguards to ensure that an offender cannot be subject to conditions under a control order that are akin to detention. New paragraph 104.4(1)(d) provides that a court must consider each individual condition of a control order as well as the combined effect of all proposed conditions of the control order to ensure the necessity and proportionality of those conditions. These provisions ensure that conditions under a control order are appropriate in response to the offender’s risk, and do not impinge on the right to freedom from arbitrary detention.

76.               The Bill would also extend the provisions under which the controlee can apply to the issuing court to vary or revoke the control order at any time after the confirmation of an interim control order, and introduce a new mechanism under which they could seek a variation of the order by consent (new section 104.22) if the controlee considers that any of the conditions are unnecessarily or disproportionately restrictive of their right to liberty. Additionally, if considered appropriate, the court would be able to impose a condition affecting the controlee’s liberty as an exemption condition, which would allow the controlee to seek a temporary exemption from the condition (new section 104.5B).

77.               As an additional safeguard against inappropriate conditions being imposed as part of a control order, the Bill would amend the definition of ‘issuing court’ in subsection 100.1(1) to limit the jurisdiction for issuing control orders to the Federal Court of Australia only. Limiting the power to issue control orders to the Federal Court of Australia reflects the serious and extraordinary nature of control orders, and the Federal Court of Australia’s status as a superior court of record, and its expertise in considering matters that involved evidence in significant volume. This safeguard is also intended to ensure judicial comity, fairness and the consistency of outcome in control order matters.

78.               The PDO regime may also be seen to engage this right as it authorises the detention of an individual for up to 48 hours without charge. The PDO regime also supports the legitimate objective of protecting Australia’s national security interests, including preventing terrorist acts. Detention of a person who is the subject of a PDO is not arbitrary as the PDO regime operates in accordance with the clear and predictable procedures established by Division 105.

79.               The PDO regime contains numerous features, outlined at paragraph 45, to ensure that a PDO is only authorised where it is not arbitrary. For example, when applying for a PDO, the AFP member must suspect on reasonable grounds that the person will engage in a terrorist act, possesses a thing connected with the preparation for, or engagement of a person in, a terrorist act, or that the person has done an act in preparation for, or planning, a terrorist act. The issuing authority must be satisfied that there are reasonable grounds to suspect one or more of these matters. In this context, a terrorist act must be one that is capable of being carried out, and could occur, within the next 14 days (subsection 105.4(5) of the Criminal Code). Both the AFP member and the issuing authority must also be satisfied that the making of the PDO would substantially assist in preventing a terrorist act occurring, and that detaining the person for a specified time under the order is reasonably necessary to prevent a terrorist act. This sets a high threshold for obtaining a PDO and is one that is inextricably linked to preventing a terrorist act.

80.               As an additional safeguard against arbitrary detention, the Bill would limit the classes of persons who may be appointed as an issuing authority for PDOs to judges of the Federal Court of Australia or a Supreme Court of State or Territory. Limiting the power to issue PDOs to judges of superior courts reflects the serious and extraordinary nature of those orders and the significant volume of evidence that would need to be considered in making these decisions. 

81.               Accordingly, conditions imposed by the control order regime and the PDO regime do not constitute or support arbitrary detention. Both regimes therefore comply with Article 9 of the ICCPR.

82.               Further, orders are authorised by, and operate in accordance with, the procedures prescribed in Division 104 and 105, respectively, and as determined by a court. Accordingly, the amendments comply with the requirement in Article 9(1) that deprivation of liberty not occur except in accordance with grounds and procedures prescribed by law.

The right to freedom of movement in Article 12 of the ICCPR

83.               Article 12 of the ICCPR provides that persons lawfully within the territory of a State shall have the right to freedom of movement within that State. The ICCPR permits limitations on the right to freedom of movement where restrictions are provided by law and are necessary to achieve a legitimate objective, such as the protection of national security. Consistent with Article 12, the control order regime is aimed at achieving the legitimate objective of protecting Australia’s national security interests, including preventing terrorist acts.

84.               The control order regime in Division 104 of the Criminal Code, as amended by the Bill, engages the right to freedom of movement as it would allow a court to impose conditions requiring that the controlee not be at specified areas or places (new paragraph 104.5A(1)(a)), requiring that they reside at, or not to begin to reside at other premises without permission of a specified authority (new paragraph 104.5A(1)(b)), requiring they remain at a certain premises or location for a specified period of time or on specified days (new paragraph 104.5A(1)(c)), requiring that they not leave Australia or a State or Territory (new paragraph 104.5A(1)(d)), require they provide a specified authority with their passport (new paragraph 104.5A(1)(e)) and that the person not apply for any Australian travel documents or any travel documents to a foreign country (new subparagraphs 104.5A(1)(g)(i)-(ii)).  

85.               Any limitations on the right to freedom of movement imposed by a control order are reasonable, necessary and proportionate. Under new paragraph 104.4(1)(d), before imposing a condition which may restrict movement under a control order, the court must be satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted for the purposes of protecting the public from a terrorist act, preventing the provision of support for or the facilitation of a terrorist act and preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country. The issuing court must also have regard to the impact of the conditions on the person’s circumstances (including the person’s financial and personal circumstances) (new paragraph 104.4(2)(e)).

86.               The Bill would also extend provisions under which the controlee can apply to the issuing court to vary or revoke the control order at any time after the confirmation of the interim control order, and introduce a new mechanism under which they can seek a variation of the order by consent (new section 104.22) if they consider that any of the conditions unnecessarily or disproportionately inhibit their freedom of movement. Additionally, if considered appropriate the court would be able to impose a condition affecting freedom of movement as an exemption condition, which would allow the controlee to seek a temporary exemption from the condition (new section 104.5B).

87.               The Bill would also extend appropriate safeguards on the extent to which a specified authority may exercise powers or otherwise do things in relation to control order conditions, including the threshold in new subsection 104.5A(4) which provides that the specified authority may only give a direction if satisfied it is reasonable in all the circumstances, to give effect to the condition or the objects of the Division.

88.               As an additional safeguard against inappropriate conditions from being imposed as part of a control order, the Bill would amend the definition of ‘issuing court’ in subsection 100.1(1) to limit the jurisdiction for issuing control orders to the Federal Court of Australia only. Limiting the power to issue control orders to the Federal Court of Australia reflects the serious and extraordinary nature of control orders, and the Federal Court of Australia’s status as a superior court of record, and its expertise in considering matters that involved evidence in significant volume. This safeguard is also intended to ensure judicial comity, fairness and the consistency of outcome in control order matters.

89.               Accordingly, while the control order regime may limit the right to freedom of movement, any limitation is for the legitimate purpose of protecting Australia’s national security, is reasonable and proportionate.

The right to a fair trial and fair hearing, the right to minimum guarantees in criminal proceedings and the presumption of innocence in Article 14 of the ICCPR

90.               Article 14(1) of the ICCPR provides that, in the determination of a person’s rights and obligations in a suit at law and in cases of a criminal charge, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

91.               In respect of control orders, the Bill would amend the definition of ‘issuing court’ to limit the issuing court only to the Federal Court of Australia. Limiting the issuing court to the Federal Court of Australia reflects the serious and extraordinary nature of control orders, and the Federal Court of Australia’s expertise in considering matters that involved evidence in significant volume. It is also intended to ensure judicial comity, fairness and the consistency of outcome in control order matters. The courts are expected to apply rules of evidence and procedure applicable in civil proceedings.

92.               In respect of PDOs, the classes of persons who may be appointed as an issuing authority for PDOs would be limited to judges of the Federal Court of Australia or a Supreme Court of State or Territory. Limiting the power to issue PDOs to judges of superior courts reflects the serious and extraordinary nature of those orders. Judges of the Federal Court of Australia and Supreme Courts of States or Territories are competent to hear applications for the issue of these orders, noting their expertise in considering matters that involved evidence in significant volume.

93.               The Bill would extend provisions that enable the controlee to adduce evidence (paragraph 104.14(1)(c)), and requires they must be provided with certain documents in control order proceedings. The Bill would also extend subsection 104.5(1C) which contains a further safeguard that promotes the right to a fair trial and fair hearing, by providing that a person who is detained in custody has the right to attend court on the day a court decides an application for a control order.

94.               The Bill would preserve an offender’s right to access legal representation. New subsection 104.5A(8) provides that the court’s ability to impose conditions does not affect a controlee’s right to contact, communicate or associate with their lawyer, unless the offender’s lawyer is prescribed as a prohibited contact. In that case, the controlee may contact, communicate or associate with any other lawyer of their choosing. Lawyers representing the controlee are also able to access a copy of the control order made against the controlee, so that they can provide advice to, and represent the interests of, the controlee (section 104.13).

95.               The Bill would amend the ADJR Act to provide that a senior AFP member’s decision to provide or refuse consent to vary a control order under new section 104.22 of the Criminal Code is excluded from judicial review. The Administrative Review Council’s 2012 Federal Judicial Review in Australia report outlines a number of justifications as to why exempting decisions from review under the ADJR Act may be appropriate. One such justification is that review under the ADJR Act has the potential to fragment or frustrate another legal process which is already under way. The prospect of ADJR Act review of the decision of a senior AFP member to consent to the variation of an interim control order would fragment proceedings for the confirmation of the order, a date for which would already have been set at the time the variation is made. Excluding these decisions from ADJR Act review would accordingly support the right to fair legal processes in accordance with Article 14 in this context.  

96.               It is also appropriate, and not contrary to the right in Article 14, to exclude the decision of a senior AFP member to provide or refuse consent to vary a confirmed control order from ADJR Act review. By allowing for the variation of control orders by consent new section 104.22 of the Criminal Code is designed to provide flexibility for both the AFP and the controlee to agree to uncontroversial changes to the original terms of an interim control order. The issuing court would remain the decision-maker in relation to variations of control orders under new section 104.22 and would only be able to make a variation if satisfied that the variation is appropriate in the circumstances (see new paragraphs 104.22(5)(c) and 104.22(6)(b)).

97.               The exclusion of the decision of a senior AFP member to provide or refuse consent in this context from review under the ADJR Act would not prevent the decision being judicially reviewed under paragraph 75(v) of the Constitution. Accordingly, this measure does not limit the procedural guarantees in under Article 14.

98.               The PDO regime upholds Article 14 as it requires AFP members to advise the subject of a PDO of particular matters, including their right to make representations to the senior AFP member in relation to the PDO with a view to having the order revoked, the right to contact a lawyer or a family member, and the right to make complaints to the Commonwealth Ombudsman. Following the expiration of a PDO, the individual may also seek a remedy from a federal court in relation to the PDO, or in relation to their treatment whilst under custody (subsection 105.51(1) of the Criminal Code). The individual may also apply to the Security Appeals Division of the AAT for merits review of the decision to make an initial or continued PDO (subsection 105.51(5) of the Criminal Code).

99.               Furthermore, section 105.5A of the Criminal Code provides that where the PDO subject has inadequate knowledge of the English language or a disability, a police officer must arrange for the assistance of an interpreter, and must provide the person with reasonable assistance to choose a lawyer and to contact the lawyer.

100.           Article 14(3)(c) provides that everyone should be entitled to a trial without delay. While a control order proceeding is a civil proceeding, Article 14 may be engaged as a breach of control order conditions can result in criminal sanctions. Accordingly, it is appropriate that the guarantees under Article 14 apply to control order proceedings. The minimum duration of time between the making of an interim control order and the confirmation hearing of seven days may limit the controlee’s right to contest their interim control order as soon as practicable.

101.           The purpose of this time is to enable both parties to have sufficient time to prepare for a confirmation proceeding. In practice, confirmation proceedings have occurred many months after the making of a control order. However, the possibility remains under subsection 104.5(1A) of the Criminal Code that the issuing court can set a confirmation proceeding seven days after the making of an interim control order. The seven-day period allows the controlee greater time to prepare for the confirmation proceeding, which may be time consuming and highly complex. This period also allows the AFP to seek an interim control order as soon as it is necessary, without the risk it will be unprepared for a confirmation proceeding seven days after the making of an interim control order.

102.           If confirmation proceedings were required to occur immediately after an interim control order was obtained, the AFP could potentially mitigate any risk of not being prepared for the confirmation hearing by delaying obtaining the interim control order. However, such a delay could undermine the preventative purpose of the control order regime and increase the risk to the Australian community.

103.           The seven-day period between the making of an interim control order and confirmation is appropriate, and a reasonable and proportionate means of achieving the legitimate objective of protecting the community from a terrorist act. This period appropriately balances the need of the AFP to address threats to Australia’s national security, while also ensuring that both parties are adequately prepared for a confirmation proceeding.

