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Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019

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2019

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

counter-terrorism legislation amendment (2019 Measures no. 1) BILL 2019

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General,

the Honourable Christian Porter MP)

 

                                                                                                        



 

counter-terrorism legislation amendment (2019 measures no. 1) BILL 2019

 

General Outline

1.                 The Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019 (Bill) contains a range of amendments to strengthen Australia’s counter-terrorism legislative framework. The measures in the Bill fall into two broad categories - amendments relating to restrictions on bail and parole under the Crimes Act 1914 (Crimes Act), and amendments relating to the continuing detention order (CDO) scheme in Division 105A of the Commonwealth Criminal Code Act 1995 (Cth).

Schedule 1 - Restrictions on bail and parole

2.                 In response to the terrorist incident that occurred on 5 June 2017 in Brighton, Victoria, the Council of Australian Governments (COAG) met on 9 June 2017 to consider reforms to Australia’s bail and parole regimes. During the Brighton incident, Yacub Khayre shot and killed a man and held a woman hostage before being fatally shot by Victorian Police. Mr Khayre, who was on parole for Victorian offences, had a long history of violence and was previously acquitted of a terrorism offence.

3.                 At the COAG meeting, First Ministers agreed that there should be a presumption against bail and parole for persons who have demonstrated support for, or have links to, terrorist activity. At the special meeting of COAG on counter-terrorism on 5 October 2017, it was further agreed that these presumptions would be underpinned by nationally consistent principles to ensure there is a presumption against bail and parole in agreed circumstances across Australia.

4.                 Section 15AA of the Crimes Act already provides for a presumption against bail for persons being considered for bail as a result of a charge or conviction for a terrorism offence. The amendments to the Crimes Act in this Bill are necessary to give effect to the COAG decision, by expanding the application of section 15AA, and introducing a presumption against parole for a broader group of offenders, namely:

·          persons charged with or convicted of a terrorism offence, including persons who might have been previously charged with or convicted of one of the offences listed in section 15AA, but are currently being considered for bail for a further federal offence 

·          persons who are the subject of a control order within the meaning of Part 5.3 of the Criminal Code , and

·          persons who have made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of Part 5.3 of the Criminal Code .

5.                 Additionally, the Bill responds to issues raised during the Independent National Security Legislation Monitor (INSLM) inquiry and report into the prosecution and sentencing of children for Commonwealth terrorist offences, namely the application to children of the existing presumption against bail, and, the minimum non-parole period for terrorist offenders under section 19AG of the Crimes Act.

6.                 The amendments make it explicit that the best interests of the child are a primary consideration, with the protection of the community the paramount consideration, for a bail authority when determining whether exceptional circumstances exist to rebut the presumption against bail where the person is under the age of 18 years. This implements recommendation 2a of the INSLM’s report. Further, the amendments make it clear that these same factors are to be considered by:

·          the sentencing court when determining whether exceptional circumstances exist to justify a departure from the minimum non-parole period for a terrorism offence, where the offender is under the age of 18 years, and

·          the Attorney-General when determining whether exceptional circumstances exist to justify the release of a terrorist offender or terrorism-related offender on parole. 

Schedule 2 - Amendments relating to continuing detention orders

7.                 The Bill will amend the CDO scheme in Division 105A of the Criminal Code for high risk terrorist offenders by:

·          expanding eligibility for the scheme by ensuring that terrorist offenders who are currently serving a period of imprisonment for a terrorism offence and another offence remain eligible for consideration for a CDO at the conclusion of their term of imprisonment, and

·          amending the information disclosure obligations in respect of CDO applications to better align the protections available for sensitive national security information with those available in other contexts, such as criminal proceedings.

8.                 Expanding the eligibility criteria for the CDO scheme is consistent with the overall objective of the CDO scheme, which is to ensure the safety and protection of the community from terrorist offenders who pose an unacceptable risk of committing a serious Part 5.3 offence if released at the expiry of their custodial sentence. The amendments ensure that a terrorist offender continues to be eligible for a CDO irrespective of whether the final sentence from which the offender is released is a terrorism sentence, or another sentence that is served concurrently or cumulatively with their terrorism sentence.

9.                 Amending the information disclosure obligations in relation to sensitive national security information in CDO applications will enhance the effectiveness of the CDO scheme. The amendments will bring the information protections available in respect of CDO applications in line with the protections available in other contexts, such as criminal prosecutions. These amendments will not affect the existing requirement that all the material that the Australian Federal Police Minister (AFP Minister) wishes to rely on for the making of a CDO application must be provided to the terrorist offender.

FINANCIAL IMPACT

10.             The financial impact of this Bill is limited to the costs associated with housing federal prisoners on remand and sentence.

11.             The Commonwealth does not own or operate any prisons and federal prisoners are housed in state and territory prisons. Convicted federal offenders comprise approximately three per cent of Australia’s total prison population. As such, the overall financial impact on states and territories will be negligible.



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019

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 strengthens Australia’s counter-terrorism framework by ensuring that the Government has the means to protect the community from the risk of terrorist acts.

3.                   Schedule 1 of the Bill contains measures to introduce new restrictions on the existing arrangements for bail and parole. This implements the agreement of the Council of Australian Governments (COAG) at its meeting on 9 June 2017. Persons who have links with, or have shown support for, terrorist activities will not be released on bail or parole unless they can show that there are exceptional circumstances that would justify their release into the community.

4.                   Schedule 2 of the Bill makes amendments to improve the operation of the continuing detention order (CDO) scheme. These amendments address deficiencies in the existing CDO scheme to ensure that the Commonwealth is able to seek the continued detention of terrorist offenders serving custodial sentences who are assessed by a judge in civil proceedings to present an unacceptable risk to the community at the time their sentences finish.

Overview of measures

Crimes Act 1914

5.                 In response to the terrorist incident that occurred on 5 June 2017 in Brighton, Victoria, the COAG met on 9 June 2017 to consider reforms to Australia’s bail and parole regimes. During the Brighton incident, Yacub Khayre shot and killed a man and held a woman hostage before being fatally shot by Victorian Police. Mr Khayre was on parole for Victorian offences, had a long history of violence and was previously acquitted of a terrorism offence.

At the COAG meeting, First Ministers agreed that there should be a presumption against bail and parole for persons who have demonstrated support for, or have links to, terrorist activity. At the special meeting of COAG on counter-terrorism on 5 October 2017, it was further agreed that these presumptions would be underpinned by four nationally consistent principles to ensure there is a presumption against bail and parole in agreed circumstances across Australia. These principles were developed in accordance with the COAG agreement, and endorsed by the Australia-New Zealand Counter-Terrorism Committee, namely:

  • Principle 1 - the presumption against bail and parole should apply to categories of persons who have demonstrated support for, or links to, terrorist activity
  • Principle 2 - high legal thresholds should be required to overcome the presumption against bail and parole
  • Principle 3 - the implementation of the presumption against bail and parole should draw on and support the effectiveness of the Joint Counter-Terrorism Team model, and  
  • Principle 4 - implementing a presumption against bail and parole should appropriately protect sensitive information.

6.                 The four principles support the ultimate objective of minimising the risk to the community posed by this particular class of persons.

7.                 Section 15AA of the Crimes Act 1914 (Crimes Act) already provides for a presumption against bail for persons being considered for bail as a result of a charge or conviction for a terrorism offence. The person may overcome the presumption against bail if the bail authority is satisfied that exceptional circumstances exist to justify bail. The amendments to the Crimes Act in this Bill are necessary to give effect to the COAG decision and the first principle underpinning that decision, by expanding the application of

section 15AA, and introducing a presumption against parole, for a broader group of persons, namely:

·          persons charged with or convicted of a terrorism offence, including persons who might have been previously charged with or convicted of one of the offences listed in section 15AA, but are currently being considered for bail for a further federal offence 

·          persons who are the subject of a control order within the meaning of 5.3 of the Criminal Code , and

·          persons who have made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of Part 5.3 of the Criminal Code .

8.                 In line with the second principle underpinning the COAG decision, and consistent with the arrangements already in place for the existing presumption against bail, the relevant decision maker must not grant bail or parole to persons who are subject to the presumption unless satisfied that exceptional circumstances exist to justify the person’s release on bail or parole.

9.                 The Independent National Security Legislation Monitor (INSLM) recently conducted a review into the prosecution and sentencing of children for Commonwealth terrorist offences. The INSLM’S report of the review was tabled in Parliament on 2 April 2019. Schedule 1 of the Bill responds to two of the issues considered by the INSLM, namely the application to children of the existing presumption against bail, and, the minimum non-parole period for terrorist offenders under section 19AG of the Crimes Act.

10.             A key issue considered by the INSLM during the review and ultimately reflected in recommendations 1 and 2a of the INSLM report, is ensuring that the rights of children who are being prosecuted and sentenced for terrorist offences are taken into account. In response, amendments in Schedule 1 make it explicit that the best interests of the child are a primary consideration, with the protection of the community the paramount consideration, which takes precedence for the decision maker when determining whether exceptional circumstances exist to rebut the presumption against bail or parole, where the person is under the age of 18 years. The amendments make it clear that these same factors are also to be considered by the sentencing court when determining whether exceptional circumstances exist to justify a departure from the minimum non-parole period for a terrorism offence, where the offender is under the age of 18 years.

 

Criminal Code Act 1995

11.               Schedule 2 of the Bill contains two measures amending the CDO scheme in the Criminal Code .

Concurrent sentences for relevant terrorism offences and other offences

12.               The first measure addresses a gap in the CDO scheme by which individuals who are imprisoned for a combination of eligible terrorism offences and other offences are not eligible for a CDO where their sentence for the eligible terrorism offences ends before the sentence for the other offences.

13.               Under the current provisions in Division 105A of the Criminal Code , a CDO may be made if the Supreme Court is satisfied of all relevant matters under section 105A.7, and:

·          the offender has been convicted of a specified offence listed in paragraph 105A.3(1)(a) (eligible terrorism offence), and

·          the offender is detained in custody serving a sentence for the eligible offence (or is already subject to a CDO), and

·          the offender is at least 18 years old when their sentence for the eligible offence ends.

14.               Paragraph 105A.5(2)(a) currently provides that the AFP Minister may only apply for a CDO in relation to a terrorist offender not more than 12 months before the end of their eligible terrorism sentence, at the end of which they would be required to be released into the community. The wording of this provision creates a gap where an otherwise eligible offender who is convicted and sentenced for a further offence that expires after the eligible sentence, cannot be the subject of a CDO application.

15.               A further sentence could be one that is served concurrently with the eligible sentence, or commences at the conclusion of their eligible sentence (a cumulative sentence).

16.               In either situation, the legislative criteria would not be met because the offender would not be required to be released into the community following the conclusion of the eligible sentence.

17.               To address this gap, the Bill will amend Division 105A to provide that terrorist offenders who are serving concurrent or cumulative sentences for an eligible terrorism offence and another offence will remain eligible for consideration for a CDO at the conclusion of their sentence of imprisonment. The amendments will also put beyond doubt that those who escape from custody during their sentence will remain eligible for a CDO. These amendments will apply to individuals irrespective of whether their sentence for the eligible terrorism offence ends before or after the commencement of these provisions.

Protection of sensitive information

18.               The second measure enhances the mechanisms available to the Commonwealth for the protection of sensitive information during CDO proceedings by aligning them with the protections available in criminal prosecutions.

19.               Under the current provisions in Division 105A, a terrorist offender who is the subject of a CDO application by the AFP Minister must be given a ‘complete copy’ of that application. Section 105A.5 allows for sensitive information in the application to be withheld from the terrorist offender for a period to enable the AFP Minister to seek court orders protecting its disclosure to the broader public. However, the section ultimately requires all information in the application to be given to the terrorist offender.

20.               CDO applications must include any report or document that the applicant intends to rely upon (inculpatory information) as well as any material or facts of which the AFP Minister is aware that would reasonably be regarded as supporting a finding that the order should not be made (exculpatory information). Section 105A.5 requires the AFP Minister to make reasonable inquiries to ascertain any exculpatory information that is known to any Commonwealth law enforcement, intelligence or security officer.

21.               These provisions do not provide sufficient protections for sensitive information that must be included in CDO applications. Currently, the requirement to provide a ‘complete copy’ of the application (including any sensitive exculpatory material) removes the Commonwealth’s ability to protect any information contained in the CDO application by:

·          relying on public interest immunity (PII) claims to withhold, redact or remove sensitive details from exculpatory material, and

·          obtaining protective orders under the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act), such as to summarise the material to remove sensitive details.

22.               To address these issues, the Bill will provide that the ‘complete copy’ requirement of a CDO application is subject to any court orders made relating to the protection of information in the application, including in relation to claims for PII or under the NSI Act, or any certificate that the Attorney-General issues under the NSI Act. This will align the CDO scheme with criminal law practice more generally, where evidence is only given to a terrorist offender subject to claims for PII or orders or certificates under the NSI Act.

23.               Existing judicial safeguards around the use of PII and the NSI Act will apply, which will ensure that offenders always know the case against them and will be able to contest claims for PII and under the NSI Act in accordance with existing practice. Courts will retain the power to determine these orders, and may exercise their inherent jurisdiction to stay proceedings entirely if satisfied that withholding information would involve unacceptable injustice or unfairness.

