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Intelligence and Security—Parliamentary Joint Committee—Review of police stop, search and seizure powers, the control order regime and the preventative detention order regime: Division 3A of Part IAA of the Crimes Act 1914; Divisions 104 and 105 of the Criminal Code—Report, February 2018


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February 2018 CANBERRA

PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

Review of police stop, search and seizure powers, the control order regime and the preventative detention order regime

Division 3A of Part IAA of the Crimes Act 1914; Divisions 104 and 105 of the Criminal Code

Parliamentary Joint Committee on Intelligence and Security

© Commonwealth of Australia

ISBN 978-1-74366-763-7 (Printed Version)

ISBN 978-1-74366-764-4 (HTML Version)

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License.

The details of this licence are available on the Creative Commons website: http://creativecommons.org/licenses/by-nc-nd/3.0/au/.

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Contents

Membership of the Committee .........................................................................................................v

Terms of Reference ...........................................................................................................................vii

List of abbreviations ..........................................................................................................................ix

List of Recommendations .................................................................................................................xi

The Report

1 Introduction...............................................................................................................1

Conduct of the inquiry...........................................................................................................1

Report structure ......................................................................................................................2

Legislative history...................................................................................................................2

Use of powers ..........................................................................................................................4

The current security environment........................................................................................4

2 Stop, search and seizure..........................................................................................7

Overview of the provisions ...................................................................................................7

Review history.........................................................................................................................8

Use of the provisions............................................................................................................10

Necessity of the provisions .................................................................................................10

Potential amendments .........................................................................................................18

3 Control orders .........................................................................................................37

Overview of the provisions .................................................................................................37

Review history.......................................................................................................................38

iv

Use of the provisions............................................................................................................46

Necessity of the provisions..................................................................................................46

Potential revisions and safeguards ....................................................................................55

Interoperability between control orders and continuing detention orders .................73

Independent National Security Legislation Monitor review .........................................79

4 Preventative detention orders..............................................................................81

Overview of the provisions .................................................................................................81

Review history.......................................................................................................................82

Use of the provisions............................................................................................................87

Developments in other legislation .....................................................................................87

Necessity of the provisions .................................................................................................89

Committee comment ..........................................................................................................102

Appendix A. List of submissions .................................................................................105

Appendix B. Witnesses appearing at public and private hearings........................107

Appendix C. Comparison table of control and detention powers.........................111

v

Membership of the Committee

Chair

Mr Andrew Hastie MP

Deputy Chair

Hon Anthony Byrne MP

Members

Hon Mark Dreyfus QC, MP Senator the Hon Eric Abetz (from 7/2/18)

Hon Dr Mike Kelly AM, MP Senator David Bushby

Mr Julian Leeser MP Senator David Fawcett

Mr Jason Wood MP Senator Jenny McAllister

Senator Bridget McKenzie (to 20/12/17)

Senator the Hon Penny Wong

vii

Terms of Reference

Under paragraph 29(1)(bb) of the Intelligence Services Act 2001, the Committee is required to review, by 7 March 2018, the operation, effectiveness and implications of:

 Division 3A of Part IAA of the Crimes Act 1914 and any other provision of that Act as far as it relates to that Division,  Divisions 104 and 105 of the Criminal Code Act 1995 and any other provision of that Act as far as it relates to those Divisions.

ix

List of abbreviations

AFP Australian Federal Police

CDO Continuing Detention Order

CO Control Order

COAG Council of Australian Governments

CT Counter-Terrorism

DNSW Delayed Notification Search Warrant

ESO Extended Supervision Order

HRTO High Risk Terrorist Offender

ICCPR International Covenant on Civil and Political Rights

INSLM Independent National Security Legislation Monitor

IS Act Intelligence Services Act 2001

ISIS Islamic State of Iraq and Syria

JCCT Joint Counter-Terrorism Team

LCA Law Council of Australia

PDO Preventative Detention Order

PJCHR Parliamentary Joint Committee on Human Rights

xi

List of Recommendations

Recommendation 1

2.35 The Committee recommends that the stop, search and seizure powers provided for under Division 3A of Part IAA of the Crimes Act 1914 be continued.