104.           Accordingly, the safeguards contained in the PDO regime ensure that, to the extent that the Bill engages Article 14 of the ICCPR, it is consistent with it and the limitations are reasonable, necessary and proportionate, and uphold the minimum procedural safeguards guaranteed under Article 14 of the ICCPR.

The right to protection against arbitrary and unlawful interference with one’s privacy or home in Article 17 of the ICCPR

105.           Article 17 of the ICCPR provides that no-one shall be subject to arbitrary or unlawful interference with their privacy. To justify a limitation of human rights, a legitimate objective must address a pressing or substantial concern and not simply seek an outcome that is desirable or convenient.

106.           In relation to police powers in Division 3A the Crimes Act, the ability of police to search and seize property from an individual (sections 3UD and 3UE), and from premises (section 3UEA), without a warrant, may engage rights under Article 17.

107.           However, the exercise of these police powers cannot be considered arbitrary because they are reasonable, necessary and proportionate to achieving the legitimate objective of protecting Australia’s national security interests, including preventing and responding to terrorist acts. Division 3A of the Crimes Act contains safeguards to ensure that police cannot exercise these powers in an arbitrary way:

·          with the exception of section 3UEA, the powers in Division 3A can only be exercised in the narrow geographical area of a Commonwealth place

·          a police officer may only exercise the stop, search and seize powers in a Commonwealth place where the officer suspects on reasonable grounds that the person might have just committed, might be committing or might be about to commit a terrorist act (section 3UB), or where the Minister has made a ‘prescribed security zone’ declaration under section 3UJ

·          new subsection 3UD(1A) would require that a police officer who stops and detains a person under section 3UD must inform the person of any right they have to make a complaint to the Commonwealth Ombudsman or a State or Territory police oversight body about the conduct of the police officer in exercising the powers conferred by section 3UD

·          the power to enter premises without a warrant can only be exercised where there is a serious and imminent threat to a person’s life, health or safety (section 3UEA)

·          the exercise of the AFP’s powers is subject to review by the Commonwealth Ombudsman

·          as soon as practicable after the AFP exercises powers under Division 3A, the Commissioner of the AFP must provide a report on the exercise of those powers to the Minister, the INSLM and the PJCIS

·          an annual report on the exercise of Division 3A powers must be tabled in Parliament, and

·          the PJCIS is able to monitor and review the performance by the AFP of its functions under Division 3A, and the basis of the Minister’s declaration of a prescribed section zone under 3UJ. The Bill would support the exercise of this function by the PJCIS by requiring the Minister to provide the PJCIS with reasons for making such a declaration as soon as possible after doing so to. It would also require for Commissioner to notify the PJCIS, INSLM and Ombudsman of the making of a declaration within 72 hours after it is made to support these bodies in exercising their oversight and review functions in relation to the making of the declaration and the exercise of police powers within a ‘prescribed security zone’.

108.           The control order regime, as amended by the Bill, engages rights under Article 17 as new section 104.5A would enable the imposition of a range of possible conditions by a control order that would interfere with the controlee’s privacy. These include conditions requiring the controlee to be subject to electronic monitoring, provide information to specific authorities, submit to drug and/or alcohol testing, allow himself or herself to be photographed, allow fingerprints to be taken, report to specified authorities at specified times and places, allow visits to confirm compliance with a curfew condition, and allow a police officer to search them or their premises and seize items found.

109.           The measures in the Bill, including the indicative list of possible control order conditions and the discretion the Bill would grant the issuing court to impose any conditions by a control order that the court considers appropriate, are intended to protect the Australian community from the risk of an offender committing further terrorism offences. Terrorism remains a significant threat to national security and public safety. Accordingly, the measures are seeking to achieve a legitimate objective.

110.           The measures are also proportionate to achieving that objective. Under new paragraph 104.4(1)(d), before imposing a condition which may restrict an offender’s privacy under a control order, the court must be satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted for the purposes of protecting the public from a terrorist act, preventing the provision of support for or the facilitation of a terrorist act and preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country. The protection of the public from these objectives are the paramount consideration for the court in determining what conditions to impose in a control order (subsection 104.4(2)); however, the court must also take into consideration the effect of the conditions on the controlee’s circumstances (paragraph 104.4(2)(e)), including the impact the conditions may have on the offender’s privacy.

111.           The Bill would also allow the court to impose exemption conditions by control order, which are conditions from which the controlee can seek a temporary exemption (new section 104.5B). This would allow the controlee to seek flexibility in relation to their compliance with a condition that interfered with their privacy or home in circumstances in which that would be unreasonable or especially difficult.

112.           The Bill would also include appropriate safeguards on the extent to which a specified authority may exercise powers or otherwise do things in relation to control order conditions, including a requirement that the specified authority may only give a direction if satisfied it is reasonable in all the circumstances, to give effect to the condition or the objects of the Division (new subsection 104.5A(4)). The Bill would also provide for safeguards in the use and treatment of photographs and fingerprint impressions, which are limited to the purpose of ensuring compliance with a control order (subsection 104.5C(1)).

113.            The Bill may also engage the rights under Article 17 as the publication of information in the AFP Minister’s annual report on the operation of Division 105A of the Criminal Code in accordance with new subsection 105A.22(2A) may make it possible to identify that information relates to certain individuals, particularly where there is a small pool of individuals subject to post-sentence orders. While the release of personal information would be permitted under this provision, new subsection 105A.22(2A) is intended to be satisfied by the inclusion of high-level information in the annual report that does not directly relate to the circumstances and experiences of individuals subject to a post-sentence order.  For example, the information requirements for new paragraph 105A.22(2A)(a) may be satisfied by reporting that facilities of a certain kind (for example secured detention facilities) were made available for use by certain jurisdictions in the year, and reporting on any additional information about the facility, such as its features or its use.

114.           In determining what information is necessary to publish to meet their reporting obligations, and the intent of understanding the operation of Division 105A, the AFP Minister would need to consider, within the context of complying with subsection 105A.22(2A), whether certain information that may impact on the privacy of terrorist offenders subject to post-sentence orders is appropriate for release.

115.           Noting information about individuals subject to these orders is already publicly assessible and the reporting of information supports improved transparency over the operation of the Division, including its implementation, it is acceptable that reporting some information may identify or share information about an individual or individuals.

116.           In these circumstances, the risk that new subsection 105A.22(2A) may limit the rights under Article 17 is proportionate to the legitimate objective of protecting the rights of all individuals subject to post-sentence orders by ensuring that the operation of the post-sentence order regime is subject to appropriate transparency. Transparency is a critical mechanism to hold Government accountable for ensuring that this extraordinary scheme is only utilised in strict accordance with the legislation and that the accommodations, treatment programs, legal assistance and other services provided to offenders thereunder support the scheme’s objectives.

117.           The PDO regime may also engage rights under Article 17. Under section 105.43 of the Criminal Code, a police officer may use such force as is necessary and reasonable in the circumstances to take identification material from a person if the police officer believes on reasonable grounds that it is necessary to do so for the purpose of confirming the person’s identity as the person specified in the PDO. However, the limited interference with privacy is not arbitrary as the process for obtaining identification material is established by law in a process clearly articulated in section 105.43.

118.           Furthermore, this limited interference with privacy achieves the legitimate objective of ensuring that the individual is the person specified under the PDO. Failure to properly identify the intended subject of the PDO could result in the wrong individual being subject to detention, and the intended subject of the PDO remaining at large in the community. This risk can be reasonably mitigated by limited interference with the person’s right to privacy. In addition, any material obtained must be destroyed within a period of 12 months after the material was obtained (so long as any proceedings in respect of the PDO, or the treatment of a person under a PDO, have not been brought or have concluded).

119.           Accordingly, while the Bill may engage Article 17, the limited interferences with privacy that it would permit cannot be considered arbitrary because they are reasonable, necessary and proportionate to achieving the legitimate objective of protecting Australia’s national security interests, including preventing and responding to terrorist acts, and improving public transparency with regard to the operation of extraordinary counter-terrorism measures.

The right to freedom of expression in Article 19 and the right to freedom of association in Article 22 of the ICCPR

120.           Article 19 of the ICCPR provides that everyone shall have the right to freedom of expression, including the right to seek, receive, and impart information and ideas of all kinds. Article 22 of the ICCPR provides that everyone shall have the right to freedom of association with others. Article 22(2) provides that there may be limitations placed on the right to freedom of association where those limitations are prescribed by law and are in the interests of national security.

121.           These rights may be engaged where a control order includes a condition that limits the individuals or classes of individuals with whom an offender may communicate, or restrict the means by which an offender may communicate (for instance, through limiting or prohibiting the use of social media or certain telecommunication devices) and where a PCO is made under sections 105.15 (in relation to a person against whom a PDO is being sought) and 105.16 (in relation to a person against whom a PDO is already in force) of the Criminal Code.

122.           In respect of control orders, the issuing court may only limit a controlee’s freedom of expression and association if the condition would substantially assist in achieving the objects of Divisions 104, including preventing a terrorist act. The limitation of the right to freedom of expression and association in this context seeks to protect the Australian community from the risk of a terrorist act, and is therefore necessary for the protection of national security.

123.           The conditions which may be imposed by a court are intended to be tailored to address the specific risk the individual poses of committing terrorism offences. Under new paragraph 104.4(1)(d), before imposing a condition which may restrict an offender’s freedom of expression and association under a control order, the court must be satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted for the purposes of protecting the public from a terrorist act, preventing the provision of support for or the facilitation of a terrorist act and preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country. The protection of the public from these objectives are the paramount consideration for the court in determining what conditions to impose in a control order (subsection 104.4(2)). The court is also required to take other factors into consideration, such as the controlee’s personal circumstances (paragraph 104.4(2)(e)), including the impact that restricted expression and association may have on the controlee.

124.           The Bill would also extend provisions under which the controlee can apply to the issuing court to vary or revoke the control order at any time after the confirmation of the interim control order, and introduce a new mechanism under which they can seek a variation of the order by consent (new section 104.22) if they consider that any of the conditions unnecessarily or disproportionately inhibit their freedom of movement. Additionally, if considered appropriate the court would be able to impose a condition affecting the controlee’s freedom of expression or association as an exemption condition, which would allow the controlee to seek a temporary exemption from the condition (new section 104.5B).

125.           The Bill would also include appropriate safeguards on the extent to which a specified authority may exercise powers or otherwise do things in relation to control order conditions, including new subsection 104.5A(4) which provides that the specified authority may only give a direction if satisfied it is reasonable in all the circumstances, to give effect to the condition or the objects of the division.

126.           A PCO can be issued where it is reasonably necessary for the purposes of achieving specified objectives, including:

·          to avoid a risk to action being taken to prevent a terrorist act occurring

·          to prevent serious harm to a person

·          to preserve evidence of, or relating to, a terrorist act

·          to prevent interference with the gathering of information about a terrorist act or the preparation for or the planning of, a terrorist act, or

·          to avoid a risk to the arrest of a person suspected of having committed an offence under Part 5.3 of the Criminal Code, the taking into custody a person in relation to whom a PDO is in force, or in relation to whom a PDO is likely to be made, or the service on a person of a control order (subsection 105.14A (4)).

127.           The threshold for issuing a PCO ensures the PCO achieves the legitimate objective of protecting Australia’s national security interests, including preventing terrorist acts. The threshold for issuing a PCO is high and is only likely to be met in scenarios where the failure to restrict communication could prevent critical preventative action being taken.

128.           Accordingly, the making of a PCO does not limit the right to freedom of expression in Article 19 of the ICCPR, except to the extent that it is reasonable, necessary and proportionate to achieving the legitimate objective of protecting Australia’s national security interests.

129.           The right to freedom of expression in Article 19 of the ICCPR is also engaged by the measure to extend the sunsetting date of section 122.4 of the Criminal Code by 12 months to 29 December 2024.

130.           Extension of the sunsetting date would maintain current criminal liability for approximately 296 non-disclosure duties, which effectively prohibit a person communicating information which was made or obtained by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

131.           Conduct which receives, obtains, collects, communicates, publishes or makes available information clearly falls within the scope of the right to freedom of expression in so far as it involves the seeking, receiving or imparting of information and ideas. By criminalising these activities in certain circumstances, secrecy offences limit the right to freedom of expression.

132.           Section 122.4 does not criminalise the disclosure of any particular information in its own right. Section 122.4 makes it an offence for a Commonwealth officer or a person engaged to perform work for a Commonwealth entity to communicate information in breach of a duty arising elsewhere under the law of the Commonwealth. As such, section 122.4 does not establish a new limitation on the ability of such persons to communicate information.