Human rights implications

 

24.               This Bill engages the following rights:

·          the right to freedom from arbitrary detention and the right to liberty of the person in Article 9 of the International Covenant on Civil and Political Rights (ICCPR)

·          the right of persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person in Article 10 of the ICCPR

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

·          the rights of the child under Articles 3, 37 and 40 of the Convention on the Rights of the Child (CRC)

·          the right to procedural guarantees in Article 14 of the ICCPR, and

·          the right to freedom from arbitrary or unlawful interference with privacy in Article 17 of the ICCPR.

25.               The Bill may be perceived to engage, or be said to indirectly engage, the following rights:

·          the prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR

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

·          the right to freedom of association in Article 22 of the ICCPR.



 

Schedule 1 - Restrictions on bail and parole

26.             Schedule 1 expands the existing presumption against bail in section 15AA, and introduces a presumption against parole for a broader group of offenders. The presumption against bail and parole will now apply to:

 

·          persons charged with or convicted of a terrorism offence, including persons who might have been previously charged with or convicted of one of the offences listed in section 15AA, but are currently being considered for bail for a further federal offence 

·          persons who are the subject of a control order within the meaning of Part 5.3 of the Criminal Code , and

·          persons who have made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of Part 5.3 of the Criminal Code .

27.             The presumption against bail and parole is not insurmountable, but the decision maker must not grant bail or parole to the person unless satisfied that exceptional circumstances exist to justify release on bail or parole.

28.             The amendments make it explicit that a bail authority, when determining whether exceptional circumstances exist to rebut the presumption against bail, will consider the best interests of the child as a primary consideration, with the protection of the community the paramount consideration, where the person is under the age of 18 years. This implements recommendation 2a of the INSLM’s report in full. The amendments make it clear that these factors are also to be considered by:

 

·          the sentencing court when determining whether exceptional circumstances exist to justify a departure from the minimum non-parole period for a terrorism offence, where the offender is under the age of 18 years, and

·          the Attorney-General when determining whether exceptional circumstances exist to justify the release of a terrorist offender or terrorism-related offender to parole.

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

29.             The right to personal liberty and freedom from arbitrary detention is protected in Article 9 of the ICCPR. Article 9 regulates, rather than prohibits, detention—it is only ‘arbitrary’ detention that is prohibited. It requires that persons not be subject to arrest and detention except as provided for by law, and provided that neither the arrest nor the detention is arbitrary. Article 9 also provides a right to be tried for criminal matters within a reasonable period. This right relates to persons in pre-trial detention, including as a result of the presumption against bail. Detention is not arbitrary where, in all the circumstances, it is reasonable, necessary and proportionate to achieving a legitimate objective.

30.             The presumption against bail in the existing section 15AA of the Crimes Act applies to persons charged with or convicted of a terrorism offence. The expanded presumption against bail, as well as the new presumption against parole, is intended to operate more broadly, to cover all types of terrorism-related offenders and supporters. It will cover not just those who are charged with or convicted of a terrorism offence at the time of the bail or parole consideration but also those charged with or convicted of a terrorism offence in the past who are now being considered for bail or parole for another offence. Further, the provisions will cover those who are the subject of a control order, and those persons who have made statements or carried out activities supporting, or advocating support for, terrorist acts. This includes persons who are being considered for bail or parole for non-terrorism federal offences.

31.             Detention as a result of the presumption against bail is authorised by and operates in accordance with the procedures described in section 15AA of the Crimes Act, as amended by Schedule 1. Detention as a result of the presumption against parole is be authorised by and operates in accordance with the procedures described in Part IB of the Crimes Act, as amended by Schedule 1. Accordingly, the expansion of the existing presumption against bail, and the introduction of the new presumption against parole, to include persons who have demonstrated support for, or have links to terrorism (as well as persons subject to a control order and persons who have at any time been charged with or convicted of a terrorism offence) complies with the requirement in Article 9(1) that deprivation of liberty not occur except in accordance with grounds and procedures prescribed by law. To the extent that the Schedule engages that right, it is consistent with it.

32.             The threat to Australia’s national security and the rights and freedoms of Australians posed by terrorism remains elevated. Australia and Australians are viewed as targets by people who want to harm us. Australia’s national terrorism threat level remains at PROBABLE—that is, credible intelligence, assessed to represent a plausible scenario, indicates an intention and capability to conduct a terrorist attack in Australia. Since the national terrorism threat level was raised in September 2014, there have been seven terrorist attacks targeting people in Australia and 16 major disruption operations in relation to potential attack planning. It is essential that our laws continue to enable intervention and disruption at the early stages of preparations for a terrorist act. The ASIO 2017-18 annual report states that ‘any terrorist attack in Australia over the next 12 months would probably involve weapons and tactics that are low-cost and relatively simple, including basic weapons, explosives and/or firearms … everyday objects that do not require specialist skills’. A core element of Australia’s counter-terrorism strategy is prevention and disruption, and the presumptions against bail and parole are necessary legislative measures to support this element of the strategy.  The potential for serious harm to Australia’s national security is posed not only by terrorist offenders but also those persons who have demonstrated support for, or have links to terrorist activity. Protecting the community from the threat posed by these persons is a legitimate objective and the measures in Schedule 1 are necessary to protect Australia’s national security and the rights and freedoms of Australians from this threat.

33.             A person who is convicted of a terrorism offence has been proven, to the satisfaction of the law, to be a danger to the Australian community. A person who is subject to a control order has been identified by law enforcement and the courts as posing a risk to society. The threshold for the use of control orders is very high. Similarly, where a person has shown support or advocates support for terrorist acts, it is appropriate that the decision maker can take this factor into account when considering bail or parole, regardless of the current offence that the person has been charged with or convicted of. It is essential that decision-makers at the key steps in the criminal justice process of bail and parole are able to take into account a person’s prior actions, where those prior actions indicate a terrorism-related risk to the community and notwithstanding the person might be being considered for bail or parole for a seemingly unrelated federal offence. The inclusion of this set of persons under the presumptions against bail and parole protects and promotes the rights of people in the community whose life, liberty and property would be imperilled by the commission of terrorism offences. It is necessary to include this set of offenders under the presumptions against bail and parole as part of Australia’s efforts to combat the evolving nature of the threat posed by terrorism and the need to protect the community from this threat.

34.             Both the presumption against bail and parole is reasonable, proportionate and not arbitrary, as each is subject to the exercise of discretion to address the risk of terrorism. The presumptions are also consistent with Article 9(4) of the ICCPR, which provides that persons deprived of their liberty must be able to challenge the legality of their detention in court. In relation to the presumption against bail, the Bill retains the right of the defendant to challenge the lawfulness of their detention (as provided for in subsection 15AA(3A) of the Crimes Act). Further, under section 15AA(1), ‘a bail authority must not grant bail to a person … unless the bail authority is satisfied that exceptional circumstances exist to justify bail’. Similarly, under proposed subsection 19ALB(1) of the Crimes Act, ‘the Attorney-General must not make a parole order in relation to a person … unless satisfied that exceptional circumstances exist to justify parole’. The defendant/federal offender bears the onus of satisfying the decision maker that exceptional circumstances exist to justify their release on bail or parole. Exceptional circumstances are not defined, with all relevant information able to be taken into account by the decision maker. Further, in relation to parole, decisions of the Attorney-General regarding release on parole are reviewable decisions under the Administrative Decisions (Judicial Review) Act 1977 .  These are important safeguards which ensure that these measures are consistent with Article 9 of the ICCPR.

Right to freedom of movement under Article 12 of the ICCPR

35.             The right to freedom of movement is protected in Article 12 of the ICCPR. One component of this right is that people must be able to move freely and choose a place of residence within a country. This right may be limited for the purpose of protecting national security, public order, public health or morals or the rights and freedoms of others, as allowed by Article 12(3).

36.             The presumptions against bail and parole are necessary legislative tools in support of the prevention and disruption of terrorism. A person who is convicted of a terrorism offence has been proven, to the satisfaction of the law, to be a danger to the Australian community. A person who is subject to a control order has been identified by law enforcement and the courts as posing a risk to society. In relation to such persons, as well as those who have shown support or advocated support for terrorist acts, restricting their freedom of movement through the rebuttable presumptions against bail and parole is a legitimate response to the need to protect the community and Australia’s national security from the evolving nature of the threat posed by terrorism.  

37.             Additionally, both the presumption against bail and parole are subject to the exercise of discretion to address the risk of terrorism. In relation to section 15AA, the Bill retains the right to challenge the lawfulness of detention (as provided for in subsection 15AA(3A)). Further, under section 15AA(1), ‘a bail authority must not grant bail to a person … unless the bail authority is satisfied that exceptional circumstances exist to justify bail’. Similarly, under proposed subsection 19ALB(1), ‘the Attorney-General must not make a parole order in relation to a person … unless satisfied that exceptional circumstances exist to justify parole’. In accordance with the existing parole decision making arrangements for all federal offenders, offenders (including children) subject to the presumption against parole will be afforded procedural fairness during the process of each consideration by the Attorney-General of whether or not to grant parole, and have access to existing avenues of judicial review. Further, the decision maker, when considering whether exceptional circumstances to justify bail or parole, must take into account the best interests of the child as a primary consideration, consistent with Article 3 of the CRC. These are important safeguards which ensure these measures are consistent with Article 12 of the ICCPR.

The rights of the child under Articles 3, 37 and 40 of the CRC

38.             The Bill engages rights under the CRC, including Articles 3, 37 and 40, because the measures in Schedule 1 apply to children as well as adults. Article 3 of the CRC requires all legislative, administrative and judicial bodies and institutions to systematically consider how children’s rights and interests are or will be affected directly or indirectly by their decisions and actions. Under Article 37 of the CRC, the arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time. Article 40 of the CRC recognises the right of a child accused of a criminal offence to be treated in a manner consistent with the promotion of the child’s sense of dignity and which takes into account the child’s age and the desirability of promoting the child’s reintegration into society.

39.             Terrorism carried out by a child has the same impact on the victims and society in general as that by an adult offender. A person who is convicted of a terrorism offence has been proven, to the satisfaction of the law, to be a danger to the community, irrespective of their age. Since 2014, the risk of children committing terrorism offences has emerged as a significant component of the ongoing threat of terrorism to our national security. As noted in the INLSM report, over 10 per cent of the total number of persons convicted of terrorism offences since 2014 were under the age of 18 at the time of offending, and a further 25% were between 18 and 25 (meaning that over a third of the total group of federal terrorism offenders were under the age of 25). Therefore it is necessary for the presumption against bail to continue to apply to children, and for the new presumption against parole to apply to children, just as the existing arrangements for bail and parole in the Crimes Act already apply to children.

40.             The presumptions represent a legitimate response to the threat of terrorism and the need for preventative measures to protect Australia’s national security and the rights of Australians. As set out above, the application of the presumptions against bail and parole to children is reasonable, proportionate and not arbitrary in accordance with Article 9 of the ICCPR.  The presumptions are subject to the exercise of discretion as well as avenues for appeal or review. The Bill retains the right to challenge the lawfulness of detention in relation to bail decisions. Decisions of the Attorney-General are made in accordance with principles of procedural fairness and the existing judicial review avenues available to all federal offenders are maintained for those subject to the presumption against parole. Further, the decision maker, when considering whether exceptional circumstances exist to justify bail or parole, must take into account the best interests of the child as a primary consideration. When considering whether exceptional circumstances exist, the decision maker may take into account any relevant information. In particular, and without limiting the factors which the decision maker might consider, this provides the opportunity for the factors under Article 37 and 40 to be taken into account. The discretion available to decision makers, the avenues of appeal or review open to the children, and the requirement for decision makers to consider the best interests of the child as a primary consideration are safeguards for children who may be subject to the presumptions. These safeguards promote the principles underpinning Articles 3, 37 and 40 of the CRC, and ensure the presumptions against bail and parole are compatible with those Articles.

41.             Section 19AG of the Crimes Act applies to adults and children convicted of a terrorism offence once a court has determined that imprisonment is the only appropriate penalty and to impose a term of imprisonment for a terrorist offence. In determining the head sentence, the court will have already taken into account a child’s individual circumstances, together with other factors relevant to the offender and the offending, consistent with Article 3 of the CRC. In doing so, the sentencing judge would balance providing adequate opportunity for the child’s rehabilitation with the need for deterrence and community protection, consistent with Articles 37 and 40 of the CRC. In particular, it is important that sentences of imprisonment for terrorist offenders, including children, include sufficient time for offenders to complete rehabilitation programs specific to their offending.  