Recommendation 2

2.91 The Committee recommends that the Australian Federal Police (AFP) be required to provide a report to the AFP Commissioner as soon as practicable after any powers under Division 3A of Part IAA of the Crimes Act 1914 are exercised. A copy of the report should be provided to the responsible minister, the Independent National Security Legislation Monitor and the Committee as soon as practicable. The AFP should brief the Committee when requested.

The Committee further recommends that the Australian Federal Police be required to report annually to the Parliament on the exercise of any powers under Division 3A.

Recommendation 3

2.92 The Committee recommends that the Intelligence Services Act 2001 be amended to enable the Parliamentary Joint Committee on Intelligence and Security to monitor and review the performance by the Australian Federal Police of its functions under Division 3A of Part IAA of the Crimes Act 1914 (the stop, search and seizure powers), including the basis of the Minister’s declaration of a prescribed security zone under section 3UJ. The Committee should be provided with sufficient operational information to enable it to perform this new function.

xii

Recommendation 4

2.94 The Committee recommends that the Intelligence Services Act 2001 be amended to require the Committee to conduct a further review prior to the sunset date into the operation, effectiveness and implications of the stop, search and seizure powers in Division 3A of Part IAA of the Crimes Act 1914, with the provisions sunsetting after three years.

Recommendation 5

3.59 The Committee recommends that the control order regime provided for under Division 104 of the Criminal Code Act 1995 be continued, with the provisions sunsetting after three years.

Recommendation 6

3.60 The Committee recommends that the Intelligence Services Act 2001 be amended to require the Committee to conduct a further review into the operation, effectiveness and implications of the control order regime in Division 104 of the Criminal Code Act 1995 prior to the sunset date.

Recommendation 7

3.91 The Committee recommends that section 104.14 of the Criminal Code Act 1995 be amended to clarify the status of the original request for an interim control order during confirmation proceedings. This is in line with the Independent National Security Legislation Monitor’s recommendation at paragraph 8.61 of his 2017 review.

The Committee further recommends that the Attorney-General consider, in consultation with the Federal Circuit Court, the Federal Court, and appropriate legal stakeholders, what further improvements could be made to provide greater clarity around how civil procedure rules apply in control order proceedings, noting operational sensitivities.

Recommendation 8

3.97 The Committee recommends that Division 104 of the Criminal Code Act 1995 be amended to allow for either the controlee, or the Australia Federal Police, to apply to the issuing court to vary the terms of an interim control order under section 104.5. In making this recommendation, the Committee notes that restrictions will be required to ensure that the court is not burdened with an unreasonable number of applications for variation by a controlee.

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Recommendation 9

3.108 The Committee recommends that the Government extend the minimum time period between an interim and a confirmation hearing for a control order under subsection 104.5(1A) of the Criminal Code Act 1995 to seven days, subject to legal advice regarding any constitutional concerns arising from this extension.

Recommendation 10

3.140 The Committee recommends that the Criminal Code Act 1995 be amended as required to implement an Extended Supervision Order (ESO) regime which would include any of the controls that can be imposed under a control order, similar review mechanisms, and other associated changes consistent with the model recommended by the Independent National Security Legislation Monitor at paragraphs 9.40 to 9.47 of his 2017 review. This will address interoperability issues between Division 104 and 105A.

Recommendation 11

4.82 The Committee recommends that the preventative detention regime in Division 105 of the Criminal Code Act 1995 be continued, with the provisions sunsetting after three years.

Recommendation 12

4.83 The Committee recommends that the Intelligence Services Act 2001 be amended to require the Committee to conduct a further review into the operation, effectiveness and implications of the preventative detention order regime in Division 105 of the Criminal Code Act 1995 prior to the sunset date.

Recommendation 13

4.85 The Committee recommends that the Australian Federal Police be required to notify the Committee as soon as practicable after a preventative detention order is made under Division 105 of the Criminal Code Act 1995, and to brief the Committee if requested.