133.           This measure extends the sunset clause in subsection 122.4(3) for an additional 12 months. As such, this ensures that section 122.4 does not apply in relation to any communication of information that occurs after the specified period. The specified period is intended to preserve the operation of non-disclosure duties while each duty is reviewed to determine whether it should be converted into a stand-alone specific secrecy offence, or whether criminal liability should be removed.

134.           Accordingly, the measure to extend the sunsetting date of section 122.4 does not limit the right to freedom of expression in Article 19 of the ICCPR, except to the extent that it is reasonable, necessary and proportionate to achieving the legitimate objective of protecting information held by Commonwealth officers for a specified period.

The right of the child to have the child’s best interests as a primary consideration by courts of law, administrative authorities or legislative bodies in Article 3 of the CRC

135.           Article 3 of the CRC requires that the best interests of the child shall be a primary consideration in all actions concerning social welfare institutions, courts of law, administrative authorities or legislative bodies. This Bill engages the rights of the child before a court of law because a control order may be obtained in relation to a person as young as 14 years of age.

136.           The control order regime may engage the right under Article 3 as a control order may be issued by the court in respect of a young person only in the rare circumstance that it is required to prevent the young person from being involved in a terrorist act.

137.           New paragraph 104.4(1)(d) of the Criminal Code requires that before issuing a control order in respect of a person the court must be satisfied on the balance of probabilities that the control order is reasonably necessary, and reasonably appropriate and adapted to protecting the public from a terrorist act. When considering these matters in relation to a young person aged between 14 and 17, the issuing court is required to consider the ‘best interests’ of the young person as a ‘primary consideration’. In determining what is in a young person’s ‘best interests’, subsection 104.4(2A) provides that the issuing court must take into account:

·          the age, maturity, sex and background (including lifestyle, culture and traditions) of the person

·          the physical and mental health of the person

·          the benefit to the person of having a meaningful relationship with their family and friends

·          the right of the person to receive an education

·          the right of the person to practise their religion, and

·          any other matter the court considers relevant.

138.           Other rights of the young person set out in the CRC are expressly recognised by subsection 104.4(2A), including the right of the child to education (Article 28) and to practise their religion (Articles 14 and 30). The issuing court may also consider other rights in the CRC, such as the right to health care (Article 24), and the right to not be separated from their parents against their will (Article 9) because of the open-ended nature of the matters the issuing court can consider under subsection 104.4(2A).

139.           The issuing court is required to consider the best interests of the young person as a primary consideration, but the paramount consideration is achieving the objects of the control order regime. Noting the grave consequences that can result from a terrorist act, it is appropriate that in the hierarchy of matters to be considered by the issuing court, the objects of the control order regime, including protecting the public from a terrorist act, should be the paramount consideration of the issuing court.

140.           In addition to each of the safeguards outlined above, and the requirement to consider the best interests of the young person as a primary consideration, the control order regime also includes the following safeguards targeted at ensuring the needs of a young person are met:

·          reasonable steps must be taken to serve the interim control order, variations of a control order, a revocation of a control order or the confirmation of the interim control order on at least one parent or guardian of the young person, and

·          if a young person does not have a lawyer to act for them in relation to a control order proceeding, the court must appoint a lawyer for the young person, unless the proceedings are ex parte or the young person has previously refused a lawyer.

141.           The Bill would also introduce additional safeguards in relation to the variation of control orders by consent (new section 104.22) where the controlee is a minor. Theses includes the following requirements:

·          The AFP or a legal representative of the senior AFP member must give written notice to at least one parent or guardian of the child subject to a control order of the application to vary the order by consent, if that application is being brought by the AFP (new subsection 104.22(5)).

·          The issuing court must be satisfied that written consent to the variation has been provided and not withdrawn by the parent or guardian of the controlee who was notified of the application to vary, before making the variation (new subparagraph 104.22(5)(a)(i)).

·          The issuing court must consider the bests interests of the controlee, having regard to any representations made by the controlee about the variations, in satisfying itself that the variation is appropriate in the circumstances (new paragraphs 104.22(5)(b)-(c). 

142.           Accordingly, the control order regime, as amended by the Bill, protects the best interests of the child and complies with Article 3 of the CRC.

Conclusion

143.           While the Bill engages a range of human rights, it is compatible with human rights because to the extent that it limits those rights, these limitations are reasonable, necessary and proportionate to achieving a legitimate objective.

 

NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

1.                   This clause provides that the short title of the Act, if enacted, would be the Counter-Terrorism and Other Legislation Amendment Act 2023.

Clause 2 - Commencement

2.                   This clause provides for the commencement of each provision in the Bill, as set out in the table at subclause 2(1). Subclause 2(2) provides that information in column 3 of the table is not part of the Act .

3.                    Item 1 in the table provides that the whole of the Bill will commence on the day after the Bill receives the Royal Assent.

4.                   The table also provides a note that the table relates only to the provisions of the Bill as originally enacted. It will not be amended to deal with any later amendments of the Bill. This provides clarity for the reader.  

Clause 3 - Schedules

5.                   This clause provides that legislation that is specified in a Schedule to the Bill would be amended or repealed as set out in the applicable items in the relevant Schedule. Any other item in a Schedule to the Bill would have effect according to its terms.

Schedule 1 - Amendment of the Crimes Act 1914

Crimes Act 1914

6.                   Schedule 1 would amend existing Division 3A powers in the Crimes Act in relation to terrorist acts and terrorism offences. Division 3A allows a police officer to stop, question and search persons, and seize items, in a Commonwealth place (such as an airport). These powers are exercised without a warrant. However, in order to exercise these powers, the police officer must suspect on reasonable grounds that the person may have just committed, might be committing, or might be about to commit, a terrorist act (subsection 3UB(1)).

7.                   A police officer may also exercise these powers in a ‘prescribed security zone’, without requiring any suspicion on reasonable grounds that the person may have just committed, might be committing, or might be about to commit, a terrorist act (paragraph 3UB(1)(b)). The Minister can declare a Commonwealth place to be a ‘prescribed security zone’ if he or she considers that the declaration would assist in preventing a terrorist act occurring, or in responding to a terrorist act (subsection 3UJ(1)).

Item 1 - Section 3UA

8.                   This item would insert a new definition for a State or Territory police oversight body. A state or territory oversight body would mean an agency, body or authority that, or person who under State or Territory law, has functions relating to investigating complaints about the conduct of members of the State and Territory police force. This new defined term is utilised in new subsection 3UD(1), explained below.

Item 2 - After subsection 3UD(1)

9.                   This item is intended to implement bullet point 3 of Recommendation 1 of the PJCIS’s AFP Powers Review. [13]

10.               New subsection 3UD(1A) would require that a police officer who stops and detains a person under section 3UD must inform the person of any right the person has to make a complaint to the Commonwealth Ombudsman or a State or Territory police oversight body, about the conduct of the police officer in exercising the powers conferred by section 3UD. This would ensure that a person whose rights have been affected by the exercise of section 3UD powers are empowered to request that the conduct of the police officer be investigated or reviewed by the body responsible for oversight of the relevant policing agency, in the event that the person considers that the powers were exercised inappropriately. Given the extraordinary and invasive nature of section 3UD powers, appropriate oversight of their use is critical to ensure that they do not interfere with citizens’ rights and freedoms other than to the extent necessary and proportionate to prevent or respond to a terrorist act.

11.               New subsection 3UD(1B) would provide that new subsection 3UD(1A) does not require a police officer to inform a person of a right if it is not reasonably practicable to do so because of circumstances of urgency. The phrase ‘circumstances of urgency’ is intended to take the same meaning in new subsection 3UD(1B) as it carries in section 19AU - that is, that there is a need for immediate action. An exemption to the obligation to inform the person of their right to complain is appropriate in circumstances of urgency. The use of the powers under section 3UD may be exercised in time-sensitive situations, where, for instance a terrorist act may be imminent. In these circumstances, police should not be delayed in efforts to prevent an imminent terrorist offence by an obligation to provide this information.

12.               A person would still have a right to complain to the Commonwealth Ombudsman or applicable State or Territory police oversight body about the conduct of a police officer exercising Division 3A powers even if the police officer did not advise them of this right due to circumstances of urgency. This would ensure that a person does not forfeit their right to make a complaint due to the police officer failing to notify the person of this right. 

Item 3 - After subsection 3UJ(1)

13.               This item, which is intended to implement Recommendation 2 of the PJCIS’s AFP Powers Review, [14] would introduce a list of specific matters to which the Minister must have regard, in deciding whether to make a declaration in relation to a Commonwealth place on the grounds in paragraph 3UJ1(a) (the declaration would assist in preventing a  terrorist act  occurring) or paragraph 3UJ1(b) (the declaration would assist in responding to a terrorist act  that has occurred). The list of specific factors is intended to provide guidance to Ministers and agencies that would aid in efficiently preparing and making a declaration at what would likely be a time of heightened uncertainty.

14.               New paragraph 3UJ(1A)(a) would require the Minister to have regard to whether the impact of the declaration on the rights of persons in the Commonwealth place would be reasonable (new subparagraph 3UJ(1A)(a)(i)) and proportionate (new subparagraph 3UJ(1A)(a)(ii)) to the ground on which the declaration is being made. This is intended to safeguard against the Minister declaring a  Commonwealth place  to be a ‘ prescribed security zone ’ if doing so would interfere with the rights and freedoms of individuals in that place unnecessarily or more significantly than is required to prevent or respond to a terrorist act.

15.               New paragraph 3UJ(1A)(b) would require the Minister to have regard to the appropriate duration of the declaration. This is intended to safeguard against the Minister failing to declare a  Commonwealth place  to be a ‘ prescribed security zone ’ for a long enough period of time to enable the effective prevention of, or response to, a terrorist act, or doing so for longer than is necessary to achieve those objectives. 

16.               New paragraph 3UJ(1A)(c) would provide that, in the case of a declaration made on the ground in paragraph 3UJ(1)(a) (the declaration would assist in preventing a terrorist act occurring), the Minister must have regard to the availability and effectiveness of any powers that are conferred by a law of the Commonwealth (other than Division 3A of the Crimes Act) or a law of a State or Territory (new subparagraph 3UJ(1A)(c)(i)) that would assist in preventing a terrorist act occurring (new subparagraph 3UJ(1A)(c)(ii)). This is intended to safeguard against the Minister declaring a  Commonwealth place  to be a ‘ prescribed security zone ’ if there are other less invasive powers available under an Australian law that would be effective in assisting to prevent a terrorist act, and more appropriate to rely on in the circumstances. Declaring a ‘prescribed security zone’ is intended to be a measure of last resort.

17.               New paragraph 3UJ(1A)(d) would provide that, in the case of a declaration made on the ground in paragraph 3UJ(1)(b) (the declaration would assist in responding to a terrorist act that has occurred), the Minister must have regard to the availability and effectiveness of any powers that are conferred by a law of the Commonwealth (other than Division 3A of the Crimes Act) or a law of a State or Territory (new subparagraph 3UJ(1A)(d)(i)) that would assist in responding to a terrorist act that has occurred (new subparagraph 3UJ(1A)(d)(ii)). This is intended to safeguard against the Minister declaring a  Commonwealth place  to be a ‘ prescribed security zone ’ if there are other less invasive powers available under an Australian law that would be effective in assisting to respond to a terrorist act, and more appropriate to rely on in the circumstances. Declaring a ‘prescribed security zone’ is intended to be a measure of last resort . 

18.               New paragraph 3UJ(1A)(e) would provide that, in the case of a declaration that is one of a series of successive declarations under subsection 3UJ(1) in relation to the Commonwealth place, the Minister must have regard to the impact and proportionality of that series of successive declarations. This is intended to safeguard against the Minister making successive declarations that a  Commonwealth place  is a ‘ prescribed security zone ’ if doing so would interfere with the rights and freedoms of individuals in that place unnecessarily, more significantly, or for a longer period of time than is required to prevent or respond to a terrorist act. Declaring a ‘prescribed security zone’ is intended to be a measure of last resort.

19.               New paragraph 3UJ(1A)(f) would provide that the Minister must have regard to such other matters (if any) as the Minister considers relevant. This is intended to ensure that the Minister does not limit the matters to which they have regard in deciding whether to make a declaration in relation to a Commonwealth place to those listed in new subparagraphs 3UJ(1A)(a)-(e) if the Minister considers that other matters are also relevant. This provision is intentionally non-prescriptive so the Minister has discretion to determine what additional matters should be considered, if any, on a case-by-case basis.

Item 4 - Subsection 3UJ(3)

20.                This item would repeal and replace subsection 3UJ(3) with a new provision.

21.                New subsection 3UJ(3) would provide that, unless the declaration of a ‘prescribed security zone’ made under subsection 3UJ(1) is revoked by the Minister at an earlier time, the declaration ceases to have effect:

·          at the end of 28 days after it is made (new paragraph 3UJ(3)(a)) - consistent with existing subsection 3UJ(3); or

·          if a period shorter than 28 days is specified in the declaration, at the end of the shorter period (new paragraph 3UJ(3)(b)).