42.             The amendments to section 19AG provide an additional safeguard for children, consistent with Articles 3, 37 and 40 of the CRC. Under the amendment, the court, where it has determined that a sentence of imprisonment is the appropriate sentence for a person under the age of 18 years convicted of a terrorism offence, must fix a non-parole period of three quarters of the head sentence unless exceptional circumstances exist to justify a lower non-parole period. The best interests of the child are a primary consideration for the court in considering whether exceptional circumstances exist, consistent with Article 3 of the CRC, with protection of the community being the paramount consideration. The court, when determining whether exceptional circumstances exist to justify a lower non-parole period, is able to take into account any relevant information. In particular, and without limiting the factors which the court might consider, this provides the opportunity for the factors under Article 37 and 40 to be taken into account, among other matters. This provides an element of discretion to the sentencing court when setting a non-parole period for a child convicted of a terrorism offence, while retaining the intention of section 19AG, which is to reflect the community’s concern about terrorism and ensure consistent application of non-parole periods for these offences which are in the most serious category. In this way, this amendment promotes the principles underpinning, and the fundamental rights and freedoms protected by Articles 3, 37 and 40 of the CRC, and ensures the amendments are compatible with the those Articles.

Prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR

43.             Article 15 of the ICCPR prohibits the imposition of ‘a heavier penalty … than the one that was applicable at the time when the criminal offence was committed’.  It may be perceived that the changes introduced by the new section 19ALB might result in a person serving a longer period in prison before being eligible for parole, that is, the imposition of a heavier penalty for the purposes of Article 15 of the ICCPR.

44.             However, this is not the case. The presumption against parole will not result in an offender serving a longer sentence of imprisonment than he or she may have under the existing provisions of the Crimes Act. This is because release on parole for federal offenders is already at the discretion of the Attorney-General. Further, the presumption is rebuttable and is not a blanket prohibition on parole for terrorists and terrorism-related offenders. Therefore, Schedule 1 does not engage the prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR.

Right to freedom of expression under Article 19(2) of the ICCPR

45.             The Parliamentary Joint Committee on Human Rights (PJCHR) in its Report No. 2 of 2019 states that:

 

By introducing a presumption against bail and a presumption against parole for persons who have made statements or carried out activities supporting, or advocating support for, terrorist acts, the measures engage and may limit the right to freedom of expression. This is because a person may be less likely to express certain ideas due to the risk of it impacting their opportunity to be granted bail or parole.

 

46.             The right to freedom of expression is protected in Article 19(2) of the ICCPR. The right may be limited for the purpose of protecting national security, public order or public health or morals, as allowed by Article 19(3).

47.             A person who is convicted of a terrorism offence has been proven, to the satisfaction of the law, to be a danger to the Australian community. A person who is subject to a control order has been identified by law enforcement and the courts as posing a risk to society. The threshold for the use of control orders is very high. Similarly, where a person has shown support for or advocated support for terrorist acts, then in the interests of protecting national security and public safety it is appropriate that the decision maker can take this factor into account when considering bail or parole, regardless of the current offence that the person has been charged with or convicted of. It is essential that decision makers at the key steps in the criminal justice process of bail and parole are able to take into account a person’s prior actions, where those prior actions indicate a terrorism-related risk to the community, and notwithstanding that the court may be considering the person for bail or parole for a seemingly unrelated federal offence(s). This is because disruption and prevention are at the core of protecting Australians from the threat posed by terrorism and protecting Australia’s national security.  

48.             To the extent that the right to freedom of expression might be said to be indirectly engaged by Schedule 1 of the Bill, the inclusion of terrorist offenders and terrorism-related offenders under the presumptions against bail and parole protects and promotes the rights of people in the community whose life, liberty and property would be imperilled by the commission of terrorism offences. It is necessary to include this set of persons under the presumptions against bail and parole as part of Australia’s efforts to combat the evolving nature of the threat posed by terrorism and the need to protect the community from this threat. Additionally, the measures are reasonable and proportionate because both the presumption against bail and parole are subject to the exercise of the court’s discretion and avenues for review, as set out above. Therefore, to the extent that the right to freedom of expression might be said to be indirectly engaged, these important safeguards ensure these measures are consistent with Article 19 of the ICCPR.

Right to freedom of association under Article 22 of the ICCPR

49.             The existing presumption against bail is expanded by the Bill to include persons charged with, or convicted of, an offence of associating with a terrorist organisation pursuant to section 102.8 of the Criminal Code. The presumption against parole will also apply to such offenders. The PJCHR in its Report No. 2 of 2019 suggests that the presumption against bail and parole proposed in Schedule 1 may engage the right to freedom of association of persons who have been charged with or convicted of an offence of associating with a terrorist organisation under the Criminal Code . The Committee suggested that this right may be engaged for such persons because they will be ‘at risk of having their bail and parole impacted based on their association with others’.

50.             The right to freedom of association is protected in Article 22 of the ICCPR. The right may be limited when prescribed by law and necessary in the interests of national security, public safety and public order, or for the protection of public health, morals or the rights and freedoms of others, as allowed by Article 22(2).

51.             As noted above, a person who is convicted of a terrorism offence - including the offence of associating with a terrorist organisation in section 102.8 of the  Criminal Code  - has been proven, to the satisfaction of the law, to be a danger to the Australian community. The presumption against bail and parole is an important legislative tool under the core counter-terrorism strategy of disruption and prevention. It is essential that decision makers at the key steps in the criminal justice process of bail and parole are able to take into account a person’s prior actions, where those prior actions indicate a terrorism-related risk to the community. Due to the severity of the danger posed by terrorists and terrorist organisations, it is necessary to limit the rights of individuals who, by their association with a terrorist organisation, pose a threat to Australians, in the form of a presumption against their bail or parole. Limiting the freedom of association of persons charged with or convicted of any other terrorism offence within the meaning of Part 5.3 of the Criminal Code under the presumptions against bail and parole is a legitimate response to the need to protect the community and Australia’s national security from the evolving nature of the threat posed by terrorism.

52.             To the extent that the right to freedom of association might be said to be indirectly engaged by Schedule 1 of the Bill, the inclusion of this set of offenders under the presumptions against bail and parole protects and promotes the rights of people in the community whose life, liberty and property would be imperilled by the commission of terrorism offences. It is necessary and legitimate to include this set of persons under the presumptions against bail and parole as part of Australia’s efforts to combat the evolving nature of the threat posed by terrorism and the need to protect the community from this threat.

53.             Additionally, the measures are reasonable and proportionate because both the presumption against bail and parole are subject to the exercise of the court’s discretion and avenues for review, as set out above. Therefore, to the extent that the right to freedom of association might be said to be indirectly engaged by Schedule 1, these important safeguards ensure these measures are consistent with Article 22 of the ICCPR.



 

Schedule 2 - Amendments relating to continuing detention orders

54.               The Bill amends the existing CDO scheme by:

·          expanding eligibility for the scheme by ensuring that terrorist offenders who are currently serving a period of imprisonment for a terrorism offence and another offence remain eligible for consideration for a CDO at the conclusion of their term of imprisonment, and

·          amending the information disclosure obligations in respect of CDO applications to better align the protections available for sensitive national security information with those available in other contexts, such as criminal proceedings.

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

55.               The effect of a CDO is to commit the person who is the subject of the order to detention in a prison for the period the order is in force. The Bill expands eligibility for the CDO scheme by providing that terrorist offenders who are serving concurrent or cumulative sentences for an eligible terrorism offence and another offence remain eligible for consideration for a CDO at the conclusion of their sentence of imprisonment.

56.               Expanding the CDO scheme engages the right to freedom from arbitrary detention and the right to liberty of the person in the following ways.

The right not to be deprived of liberty except on such grounds and in accordance with such procedures as are established by law in Article 9(1) of the ICCPR

57.               Article 9(1) of the ICCPR provides that no-one shall be deprived of their liberty except on such grounds and in accordance with such procedures as are established by law. CDOs engage this right because they authorise detention.

58.               Detention under a CDO is authorised by and operates in accordance with the procedures prescribed in Division 105A.

59.               Accordingly, the eligibility of a new class of terrorist offender for CDOs complies with the requirement in Article 9(1) that deprivation of liberty not occur except in accordance with grounds and procedures prescribed by law. To the extent that the Bill engages that right, it is consistent with it.

The right to freedom from arbitrary detention in Article 9(1) of the ICCPR

60.               Article 9(1) of the ICCPR provides that no-one shall be subjected to arbitrary arrest or detention. CDOs engage the right to freedom from arbitrary detention because they authorise detention.

61.               Article 9 regulates, rather than prohibits, detention—it is only ‘arbitrary’ detention that is prohibited. Arbitrariness includes the elements of inappropriateness, injustice and a lack of predictability. Detention will not be arbitrary where, in all the circumstances, it is appropriate, justifiable, reasonable, necessary and proportionate to a legitimate end. Detention may be arbitrary where there are less restrictive alternatives available. Preventative detention is not arbitrary per se and may be consistent with Article 9 if it is ordered by a court and is limited to a period during which it is justified by compelling reasons that are reviewable by a judicial authority.

62.               In considering the appropriateness of post-sentence preventative detention regimes, the United Nations Human Rights Committee has stated that:

…to avoid arbitrariness, the additional detention must be justified by compelling reasons arising from the gravity of the crimes committed and the likelihood of the detainee’s committing similar crimes in the future. States should only use such detention as a last resort and regular periodic reviews by an independent body must be assured to decide whether continued detention is justified. State parties must exercise caution and provide appropriate guarantees in evaluating future anger. The conditions in such detention must be distinct from the conditions for convicted prisoners serving a punitive sentence and must be aimed at the detainee’s rehabilitation and integration into society. [1]

63.               Based on the above criteria, the preventative detention authorised by a CDO cannot be described as ‘arbitrary’. The objective of the scheme (to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious terrorism offences) is legitimate and consistent with the purposes of the ICCPR. By continuing to detain terrorist offenders who pose an unacceptable risk of committing serious terrorism offences, the scheme protects and promotes the rights of people in the community whose life, liberty and property would be imperilled by the commission of serious terrorism offences.

64.               The CDO scheme includes numerous features designed to ensure that detention is only authorised where it is non-arbitrary, including additional safeguards that were added during parliamentary consideration of the originating Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016. These address the considerations set out by the United Nations Human Rights Committee by:

·          Establishing processes by which a court, when deciding an application for or reviewing a CDO, must have regard to a range of matters rationally connected with the level of risk posed by the terrorist offender (for example, their degree of participation in rehabilitation programs), including the evidence of an independent expert competent to assess the risk posed by the terrorist offender (section 105A.8).

·          Providing that, for a terrorist offender to be subject to a CDO, the court must be satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious terrorism offence if the offender is released into the community (paragraph 105A.7(1)(b)).

To assist the court in making this decision, the court may appoint a relevant expert to conduct an assessment of the risk of the offender committing a serious terrorism offence if they were released into the community (section 105A.6). An example of an expert who may be appointed by the court could be a person with expertise in forensic psychology or psychiatry (and, in particular, recidivism) coupled with specific expertise on terrorism, radicalisation to violent extremism and countering violent extremism. The court must have regard to the expert’s opinion when making its decision (paragraph 105A.8(1)(b)).

·          Stating that a court can only make a CDO if satisfied that there is no less restrictive measure that would be effective in preventing the unacceptable risk posed by the terrorist offender (paragraph 105A.7(1)(c)). An example of this is a control order under Division 104 of the Criminal Code .

Such an order may require a person to participate in specified counselling, subject to their consent (see section 104.5). Further a court must have regard to any treatment or rehabilitation program in which the offender has had an opportunity to participate (paragraph 105A.8(e)).

·          Providing for annual review by requiring the AFP Minister to apply to the Supreme Court for a review of a CDO (at the end of the period of 12 months after the order began to be in force, or 12 months after the most recent review ended) (section 105A.10). Failure to make this application will mean that the CDO ceases to be in force.

·          Recognising that the terrorist offender is not serving a sentence of imprisonment by providing that, when subject to a CDO, he or she be housed separately from persons who are in prison for the purposes of serving a sentence of imprisonment, except in certain circumstances such as where the offender’s treatment or accommodation arrangements could compromise the management, security and good order of the prison, for rehabilitation purposes or for the safety and protection of the community (section 105A.4).

65.               Additional safeguards contained in the provisions provide that:

·          only a limited class of persons can be subject to the CDO scheme and the characteristic used to define that class (imprisonment for a terrorism-related offence) is rationally connected with the scheme’s protective purpose

·          only the AFP Minister, or their legal representative, can apply for a CDO

·          the terrorist offender must be provided with certain documents to enable him or her to prepare for the court’s hearing of an application for a CDO

·          the power to make a CDO lies with an independent judicial authority (the Supreme Court of the relevant state or territory) bound to apply the rules of evidence and procedure applicable in civil matters

·          the terrorist offender can adduce evidence and make submissions in court proceedings

·          the AFP Minister bears the onus of satisfying the court that a CDO should be made and, if reviewed, that a CDO should be affirmed

·          the period of detention authorised by a CDO must be limited to a period that is reasonably necessary to prevent the unacceptable risk, and must not exceed three years

·          the period of detention authorised by an interim detention order must be limited to a period that is reasonably necessary to determine the application for a CDO and not exceed 28 days and the total period of detention authorised by consecutive interim detention orders must not exceed three months, and

·          the court must provide reasons for decisions in an application for a CDO, or in a review of a CDO, and these decisions can be appealed.

66.               Accordingly, the extension of eligibility for CDOs to terrorist offenders serving concurrent or cumulative sentences for other offences complies with the right to freedom from arbitrary detention in Article 9(1) of the ICCPR. To the extent that the measures engage that right, it is consistent with it.