1

1. Introduction

1.1 Under section 29 of the Intelligence Services Act 2001 (IS Act), it is a function of the Parliamentary Joint Committee of Intelligence and Security (the Committee) to review the operation, effectiveness and implications of:

 Division 3A of Part IAA of the Crimes Act 1914 (Crimes Act) and any other provision of that Act as far as it relates to that Division,  Divisions 104 and 105 of the Criminal Code Act 1995 (Criminal Code) and any other provision of that Act as far as it relates to those Divisions.

1.2 This report is in fulfilment of that function and relates to the Committee’s review of:

 the stop, search and seizure powers provided for under Division 3A of Part IAA of the Crimes Act 1914;  the control order regime provided for under Division 104 of the Criminal Code; and  the preventative detention order (PDO) regime provided for under

Division 105 of the Criminal Code.

Conduct of the inquiry

1.3 The Chair of the Committee, Mr Andrew Hastie MP, announced the review by media release on 10 August 2017 and invited written submissions. Submissions were requested by 22 September 2017.

1.4 The Committee received 13 submissions and three supplementary submissions, from government, academia and other stakeholders. A list of submissions received by the Committee is at Appendix A.

1.5 The Committee wishes to express its appreciation to all submitters and witnesses for their contributions to this inquiry. The Committee is

2 REVIEW OF POLICE STOP, SEARCH AND SEIZURE POWERS, THE CONTROL ORDER REGIME AND THE PREVENTATIVE DETENTION ORDER REGIME

particularly appreciative of those submitters who provided supplementary submissions at the request of the Committee.

1.6 At all times it was the Committee’s preference for submissions and hearings to be made publicly available.

1.7 The Committee held one public hearing and two private hearings on 1 December 2017. Details of the hearings are included at Appendix B.

1.8 The Committee also received private briefings from the Independent National Security Legislation Monitor (INSLM), the Attorney-General’s Department and the Australian Federal Police (AFP).

1.9 Copies of unclassified submissions and transcripts of public hearings can be accessed on the Committee’s website.

Report structure

1.10 This reports consists of four chapters:

 This chapter describes the history of the legislation under review, the use of the powers to date, and the current security environment;  Chapter 2 considers the stop, search and seizure powers;  Chapters 3 examines the control order provisions, and considers the

interoperability between control orders and the continuing detention order regime; and  Chapter 4 discusses the preventative detention order scheme.

1.11 A table comparing the main features of control orders, PDOs and other detention powers related to terrorism is at Appendix C.

Legislative history

1.12 Following the July 2005 terrorist attacks in London, the Commonwealth Government introduced Divisions 3A, 104 and 105 into the Criminal Code via the Anti-Terrorism Act (No. 2) 2005 to assist ‘law enforcement and intelligence agencies to effectively prevent and investigate terrorism’.1 According to the Explanatory Memorandum accompanying the relevant bill, the legislation would, amongst other things, introduce:

 a new regime to allow for ‘control orders’ that will allow for the overt close monitoring of terrorist suspects who pose a risk to the community,

1 Anti-Terrorism Bill (No. 2) 2005, Explanatory Memorandum, p. 2.

INTRODUCTION 3

 a new police preventative detention regime that will allow detention of a person without charge where it is reasonably necessary to prevent a terrorist act or to preserve evidence of such an act,

 a new regime of stop, question, search and seize powers that will be exercisable at airports and other Commonwealth places to prevent or respond to terrorism.2

1.13 During the Minister’s second reading speech, the then Attorney-General, the Hon Philip Ruddock, stated that the Bill would ensure the Government was ‘in the strongest position possible to prevent new and emerging threats, to stop terrorists carrying out their intended acts’. Attorney-General Ruddock also highlighted that the Bill had been the subject of extensive consultation, with its proposed measures agreed to at a special Council of Australian Governments (COAG) meeting held on 27 September 2005.3 Under the COAG agreement, State Premiers and the Northern Territory and Australian Capital Territory Chief Ministers agreed to introduce complementary legislation providing for preventative detention for a period of up to 14 days and search powers.4

1.14 On 3 November 2005, the Bill was referred to the Senate Legal and Constitutional Legislation Committee for inquiry and report. After an extensive review of the Bill, in which it received 294 submissions, the Senate Committee recommended that the Senate pass the Bill, subject to a number of amendments designed to improve and strengthen safeguards.5 A number of the recommendations were supported by the Government, with the Bill passing the Senate and House of Representatives on 6 December and 7 December 2005 respectively. The Anti-Terrorism Act (No. 2) 2005 received Royal Assent on 14 December 2005.