22.                This amendment would clarify that the Minister can specify at the outset that a declaration is to remain in effect for a period of less than 28 days if this is appropriate to limit the impact of the declaration on the community.

Item 5 - After subsection 3UJ(5)

23.                This item, which is intended to implement bullet points 1 and 2 of Recommendation 1 of the PJCIS’s AFP Powers Review, [15] would introduce requirements for the AFP Commissioner and Minister to respectively provide notification of, and reasons for, the declaration of a ‘prescribed security zone’ to specified oversight bodies. These requirements are intended to assist oversight bodies in performing their critical monitoring and review functions in relation to the declaration of a ‘prescribed security zone’ and the conduct of police therein.

24.                New subsection 3UJ(5A) would provide that the Commissioner of the AFP must, as soon as practicable after a declaration of a Commonwealth place as a ‘prescribed security zone’ is made under section 3UJ (new paragraph 3UJ(5A)(a)), and within 72 hours after that time (new paragraph 3UJ(5A)(b)), arrange for both of the following:

·          A statement to be prepared that states that the declaration has been made (new subparagraph 3UJ(5A)(c)(i)) and identifies the ‘prescribed security zone’ (new subparagraph 3UJ(5A)(c)(ii)).

·          The statement to be given to the Commonwealth Ombudsman (new subparagraph 3UJ(5A)(d)(i)), the INSLM (new subparagraph 3UJ(5A)(d)(ii)), and the PJCIS (new subparagraph 3UJ(5A)(d)(iii)).

25.                The Commonwealth Ombudsman is not authorised to investigate the actions of Ministers (subparagraph 5(2)(a) of the Ombudsman Act 1976 ), including when making a declaration of a ‘prescribed security zone’, and does not hold a specific oversight function once a ‘prescribed security zone’ is in place. However, early notification of a declaration would help to ensure the Commonwealth Ombudsman is prepared to monitor any complaints about AFP officers related to the exercise of powers in the ‘prescribed security zone’.

26.                The INSLM has a statutory role in ensuring Australia’s counter-terrorism and national security legislation is effective, remains proportionate to terrorism or national security threats, remains necessary and is consistent with Australia’s international obligations. The PJCIS similarly has a statutory role in reviewing the operation, effectiveness and implications of the use of Division 3A powers. Early notification to the PJCIS would also support the PJCIS’s role in monitoring and reviewing the performance of the AFP of its Division 3A functions. The PJCIS serves an important function in holding Government to account for maintaining fit for purpose, proportionate counter-terrorism legislation.

27.                New subsection 3UJ(5B) would provide that if a Commonwealth place is declared as a ‘prescribed security zone’, the Minister who made the declaration is required to give the PJCIS a written statement setting out the reasons for the making of the declaration (new paragraph 3UJ(5B)(a)) and do so as soon as practicable after the declaration was made (new paragraph 3UJ(5B)(b)).

28.                The purpose of this requirement is to ensure that the PJCIS is equipped early, and with the information needed to effectively monitor and review the basis of the Minister’s declaration of ‘prescribed security zones’ under subparagraph 29(1)(bba)(ii) of the Intelligence Services Act 2001 .

Item 6 - Subsection 3UJ(6) (at the end of the heading)

29.                This item would add the words ‘or notify’ to the end of the heading in subsection   3UJ(6). This amendment is intended to signpost the amendment in item 8 which would provide that a failure on the part of the Commissioner to comply with the requirement in new subsection 3UA(5A) does not make the declaration or its revocation ineffective to any extent.

Item 7 - Subsection 3UJ(6)

30.               This item inserts ‘or (5A)’ after ‘subsection (5)’, which would provide that the failure on the part of the Commissioner to comply with the requirement in new subsection 3UJ(5A) to provide notification of the declaration of a ‘prescribed security zone’ to specified oversight bodies within the prescribed timeframe, and containing the prescribed information, does not make the declaration or its revocation ineffective to any extent. As this administrative requirement does not relate to the manner in which ‘prescribed security zones’ must be declared, but rather operates to ensure that declarations and police conduct in ‘prescribed security zones’ can be appropriately overseen and reviewed, it would not be appropriate for the effectiveness of a Minister’s declaration (or its revocation) to be contingent on the Commissioner’s compliance with new subsection 3UJ(5A).

Item 8 - After subsection 3UJ(6)

31.                This item inserts new paragraph 3UJ(6)(6A), which would provide that the failure on the part of the Minister to comply with the requirement in new subsection 3UJ(5B) to provide reasons for the declaration of a ‘prescribed security zone’ to the PJCIS in the prescribed form and within the prescribed timeframe, does not make the declaration or its revocation ineffective to any extent. As this administrative requirement does not relate to the manner in which ‘prescribed security zones’ must be declared, but rather operates to ensure that declarations can be appropriately reviewed after the fact, it would not be appropriate for the effectiveness of a Minter’s declaration (or its revocation) to be contingent on their compliance with new subsection 3UJ(5B).

Item 9 - Subsections 3UK(1), (2) and (3)

32.                This item is intended to implement Recommendation 3 of the PJCIS’s AFP Powers Review. [16] It would amend subsections 3UK(1), (2) and (3), which would have the effect of extending the operation of the stop, search and seizure powers for three years until 7 December 2026.

Item 10 - Application—declarations under section 3UJ of the Crimes Act 1914

33.                This item is intended to ensure the amendments of section 3UJ of the Crimes Act made by this Schedule apply in relation to a declaration made after the commencement of this item.

Schedule 2 - Amendment of the Criminal Code Act 1995 etc

Part 1—Counter-terrorism amendments

Division 1—Main amendments

Criminal Code Act 1995

Item 1 - Subsection 100.1(1) of the Criminal Code

34.                This item would insert new definitions of the term ‘exemption condition’ into section 100.1(1) of the Criminal Code in relation to a control order (new paragraph 100.1(1)(a)) and in relation to an ESO or interim ESO (new paragraph 100.1(1)(b)).

35.                New paragraph 100.1(1)(a) would provide that for the purposes of a control order, ‘exemption condition’ has the same meaning given by new subsection 104.5B(2) (explained below).

36.                New paragraph 100.1(1)(b) would provide that, for the purposes of an ESO or an interim supervision order, ‘exemption condition’ has the same meaning given by subsection 105A.7C(2), that is, a condition specified in the ESO or interim ESO from which the offender may apply for a temporary exemption.

Item 2 - Subsection 100.1(1) of the Criminal Code (definition of issuing court )

37.                This item would repeal the current definition of ‘issuing court’ (meaning the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2)) in subsection 100.1(1) and replace it with the Federal Court of Australia. This item, which is intended to implement Recommendation 8 of the PJCIS AFP Powers Review, [17] would have the effect that the Federal Court of Australia is the only issuing court in relation to control orders.

38.                Limiting the power to issue control orders to the Federal Court of Australia reflects the serious and extraordinary nature of control orders, and the Federal Court of Australia’s expertise in considering matters that involve significant volumes of evidence. It is also intended to ensure judicial comity, fairness and the consistency of outcome in control order matters.

39.                Any decisions and orders made by the Federal Circuit and Family Court of Australia would not cease or be invalidated if this recommendation was implemented (see new section 106.13).

Item 3 - Section 104.1 of the Criminal Code

40.                This item would omit ‘obligations, prohibitions and restrictions’ and substitute ‘conditions’ for this terminology. This would have the effect that the objects of Division 104 would no longer refer to allowing ‘obligations, prohibitions and restrictions’ to be imposed on a person by a control order as one of the specified purposes, and instead, refer to allowing ‘conditions’ to be so imposed.  

41.                This amendment is not intended to materially change the object of Division 104 or affect the interpretation of the purpose of control orders. It is simply intended to align the language used in Division 104 with the language used in Division 105A in light of the amendments in this Schedule of the Bill that would make the conditions issuable by a control order consistent with the conditions that can be issued under an ESO.

Item 4 - Subparagraphs 104.3(d)(i) and (ii) of the Criminal Code

42.                This item would omit ‘obligations, prohibitions or restrictions’ and substitute ‘conditions’ for this terminology. This would have the effect that if the AFP Minister consents to a senior AFP member requesting an interim control order , the senior AFP member may do so by giving an issuing court an explanation as to why each of the proposed conditions (as opposed to obligations, prohibitions or restrictions) should be imposed on the person (subparagraph 104.3(d)(i)), and if the member is aware of any facts relating to why any of those conditions (as opposed to obligations, prohibitions or restrictions) should not be imposed on the person—a statement of those facts (subparagraph 104.3(d)(ii)).

43.                The replacement of references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Item 5 - Paragraph 104.4(1)(d) of the Criminal Code

44.                This item would repeal and replace paragraph 104.4(1)(d). New paragraph 104.4(1)(d) would require a court to be satisfied on the balance of probabilities that each of the conditions (new subparagraph 104.4(1)(d)(i)), and the combined effect of the conditions (new subparagraph 104.4(1)(d)(ii)), to be imposed on the person by the control order in accordance with section 104.5A, is reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act (new subparagraph 104.4(1)(d)(iii)), or preventing the provision of support for or the facilitation of a terrorist act (new subparagraph 104.4(1)(d)(iv)), or preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country (new subparagraph 104.4(1)(d)(v)).

45.                The requirement that the court must be satisfied that each condition to be included within the control order, and their combined effect, is reasonably necessary, and reasonably appropriate and adapted for the prescribed purposes is the same requirement that must be satisfied in including conditions within ESOs. If the AFP proposes a condition for inclusion in the order and the court is not so satisfied, then the court could not include that condition in the order. It is appropriate that the combined effect of all the conditions of control orders should be considered by the court in addition to the appropriateness of the individual conditions, as this will ensure that the totality of the conditions under control orders are appropriate in response to the controlee’s risk. The use of the term ‘conditions’ in new paragraph 104.4(1)(d) (rather than ‘obligations, prohibitions or restrictions’ as in current paragraph 104.4(1)(d)) is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Item 6 - At the end of subsection 104.4(1) of the Criminal Code

46.                This item would insert a note at the end of subsection 104.4(1) that provides that the issuing court may, in accordance with new section 104.5B (explained below), specify conditions from which exceptions may be granted as part of a control order. It intended that all the requirements in amended section 104.4 that apply to conditions would apply to any condition from which exceptions may be granted.

Item 7 - Subsection 104.4(2) of the Criminal Code

47.                This item would repeal and replace subsection 104.4(2). New subsection 104.4(2) would provide that for the purposes of new paragraph (1)(d) (explained above), in determining whether each of the conditions (new paragraph 104.4(2)(a)), and the combined effect of all of the conditions (new paragraph 104.4(2)(b)), to be imposed on the person by a control order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account all of the following:

·          As a paramount consideration in all cases - the objects of Division 104 as set out in section 104.1, which are to protect the public from a terrorist act, prevent the provision of support for or the facilitation of a terrorist act, and prevent the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country (new paragraph 104.4(2)(c)).

·          As a primary consideration in the case where the person is 14 to 17 years of age - the best interests of the person (new paragraph 104.4(2)(d)).This accords with Australia’s obligations under article 3.1 of the Convention on the Rights of the Child (CRC) which provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. The matters that the court must consider in determining what is in the person’s best interests for the purposes of this provision are set out in subsection 104.4(2).

·          As an additional consideration in all cases - the impact of each of those conditions, and the combined effect of all of those conditions on the person’s circumstances (including the person’s financial and personal circumstances) (new paragraph 104.4(2)(e)). This requirement reflects that control orders may be imposed on persons who are in the community. 

48.                This provision would not preclude the court from considering other factors, such as the level of interference with the controlee’s privacy, caring responsibilities, or the controlee’s propensity to engage in criminal behaviour when affected by illicit substances, provided the objects of Division 104 is the paramount consideration, and the best interest of the controlee (if they are a minor) is a primary consideration.

49.                The AFP Minister bears the onus of satisfying the court as to each proposed condition. If the AFP Minister proposes a condition for inclusion in the order and the court is not so satisfied, then the Court could not include that condition in the control order.

50.                The use of the term ‘conditions’ in new subsection 104.4(2) (rather than ‘obligations, prohibitions or restrictions’ as in current subsection 104.4(2)) is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Item 8 - Subsection 104.4(2A) of the Criminal Code

51.                This item would amend subsection 104.4(2A) which currently sets out the matters the courts must consider in determining what is in the best interests of a person for the purposes of current paragraph 104.4(2)(b). The proposed amendments would omit the reference to current paragraph 104.4(2)(b) which would be repealed and replaced by item 7 (explained above), and replace it with a reference to new paragraph 104.4(2)(d).