The right to take proceedings before a court, in order that the court may decide without delay on the lawfulness of detention in Article 9(4) of the ICCPR

67.               Article 9(4) of the ICCPR provides that persons deprived of their liberty must be able to challenge the legality of their detention in court. This includes an implied requirement that a terrorist offender be provided with information sufficient to enable them to know the nature of, and lead evidence to refute, the case against them.

68.               The Bill engages this right by providing that the ‘complete copy’ of the CDO application that is given to the terrorist offender is subject to PII and any certificate that the Attorney-General issues under the NSI Act or order made by the court. This may result in certain information being withheld from the offender, or provided in a redacted or summarised form (though the AFP Minister will only be able to rely on evidence in seeking a CDO where they have provided that evidence to the terrorist offender).

69.               These measures seek to achieve the legitimate objective of protecting Australia’s national security. The inappropriate disclosure of national security information has the potential to prejudice Australia’s national security and the security of all Australians. Information relevant to CDO proceedings may disclose sensitive sources and capabilities employed by security agencies to lawfully obtain information about terrorist activities. Revealing this information to the terrorist offender risks jeopardising ongoing counter-terrorism and national security investigations and has consequences for the safety of human sources. Accordingly, the measures in the Bill to improve the protection of sensitive information in CDO proceedings are necessary to achieve this legitimate objective.

70.               Making the ‘complete copy’ of the CDO application subject to court orders relating to the protection of information in that application is reasonable, necessary and proportionate to the objective of protecting Australia’s national security.

71.               The mechanisms through which information may be protected are overseen by the courts. Neither claims of PII nor the orders available under the NSI Act for CDO proceedings allow for the court to take into account evidence that has not also been given to the terrorist offender. Instead, these mechanisms allow the court to consider the sensitive information and the potential harm from its disclosure and weigh that against the public interest in the terrorist offender receiving all relevant material. After making this assessment, the court may make orders providing for the redaction of sensitive material, the summarising of information to remove sensitivities or that the material be disclosed to the terrorist offender. This means that the AFP Minister will not be able to rely on evidence that is not put to the terrorist offender. It will be open to a court to stay proceedings entirely if it is satisfied that withholding the information in question would involve unacceptable injustice or unfairness.  

72.               Accordingly, to the extent that the amendments permit limitations on the rights of terrorist offenders under Article 9(4), the limitations are reasonable, necessary and proportionate to achieve the legitimate objective of protecting sensitive information.

Right to a fair trial and fair hearing under Article 14 of the ICCPR

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

74.               Both measures in Schedule 2 engage this right.

Expanded eligibility for the CDO scheme

75.               The Bill expands eligibility for the CDO scheme by providing that terrorist offenders who are serving concurrent or cumulative sentences for an eligible terrorism offence and another offence remain eligible for consideration for a CDO at the conclusion of their sentence of imprisonment. These offenders may be subject to CDO proceedings.

76.               Division 105A requires CDO proceedings to be heard by the Supreme Court of a state or territory and for the court to apply the rules of evidence and procedure applicable in civil proceedings. This reflects the purpose of the continuing detention scheme, which is not to punish but rather detain an offender for the purpose of protecting the community. In light of this intention, the civil nature of the proceedings and the lack of a criminal charge in each case, the minimum guarantees outlined in Article 14(2) and (3) of the ICCPR do not apply. Despite this, the important safeguards contained within the CDO scheme are described below.

77.               The terrorist offender must be provided with certain documents (the application for a CDO, including the report of a relevant expert (subsection 105A.5(4)), and the reasons for a decision in CDO proceeding (paragraph 105A.16(c)) to enable him or her to prepare for and respond to court rulings. The terrorist offender can adduce evidence and make submissions. The terrorist offender has the benefit of provisions at subsections 105A.7(3) and 105A.12(6), which put the onus on the AFP Minister to satisfy the court that the relevant threshold for the grant of a CDO is met, and provisions at paragraphs 105A.7(1)(c) and 105A.12(4)(b), that there are no less restrictive alternatives available.

78.               Section 105A.16 further requires that if a court makes a CDO decision, the court must state the reason for its decision and cause those reasons to be entered in the records of the court—this accords with the requirement in Article 14(1) that any judgement rendered in a suit at law shall be made public.

79.               Article 14(7) provides that no one shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted in accordance with the law and penal procedure of the country.

80.               The Bill does not engage this right as the continued detention of a terrorist offender under the CDO scheme does not constitute additional punishment for their prior offending - the continued detention is protective rather than punitive or retributive.

81.               As well as being defined explicitly in Subdivision A of Division 105A, the scheme’s protective purpose is reflected in numerous features of the scheme including the grounds on which a CDO may be made or affirmed; the matters to which the court must have regard when making or reviewing a CDO; the requirement to consider less restrictive measures and the requirement that the period of detention authorised by a CDO be limited to a period that is reasonably necessary to prevent the unacceptable risk.

82.               The fact that the effect of a CDO is to commit the terrorist offender to detention in a prison does not render the detention punitive. The CDO scheme nominates these facilities as the place of detention because they have the infrastructure necessary to appropriately manage terrorist offenders who pose an unacceptable risk of committing serious terrorism offence if released into the community. Further, the scheme provides that, subject to certain exceptions (related to the management of the prison, the safety of others and the offender’s preferences), terrorist offenders detained in a prison under a CDO must be treated in a way that is appropriate to their status as persons who are not serving a sentence of imprisonment and must not be accommodated or detained in the same area or unit of a prison as persons serving sentences of imprisonment.

83.               Accordingly, the detention scheme does not further punish those convicted of terrorism offences and Article 14(7) of the ICCPR is not engaged.

Protection of sensitive information

84.               Article 14 also includes ‘equality of arms’ in proceedings, which requires that all parties to a proceeding have a reasonable opportunity of presenting their case under conditions that do not disadvantage them as against other parties in the proceeding. The Bill engages this right by amending the existing safeguards to establish information protection mechanisms for CDO proceedings.

85.               This measure seeks to achieve the legitimate objective of protecting Australia’s national security. As noted above, the inappropriate disclosure of national security information has the potential to prejudice Australia’s national security and the security of all Australians. Information relevant to CDO proceedings may disclosure sensitive sources and capabilities employed by security agencies to lawfully obtain information about terrorist activities. Revealing this information to the terrorist offender risks jeopardising ongoing counter-terrorism and national security investigations and has consequences for the safety of human sources. Accordingly, the measures in the Bill to improve the protection of sensitive information in CDO proceedings are necessary to achieve this legitimate objective.

86.               To achieve this objective, the Bill amends the requirement to provide that the ‘complete copy’ of the CDO application that is provided to the terrorist offender is subject to any court orders made relating to the protection of information in that application, including in relation to claims for PII or under the NSI Act. This may result in certain information being withheld from the terrorist offender, or provided in a redacted or summarised form.

87.               Making the ‘complete copy’ of the CDO application subject to court orders relating to the protection of information in that application is reasonable, necessary and proportionate to the objective of protecting sensitive information in CDO proceedings.

88.               The mechanisms through which information may be protected are overseen by the courts. Neither claims of PII nor the orders available under the NSI Act for CDO proceedings allow for the court to take into account evidence that has not also been given to the terrorist offender. Instead, these mechanisms allow the court to consider the sensitive information and the potential harm from its disclosure and weigh that against the public interest in the terrorist offender receiving all relevant material. After making this assessment, the court may make orders providing for the redaction of sensitive material, the summarising of information to remove sensitivities or that the material be disclosed to the terrorist offender. This means that the AFP Minister will not be able to rely on evidence that is not put to the terrorist offender. It will be open to a court to stay proceedings entirely if it is satisfied that withholding the information in question would involve unacceptable injustice or unfairness.  

89.               Accordingly, to the extent that the amendments limit the rights of terrorist offenders under Article 14 of the ICCPR, the limitations are reasonable, necessary and proportionate to achieve the legitimate objective of protecting sensitive information.

Prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR

90.               Article 15 of the ICCPR provides that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time it was committed. Article 15 also prohibits the imposition of a heavier penalty than the one that was applicable at the time when the criminal offence was committed. To be eligible for a CDO, a person must be a ‘terrorist offender’. To meet this definition, a person must:

·          have been convicted of a specified offence listed in paragraph 105A.3(1)(a) (eligible terrorism offence)

·          be detained in custody serving a sentence for the eligible offence (or is already subject to a CDO), and

·          be at least 18 years old when their sentence for the eligible offence ends.

91.               Paragraph 105A.5(2)(a) currently provides that the AFP Minister may only apply for a CDO in relation to a terrorist offender not more than 12 months before the end of their sentence for the eligible terrorism offence, at the end of which they would be required to be released into the community. The wording of this provision creates a gap where an otherwise eligible offender who is convicted and sentenced for a further offence that expires after the eligible sentence, cannot be the subject of a CDO application.

92.               The Bill addresses this unintended gap and ensures that terrorist offenders who are serving concurrent or cumulative sentences for an eligible terrorism offence and another offence remain eligible for consideration for a CDO at the conclusion of their sentence of imprisonment. This will apply to persons convicted of an eligible terrorism offence whose term of imprisonment for that offence has expired but remain in prison for another offence. Item 17 of Schedule 2 of the Bill provides that offenders who are serving a sentence of imprisonment either concurrently or cumulatively (or both) for an offence that is not an eligible terrorism offence, and who have been detained continuously since being convicted of the eligible terrorism offence, will be eligible for a CDO.

93.               While the continued detention of terrorist offenders who previously would not have been eligible for a CDO engages the prohibition on the retrospective operation of criminal laws, it does not constitute a prohibited form of retrospective punishment or the imposition of a penalty for an offence heavier than that which was applicable at the time the offence was committed.

94.               In this context, the continued detention is protective rather than punitive or retributive. The protective purpose of the scheme is reflected in numerous features including the grounds on which a CDO may be made or affirmed; the matters to which the court must have regard when making a CDO; the requirement to consider less restrictive measures; and the requirement that the period of detention authorised by a CDO be limited to a period that is reasonably necessary to prevent the unacceptable risk.

95.               When determining whether to make a CDO, the court must be satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community. This is the risk the person presents to the community at the end of their sentence. Preventative detention imposed on this basis does not constitute a violation of the prohibition on the retrospective operation of criminal law.

96.               The fact that the effect of a CDO is to commit the terrorist offender to detention in a prison does not render the detention punitive. As such, the Bill does not engage the prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR.

The right to be treated with humanity and dignity in Article 10 of the ICCPR

97.               The Bill expands eligibility for the CDO scheme by providing that terrorist offenders who are serving concurrent or cumulative sentences for an eligible terrorism offence and another offence remain eligible for consideration for a CDO at the conclusion of their sentence of imprisonment.

98.               Article 10(1) of the ICCPR provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. The CDO scheme may be considered to engage this obligation as it involves detention.

99.               Article 10(2)(a) provides that ‘accused persons’ must, save in exceptional circumstances, be segregated from convicted persons and be subject to separate treatment appropriate to their status as unconvicted persons. These obligations do not apply to the CDO scheme directly as the scheme does not involve the detention of ‘accused persons’. The grounds for detention under a CDO are not connected with the laying of or determination of a criminal charge.

100.           Despite these obligations not applying to the CDO scheme, section 105A.4 sets out the minimum standards of treatment that must be afforded to a terrorist offender who is detained under a CDO. This includes that the offender must be treated in a way that is appropriate to his or her status as a person who is not serving a sentence of imprisonment (subsection 105A.4(1)) and that, subject to certain exceptions, the offender must not be accommodated or detained in the same area or unit of the prison as persons who are in prison for the purpose of serving sentences of imprisonment (subsection 105A.4(2).

101.           By mandating appropriate standards of treatment and accommodation arrangements, the CDO scheme promotes the rights of terrorist offenders detained under the scheme to be treated with humanity and respect for the inherent dignity of the human person. While the CDO scheme permits deviation from these standards, it does so only where necessary to protect the safety or rights of others, or to reflect the terrorist offender’s wishes. To the extent that the scheme permits limitations on the rights of terrorist offenders under Article 10(1), the limitations are reasonable, necessary and proportionate to achieve legitimate objectives of the scheme.

The right to freedom from arbitrary or unlawful interference with privacy in Article 17 of the ICCPR

102.           The Bill expands eligibility for the CDO scheme by providing that terrorist offenders who are serving concurrent or cumulative sentences for an eligible terrorism offence and another offence remain eligible for consideration for a CDO at the conclusion of their sentence of imprisonment.

103.           When hearing an application for, or reviewing, a CDO the court has the power to appoint one or more experts to assess the risk of the terrorist offender committing a serious Part 5.3 offence if released into the community. Where an expert is appointed, the offender is required to attend the expert’s assessment. The court is required to explain to the offender the effect of this requirement, and in deciding whether to make or affirm a CDO, the court will have regard to the expert’s report and the level of the offender’s participation in the assessment by the expert.

104.           The right to be free from arbitrary or unlawful interference with privacy in Article 17(1) of the ICCPR. Article 17(1) provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy.