1.15 In 2010, section 3UEA (the emergency entry to premises provisions) was added into the Criminal Code by the National Security Legislation Amendment Act 2010. According to the Explanatory Memorandum accompanying the relevant bill, the purpose of section 3UEA was ‘to provide police with a power to enter premises without a warrant in emergency circumstances

2 Anti-Terrorism Bill (No. 2) 2005, Explanatory Memorandum, p. 2.

3 The Hon. Philip Ruddock MP, Attorney-General, House of Representatives Hansard, 3 November 2005, p. 102.

4 Senate Legal and Constitutional Committee, Provisions of the Anti-Terrorism Bill (No. 2) 2005, p. 3.

5 Senate Legal and Constitutional Committee, Provisions of the Anti-Terrorism Bill (No. 2) 2005, p. xvi.

4 REVIEW OF POLICE STOP, SEARCH AND SEIZURE POWERS, THE CONTROL ORDER REGIME AND THE PREVENTATIVE DETENTION ORDER REGIME

relating to a terrorism offence where there is material that may pose a risk to the health or safety of the public’.6

1.16 The provisions have been amended a number of times since their introduction, including extending the sunset date—originally to be 15 December 2015—to 7 September 2018.7 In 2014, the Committee recommended that the sunset dates for the powers under this review sunset 24 months after the date of the next Federal election, and that the Committee be required to complete a review of those powers 18 months after the next Federal election. The Committee also recommended that the INSLM be required to finalise a review of those powers 12 months after the next Federal election in order to allow time for the INSLM’s report to be taken into account by the Committee.8 Those recommendations were accepted and implemented.

Use of powers

1.17 To date, the powers have been used as follows:

 the AFP has obtained six control orders since the introduction of the regime,9  the stop, search and seizure powers have not yet been used,10 and  no PDO has been made under Division 105.11

The current security environment

1.18 The AFP advised that in 2005, when the powers subject to this review were introduced, the terrorist threat in Australia was primarily from large-scale operations involving substantial, organised networks. The most prominent

6 National Security Legislation Amendment Bill 2010, Explanatory Memorandum, p. 3.

7 This amendment was made via the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014.

8 See Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, p. 79.

9 Independent National Security Legislation Monitor (INSLM), Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 46.

10 Australian Federal Police, Submission 9, p. 3.

11 Australian Federal Police, Submission 9, p. 5.

INTRODUCTION 5

example at the time was the 7 July 2005 London attack. However, the threat to Australia has since changed considerably:

The terrorism threat environment changed significantly in 2014-15 with the rise of Islamic State of Iraq and Syria (ISIS) and the ease of online radicalisation. Since then, the occurrence of smaller-scale lone actor style attacks has significantly increased in Western countries. This threat is characterised by low cost, locally financed plots using relatively simple tactics and readily available weapons.

The threat of terrorism has increased considerably. On 12 September 2014, the National Terrorism Threat Level was raised to ‘probable’. This means that credible intelligence, assessed by Australian security agencies, indicates that individuals or groups continue to possess the intent and ability to conduct a terrorist attack in Australia. Since the elevation of this Threat Level, there have been five attacks, as well as a number of major terrorism disruption operations in response to potential attack planning in Australia.12

1.19 Jacinta Carroll of the National Security College, Australian National University, stated that effective counter-terrorism efforts had prevented a number of additional attacks:

Were it not for effective counter-terrorism action in stopping planned attacks, Australia might have experienced 20 or more terrorist attacks in the past three years, instead of five, including potentially more than a dozen mass-casualty events. While law enforcement and intelligence agencies have done well, they have also advised that the number of plots and short turnaround times from planning to action mean that disruption won’t always be possible. At least four recent disruptions have occurred within one to three hours before the planned attack.13