52.                New paragraph 104.4(2)(d) is the new provision under which the court would be required to take the best interests of the controlee into account in determining what conditions to impose by a control order, where that person is a minor. The amendment to subsection 104.4(2A) is a consequential amendment that would clarify that the matters in subsection 104.4(2A) are to be taken into account in discharging the court’s obligation under new paragraph 104.4(2)(d).

Item 9 - Paragraph 104.5(1)(c) of the Criminal Code

53.                This item would repeal and replace paragraph 104.5(1)(c). New paragraph 104.5(1)(c) would provide that if the issuing court makes an interim control order, the order must specify both of the following:

·          All of the conditions that are to be imposed in accordance with new section 104.5A (explained below) on the person by the order (new subparagraph 104.5(1)(c)(i)). This provision reflects the repeal of existing subsection 104.5(3) which currently sets out the obligations, prohibitions and restrictions that can be imposed by a control order, in item 10 (explained below), and the introduction of new section 104.5A in item 11 (explained below) which would set out the new conditions that can be so imposed.

·          Any exemption conditions that are to be imposed in accordance with new section 104.5B (explained below) on the person by the order (new subparagraph 104.5(1)(c)(ii)). This provision reflects that new section 104.5B would enable to court to impose conditions by a control order from which the controlee can apply for a temporary exemption.

54.                All conditions, including exemption conditions should be specified in the order to ensure that parties have a complete record of the order and the controlee’s obligations thereunder.

Item 10 - Subsections 104.5(3) to (6) of the Criminal Code

55.                This item would repeal subsections 104.5(3) to (6). New section 104.5A introduced at item 11 would replace these provisions.

Item 11 - Section 104.5A of the Criminal Code

104.5A Conditions of an interim control order

56.                This item would repeal and replace section 104.5A. New section 104.5A, which is intended to implement Recommendation 10 of the PJCIS’s AFP Powers Review. [18] This amendment would provide for the conditions that may be imposed by a control order.

57.                New subsections 104.5A(1) and (2) would set out conditions that may be imposed by a control order, but these are intended to provide examples of conditions to the court and are not intended to limit the conditions that a court may impose.

58.                These provisions make clear that a control order may include a very broad range of conditions directed at all aspects of a person’s life. However, the possible breadth of conditions that may be imposed does not mean that every control order will be so broad. This is because each condition, and the combined effect of all conditions, must be reasonably necessary, and reasonably appropriate and adapted, for the protective and preventative purpose of the order, and a court must be satisfied of that fact before including a particular condition in a control order (new paragraph 104.4(1)(d)). Therefore, the breadth of conditions included in an order, and the extent to which they intrude on a person’s life, will depend on the particular risk posed by the person and the kinds of conditions that the court considers are needed to address that risk.

General conditions

59.                New subsection 104.5A(1) would list a number of general conditions that may be included in a control order. These conditions concern:

·          Movement, travel and residence of a person, including curfews.

·          Travel documents, licenses and changes to or use of different names.

·          Communication and the use of technology.

·          Possession of specified articles or substances.

·          Employment, training, education and other activities, including recreational activities and treatment, rehabilitation and intervention programs or activities.

·          Participation in interviews and assessments and the provision of information, including the sharing of information about the person.

60.                The examples of conditions in new subsection 104.5A(1) make it clear that a court may confer certain discretions on specified authorities (as defined in section 100.1), namely a person or class of persons that the court is satisfied are appropriate to be given discretion in relation to particular conditions. This ensures that there is appropriate flexibility in the order to respond to developing situations, while ensuring that the court making the order sets the parameters for any exercise of discretion. The conditions in the control order could, for example empower:

·          A class of AFP officer specified in the order to give the person permission to temporarily or permanently reside at premises other than those specified in the order.

·          Identified law enforcement officers to direct the person not to communicate with individuals that the law enforcement officer may determine from time to time (such as persons who may not be considered a risk at the time the order is made, but who later develop into a risk).

·          A provider of countering violent extremism programs to specify the particular programs that the person is to participate in.

61.                The examples in subsection 104.5A(1) also make clear that a court may empower a person or class of persons to give directions in connection with some conditions. For example, this would mean a court would impose a condition that a person only access the internet using a certain device, not use or access certain platforms, and comply with any reasonable directions from a specified class of AFP officer regarding access to the internet. Members of the class of specified AFP officer would then give a direction regarding internet use.

62.                Subsection 104.5A(1) makes clear that a court could impose a range of conditions within an interim control order, including:

·          Prohibitions or restrictions on the possession and/or use of weapons, chemicals and drugs, such as illicit drugs or alcohol.

·          Prohibitions on attending locations like ports, airports or certain suburbs, as well as a prohibition on attending places determined by a person or class of persons specified in the order.

·          Prohibitions on obtaining foreign or Australian travel documents, passports, visas, airline tickets, provisional travel documents, United Nations Laissez Passer documents or Refugee/Convention travel documents.

·          Prohibitions on the person using names other than those specified in the order.

·          Prohibitions on undertaking specified work, classes of work or activities relating to either, such as work involving access to weapons (for example work as a security guard), access to chemicals or heavy vehicles.

·          Prohibitions on communicating with named individuals or classes of individuals, such as persons convicted of specified terrorism offences or persons located in a specified country.

63.                New paragraph 104.5A(1)(c) clarifies that the court is restricted by subsection 104.5A(5) in that it cannot impose a condition under a control order that requires an offender to remain at specified premises for more than 12 hours within any 24 hour period.

64.                The note for new subsection 104.5A(1) refers to new subsections 104.5A(9) and (10) and section 100.1 to clarify the meaning of premises, reside or residence, and work.

Conditions relating to monitoring and enforcement

65.                New subsection 104.5A(2) would list a number of possible conditions which relate to monitoring and enforcement that may be included in a control order. These conditions concern:

·          Testing for use and possession of substances.

·          Photographs and fingerprints.

·          Electronic monitoring, compliance with schedules of movement and carrying and use of a mobile phone.

·          Reporting to places and persons, and curfew checks.

·          Entry, search and seizure relating to premises and electronic devices, items and technology.

66.                Similar to the examples of conditions in new subsection 104.5A(1), new subsection 104.5A(2) makes clear that the court may confer on a specified authority the power to monitor specific conditions and the court may require the person to comply with directions issued by the specified authority. Similar to the examples of conditions in new subsection 104.5A(1), new subsection 104.5A(2) makes clear that the court may confer on a specified authority the power to monitor specific conditions and the court may require the person to comply with directions issued by the specified authority. They also confer functions on specified authorities and empower them to undertake certain actions in relation to control order conditions. This ensures that the order contains a framework for monitoring and facilitating compliance with the order to ensure the protection of the community from terrorist acts. The conditions in the control order could, for example, authorise:

·          Police officers to search the person, enter and search the person’s residence, car and storage facility and to seize items during that search subject to conditions ordered by the court.

·          Persons involved in electronic monitoring of a person to call the person for the purposes of electronically monitoring the person, such as to direct them to charge a device.

·          Persons involved in the provision of drug and other substance testing to test the person for drug and alcohol use, as well as the use of prohibited or restricted chemicals or other substances or items, including firearms.

67.                The possible conditions listed in new subsection 104.5A(2) make it clear that the court may empower a person or class of persons to give directions in connection with some conditions. Any directions are subject to the requirements in new subsection 104.5A(4), namely they must be reasonable to give effect to the condition and for the object of protecting the community from terrorist acts, and preventing the provision of support to, or facilitation of terrorist acts or hostile activities in a foreign country.

68.                The listed conditions also make it clear that the court may authorise the exercise of certain powers. The exercise of those powers is subject to the limitations in new subsections 104.5A(5) and (6) below. Subsection 104.5A(2) makes clear that the person is required to allow the various things that may be done pursuant to the exercise of those powers.

69.                Conditions in a control order may be framed as requiring the person to allow or permit certain things to occur. This aligns with the approach in the ESO regime in Division 105A. For example, the court could include a condition in a control order to the effect that ‘the person must allow AFP officers to attend the person’s residence to confirm compliance with a curfew condition, and to enter the premises for that purpose’. If such a condition were included the AFP could attend the premises and ask the offender to come to the door to confirm they were home during the hours of a curfew. If the offender refused to open the door and did not allow for the AFP to enter then the AFP would not be able to enter the premises, as the allowance required by the control order condition would have not been provided. This may constitute a breach of a control order condition.

70.                New subsection 104.5A(2) makes clear that a court can impose in a control order conditions, such as:

·          A requirement to allow attendance at and entry to premises if an AFP officer attended the premises to confirm compliance with a curfew. This would be particularly relevant if the AFP called a person to check compliance with curfew but the offender was not answering those calls.

·          A requirement that the person take all reasonable steps to answer all calls from AFP officers and from staff engaged in the electronic monitoring of the offender, and return any unanswered calls as soon as practically possible.

·          A requirement to comply with directions issued by a specified authority in relation to the requirement to carry at all times a specified mobile phone, including to charge the phone and ensure the offender remains contactable.

·          A requirement to report to a particular person or persons at times and places specified by that person.

71.                Note 1 at the end of new subsection 104.5A(2) would clarify that restrictions apply to the use of photographs or impressions of fingerprints (as set out in new section 104.5C) where conditions of the kind described in new paragraphs 104.5A(2)(b) and (c) are imposed.

72.                Note 2 at the end of subsection 104.5A(2) would clarify that new paragraph 104.5A(2)(d) is intended to be read in conjunction with new section 104.5D, which sets out obligations related to monitoring devices.

73.                New subsection 104.5A(3) would place constraints on the exercise of monitoring and compliance related powers such as those which are listed in new subsection 104.5A(2). A power exercised by a specified authority under a condition identified in subsection 105A.7B(2) (other than a power to give a direction, which is dealt with separately) can only be exercised if the person exercising the power is satisfied that it is reasonably necessary to do so in order to give effect to the order or to facilitate or monitor compliance with the order. As with the general directions power, what is reasonable will depend on the particular circumstances and conditions of the control order. For example, directing the person to report to a police station at 11:00 am twice a week may generally be reasonable, but if the person lived on the other side of the city, or worked in the mornings, then such a direction may not be reasonable. Similarly, calling a person and expecting them to answer the telephone at 3:00 am may not appear reasonable, but may be reasonable if the person worked shifts and was generally available at 3am, or if there was a risk to the protection of the community that necessitated contact at 3am. If a direction required a person to act in contravention with the terms of the order, such as requiring the person to attend a particular place between the hours that the control order required the person to be at home, then such a direction may be unreasonable (unless, for example, the curfew was an exemption condition (see new section 104.5B)).

Directions

74.                New subsection 104.5A(4) would place limits on directions that a specified authority may give in relation to conditions in an order. A specified authority can only give a direction if the direction is reasonable in all circumstances to give effect to the relevant condition or to the object of the Division (see section 104.1).

75.                This is an important safeguard that ensures that directions are connected to the underlying intent and purpose of the order that is made by the court. It also supports the effective operation of the relevant conditions and the control order itself by ensuring day-to-day decisions can be made by court approved persons in the interests of both the person to whom the control order applies and the community, the reasonableness of a direction, and the content of the control order. For example, a control order could provide that a person not associate with individuals determined by the AFP, and the AFP could direct a person not to communicate with a close family member. Such a direction may not immediately appear reasonable, but if that close family member has been convicted of multiple terrorism offences then such a direction may in fact be reasonable.

Limitations

76.                New subsection 104.5A(5) would provide that the court cannot impose a condition under a control order that requires a person to remain at specified premises for more than 12 hours within any 24 hour period. This is a safeguard to ensure that a control order cannot impose conditions akin to detention.

77.                New subsection 104.5A(6) would provide that, when imposing conditions, the court must consider any conditions of a State or Territory order that is equivalent to a control order to which the person is subject. This ensures that the court must consider the effect of the conditions imposed on the person under a similar State or Territory order as part of considering if conditions to be imposed under the control order are reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the community from terrorist acts and preventing the provision of support to, or facilitation of terrorist acts or hostile activities in a foreign country. This will assist with ensuring that the control order conditions and any State or Territory conditions are complementary and operable together.

General rules about conditions

78.                New subsection 104.5A(7) would make it clear that the conditions which may be imposed on a person are obligations, prohibitions and restrictions that protect the community from the risk posed by the person. Specifically, conditions may:

·          impose restrictions and obligations in relation to certain classes of conduct, and prohibit other classes of that conduct - such as preventing international travel and placing conditions on domestic travel, and

·          impose different restrictions and obligations in relation to different classes of conduct - such as requiring an offender to complete certain programs, but placing conditions on other types of programs or courses.