105.           The requirement that the terrorist offender attend an assessment does not engage this right. The terrorist offender is under no obligation to participate in the assessment or to disclose any private information. The fact that the court must consider the level of the terrorist offender’s participation in the expert’s assessment does not create a de facto obligation to participate. Participation in the expert’s assessment is not the only means by which the terrorist offender can seek to influence the outcome of the court’s consideration of an application for, or review of, a CDO; the terrorist offender can adduce his or her own evidence and make submissions.

106.           Accordingly, the requirement that the terrorist offender attend an assessment with the expert does not engage Article 17(1) of the ICCPR.

Conclusion

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

NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

1.                   This clause provides for the short title of the Act to be the Counter Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 (Act).

Clause 2 - Commencement

2.                   This clause provides for the commencement of each provision in the Bill, as set out in the table. 

3.                   Item 1 in the table in subclause 2(1) provides that the whole of the Act will commence on the day after the Act receives the Royal Assent. 

Clause 3 - Schedules

4.                   Each Act specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule. Any other item in a Schedule to this Act has effect according to its terms.



Schedule 1 - Restrictions on bail and parole

Part 1 - Amendments 

Crimes Act 1914

Item 1 - Subsection 15AA(1)

5.                   Currently, section 15AA of the Crimes Act provides that a bail authority must not grant bail to a person charged with or convicted of a terrorism offence (other than an offence against section 102.8 of the Criminal Code ), unless the bail authority is satisfied that exceptional circumstances exist to justify bail.

6.                   This item amends the existing presumption against bail in section 15AA of the Crimes Act and expands it so that it covers the persons provided for in new subsection 15AA(2A), described at item 7 below.

Item 2 - At the end of subsection 15AA(1)

7.                   This item inserts a note referring to subsection 15(3AA) in relation to persons under the age of 18.

Item 3 - Subsection 15AA(2)

8.                   This item amends the existing presumption against bail in section 15AA of the Crimes Act so that it covers persons charged with or convicted of a terrorism offence, as well as the persons provided for in new subsection 15AA(2A), described at item 7 below.

9.                   It is noted that the intention of the revised subsection 15AA(2) is to capture those persons who are currently charged with or convicted of one of the offences listed in the subsection, as well as persons who might have been previously charged with or convicted of one of the offences listed, but are currently being considered for bail for a further federal offence.  

Item 4 - Paragraph 15AA(2)(a)

10.               Section 102.8 of the Criminal Code makes it an offence to associate with terrorist organisations and is currently excluded from the existing presumption against bail in section 15AA of the Crimes Act. This item removes that limitation in existing paragraph 15AA(2)(a), as part of implementing the COAG agreement of 9 June 2017. 

Item 5 - Subparagraphs 15AA(2)(b)(ii) and (c)(ii)

11.               This item makes a grammatical correction to the existing provision.

Item 6 - Paragraph 15AA(2)(d)

12.               This item makes a grammatical correction to the existing provision.

Item 7 - After subsection 15AA(2)

13.               This item inserts new subsection 15AA(2A), expanding the existing presumption against bail to include a person subject to a control order within the meaning of Part 5.3 of the Criminal Code as well as a person who has made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of Part 5.3 of the Criminal Code .

14.               The presumption against bail will continue to apply to a person who has been charged with, or convicted of, a terrorism offence. The expanded presumption against bail now also includes persons who have been previously charged with, or convicted of, one of the offences listed in the new subsection 15AA(2A), but are currently being considered for bail for a further federal offence.

15.               A person who is subject to a control order has been identified by law enforcement as posing a risk to society. It is therefore appropriate for the court to be able to take this factor into account in deciding whether a person, accused of a separate offence, should be released on bail—a decision that focuses on the risk posed by that person to the community. It is a factor that is readily apparent either at the time of arrest or upon a criminal history check. Similarly, a person who supports or advocates support for terrorist acts poses a risk to society and it is appropriate that a bail authority can take this factor into account when considering bail, regardless of the current offence that the person is charged with or convicted of.

16.               The onus of proof is on the accused or convicted person to satisfy the bail authority that exceptional circumstances exist to justify bail. The threshold of exceptional circumstances is not defined in the Crimes Act, but is already supported by a body of case law regarding the meaning of the expression. The person must show that there is a situation which is out of the ordinary or unusual in some respect to satisfy the bail authority that exceptional circumstances exist to justify bail. Without limiting the bail authority’s discretion, examples of factors relevant to whether exceptional circumstances exist might include evidence that the person’s link to terrorism was incidental, or advice from relevant agencies that the person’s risk of committing a terrorist offence is low or negligible.

Item 8 - Subsection 15AA(3A)

17.               The Independent National Security Legislation Monitor’s (INSLM) report into the prosecution and sentencing of children for terrorism, which was tabled in Parliament on 2 April 2019, notes that over 10 per cent of the total number of persons convicted of terrorism offences since 2014 were under 18 at the time of offending.

18.               The INSLM report includes recommendation 2a, that:

Section 15AA of the Crimes Act be amended so that, in the case of children, and within the exceptional circumstances test, it expressly provides for additional consideration of the best interests of the child in every case as a primary consideration, and protection of the community as a paramount consideration.

 

19.                Item 8 adopts recommendation 2a of the INSLM report in full by amending section 15AA of the Crimes Act to make it explicit that bail authorities, when determining whether exceptional circumstances exist to justify bail for persons under the age of 18 years, must take into account the best interests of the child as a primary consideration while maintaining the protection of the community as the paramount consideration.

20.               Although bail authorities do already take account of these considerations, this amendment puts beyond doubt that bail authorities are to take into account the best interests of the child as a primary consideration, with protection of the community as the paramount consideration when determining whether exceptional circumstances exist to justify bail for persons under the age of 18 years.

21.               This item also amends subsection 15AA(3A) to ensure that the persons covered by the new subsection 15AA(2A) are able to appeal against a decision of a bail authority in relation to exceptional circumstances, as is provided for under the current provision in relation to persons charged with or convicted of a terrorism offence. This is an important safeguard available to these terrorism-related persons. 

Item 9 - Before subsection 15AA(3C)

22.               This item inserts a heading to improve the readability of the legislation, consistent with current legislation drafting practices.

Item 10 - Paragraph 15AA(3C)(a)

23.               This item amends the existing presumption against bail in section 15AA of the Crimes Act to incorporate the new subsection 15AA(2A), as described at item 7 above.

Item 11 - Before subsection 15AA(4)

24.               This item inserts a heading to improve the readability of the legislation, consistent with current legislation drafting practices.

25.               This item also amends subsection 15AA(4) of the Crimes Act, in order to put beyond doubt the interaction between the new subsection 15AA(3AA) inserted by item 8 and State and Territory laws. Subsection 15AA(4) provides that to avoid doubt, except as provided by subsections 15AA(1), 15AA(3A), 15AA(3B), 15AA(3C) and 15AA(3D), section 15AA does not affect the operation of a law of a State or a Territory. Item 11 adds subsection 15AA(3AA) to this list of subsections, to put beyond doubt that that subsection overrides State and Territory laws.

Item 12 - Before subsection 15AA(5)

26.               This item inserts a heading to improve the readability of the legislation, consistent with current legislation drafting practices.

Item 13 - After subsection 19AG(4)

27.               This item amends section 19AG to require a court, when sentencing a terrorist offender who is under the age of 18 years, to fix a non-parole period of three quarters of the head sentence as provided for in subsection 19AG(2) unless the court is satisfied that exceptional circumstances exist to justify a shorter non-parole period. In determining whether exceptional circumstances exist, the court must have regard to the protection of the community as the paramount consideration and the best interests of the child as a primary consideration.

28.               The INSLM considered the operation of section 19AG in his review of the prosecution and sentencing of children for terrorism. While item 13 differs from the approach recommended by the INSLM in recommendation 1 of his report, the measure is intended to be responsive to the issues raised during the INSLM inquiry and the report, namely the need to protect the rights of children who are being prosecuted and sentenced for terrorism offences.

29.               Item 13 achieves this in a way consistent with the obligation upon government to protect the community from terrorist threats. This is important because terrorism carried out by a child offender has the same impact on the victims and society in general as that by an adult offender.

30.               Item 13 maintains the intention of section 19AG, which is to reflect increased focus on the protection of the community from the risk posed by terrorist offenders and the desirability of having consistent sentences for these offences, but also provides an additional safeguard for offenders under the age of 18 years. The additional safeguards are provided in the same way as item 8, namely by making the protection of the community the paramount consideration and the best interests of the child a primary consideration. Item 13 ensures that the best interests of the child are expressly taken into account, consistent with the Convention on the Rights of the Child. The formulation in item 13 also aligns with the drafting formulation already provided for in Division 104 of the Criminal Code (control orders).      

31.               The fact that the offender was under the age of 18 years at the time of the offending and at the time of sentencing would not of itself constitute exceptional circumstances that would justify a non-parole period of less than three quarters of the head sentence. The onus is on the offender to show that there is a situation which is out of the ordinary, or unusual in some respect, to satisfy the court that exceptional circumstances exist to justify a non-parole period that is shorter than three quarters of the head sentence. Without limiting the matters the court may take into account in determining whether exceptional circumstances exist, the sentencing court may find that one or a combination of factors when considered in conjunction with an offender’s age constitute exceptional circumstances.

Item 14 - Subsection 19AL(1) (note)

32.               This item updates the numbering of the existing note after subsection 19AL(1).

Item 15 - At the end of subsection 19AL(1)

33.               This item inserts a second note after subsection 19AL(1) of the Crimes Act. The new note refers the reader to existing subsection 19ALA regarding parole decision making and the new section 19ALB in relation to parole orders for terrorism-related offenders.

Item 16 - After section 19ALA

34.               The Attorney-General is responsible for making decisions regarding federal offenders who have been sentenced to a period of imprisonment of more than three years in respect of whom a non-parole period has been set.

35.               Item 16 inserts new section 19ALB to introduce a presumption against parole for a person who has either been convicted of a terrorism offence, is subject to a control order under Part 5.3 of the Criminal Code or has made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of Part 5.3 of the Criminal Code .

36.               The presumption against parole gives primacy to the first purpose of parole stated in section 19AKA of the Crimes Act—the protection of the community—by placing the onus on the terrorism-related offender to demonstrate exceptional circumstances exist to justify their release on parole.

37.               Like the presumption against bail, the presumption against parole is a mechanism to enhance the management of the particular risks posed by terrorist offenders and other offenders who have expressed support for, or have links to, terrorist activity.

38.               The presumption will operate to prevent terrorist offenders and other terrorism-related offenders being released on parole unless exceptional circumstances exist. This measure sets an appropriately strict test for considering whether to release such offenders on parole, given the nature of the threat posed by such offenders.

39.                Exceptional circumstances is not defined in the provisions in order to maintain the existing discretion of the Attorney-General to deny or approve parole for all federal offenders serving a non-parole period.

40.               In accordance with the existing parole decision making arrangements for all federal offenders, offenders subject to the presumption against parole will be afforded procedural fairness during the process of each consideration by the Attorney-General of whether or not to grant parole. The onus is on the offender during this process to show that there is a situation which is out of the ordinary or unusual in some respect to satisfy the Attorney-General that exceptional circumstances exist to justify parole.

41.               If the Attorney-General is not satisfied that exceptional circumstances exist in relation to a person covered by subsection 19ALB(3), the Attorney-General must not make a parole order. If this is the case, the Attorney-General must give the person written notice informing the offender of the refusal and the reasons for the refusal, in accordance with the existing arrangements under section 19AL of the Crimes Act. The Attorney-General would then need to reconsider the offender for parole within 12 months of the refusal decision, in accordance with the existing arrangements under subsection 19AL(2)(b).

42.               If the Attorney-General is satisfied that exceptional circumstances exist to justify the release on parole of a person covered by subsection 19ALB(2), the Attorney-General would make a parole order setting out the conditions of the release, as provided for in existing section 19AN of the Crimes Act. The conditions of release in relation to terrorism-related offenders are developed in consultation with relevant Commonwealth and state and territory agencies.

43.               Further, consistent with existing parole arrangements for all federal offenders, the decision of the Attorney-General whether to grant parole and the conditions of any such parole are reviewable decisions under the Administrative Decisions (Judicial Review) Act 1977 .

44.               The new subsection 19ALB(3) makes it explicit that the Attorney-General will consider the best interests of the child as a primary consideration when determining whether there are exceptional circumstances that would justify releasing a terrorist offender or terrorism-related offender to parole, where that offender is under the age of 18 years. The provision makes it clear that in taking the best interests of the child into consideration, the protection of the community is the paramount consideration. This provision is consistent with the approach taken in relation to bail for terrorist offenders and terrorism-related offenders set out above. The provision is also responsive to the issues raised in the INSLM review and report, namely the need to ensure that the rights of children who are being prosecuted and sentenced for terrorist offences are taken into account.

Part 2 - Application of amendments

Item 17 - Application - previous offences and activities

45.               This item sets out that these amendments apply to decisions in relation to bail or parole made on or after the commencement of this item. This ensures that all federal offenders are dealt with in accordance with the legislation applicable at the time of their consideration for bail or parole.