1.20 In his review, the current INSLM, Dr James Renwick SC, considered the current security environment at length, ultimately finding:

 the credible threat of one or more terrorist attacks will remain a significant factor in the Australian national security and counter-terrorism landscape for the reasonably foreseeable future,

 while more complex or extensive attacks cannot be ruled out and must be prepared for, attacks by lone actors using simple but deadly weapons, with little if any warning, are more likely,

12 Australian Federal Police, Submission 9, pp. 2-3.

13 Jacinta Carroll, Submission 7, p. 3.

6 REVIEW OF POLICE STOP, SEARCH AND SEIZURE POWERS, THE CONTROL ORDER REGIME AND THE PREVENTATIVE DETENTION ORDER REGIME

 there can be no guarantee that the authorities will detect and prevent all attacks.14

14 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 7.

7

2. Stop, search and seizure

Overview of the provisions

2.1 Division 3A of Part IAA of the Crimes Act provides the Australian Federal Police (AFP) and State and Territory police officers with a number of powers that can be exercised if:

 a person is in a Commonwealth place (other than a prescribed security zone) and the officer suspects on reasonable grounds that the person might have just committed, might be committing or might be about to commit a terrorist act, or

 a person is in a Commonwealth place in a prescribed security zone.1

2.2 In these circumstances, a police officer may

 request the person to provide the officer with the person’s name, residential address, reason for being in that particular Commonwealth place, and evidence of the person’s identity. The person commits an offence if the person fails to comply or provides a false name or address,2 and

 stop and detain the person for the purpose of conducting a search of the person (including searching anything the person has under their control or any vehicles operated or occupied by the person) for a terrorism-related item.3 Such items, or any other serious offence items, may be seized. The police officer conducting the search must not use more force,

1 Crimes Act 1914, s. 3UB.

2 Crimes Act 1914, s. 3UC.

3 Crimes Act 1914, s. 3UD.

8 REVIEW OF POLICE STOP, SEARCH AND SEIZURE POWERS, THE CONTROL ORDER REGIME AND THE PREVENTATIVE DETENTION ORDER REGIME

or subject the person to greater indignity, than is reasonable and necessary, nor detain the person for longer than necessary.4

2.3 The Crimes Act provides that the Minister may, upon application from a police officer, declare, in writing, a Commonwealth place5 to be a ‘prescribed security zone’ if the Minister considers that a declaration would assist in preventing a terrorist act occurring, or in responding to a terrorist act that has occurred. A declaration may last for 28 days, and must be revoked earlier if there is no longer a terrorism threat that justifies the declaration being continued or if the declaration is no longer required.6

2.4 Additionally, regardless of whether it is a Commonwealth place or a prescribed zone, section 3UEA enables a police officer to enter premises without a warrant in an emergency if the police officer suspects, on reasonable grounds, that it is necessary to search the premises for a thing and seize it in order to prevent that thing from being used in connection with a terrorism offence, and it is necessary to do so without a search warrant because there is a serious and imminent threat to a person’s life, health or safety.7

2.5 The stop, search and seizure powers are to sunset on 7 September 2018.8

Review history

2.6 Reviews in 2013, 2014 and 2017 considered the stop, search and seizure powers.

Council of Australian Government’s review

2.7 In its 2013 review, the Council of Australian Government’s (COAG) Committee found that the stop, search and seizure powers were a

4 Crimes Act 1914, s. 3UE/3UD.

5 ‘Commonwealth place’ takes its meaning from the Commonwealth Places (Application of Laws) Act 1970, which provides that a ‘Commonwealth place’ means a place (not being the seat of government) with respect to which the Parliament, by virtue of section 52 of the Constitution, has, subject to the Constitution, exclusive power to make laws for the peace, order, and good government of the Commonwealth (section 3). This includes most major Australian airports, some defence establishments, and immigration detention centres (Attorney-General’s Department and Australian Federal Police, Submission 13, p. 5).