79.                This is particularly relevant to the examples of conditions in new subsections 104.5A(1) and (2). For the conditions described in new subsection 104.5A(1) that prohibit certain conduct, the court may instead impose conditions and obligations in relation to that conduct.

80.                Similarly, a court may impose different restrictions, obligations and prohibitions in relation to conduct described in new subsections 104.5A(1) or (2) than are specifically referred to in those subsections. For example, new paragraph 104.5A(1)(d) provides that a court could prevent a person from leaving Australia, or the person’s State or Territory of residence. New subsection 104.5A(1) makes clear that a court could place conditions on a person leaving Australia or their State or Territory of residence, such as seeking permission first, or only doing so for specified reasons. If a court was satisfied, it could also impose a condition which limited an offender’s ability to relocate from a particular region in their State of residence. Similarly, new paragraph 104.5A(1)(m) provides that a court could require a person to seek permission from a person or persons specified in the order, such as a class of AFP officer, before commencing certain types of training or education. New subsection 104.5A(1) makes clear that a court could prevent a person from engaging in particularly high risk training, such as blasting courses.

Access to lawyers

81.                New subsection 104.5A(8) would clarify the person’s right to access a lawyer and obtain legal representation. The only limit on accessing, communicating or associating with the person’s lawyer is if the lawyer is one of the individuals that the court has prohibited contact with pursuant to new paragraph 104.5A(1)(h). If the person’s lawyer is a prohibited contact, then the person is free to contact, communicate or associate with any other lawyer who is not listed as a prohibited contact.

References to work

82.                New subsection 104.5A(9) would clarify that the phrase ‘work’, as used in new subsection 104.5A(1), is not limited to paid work but also includes voluntary work.

Meaning of premises

83.                New subsection 104.5A(10) would define ‘premises’ as including a place, an aircraft, a vehicle and a vessel. This is consistent with the definition of premises in other parts of the Criminal Code.

104.5B Conditions where exemptions may be granted

84.                New section 104.5B would provide that the court that is issuing a control order may identify certain conditions included in the order as exemption conditions (new subsection 104.5B(1)), being conditions from which the person may seek a specific, temporary exemption (new subsection 104.5B(2)). In addition to identifying certain conditions as exemption conditions, the court may include in the order certain limits on the kind of exemptions that may be sought, or set out processes that must be followed (new subsection 104.5B(3)), such as requiring a person to apply for an exemption a certain number of days in advance.

85.                A person’s application for an exemption must be made in writing to the person or persons specified in the order, and must set out the reason for the exemption. It must also comply with any other requirements that were set by the court in the order (new subsection 104.5B(4)).

86.                New subsection 104.5B(5) would make clear that the person or persons identified in the order as the specified authority for this purpose would have the discretion to grant or refuse the request for an exemption, or to grant the request subject to any reasonable directions specified in writing by the specified authority. The specified authority can require the offender to provide additional information before making a decision on the application.

87.                This provision is designed to ensure the order contains a sufficient level of flexibility to manage the person in the community, while ensuring the court retains discretion and oversight in respect of any exemptions. For example, an order may prohibit a person from going to a particular location, such as the area around an airport. If the court had made that an exemption condition, then the person could apply to the person or persons specified in the order for an exemption to attend that location at a particular time for a particular reason, such as a medical appointment. The specified authority could approve the exemption subject to certain conditions, such as identifying a specific period of time in which the person may be present in that location, or requiring the person to make themselves known to a particular person at the relevant building before attending the appointment.

88.                The fact that a condition is designated as an exemption condition does not prevent either the person or the AFP member seeking to vary that condition, including by seeking a variation of the condition if an exemption has been refused.

104.5C Treatment of photographs and impressions of fingerprints

89.                New section 104.5C would place restrictions on the use of photographs or impressions of fingerprints taken pursuant to a condition in a control order, reflecting the same safeguards that apply for ESOs. Such photographs and impressions of fingerprints may only be used to ensure compliance with a control order imposed on the person, including subsequent control orders, and cannot be used for any other purpose (new subsection 104.5C(1)).

90.                New subsection 104.5C(2) would require the photograph or impression to be destroyed as soon as practicable if it has been more than 12 months since a control order was in force in relation to the person (new paragraph 104.5C(2)(a)); and no control order proceedings in relation to the person were underway in that 12 month period (new subparagraph 104.5C(2)(b)(i)), or proceedings relating to a control order were discontinued or completed in that 12 month period (new subparagraph 104.5C(2)(b)(ii)).

91.                New subsection 104.5C(3) would make it an offence, punishable by two years’ imprisonment, to use a photograph or impression of fingerprints for any other purpose.

104.5D Obligations relating to monitoring devices

92.                New section 104.5D would provide for obligations relating to monitoring devices. It would replicate the existing provisions in current section 104.5A (which is being repealed by this item) and section 105A.7E that apply to control orders and ESOs respectively. It would require a court that includes a condition in a control order that the person wear a monitoring device to also include in the order a number of additional requirements and authorisations relating to electronic monitoring (new subsections 104.5D(1)-(3), (5)). The same preconditions for the exercise of any powers pursuant to a condition in a control order apply to control orders and ESOs (new subsection 104.5D(4) and subsection 105A.7E(4) respectively).

93.                New subsection 104.5D(3) would clarify the operation of the authorisations if the monitoring condition is removed from the order, the order ceases to be in force, or if the person is detained in custody. New subparagraph 104.5D(3)(b)(iii) would provide that if a person is detained in custody, a monitoring device and related monitoring equipment may be removed in accordance with paragraph 104.5D(2)(d) or (e) even though no authorisation under subsection 104.5D(2) is in force.

94.                The note under new subsection 104.5D(3) refers to subsection 100.1(1), which clarifies the meaning of ‘detained in custody’.

Item 12 - Subdivision CA of Division 104 of Part 5.3 of the Criminal Code

95.                This item would repeal Subdivision CA of Division 104 of Part 5.3. This subdivision concerns varying an interim control order by consent. New Subdivision EA, which would be introduced by item 25 (explained below), would supersede this subdivision. New Subdivision EA contains new section 104.22, which provides for the varying of interim and confirmed control order by consent.

Item 13 - Subparagraph 104.12(1)(b)(iii) of the Criminal Code

96.                This item would delete the reference in subparagraph 104.12(1)(b)(iii) to section 104.22 (which would be repealed by item 24 and replaced by new section 104.5C) and replace it with a reference to new section 104.5C. The effect of this amendment is that as soon as practicable after an interim control order is made in relation to a person, and at least 48 hours before the day specified as mentioned in paragraph 104.5(1)(e), an AFP member is required to inform the person of the effect of new section 104.5C which places restrictions on the use of photographs or impressions of fingerprints taken pursuant to a condition in a control order.

Item 14 - After subparagraph 104.12(1)(b)(vii) of the Criminal Code

97.                This item would insert new subparagraph 104.12(1)(b)(viia) into paragraph 104.12(1)(b). The effect of new subparagraph 104.12(1)(b)(viia) would be that as soon as practicable after an interim control order is made in relation to a person, and at least 48 hours before the day specified as mentioned in paragraph 104.5(1)(e), an AFP member is required to inform the person that the order may be varied by consent in accordance with new section 104.22 (explained below at item 25). It is appropriate that the person is informed of this option so they can seek to exercise it if they consider that a variation is required to ensure they can successfully comply with the order, or if there has been a change of circumstances that has resulted, for example, in certain conditions becoming unnecessary, disproportionate or otherwise impracticable. 

Item 15 - Paragraph 104.14(7)(b) of the Criminal Code

98.                This item would replace references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ in paragraph 104.14(7)(b). This is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Item 16 - Paragraph 104.16(1)(c) of the Criminal Code

99.                This item would replace references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ in paragraph 104.16(1)(c). This is consequential to the amendment to the objects of Division 104 in item 3 (explained above). This item would also replace the reference in paragraph 104.16(1)(c) to subsection 104.5(3) (which would be repealed and replaced by new section 104.5A - see items 10 and 11 explained above), with a reference to new section 104.5A. The effect of these amendments would be that if the issuing court confirms an interim control order under section 104.14, the court must make a corresponding order that specifies all of the conditions that are to be imposed on the person by the order.

Item 17 - After paragraph 104.16(1)(c) of the Criminal Code

100.            This item would insert new paragraph 104.16(1)(ca) into subsection 104.16(1).

101.            New paragraph 104.16(1)(ca) would have the effect that if the issuing court confirms an interim control order under section 104.14, the court must make a corresponding order that specifies any exemption conditions that are to be imposed in accordance with new section 104.5B (see item 11) on the person by the order. It is appropriate that the court is required to specify any exemption conditions imposed in its corresponding order to ensure that the parties have a complete record of the order and the controlee is aware of the conditions in relation to which they are able to apply for a temporary exemption. 

Item 18 - After subparagraph 104.17(1)(b)(ii) of the Criminal Code

102.            This item would insert new subparagraph 104.17(1)(b)(ii) into section 104.17, which deals with the service of a declaration, or a revocation, variation or confirmation of a control order. The effect of new subparagraph 104.17(1)(b)(ii) would be that as soon as practicable after an interim control order is declared to be void, revoked or confirmed (with or without variation) under section 104.14, an AFP member must, if the court confirms the interim order, inform the person that the order may be varied by consent in accordance with new section 104.22 (see item 25). It is appropriate that the person is informed of this option so they can seek to exercise it if they consider that a variation is required to ensure they can successfully comply with the order, or if there has been a change of circumstances that has resulted, for example, in certain conditions becoming unnecessary, disproportionate or otherwise impracticable.

Item 19 - Paragraph 104.19(1)(b) of the Criminal Code

103.            This item would replace references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ in paragraph 104.19(1)(b). This is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Item 20 - Section 104.20 of the Criminal Code (at the end of the heading)

104.            This item would add additional text to the heading of section 104.20, to make it clear that a control order can be revoked or varied on application by the person or the AFP Commissioner.

Item 21 - Paragraph 104.20(1)(b) of the Criminal Code

105.            This item would replace references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ in paragraph 104.20(1)(b). This is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Item 22 - After subsection 104.21(1) of the Criminal Code

106.            This item would insert new subsection 104.21(1A) into section 104.21. New subsection 104.21(1A) would provide that if a control order in relation to a person is varied under new section 104.22 (see item 25), the person’s lawyer may request a copy of the order. This is appropriate to ensure the person’s lawyer is able to provide the person with legal advice in relation to matters such as compliance with the varied order, the consequences of breaching the varied order, and options to seek a further variation or revocation of the order as relevant.

Item 23 - Paragraph 104.21(2)(a) of the Criminal Code

107.            This item would amend paragraph 104.21(2)(a) to clarify that the order to which this provision applies is an order that has been confirmed or varied under sections 104.14, 104.20 or 104.24 (that is, an order mentioned in subsection 104.21(1)) or an order that has been varied under new section 104.22 (that, is an order mentioned in new subsection 104.21(1A)).

Item 24 - Section 104.22 of the Criminal Code

108.            This item would repeal section 104.22. This provision, which deals with the t reatment of photographs and impressions of fingerprints, would be replaced by new section 104.5C (explained above at item 11).

Item 25 - After Subdivision E of Division 104 of Part 4.3 of the Criminal Code

109.            This item would insert new Subdivision EA into Division 104, which deals with varying a control order by consent. New Subdivision EA would supplement Subdivision F which provides for a court to add conditions to a control order on application by the AFP Commissioner, and supersede Subdivision CA (which would be repealed by item 12) which currently provides for the variation of interim control orders (other by adding new conditions) by consent. The measures in new Subdivision EA are intended to implement Recommendation 12 of the PJCIS’s AFP Powers Review. [19]

110.            New subsection 104.22(1) would provide that a senior AFP member or their legal representative, or the person (controlee) or their legal representative, may apply to the issuing court to vary a control order (interim or confirmed) in relation to the person. The circumstances that gave rise to the making of the order may change during the life of the order, resulting in the order being too challenging to comply with, unnecessarily restrictive, or inappropriate for the continued protection of the community. A change in circumstance may be identified by the AFP or the controlee. They include but would not be limited to circumstances in which compliance with the order (for example, conditions restricting access to certain places) impinges on the person’s ability to fulfil their employment, educational or other responsibilities which may have changed since the order was made; circumstances in which the person wishes to demonstrate that they have changed their behaviour, reducing the risk that will commit or support a terrorist act or hostile activity; or circumstances in which changes in the controlee’s movements, relationships or compliance with order (or otherwise) alters their risk profile. It is important that the controlee and the AFP are both able apply to a court to have the order varied in circumstances such as these to ensure that the order remains fit for purpose. 