46.               Item 17 also provides that these amendments apply to an offence, order or action committed, made or undertaken before on or after the commencement of this item to allow the bail authority or Attorney-General to take into account prior terrorism-related charges, convictions, statements or actions.

 



Schedule 2 - Amendments relating to continuing detention orders

Part 1 - Concurrent and cumulative sentences

Criminal Code Act 1995

Overview of Division 105A

 

47.               Division 105A of the Criminal Code establishes a scheme for the continuing detention of high risk terrorist offenders who pose an unacceptable risk of committing a serious terrorism offence if released into the community at the expiry of their custodial sentence.

48.               Under the scheme, the AFP Minister can apply to a State or Territory Supreme Court for a CDO. A CDO can only be sought in relation to a ‘terrorist offender’. A ‘terrorist offender’ is defined in subsection 105A.3(1) as an individual who:

·          has been convicted of specific terrorism offences (outlined in paragraph 105A.3(1)(a)) (eligible terrorism offence)

·          is either detained in custody and serving a sentence of imprisonment for the offence, or a CDO or interim detention order is in force in relation to them (paragraph 105A.3(1)(b)), and

·          will be at least 18 years old when the sentence ends (paragraph 105A.3(1)(c)). 

49.               The Supreme Court can only make a CDO if it is satisfied of the three matters outlined in subsection 105A.7(1). Firstly, the CDO application must be made in accordance with section 105A.5. Secondly, the court must be satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a ‘serious Part 5.3 offence’ if released into the community. A ‘serious Part 5.3 offence’ is an offence against part 5.3 of the Criminal Code with a maximum penalty of seven or more years of imprisonment. Finally, the court must be satisfied that there are no less restrictive measures that would be effective in preventing the unacceptable risk posed by the terrorist offender.

50.               Subsection 105A.7(5) provides that the period of detention ordered by the court must not exceed three years, and must be limited to the period necessary to prevent the unacceptable risk. Section 105A.10 and section 105A.11 provide that a CDO must be reviewed annually, or sooner if the terrorist offender applies for a review and the court is satisfied that new facts or circumstances, or the interests of justice, justify the review.

Eligibility for a CDO

 

51.               Paragraph 105A.5(2)(a) provides that the AFP Minister may only apply for a CDO in relation to a terrorist offender not more than 12 months before the end of their sentence for their eligible terrorism offence, at the end of which they would be required to be released into the community.

52.               This means the AFP Minister cannot consider whether to make a CDO application regarding in respect of an offender who has been sentenced for a further offence which is served concurrently with the sentence for the eligible terrorism offence, or is served immediately following their sentence for the eligible terrorism offence (cumulative sentence), and that sentence concludes after their sentence for the eligible terrorism offence. This is because the offender will not be released into the community at the expiry of their sentence for the eligible terrorism offence, but rather will continue to be detained in custody to serve their sentence for the further offence they have committed.  

53.               This outcome is not consistent with the overall objective of the CDO scheme, which is to ensure the safety and protection of the community from terrorist offenders who pose an unacceptable risk to the community of committing a serious Part 5.3 offence if released at the expiry of their custodial sentence. It is consistent with the preventative purpose of the CDO scheme that, where a terrorist offender continues to pose a risk at the expiry of their custodial sentence, they should remain eligible for a CDO irrespective of whether the final custodial sentence from which they will be released is in relation to an eligible terrorism offence, or another offence.

Intention of these amendments

 

54.               To address this gap in the CDO scheme, Part 1 of Schedule 2 will amend Division 105A to provide that a ‘terrorist offender’ includes an offender who satisfies all of the following conditions:

·          the offender is serving a sentence of imprisonment for an eligible terrorism offence

·          the offender is serving, concurrently or cumulatively with their sentence for an eligible terrorism offence, a further sentence of imprisonment for another Commonwealth, state or territory offence

·          the offender has been continuously detained in custody since being convicted of the eligible terrorism offence

·          the sentence of imprisonment for the further Commonwealth, state or territory offence concludes after the sentence of imprisonment for the eligible terrorism offence, and

·          the offender is at least 18 years old when the last sentence ends.

55.               While these amendments will expand the scope of the CDO scheme, it will not impact upon the range of safeguards already guaranteed under Division 105A. These include: 

·          the high threshold that must be satisfied for the making of a CDO - that the court be satisfied, to a high degree of probability, based on admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if released into the community (paragraph 105A.7(10(b))

·          the court must be satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk before making a CDO (paragraph 105A.7(1)(c))

·          the making of a CDO is a judicial process subject to civil rules of evidence and procedure (section 105A.7, section 105A.8 and section 105A.13)

·          the court may appoint one or more independent experts whose opinion it must have regard to  in determining whether to make a CDO (section 105A.6 and section 105A.8)

·          a CDO is appealable as of right and with leave (section 105A.17), and

·          a CDO is subject to annual review, and the terrorist offender can review a CDO sooner where new facts or circumstances justify reviewing the order or where it is in the interests of justice to review the order (section 105A.11).

Item 1 - Section 105A.2 of the Criminal Code (definition of terrorist offender )

56.               Item 1 inserts a reference to new section 105A.2A in the definition of ‘terrorist offender’ in section 105A.2. It is consequent upon the introduction of new section 105A.2A.

Item 2 - After section 105A.2 of the Criminal Code

57.               Item 2 inserts new section 105A.2A. This new section clarifies that an offender who escapes from custody is taken to be detained in custody and serving a sentence of imprisonment until they resume serving their sentence.

58.               New section 105A.2A must be read in conjunction with new subparagraph 105A.3(1)(b)(ia). New subparagraph 105A.3(1)(b)(ia) provides that a person will be considered a ‘terrorist offender’ where they are detained in custody and serving a sentence of imprisonment for an offence other than an eligible terrorism offence, provided that they have been continuously detained in custody since being convicted of the eligible terrorism offence.

59.               The purpose of new section 105A.2A is to ensure that a terrorist offender who escapes custody does not break the continuity of their detention, and will continue to remain eligible for a CDO at the conclusion of their time in prison.

60.               New section 105A.2A does not apply to section 105A.4 because that section is about the treatment of a terrorist offender who is detained under a CDO.

61.               New section 105A.2A is not intended to affect the interpretation or operation of other laws about persons who have escaped custody. In particular, section 48A of the Crimes Act provides that where an individual escapes custody, the sentence for which they were originally in custody ceases to run for the duration of their escape. Upon being returned to lawful custody, their sentence for the original offence will recommence.

Item 3 - Paragraph 105A.3(1)(b) of the Criminal Code

62.               Item 3 is consequent upon item 5, which inserts new subparagraph 105A.3(1)(b)(ia).

Item 4 - Subparagraph 105A.3(1)(b)(i) of the Criminal Code  

63.               Item 4 is consequent upon item 5, which inserts new subparagraph 105A.3(1)(b)(ia).

Item 5 - After subparagraph 105A.3(1)(b)(i) of the Criminal Code

64.               Item 5 inserts new subparagraph 105A.3(1)(b)(ia), which provides that an offender will be eligible for a CDO where they:

·          have been convicted of an eligible terrorism offence

·          are detained in custody serving a sentence of imprisonment for an offence other than an eligible terrorism offence, and

·          have been continuously detained in custody since being convicted of the eligible offence.

65.               The offender must still continue to satisfy existing paragraph 105A.3(1)(c), which provides that the offender must be at least 18 years old when the last sentence ends.

66.               The purpose of this amendment is to address the current gap in the CDO scheme which prevents offenders from being eligible for a CDO in circumstances where their sentence for an offence other than an eligible terrorism offence concludes after their sentence for the eligible terrorism offence, and they have been detained continuously since being convicted of the eligible terrorism offence.  

67.               For example, under current subsection 105A.3(1), an individual will not be eligible for a CDO where they have been sentenced to seven years imprisonment for an eligible terrorism offence, such as possessing things connected with terrorist acts contrary to section 101.4 of the Criminal Code , and sentenced to four years imprisonment for a further state offence of unlawfully possessing a firearm which must be served cumulatively with (i.e. subsequent to) the eligible terrorism offence. This is because the offender will not be released into the community at the expiry of their sentence for the eligible terrorism offence, as required under paragraph 105A.5(2)(a).

68.               New subparagraph 105A.3(1)(b)(ia) will enable the AFP Minister to make a CDO application in the 12 months prior to the expiry of the state offence, as the offender will have continuously been in detention since their conviction for the eligible terrorism offence, and at the end of their sentence for the further state offence, they would be required to be released into the community.

69.               While item 5 will operate to expand the scope of the CDO scheme, existing safeguards under the CDO scheme will continue to apply. Most importantly, the court must be satisfied to a high degree of probability, based on admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if released into the community (paragraph 105A.3(1)(b)).

70.               Furthermore, in determining whether to grant a CDO, the court must have regard to any other information as to the risk of the offender committing a serious Part 5.3 offence (paragraph 105A.8(1)(i)), and may have regard to any additional matters it considers relevant (subsection 105A.8(2)). These may include the length of time between the end of the sentence for the eligible terrorism offence, and the final offence, and the nature of the further offences committed by the terrorist offender. Importantly, the court must also be satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk posed by the terrorist offender (paragraph 105A.7(1)(c)).

Item 6 - Paragraph 105A.3(1)(c) of the Criminal Code

71.               Item 6 is consequent upon item 5. Consistent with existing paragraph 105A.3(1)(c), new paragraph 105A.3(1)(d) provides that an individual must be 18 years old when the sentence for the offence other than the eligible terrorism offence ends to be eligible for a CDO.  

Item 7 - After subsection 105A.3(1) of the Criminal Code

72.               Item 7 inserts new subsection 105A.3(1A), which is intended to put beyond doubt the circumstances in which new subparagraph 105A.3(1)(b)(ia) applies.

73.               New paragraph 105A.3(1A)(a) provides that the further offence referred to in new subparagraph 105A.3(1)(b)(ia) can be an offence against a law of the Commonwealth, state or territory. Terrorist offenders may commit a range of Commonwealth, state or territory offences, and may serve their sentence for these offences alongside those for the eligible terrorism offence. It is appropriate to ensure that the further offences do not unduly limit the application of the scheme and undermine its preventative purpose.

74.               New paragraph 105A.3(1A)(b) provides that the further offence referred to in new subparagraph 105A.3(1)(b)(ia) will apply irrespective of whether the sentence for that offence is served concurrently or cumulatively, or both, with:

·          the eligible terrorism offence (new subparagraph 105A.3(1A)(b)(i)), or

·          any sentence for other offences that the terrorist offender has served since being convicted of the eligible terrorism offence (new subparagraph 105A.3(1A)(b)(ii)).

 

75.               New subparagraph 105A.4(1A)(b)(ii) is intended to ensure that it does not matter how many other sentences an offender serves between the time they commenced their sentence for the eligible terrorism offence and the time they are to be released into the community, as long as they have been continuously in detention since being imprisoned for the eligible terrorism offence.

76.               New paragraph 105A.3(1)(c) is intended to make clear that, for the purposes of new subparagraph 105A.3(1)(b)(ia), it does not matter when a court imposed the sentences for the eligible terrorism offence and any other offences.

77.               New paragraph 105A.3(1)(d) provides that, for the purposes of new subparagraph 105A.3(1)(b)(ia), it does not matter whether the offender has been continuously serving a sentence of imprisonment for an offence since being convicted of an eligible terrorism offence. Rather, the relevant consideration is whether the individual has been continuously ‘detained in custody’ since being convicted of the eligible terrorism offence. Continuous detention is important to ensuring that there remains a clear link with the conviction and sentence for the original eligible terrorism offence.  

78.               This paragraph is intended to ensure that offenders who have been continuously detained since being convicted of an eligible terrorism offence, but not necessarily serving a sentence of imprisonment for a further offence, will still be captured under new subparagraph 105A.3(1)(b)(ia). This may be relevant where a terrorist offender commits a further offence shortly before the expiry of their sentence for an eligible terrorism offence, and while being remanded in custody to face trial for the further offence, their sentence for the eligible terrorism offence expires. For the purposes of new subparagraph 105A.3(1)(b)(ia), the offender will be considered to be ‘continuously in custody’ while in remand.     

Item 8 - Paragraph 105A.5(2)(a) of the Criminal Code

79.               Item 8 repeals and replaces paragraph 105A.5(2)(a) for the purposes of clearly setting out when the AFP Minister can make a CDO application. New paragraph 105A.5(2)(a) provides that an application for a CDO may not be made more than 12 months before the end of the relevant sentence of imprisonment that the offender is serving. For offenders who would be required to be released into the community at the conclusion of their sentence for an eligible terrorism offence, under new subparagraph 105A.5(1)(a)(i), the AFP Minister can only make a CDO application from 12 months before the end of that sentence. For offenders whose sentence for another offence ends after their sentence for an eligible terrorism offence, under new subparagraph 105A.5(1)(a)(ii), the AFP Minister can only make a CDO application from 12 months before the end of the sentence for the other offence.

Item 9 - Paragraph 105A.9(2)(a) of the Criminal Code

80.               Item 9 is consequent upon item 10, which inserts new subparagraphs 105A.9(2)(a)(i) and 105A.9(2)(a)(ia).

Item 10 - Subparagraph 105A.9(2)(a)(i) of the Criminal Code

81.               Existing subsection 105A.9(2) sets out the circumstances in which the court may make an interim detention order. The purpose of an interim detention order is to ensure than an interim measure can be put in place when the offender’s sentence, or existing CDO, will come to an end before the court has been able to make a decision on whether to make a CDO. The court must be satisfied that there are reasonable grounds for considering that a CDO will be made in relation to the offender before it can make an interim detention order.

82.               Item 10 replaces existing subparagraph 105A.9(2)(a)(i) with new subparagraphs 105A.9(2)(a)(i) and 105A.9(2)(a) (ia), and is consequent upon item 5. The purpose of item 10 is to ensure that the court can make interim detention orders for the new class of offenders who may be eligible for a CDO as a result of the insertion of new subparagraph 105A.3(1)(b)(ia) .

83.               Subparagraph 105A.9(2)(a)(i) provides that the court must be satisfied that the sentence of imprisonment for the eligible terrorism offence will end before the application for a CDO has been determined by the court. This replicates existing subparagraph 105A.9(2)(a)(i).

84.               New subparagraph 105A.9(2)(a)(ia) replicates this requirement for offenders who are captured by new subparagraph 105A.3(1)(b)(ia). The effect of this amendment is that the court will need to be satisfied that the offender’s sentence of imprisonment referred to in new paragraph 105A.3(1)(b)(ia) will end before it determines the application for a CDO.

85.               Existing paragraph 105A.9(2)(b) will continue to operate and require the court to be satisfied that there are reasonable grounds for considering that a CDO will be made in relation to the offender.

Item 11 - Subparagraph 105A.18(1)(b)(i) of the Criminal Code

86.               Existing section 105A.18 addresses situations in which an offender has been released from custody before a CDO proceeding or an appeal has been determined, because, for example, the offender’s custodial sentence for the eligible offence has expired, or the relevant interim or CDO has expired, or been revoked. In the circumstances outlined in subsection 105A.18(1), subsection 105A.18(2) enables the court to make an order for a CDO, despite the offender not being in custody at the time the order is made.

87.               New subparagraph 105A.18(1)(b)(i) replicates existing subparagraph 105A.18(1)(b)(i). New subparagraph 105A.18(1)(b)(ia) ensures that for the purposes of any proceedings on foot under paragraph 105A.18(1)(a), individuals who are eligible for a CDO as a result of the insertion of new subparagraph 105A.3(1)(b)(ia), will continue to be eligible, even if they have been released from custody.

Item 12 - Paragraph 105A.18(2)(a) of the Criminal Code

88.               Item 12 repeals paragraph 105A.18(2)(a) and replaces it with new subparagraphs 105A.18(2)(a)(i) and (ii). This item is consequent upon item 5.

89.               New subparagraph 105A.18(2)(a)(i) provides that an offender is taken to remain a terrorist offender who is detained in custody and serving a sentence of imprisonment despite being released from custody. This may be relevant where the offender has been released from custody because their sentence of imprisonment for an offence other than an eligible terrorism offence has ended while a proceeding under paragraph 105A.18(1)(a) is still on foot.

90.               New subparagraph 105A.18(2)(a)(ii) provides that an offender is taken to remain a terrorist offender in relation to whom a CDO or interim detention order is in force, despite being released from custody. This may be relevant where an offender who is subject to a CDO or interim detention order is released from custody because the period of the detention order has ended while a proceeding under paragraph 105A.18(1)(a) is still on foot.

Item 13 - At the end of subsection 105A.23(1) of the Criminal Code

91.               Subsection 105A.23(1) provides that a court that is sentencing a person who is convicted of an eligible terrorism  offence must warn the person that an application may be made under Division 105A for a CDO requiring the person to be detained in a prison after the end of the person’s sentence for the offence.

92.               Item 13 amends subsection 105A.23(1) to extend the warning requirement so that the court must also notify an offender who has been convicted of an eligible terrorism offence that they will be eligible for a CDO in circumstances where their sentence of imprisonment for that offence has ended, but they continue to be detained in prison for another offence.



Schedule 2 - Amendments

Part 2 - Giving information in applications to offenders

Criminal Code Act 1995

Overview of the existing information disclosure requirements

 

93.               Section 105A.5 of the Criminal Code provides that a CDO application must contain, amongst other things:

·          any report or other document that the applicant (the AFP Minister) intends, at the time of the application, to rely on in relation to the application (paragraph 105A.5(3)(a)) (inculpatory material), and

·          any material in the possession of the AFP Minister and a statement of any facts of which the AFP Minister is aware that would reasonably be regarded as supporting a finding that a CDO should not be made (paragraph 105A.5(3)(aa)) (exculpatory material).

94.               Relevantly, subsection 105A.5(2A) provides that the AFP Minister must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that a CDO should not be made.

95.               Subsection 105A.5(4) provides that the terrorist offender must be given a copy of the CDO application within two days of the application being filed in court. Subsection 105A.5(5) qualifies this requirement by allowing the AFP Minister to not include in the copy of the application any material over which the relevant Minister may seek protective orders (outlined in paragraphs 105A.5(5)(a)-(d)). This is intended to give the relevant Minister time to seek protections over sensitive information in the application either under certain provisions within the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act), or through other orders of the court, to prevent inappropriate disclosure to the public.

96.               However, subsection 105A.5(6) provides that the AFP Minister must ultimately provide the terrorist offender with the ‘complete copy’ of the CDO application.

97.               The ‘complete copy’ requirement places unique obligations on the AFP Minister that go beyond the ordinary information disclosure requirements that operate in other contexts, such as in criminal prosecutions. The requirement does not allow, for example, the Commonwealth to access the full range of potential protections that a court may order under the NSI Act, such as summaries of material or statements of facts that the material would have proven.

Implications of the existing information disclosure requirements

 

98.               The unique nature of the CDO information disclosure requirements has raised concerns about the AFP Minister’s ability to safeguard sensitive national security information in a CDO application.

99.               The consequences of the requirement differ depending on whether the Commonwealth is seeking to protect the material through a public interest immunity (PII) claim, or under the NSI Act. There are two gaps in the PII and NSI Act protections that are currently available.

PII claims

 

100.           There are different disclosure requirements in subsection 105A.5(5) for inculpatory and exculpatory information.

101.           All exculpatory information that the AFP Minister is aware or in possession of must be included in the CDO application and be provided to the terrorist offender. While a suppression order or non-publication order could be made to protect the disclosure of sensitive exculpatory information to the public, all exculpatory material, regardless of its sensitivity, must be provided to the terrorist offender. 

102.           However, there is no requirement for the AFP Minister to include all inculpatory information in the application. The AFP Minister is therefore able to choose either to not include sensitive inculpatory material in the application, or to include it with the sensitive information redacted. If the terrorist offender challenged the redactions and sought the underlying material, the Commonwealth could resist disclosure by making a PII claim.

NSI Act protections

 

103.           The existing requirements prevent the Commonwealth from being able to access the full range of protections available under the NSI Act for both exculpatory and inculpatory material. The NSI Act allows a court to put in place a range of potential orders to appropriately protect sensitive national security information, including by summarising sensitive material in a form that does not prejudice national security, or providing a statement of facts that the material would have proven. This summary or statement of facts would then be adduced as evidence in the proceeding.

104.           However, the requirement to ultimately provide a ‘complete copy’ of the application to the terrorist offender means that the Commonwealth is not able to access this more flexible option to protect sensitive inculpatory and exculpatory information.

Effect of the information disclosure requirements on the Minister’s decision to seek a CDO

 

105.           Due to the nature of the prison environment, evidence gathered relating to the risks posed by a terrorist offender needs to be managed with care. Disclosure of certain information to the offender can compromise sensitive sources and capabilities, with severe consequences for the safety of human sources, the integrity of law enforcement and security operations, and public safety. 

106.           As any exculpatory information of which the Minister is aware must form part of the CDO application regardless of its sensitivity or probative value, the Minister may be placed in a position where they are required to provide sensitive information as part of a CDO application to a terrorist offender. This might have the ultimate result of prejudicing important national security interests.  

107.           Further, information that the AFP Minister seeks to rely upon to support the CDO application must be included in the copy of the application provided to the offender and may not be protected through the NSI Act or other protections. This could mean the Minister would have to choose between using relevant yet sensitive evidence without sufficient protections or withholding that information from the proceeding. 

108.           As a result, the AFP Minister is left with three challenging options:

·          not to make a CDO application for a high risk terrorist offender because the provision of sensitive exculpatory information to the terrorist offender would prejudice national security

·          make a CDO application and exclude relevant but sensitive information that goes towards highlighting the risk posed by the terrorist offender, which may undermine the prospects of the application, or

·          include the sensitive information in the CDO application because the risk posed by the terrorist offender outweighs the prejudice to national security caused by the disclosure of sensitive information. 

Purpose of these amendments

 

109.           The amendments in Part 2 of Schedule 2 are intended to bring the information disclosure obligations for a CDO application more in line with the procedure in other contexts, such as proceedings for criminal prosecutions. Part 2 of Schedule 2 amends the information disclosure requirements by making two targeted amendments to section 105A.5:

·          make PII available to remove sensitive exculpatory material from an application, and

·          ensure the full range of protections under the NSI Act are available.

110.           While the amendments give courts the option of increased information protections over sensitive national security information, the CDO scheme will continue to strike the right balance between the terrorist offender’s right to a fair hearing and protecting national security information.

111.           These amendments will not allow the AFP Minister to rely upon information to support a CDO application that is withheld from the terrorist offender.

PII for exculpatory material

 

112.           New paragraph 105A.5(3)(aa) will enhance information protections by enabling the AFP Minister to redact or withhold sensitive exculpatory material from the CDO application on PII grounds. The terrorist offender can contest the basis on which exculpatory material has been redacted or withheld. The court will be the ultimate arbiter as to whether the information should be disclosed to the offender, balancing the public interest in ensuring the terrorist offender receives a fair hearing by receiving information relevant to the CDO proceeding, with the public interest in ensuring there is no prejudice to national security . Where the Commonwealth’s PII claim is upheld, the redacted or withheld material will not form part of the CDO application.

113.           This approach is consistent with how sensitive exculpatory material is treated in other contexts, such as criminal prosecutions.

Amending the information protection provisions for the NSI Act

 

114.           The NSI Act provides two mechanisms for protecting sensitive information during civil proceedings. First, both parties can come to an agreed arrangement about the disclosure of national security information in a proceeding. An agreement between the parties may cover the storage, handling, destruction, access and preparation of sensitive national security information. Once parties have come to an agreement about the disclosure of national security information, the court can make an order giving effect to the arrangement (see subsections 38B(1) and 38B(2)).

115.           The alternative mechanism for protecting sensitive national security information under the NSI Act is the certificate regime. This process allows the Attorney-General to issue a civil non-disclosure certificate as an interim measure to protect national security information that may be disclosed during the proceedings. The certificate can allow the parties to access the relevant documents with the sensitive information redacted, or to access a summary of the original document that does not disclose the sensitive information. The NSI Act then requires the court to hold a closed hearing under section 38I to determine what protections should be in place over the sensitive information. The court may make one of three orders in relation to the source document:

·          that the information the subject of a certificate may be disclosed with appropriate deletions, redactions and summaries of information or facts (subsection 38L(2))

·          that the information that is the subject of the certificate must not be disclosed (subsection 38L(4)), or

·          that the information that is the subject of the certificate must be disclosed (subsection 38L(5)).   

 

116.           Existing subsection 105A.5(5) does not cater for these different orders, and in particular, for summaries to be used.

117.           The proposed amendments provide that the requirement to provide the terrorist offender a ‘complete copy’ of the CDO application is subject to the following NSI Act protective mechanisms:

·          orders made by the court to give effect to an agreement between the parties under section 38B

·          certificates issued by the Attorney-General for the interim protection of sensitive information, and

·          protective orders made by the court at the end of the certificate process, when the court determines if and how sensitive information covered by the certificate should be disclosed (the three types of orders are listed in paragraph 214).

 

118.           Importantly, the protective mechanisms under the NSI Act do not enable the AFP Minister to rely on information that is not provided to the terrorist offender. If the court orders that information be withheld from a terrorist offender in its entirety, it will not form part of the proceedings. If the court orders that a summary or statement of facts will stand in place of the source document, the court will only be able to consider the summary or statement of facts.

Additional safeguards

 

119.           The proposed amendments are subject to two important safeguards.

120.           Firstly, new subsection 105A.5(9) provides that a written notice must be provided by the AFP Minister to the terrorist offender when exculpatory material has been redacted or withheld from the CDO application on the basis of PII. This will notify the terrorist offender that the AFP Minister has not included information in the CDO application because it is subject to a claim of PII. The terrorist offender may then choose to contest the PII claim, at which time the court will determine whether the Commonwealth’s PII claim should be upheld.