111.            New subsection 104.22(2) would provide that a variation may consist of:

·          Varying or removing one or more of the conditions imposed on the person by the order (new paragraph 104.22(2)(a)). This would provide the court the flexibility to change or entirely remove conditions which may no longer be appropriate in the circumstances.

·          Imposing one or more additional conditions on the person by the order (new paragraph 104.22(2)(b)). Current section 104.11A (which would be repealed by item 12) does not permit the adding of conditions to interim control orders. New paragraph 104.22(2)(b) supports a more flexible approach that recognises the benefits in the AFP and controlee working together to propose new conditions that are appropriate in the circumstances and that the controlee is willing and able comply with.

112.            New subsection 104.22(3) would provide that the application may be withdrawn at any time before the issuing court makes a decision on whether or not to vary the order. This provides flexibility to the person requesting the variation, and ensures the court’s time is not wasted by considering variation requests that are no longer wanted.

113.            New subsection 104.22(4) would set out an additional requirement for persons aged 14 to 17 years, that if an application is made to vary a control order, a senior AFP member or their legal representative must cause written notice of the application to be given to at least one parent or guardian of the person. This ensures that appropriate notification of an intention to vary a control order is provided to a parent or guardian of a child who is subject to an order. Appropriate notification will support the parent or guardian to consider the implications of a variation to their child’s control order, noting that a parent or guardian would be required to consent to the variation under new subsection 104.22(5).

114.            New subsection 104.22(5) would set out requirements that the court must consider in making a decision to vary the order where the controlee is aged 14 to 17 years. The court must be satisfied of all of the following:

·          Written consent to the variation has been given, and not withdrawn by the person’s parent or guardian (if the applicant is a senior AFP member or a legal representative of the senior AFP member) or by a senior AFP member (if the applicant is the person or the legal representative of the person). This requirement is intended to ensure that the court is provided with certainty that the consent of the non-applicant party (which, in the case of a controlee who is a minor, would be provided by their parent or guardian) is in place at the time the variation is made. It is appropriate that a parent or guardian provides consent on behalf of the controlee if the controlee is a minor to ensure the decision to provide consent is properly considered. This is broadly similar to the approach taken in section 23XWQ of the Crimes Act that relates to the giving of consent to volunteer to undergo forensic procedures in circumstances where the volunteer is a child, which requires the informed consent of a parent or guardian (paragraph 23XWQ(2)(b)).

·          The variation is in the best interests of the person. In considering this, the court must consider any representations the person makes about the variation and any other matter the court considers relevant. This is an additional requirement to ensure that the rights of children are considered and protected. This accords with Australia’s obligations under Article 3.1 of the CRC which provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

·          The variation is appropriate in the circumstances. In determining whether the variation is appropriate in the circumstances, the court may consider any matters it deems relevant; however, in determining what is ‘appropriate’ for this purpose, it is intended that the court would have regard to the matters relevant in issuing an interim control order (section 104.4) and matters relevant in varying a control order (section 104.24).

115.            New subsection 104.22(6) would set out requirements that the court must consider in making a decision to vary the order where the controlee is aged 18 or older. The court must be satisfied of both of the following:

·          Written consent to the variation has been given, and not withdrawn by the person (if the applicant is a senior AFP member or a legal representative of the senior AFP member) or by a senior AFP member (if the applicant is the person or the legal representative of the person). This requirement is intended to ensure that the court is provided with certainty that the consent of the non-applicant party is in place at the time the variation is made.

·          The variation is appropriate in the circumstances. In determining whether the variation is appropriate in the circumstances, the court may consider any matters it deems relevant; however, in determining what is appropriate for this purpose, it is intended that the court would have regard to the matters relevant in issuing an interim control order (section 104.4) and matters relevant in varying a control order (section 104.24).

116.            New subsection 104.22(7) would require that, if the issuing court varies the order, the varied order must state that the court is satisfied of the matters mentioned in new subsections 104.22(5) or 104.22(6), and specify the variations to the conditions that are to be made. This ensures that it is clear the court has considered the requirements in these subsections. New subsection 104.22(7) additionally provides that the varied order must state the period during which the varied order is in force, and must state that the person’s lawyer may request a copy of the order. This ensures that the court also has the flexibility to temporarily vary an order, by stating that a particular condition that is added, varied or removed is only to be added, varied or removed for a specified period of time, for example a one-month period. This gives the court the ability to set conditions that respond to changing circumstances, for example by allowing the controlee to reside at a different address for six weeks while repairs are carried out at their ordinary place of residence, and ensures flexibility around the start and end dates for variations. This ensures that any lawyer representing the controlee is able to access copies of the order made in relation to the controlee, so that they can provide advice to, and represent the interests of the controlee as they relate to the order.

117.            New subsection 104.22(8) would require that, if the issuing court varies the order and the person is 14 to 17 years of age, an AFP member must take reasonable steps to serve a copy of the varied order personally on each parent or guardian of the person notified in the variation in accordance with subsection (4). This is intended to ensure, to the extent possible, that the controlee’s parent(s) or guardian(s) who were notified of the application for the variation, are made aware of the outcome of the application, and are accordingly well placed to support the controlee to comply with the varied order. The provision requires the AFP member to take reasonable steps to serve the order (rather than to actually serve the order) in recognition that circumstances may arise in which the parent or guardian cannot be located or contacted despite the AFP member’s best efforts. The parent or guardian may, for example, have passed away or moved overseas between the time they were notified of the variation application or consented to the variation, and the time the variation was made by the court.

Item 26 - Subdivision F of Division 104 of Part 5.3 of the Criminal Code (heading)

118.            This item would amend and replace references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ in the heading of Subdivision F of Division 104. This is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Item 27 - Section 104.23 of the Criminal Code (heading)

119.            This item would replace references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ in the heading of Section 104.23. This is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Item 28 - Subsection 104.23(1) of the Criminal Code

120.            This would replace references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ in subsection 104.23(1). This is consequential to the amendment to the objects of Division 104 in item 3 (explained above). This item would also replace the reference in subsection 104.23(1) to existing subsection 104.5(3) (which would be repealed by item 10 and replaced with new section 104.5A in item 11) with a reference to new section 104.5A.

Item 29 - Paragraph 104.23(2)(a) of the Criminal Code

121.            This item would replace references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ in paragraph 104.23(2)(a). This is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Item 30 - Subparagraph 104.23(2)(b)(i) of the Criminal Code

122.            This item would replace references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ in subparagraph 104.23(2)(b)(i). This is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Item 31 - Subparagraph 104.23(2)(b)(ii) of the Criminal Code

123.            This item would replace references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ in subparagraph 104.23(2)(b)(ii). This is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Item 32 - Paragraph 104.24(1)(b) of the Criminal Code

124.            This item would replace references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ in paragraph 104.24(1)(b). This is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Item 33 - Subsection 104.24(2) of the Criminal Code

125.            This item would replace references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ in subsection 104.24(2). This is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Item 34 - Paragraph 104.24(2)(c) of the Criminal Code

126.            This item would replace references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ in paragraph 104.24(2)(c). This is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Item 35 - Paragraph 104.25(b) of the Criminal Code

127.            This item would replace references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ in paragraph 104.25(b). This is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Item 36 - Paragraph 104.26(1)(b) of the Criminal Code

128.            This item would replace references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ in paragraph 104.26(1)(b). This is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Item 37 - Subparagraph 104.26(1)(c)(i) of the Criminal Code

129.            This item would replace references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ in subparagraph 104.26(1)(c)(i). This is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Item 38 - Subparagraph 104.26(1)(c)(ii) of the Criminal Code

130.            This item would replace the reference in subparagraph 104.26(1)(c)(ii) to existing section 104.22 (which would be repealed by item 24 and replaced with new section 104.5C in item 11) with a reference to 104.5C.

Item 39 - Paragraph 104.28C(1)(a) of the Criminal Code

131.            This item would replace the reference in paragraph 104.28C(1)(a) to existing paragraph reference 104.5(3)(d) (which would be repealed by item 10 and replaced with new paragraph 104.5A(2)(d) in item 11) with a reference to new paragraph 104.5A(2)(d).

Item 40 - Paragraph 104.28C(1)(b) of the Criminal Code

132.            This item would replace the reference in paragraph 104.28C(1)(b) to existing section 104.5A (which would be repealed by item 10 and replaced with new section 104.5D in item 11) with a reference to new section 104.5D.

Item 41 - Paragraph 104.28D(1)(b) of the Criminal Code

133.            This item would replace the reference in paragraph 104.28D(1)(b) to existing section 104.5A (which would be repealed by item 10 and replaced with new section 104.5D in item 11) with a reference to new section 104.5D.

Item 42 - Subsections 104.32(1) and (2) of the Criminal Code

134.            This item is intended to implement Recommendation 7 of the PJCIS’s AFP Powers Review. [20] It would amend subsections 104.32(1) and (2), which would have the effect of extending the operation of the control order regime for three years until 7 December 2026.

Item 43 - Paragraph 105.2(1)(b) of the Criminal Code

135.            This item would amend paragraph 105.2(1)(b) to remove persons who are judges of the Federal Circuit and Family Court of Australia from the list of persons who can be appointed by the Attorney-General as issuing authorities for continued PDOs. The combined effect of this amendment and the amendment in item 45 to paragraph 105.2(1)(e) would be that only judges of the Federal Court of Australia or a Supreme Court of State or Territory are eligible for appointment as issuing authorities. This is intended to implement Recommendation 15 of the AFP Powers Review. [21] Limiting the power to issue PDOs to judges of superior courts reflects the serious and extraordinary nature of those orders, and the significant volume and complexity of evidence that a court considers as part of these proceedings.

Item 44 - Subparagraph 105.2(1)(d)(ii) of the Criminal Code

136.            This item would replace ‘superior court; or’ with ‘superior court.’ at the end of subparagraph 105.2(1)(d)(ii) to reflect that these words will conclude subsection 105.2(1) when paragraph 105.2(1)(e) is repealed (see item 45).

Item 45 - Paragraph 105.2(1)(e) of the Criminal Code

137.            This item would repeal paragraph 105.2(1)(e). This would have the effect of removing persons who hold an appointment to the AAT as President or Deputy President, is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory, and has been enrolled for at least 5 years from the list of persons who can be appointed by the Attorney-General as issuing authorities for continued PDOs . The combined effect of this amendment and the amendment in item 43 to paragraph 105.2(1)(d) would be that only judges of the Federal Court of Australia or a Supreme Court of State or Territory are eligible for appointment as issuing authorities. The would include members of the AAT who also hold commission as superior court judges. This is intended to implement Recommendation 15 of the AFP Powers Review. [22] Limiting the power to issue PDOs to judges of superior courts reflects the serious and extraordinary nature of those orders, and the significant volume and complexity of evidence that a court considers as part of these proceedings.

Item 46 - Paragraph 105.11(1) of the Criminal Code (note)

138.            This item would remove the reference to AAT members from the list of issuing authorities for continued PDOs in paragraph 105.11(1). This is consequential to the repeal of paragraph 105.2(1)(e) in item 45.

Item 47 - Section 105.12 of the Criminal Code (heading)

139.            This item would remove the reference to AAT members from the list of issuing authorities for continued PDOs in the heading of section 105.12. This is consequential to the repeal of paragraph 105.2(1)(e) in item 45.

Item 48 - Subsection 105.12(1) of the Criminal Code (note)

140.            This item would remove the reference to AAT members from the list of issuing authorities for continued PDOs in the note under subsection 105.12(1). This is consequential to the repeal of paragraph 105.2(1)(e) in item 45.

Items 49 and 50 - Subsection 105.18(2) of the Criminal Code

141.            These items would remove the two references to members of the AAT from the list of persons on whom the function of making, revoking or extending a continuing PDO; or making or revoking a PCO may be conferred in subsection 105.18(2). This is consequential to the repeal of paragraph 105.2(1)(e) in item 45.

Item 51 - Subsections 105.53(1) and (2) of the Criminal Code

142.            This item is intended to implement Recommendation 14 of the PJCIS’s AFP Powers Review. [23] It would amend subsections 105.53(1) and (2), which would have the effect of extending the operation of the CDO regime for three years until 7 December 2026.

Item 52 - Subsections 105A.2(1) of the Criminal Code (definition of exemption condition )

143.            This item would repeal the definition of exemption condition, reflecting that a new definition would inserted into section 100.1(1) by item 2 (explained above).

Item 53 - Subsection 105A.7F(1) of the Criminal Code

144.            This item would remove the reference to section 105.7A in subsection 105A.7F(1), which is a typographical error.