121.           Secondly, the court will retain complete discretion as to whether to grant a PII claim, or to issue any other orders sought to protect sensitive national security information under the NSI Act. In making a relevant protective order, the court will still retain the ability to determine what consequences that order will have for the terrorist offender’s right to a fair hearing. For instance, the court may decide that exculpatory material should be withheld from the terrorist offender on the basis of PII. However, after upholding the PII claim, the court may use its inherent jurisdiction to stay the proceedings because it considers that the withholding of that information may mean that the terrorist offender cannot be given a fair hearing. The NSI Act recognises these inherent powers of the court at subsection 19(3).

Item 14 - Paragraph 105A.5(3)(aa) of the Criminal Code

122.           Item 14 amends paragraph 105A.5(3)(aa) to provide that exculpatory material does not need to be included in the CDO application where the relevant information, material or facts would be the subject of a claim for PII (whether the claim for PII is to be made by the AFP Minister or any other person). A PII claim can be made by the AFP Minister, or relevant operational agencies such as the Australian Federal Police or the Australian Security Intelligence Organisation. This is consistent with the ability of operational agencies to make PII claims in relation to their own sensitive material in other contexts, such as criminal prosecutions.

123.           The purpose of this amendment is to make PII available to protect sensitive exculpatory material. The requirement to include exculpatory material in the CDO application, without the ability to protect that material where it contains sensitive national security information, may prejudice national security, or ongoing law enforcement or intelligence operations. For example, it may require the AFP Minister to include material in the CDO application that discloses sensitive sources and capabilities, with consequences for the safety of human sources, the integrity of law enforcement and security operations, and public safety. This is particularly problematic where the exculpatory material may be of limited weight, or not particularly persuasive.

124.           New paragraph 105A.5(3)(aa) will allow the AFP Minister to redact or withhold sensitive exculpatory information, material or facts where it is likely to be protected by PII. As it has been redacted or withheld, this material will not form part of the CDO application.

125.           New subsection 105A.5(9) will provide an important safeguard to ensure that the terrorist offender can contest the appropriateness of exculpatory material being withheld or redacted from the application. This subsection will require the AFP Minister to provide the terrorist offender with written notice stating that the sensitive exculpatory material has been excluded on the basis of PII. The AFP Minister will be required to provide the notice to the terrorist offender at the time they give the copy of the application to the offender pursuant to current subsection 105A.5(4).

126.           Providing a notice to the terrorist offender will allow them to contest the basis of the PII claim, if they wish. This process is consistent with the way that PII claims would be made in criminal prosecutions. The court will ultimately determine whether it should uphold the PII claim. In doing so, the court will consider the public interest in ensuring the terrorist offender receives a fair hearing and the public interest in ensuring there is no prejudice to national security. Where the PII claim is upheld, the exculpatory material will not form part of the CDO application, or be able to be relied upon in the proceedings. Where the PII claim is not upheld, the AFP Minister may choose to cease the CDO proceedings if the prejudice to national security in disclosing the sensitive exculpatory material is too great, or alternatively, provide the sensitive exculpatory material to the terrorist offender.

127.           Importantly, nothing in amended paragraph 105A.3(aa) precludes the court from exercising its inherent powers to stay proceedings if the court does not consider that the terrorist offender cannot receive a fair hearing. For example, the court may uphold a PII claim to withhold sensitive exculpatory material on the basis that the public interest in not prejudicing national security outweighs the public interest in disclosing that material to the terrorist offender for the purposes of ensuring a fair hearing. However, the court may decide to stay the CDO proceeding on the basis that it would not be in the interests of justice to proceed with a hearing in which the terrorist offender had been denied relevant and important exculpatory material.

Item 15 - At the end of subsection 105A.5(3) of the Criminal Code

128.           Item 15 amends subsection 105A.5(3) by including new Note 3 stating that further information about PII is also at new subsection 105A.5(9). New subsection 105A.5(9) requires the AFP Minister to provide the terrorist offender with a written notice where exculpatory material has been excluded from the CDO application on the basis of PII, at the time they provide the copy of the CDO application to the offender.

Item 16 - Subsection 105A.5(6) of the Criminal Code

129.           Item 16 repeals subsection 105A.5(6) and substitutes it with new subsection 105A.5(6), and inserts new subsections 105A.5(7) to (9). The purpose of item 16 is to enable the more sophisticated information protections under the NSI Act to apply, and to provide for the AFP Minister to give notice to the terrorist offender when removing exculpatory material from the CDO application on PII grounds.

130.           Existing subsection 105A.5(4) provides that the AFP Minister must, subject to subsection 105A.5(5), provide the terrorist offender a copy of the CDO application  personally within two business days after the application is filed in court. Existing subsection 105A.5(5) provides that the AFP Minister does not need to include in the CDO application provided to the terrorist offender under subsection 105A.5(4) any information over which the relevant Minister may seek the following kinds of protections:

·          issue a certificate under the NSI Act (paragraph 105A.5(5)(a))

·          seek an arrangement under section 38B of the NSI Act (paragraph 105A.5(5)(b)), and

·          seek an order of the court preventing or limiting the disclosure of the information (paragraph 105A.5(5)(c)).

131.           Existing subsection 105A.5(6) provides that despite any actions taken by the Minister under paragraph 105A.5(5)(a)-(d), and any court orders, the terrorist offender must be provided a ‘complete copy’ of the application.

132.           New subsection 105A.5(6) provides that the AFP Minister must, subject to new subsection 105A.5(7), give the terrorist offender a complete copy of the application if:

·          the Minister decides not to take any of the actions referred to in paragraphs 105A.5(5)(a)-(d)

·          the Attorney-General gives a certificate under the NSI Act, as referred to in paragraph 105A.5(a), or

·          the court makes an order in relation to action taken by the Minister under paragraphs 105A.5(b) or (d).

133.           New subsection 105A.5(6) largely reproduces current subsection 105A.5(6), but recognises the AFP Minister’s obligation to provide the complete copy of the application to the terrorist offender is now subject to subsection (7).

New subsection 105A.5(7)

 

134.           New subsection 105A.5(7) provides that the AFP Minister’s obligation to give a ‘complete copy’ of the CDO application to the terrorist offender under new subsection 105A.5(6) is subject to any certificate issued by the Attorney-General under the NSI Act (new paragraph 105A.5(7)(a)), or any orders made by the court (new paragraph 105A.5(7)(b)). The court orders referred to in new paragraph 105A.5(7)(b) relate to orders made by the court under the NSI Act, or other court orders such as suppression or non-publication orders.

135.           The purpose of new subsections 105A.5(6) and (7) is to allow the CDO application provided to the terrorist offender to be subject to the following NSI Act protective mechanisms:

·          orders made by the court under section 38B to give effect to an agreement between the parties for the storage, handling, destruction, access and preparation of sensitive information during the CDO proceeding

·          certificates issued by the Attorney-General for the interim protection of sensitive information, or       

·          protective orders made by the court at the end of the certificate process, when the court determines if and how sensitive information covered by the certificate should be disclosed.

136.           Importantly, new subsections 105A.5(6) and (7) do not allow information withheld from the terrorist offender to be used by the court to determine whether a CDO application should be granted. The material in the CDO application that is ultimately provided to the terrorist offender is the same material that the court may consider when determining whether a CDO should be granted. If material is redacted or withheld under the NSI Act, it does not form part of the proceedings. If the court orders that a summary or statement of facts be prepared, then this will stand in the place of the material in the proceedings.

137.           For example, the AFP Minister could file a CDO application with inculpatory material that contains sensitive national security information. The Attorney-General could then issue a civil non-disclosure certificate under section 38F of the NSI Act. The court would then be required to hold a closed hearing and make one of the orders under section 38L in respect of the information covered by the certificate. After considering the evidence, the court could, for instance, make an order under paragraph 38L(2)(e) of the NSI Act that the sensitive information not be disclosed, but that a redacted version of the sensitive material, together with a summary of the sensitive material, be disclosed in the CDO application. New subsections 105A.5(6) and (7) will result in the terrorist offender being provided the redacted document and summary, rather than the original sensitive material. In making its final determination regarding the CDO application, the court would have no further regard to the original sensitive material and would only consider the information contained in the redacted document and summary provided to the terrorism offender.   

138.           Importantly, any of the orders that the court may make, whether in relation to giving effect to an arrangement agreed by the parties under section 38B of the NSI Act, or any court orders under section 38L at the conclusion of the certificate process in the NSI Act, remains entirely at the discretion of the court.

New subsection 105A.5(8)

 

139.           New subsection 105A.5(8) provides that the copy of the CDO application must be provided to the terrorist offender:

·          within two business days of:

o the Minister’s decision to not take any of the actions referred to in paragraphs 105A.5(5)(a)-(d), or

o the giving of a certificate by the Attorney-General under the NSI Act, or

o the order referred to in paragraph 105A.5(6)(c) being made, and

·          in any event, within a reasonable period before the preliminary hearing referred to in section 105A.6.

140.           New subsection 105A.5(8) largely reproduces the requirements of existing paragraphs 105A.5(6)(a) and (b).

141.           However, new subparagraph 105A.5(8)(a)(ii) expressly recognises that a certificate issued by the Attorney-General under the NSI Act may continue to be in place at the time of the preliminary hearing under section 105A.6. This is because the court may not yet have made an order under section 38L of the NSI Act to replace the certificate prior to the preliminary hearing, which must be held within 28 days of a copy of the application being provided to the terrorist offender under subsection 105A.5(4).

142.           The purpose of new subsection 105A.5(8) is to ensure that the terrorist offender is provided a copy of the CDO application within two days of the Minister giving a certificate under the NSI Act, or the court making any order in respect of actions taken by the Minister under paragraphs 105A.5(5)(b) or (d). In any case, the terrorist offender must be provided the CDO application within a reasonable period before the preliminary hearing under section 105A.6. The purpose of the preliminary hearing is to appoint one or more experts to assist the court in its determination of whether the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community.

New subsection 105A.5(9)

 

143.           New subsection 105A.5(9) provides that if sensitive exculpatory information, material and facts are excluded from the CDO application under new paragraph 105A.5(3)(aa) on the basis of PII, the AFP minister must give written notice to the terrorist offender personally stating that the information has been exclude on the basis of PII. The notice must be given at the time the copy of the application is given to the offender.

144.           New subsection 105A.5(9) is an important safeguard. It provides notice to the terrorist offender that certain exculpatory material has been excluded on the basis of PII. The terrorist offender may seek to have access to that information and contest the basis on which this information has been withheld by the AFP Minister, for instance, through a subpoena. It would then be a matter for the court to determine whether the PII claim should be upheld, balancing the public interest in ensuring the terrorist offender receives a fair hearing by receiving information relevant to the CDO proceeding, with the public interest in ensuring there is no prejudice to national security.



Part 3 - Application provisions

Criminal Code Act 1995

Item 17 - In the appropriate position in Division 106 of the Criminal Code

145.           Item 17 inserts new section 106.10 in the Criminal Code , which contains application provisions about how the proposed amendments in Schedule 2 will apply.

146.           Part 1 of Schedule 2 provides that offenders who are serving a sentence of imprisonment either concurrently or cumulatively (or both) for an offence that is not an eligible terrorism offence, and who have been detained continuously since being convicted of the eligible terrorism offence, will be eligible for a CDO. New paragraph 106.10(1)(a) provides that these amendments will apply to any person who, on the day this section commences, is detained in custody. It does not matter whether the offender is being detained for an eligible terrorism offence, or another offence (whether it is a Commonwealth, state or territory offence).

147.           New paragraph 106.10(1)(b) provides that the amendments in Part 1 of Schedule 2 will apply to any person who, on or after the day this section commences, begins a sentence of imprisonment for an eligible terrorism offence, irrespective of whether the conviction for that offence occurred before, on or after that day.

148.           New subsection 106.10(2) provides that, for the avoidance of doubt, amendments to Division 105A made by Part 1 of Schedule 2, will apply in relation to a person referred to in new paragraph 106.10(1)(a) whose sentence of imprisonment for the eligible terrorism offence ended before the day this section commences. The purpose of this subsection is to provide that the amendments in Part 1 of Schedule 2 will apply even if the offender’s sentence of imprisonment for an eligible terrorism offence has expired, and they are only in custody for a further Commonwealth, state or territory offence. The offender will need to still have been continuously detained in custody since being convicted of the eligible terrorism offence to be eligible for a CDO, in accordance with new subparagraph 105A.3(1)(b)(ia).

149.           It is appropriate that the proposed amendments in Part 1 of Schedule 2 apply in respect of individuals who are currently in custody, and individuals whose sentence of imprisonment for an eligible terrorism offence ends before the day this section commences. The CDO scheme is preventative in nature and seeks to ensure the safety and protection of the community by providing for the continuing detention of high risk terrorist offenders. The application of the proposed amendments in accordance with new subsections 106.10(1) and (2) is consistent with the preventative objectives of the CDO scheme, as it ensures that individuals who are assessed by a court at the end of their period of imprisonment to pose an unacceptable risk of committing a serious Part 5.3 offence if released into the public, will remain eligible for a CDO.

150.           New subsection 106.10(3) provides that the amendments to section 105A.5 made by Part 2 of Schedule 2 of the Act apply in relation to any CDO application made after the commencement of this section.

 




[1] UN Human Rights Committee, General Comment 35: Article 9, Right to Liberty and Security of Person (16 December 2014) [21].