Item 54 - After subsection 105A.22(1) of the Criminal Code

145.            This item would insert a subheading after subsection 105A.22(1) to make it clear that subsection 105A.22(2) and new subsection 105A.22(2A) deal with information that must be included in the AFP Minister’s annual report.

Item 55 - After subsection 105A.22(2) of the Criminal Code

146.            This item would insert new subsections 105A.22(2A) - (2C) into section 105A.22. The new provisions would expand the public reporting requirements in relation to the operation of Division 105A in accordance with Recommendation 19 of the PJCIS’s AFP Powers Review. [24]

147.            Without limiting subsection 105A.22(1), new subsection 105A.22(2A) would provide that the AFP Minister’s annual report about the operation of Division 105A must contain information about all of the following:

·          The detention arrangements that applied to terrorist offenders who were subject to a CDO at any time during the year (new paragraph 105A.22(2A)(a)). This may include information about the availability, type and nature of the detention arrangements, and the cost of providing the detention arrangements to the cohort subject to a CDO.

·          Rehabilitation or treatment programs that were made available during the year to terrorist offenders who were subject to a post-sentence order at any time during the year (new paragraph 105A.22(2A)(b)). This may include information about the availability, type and nature, as well as the costs of making available rehabilitation or treatment programs (including therapeutic services) to the cohort subject to a post-sentence order.

·          Funding for the administration of this division during the year (new paragraph 105A.22(2A)(c). This may include information about funding provided by the Commonwealth, either directly or indirectly, to support the implementation of Division 105A, including the costs of applying for or reviewing Division 105A orders, legal-assistance funding for terrorist offenders and enforcement costs.

148.            Requiring this information to be published in the annual report is intended to improve transparency in relation to the implementation of the post-sentence order scheme, and the management of terrorist offenders subject to a post-sentence order. The identified topics are critical to a holistic understanding of the operation of the scheme, which annual reporting aims to support.

149.            Although new subsection 105A.22(2A) would enable the release of information relating to an individual, or which could enable the identification of an individual, new subsection 105A.22(2A) is intended to be satisfied by the inclusion of high-level information that does not directly relate to the circumstances and experiences of individuals subject to a post-sentence order. For example, the information requirements for paragraph 105A.22(2A)(a) may be satisfied by reporting that facilities of a certain kind (for example, secured detention facilities) were made available for use by certain jurisdictions in the year, and reporting on any additional information about the facility, such as its features or its use. Existing provisions which prevent the communication of information that may cause harm to Australia’s interests, such as section 122.2 of the Criminal Code , would not be affected by these requirements.

150.            The publication of information in accordance with new subsection 105A.22(2A) may make it possible to identify that information relates to certain individuals, particularly where there is a small pool of individuals subject to post-sentence orders. Noting information about individuals subject to these orders is already publicly accessible and the reporting of information supports improved transparency over the operation of the division, including its implementation, it is appropriate in certain circumstances to report some information that may identify or share information about an individual or individuals. It is anticipated that the Minister would, in considering what information to include in reporting, consider whether the information may identify or share information about an individual or individuals, any impacts the reporting of that may have on the individual or the community, and whether the reporting requirements could be satisfied without identifying or sharing information about an individual or individuals.

151.            In determining what information is necessary to publish to meet their reporting obligations, and the intent of understanding the operation of Division 105A, the AFP Minister would need to consider whether certain information that may impact on the privacy of terrorist offenders subject to post-sentence orders is appropriate for release.

152.            New subsection 105A.22(2B) would provide that the report must not include information under new subsection 105A.22(2A) if it was given to the AFP Minister, or an officer or employee of the Commonwealth, by a Minister, or an officer or employee, of a State or Territory and that person has not consented in writing to the information being included in the report. This recognises that States and Territories hold much of the information that would be relevant to the new reporting requirements, and there may be sensitivities associated with their public release. New subsection 105A.22(2B) is intended to mitigate this risk by ensuring that information provided by States and Territories is only be published in the annual report where the appropriate representative of the relevant State or Territory has given express approval. The Commonwealth would not be in breach of its reporting obligations if it is unable to provide the relevant information under new paragraphs 105A.22(2A)(a)-(c), because subsection 105A.22(2B) applies in respect of certain relevant information.  

153.            New subsection 105A.22(2C) would provide that if the report omits information due to the operation of new subsection 105A.22(2B), the report must include a statement to that effect. This would provide assurance, and transparency in relation to the fact that, the AFP Minister has sought to fulfil their obligation to publish relevant information in the annual report, but is unable to do so because the required State and Territory consent has not been granted . Nothing in this provision prevents the Minister from including information in the report which addresses the reasons provided by a State or Territory for withholding their consent. 

Item 56 - In the appropriate position in Division 106 of the Criminal Code

154.            This item would insert new section 106.13 into Division 106 which are application and transitional provisions.

155.            New subsection 106.13(1) would provide that the amendments made to Division 104 by this Bill do not apply to interim control orders or confirmed control orders made before new section 106.13 commences (new paragraphs 106.12(1)(a) and(b)). It would also provide that the measures in this Bill do not apply to a confirmed control order made on or after the commencement of new section 106.13 if the interim control order that is confirmed by the confirmed control order was made before that commencement date (new paragraph 106.12(1)(c)). This ensures the amendments to Division 104 do not apply retrospectively.

156.            New subsection 106.13(2) would provide that the amendment made to subsection 100.1(1) by this Bill does not apply to an order made by the Federal Circuit and Family Court of Australia (Division 2) before the commencement of new section 106.13. The effect of this provision is that any decisions and orders made by the Federal Circuit and Family Court of Australia (Division 2) under Division 104 before it ceases to be an issuing court in relation to control orders by operation of the amendment at item 2, would not cease or be invalidated.

157.            New subsection 106.13(3) would apply to a person who held an appointment as an issuing authority for continuing PDOs immediately before new section 106.13 commences (new paragraph 106.13(3)(a)) and is a superior court judge (new paragraph 106.13(3)(b)). It would provide that the continuity of such a person’s appointment as an issuing authority would not be affected by the amendments made to subsection 105.2(1) in items 43-45 (explained above). This is appropriate as superior court judges would continue to be eligible for appointment as issuing authorities under the amended subsection 105.2(1).

158.            New subsection 106.13(4) would apply to a person who held an appointment as an issuing authority for continuing PDOs immediately before new section 106.13 commences (new paragraph 106.13(4)(a)) and is not a superior court judge (new paragraph 106.13(4)(b)). It would provide that such a person’s appointment as an issuing authority would lapse immediately after the commencement of new section 106.13 (new paragraph 106.13(4)(c)). This is appropriate as they would no longer be eligible for appointment as an issuing authority under the amended subsection 105.2(1). It would also provide that the continuity of any order or decision made by the person prior to the commencement of new 106.13 is not affected by the amendments to subsection 105.2(1). in items 43-45 (new paragraph 106.13(4)(d)). This is appropriate because such orders or decisions would have been made while the issuing authority was appointed as such, and eligible to hold that appointment.

Division 2 - Consequential Amendments

Administrative Decisions (Judicial Review) Act 1977

Item 57 - Paragraph (daba) of Schedule 1

159.            This item would replace references to ‘interim control orders under section 104.11A of the Criminal Code’ with references to ‘control orders under section 104.22 of the Criminal Code’ in paragraph (daba) of Schedule 1 of the ADJR Act. This is consequential to the amendment to the repeal of section 104.11A of the Criminal Code, and its replacement with new section 104.22.

160.            Schedule 1 of the ADJR Act sets out the classes of decisions to which the Act does not apply. The effect of new paragraph (daba) of Schedule 1 is that the decisions of senior AFP members to provide or refuse consent to vary control orders, both interim and confirmed, under new section 104.22 of the Criminal Code will not be reviewable under the ADJR Act.

161.            In its 2012 report Federal Judicial Review in Australia, the Administrative Law Council outlined a number of justifications as to why exempting a decision from review under the ADJR Act may be appropriate. One such justification is that review under the ADJR Act has the potential to fragment or frustrate another legal process that is already underway. The prospect of ADJR Act review of the decision of a senior AFP member to consent to the variation of an interim control order would fragment the confirmation proceeding process.

162.            It is appropriate to exclude the decision of the senior AFP member to provide or refuse consent to vary a confirmed control order from ADJR Act review as well. By allowing for the variation of control orders by consent new section 104.22 of the Criminal Code is designed to provide flexibility for both the AFP and the controlee to agree to uncontroversial changes to the original terms of an interim control order. The issuing court would continue to be the decision-maker in relation to variations of control orders under new 104.22 and would only be able to vary the order only if satisfied that the variation is appropriate in the circumstances (see new paragraphs 104.22(5)(c) and 104.22(6)(b)).

163.            The exclusion of decisions by senior AFP members under new section 104.22 from ADJR Act review would not prevent those decisions from being judicially reviewed under paragraph 75(v) of the Constitution.

Item 58 - Application - decisions of senior AFP members in relation to consent to vary interim control orders

164.            This item would provide that despite the amendment to (daba) of Schedule 1 in item 57, paragraph (daba) of Schedule 1 continues to apply in relation to interim control orders made in accordance with section 104.11A of the Criminal Code before the commencement of item 58, as if the amendment in item 57 had not been made. This item would ensure that decisions made by AFP members to provide or refuse consent to vary interim control orders under section 104.11A would continue to be excluded from judicial review, even after section 104.11A of the Criminal Code has been repealed and paragraph (daba) of Schedule 1 of the ADJR Act has been amended in accordance with item 57.

Australian Security Intelligence Organisation Act 1979

Item 59 - Subsection 35(1) (note to the definition of prescribed administrative action )

165.            This item would replace references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ in the note in subsection 35(1). This is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Item 60 - Paragraph 35(2)(a)

166.            This item would replace references to ‘obligations, prohibitions or restrictions’ with references to ‘conditions’ in paragraph 35(2)(a). This is consequential to the amendment to the objects of Division 104 in item 3 (explained above).

Crimes Act 1914

Item 61 - Subparagraph 3ZZOD(1)(b)(iv)

167.            This item would remove the reference to ‘obligations, prohibitions or restrictions’ in subparagraph 3ZZOD(1)(b)(iv). This is consequential to the amendment to the objects of Division 104 in item 3 (explained above). The effect of this provision is that a police officer would not be permitted to execute a monitoring warrant that was issued on the basis that a control order was in force in relation to a person , or exercise a power under Division 2 or 3 of Part 1AAB of the Crimes Act that is consequential on the warrant, where the control order has been varied by a court by removing one or more conditions .

Item 62 - Application - execution of monitoring warrants in relation to control orders

168.            This item would provide that despite the deletion of references to ‘obligations, prohibitions or restrictions’ from subparagraph 3ZZOD(1)(b)(iv) of the Crimes Act that would be made by item 61, section 3ZZOD would continue to apply, as if the amendment in item 61 had not been made, in relation to an interim control order made before the commencement of item 62, a confirmed control order made before the commencement of item 62, and a confirmed control order made on or after the commencement of item 62 if the interim control order that is being confirmed by the confirmed control order was made before the commencement of item 62. Section 3ZZOD would apply in relation to these orders as if the amendment in item 61 had not been made. The effect of this provision is that a police officer would not be permitted to execute a monitoring warrant that was issued on the basis that a control order was in force in relation to a person , or exercise a power under Division 2 or 3 of Part 1AAB of the Crimes Act that is consequential on the warrant, where the control order has been revoked, declared void or varied by a court to remove a condition.  

Part 2—Unauthorised disclosure of information by current and former Commonwealth officers etc.—sunsetting extension

Criminal Code Act 1995

Item 63 - Section 122.4 of the Criminal Code

169.            This item would amend section 122.4 to extend the sunsetting date of this section by 12 months to 29 December 2024.

170.            Section 122.4 creates an offence where a person communicates information, the person made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity, the person is under a duty not to disclose the information, and the duty arises under a law of the Commonwealth.

171.            At present, approximately 296 non-disclosure duties enliven the offence in section 122.4. The offence in section 122.4 is intended to be time-limited, to preserve the operation of these duties, while each duty is being reviewed to determine whether it should be converted into a stand-alone specific secrecy offence, or whether criminal liability should be removed.

172.            On 22 December 2022, the Attorney-General announced the Government had commenced a comprehensive review of Commonwealth secrecy offences (the Review), including these non-disclosure duties. The Attorney-General indicated the Review would consult across all Commonwealth departments and undertake public consultations on the operation of secrecy offences. The Review will deliver its final report to Government by 31 August 2023.

173.            A 12-month extension to the sunsetting date of section 122.4 is required to maintain criminal liability until the Review is finalised, and Government can consider the final report, including any proposed legislative reforms on non-disclosure duties.