6 Crimes Act 1914, s. 3UJ.

7 Crimes Act 1914, s. 3UEA.

8 Crimes Act 1914, s. 3UK.

STOP, SEARCH AND SEIZURE 9

proportionate legislative response and not arbitrary, as the exercise of the powers required the existence of the connection to a perceived terrorist threat.9 It added:

While, operationally, this may result in a wider scope of persons questioned and searched in exercise of these powers, the existence of the connection to a perceived threat satisfies the Committee that these provisions are a proportionate legislative response and are not arbitrary.10

2.8 The COAG Committee recommended that the legislation be amended to require the police authorities exercising powers under section 3UEA (emergency entry to premises without warrant) to report annually to the Commonwealth Parliament on the use of this power.11 The COAG Committee also recommended that if the provisions were continued beyond their sunset date, a further sunset date of five years should be adopted, and that the relevant legislation should, with the exception of the machinery provisions, cease to exist at the expiry of that period.12

2.9 These recommendations were not implemented.13

Parliamentary Joint Committee on Human Rights review

2.10 In 2014, during its review of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, the Parliamentary Joint Committee on Human Rights (the PJCHR) undertook an assessment of whether the stop, search and seizure powers were compatible with human rights. The PJCHR concluded that:

the stop, question, search and seizure powers are likely to be incompatible with a number of human rights including: the right to security of the person and the right to be free from arbitrary detention; the right to a fair trial; the right to freedom of expression; the right to freedom of movement; the right to

9 Council of Australian Governments, Review of Counter-Terrorism Legislation, 2013, p. 84.

10 Council of Australian Governments, Review of Counter-Terrorism Legislation, 2013, p. 20.

11 Council of Australian Governments, Review of Counter-Terrorism Legislation, 2013, p. 85.

12 Council of Australian Governments, Review of Counter-Terrorism Legislation, 2013, p. 88.

13 See COAG response to the COAG Review at: https://www.coag.gov.au/sites/default/files/communique/COAG%20Response%20to%20COAG %20Review%20of%20Counter-Terrorism%20Legislation%20-%20PDF.pdf

10 REVIEW OF POLICE STOP, SEARCH AND SEIZURE POWERS, THE CONTROL ORDER REGIME AND THE PREVENTATIVE DETENTION ORDER REGIME

privacy; the right to be treated with humanity and dignity; and the rights to equality and non-discrimination.14

INSLM review

2.11 In his 2017 review, INSLM Renwick concluded that the stop, search and seizure powers are necessary and proportionate to the current threats of terrorism and to national security, and consistent with Australia’s human rights, counter-terrorism and international security agreements, and intergovernmental agreements within Australia.15

2.12 The INSLM recommended the addition of new safeguards in the form of reporting requirements to the relevant Minster, the Ombudsman, the Committee and the INSLM, to allow those bodies to review any exercise of the powers, including the making of a ministerial declaration. Provided that those safeguards are implemented, INSLM Renwick recommended the provisions be continued for a further five year period:

I do so in substance because … I conclude that the laws have the capacity to be effective (nothing that the laws have not operated in that they have not been used) and the laws are truly ‘emergency’ powers. 16

Use of the provisions

2.13 The stop, search and seizure powers have not been used since their introduction in 2005.17

Necessity of the provisions

2.14 In a joint submission, the AFP and the Attorney-General’s Department suggested that the value of Division 3A was that it provides a set of nationally consistent counter-terrorism powers that apply to all Commonwealth places, regardless of the State in which the place is located. They continued:

14 Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament, 2014, p. 28.

15 Independent National Security Legislation Monitor (INSLM), Review of Division 3A of Part IAA of the Crimes Act 1914: Stop, Search & Seize Powers, 2017, p. 39.

16 INSLM, Review of Division 3A of Part IAA of the Crimes Act 1914: Stop, Search & Seize Powers, 2017, p. 39.

17 Australian Federal Police, Submission 9, p. [17].

STOP, SEARCH AND SEIZURE 11

At the time of introduction, the Government acknowledged the powers would provide a common approach for police operating in Commonwealth places throughout Australia. This approach ensures that AFP officers located at Commonwealth places have access to powers which are familiar and well understood. While States and Territories have special counter-terrorism powers, they differ from jurisdiction to jurisdiction.

When the legislation was introduced, the Government indicated the Division 3A powers were intended to dovetail with equivalent State and Territory stop, question and search powers.18

2.15 The AFP argued that although the stop, search and seizure powers have not been used to date, non-use of the powers does not mean that they are not necessary. According to the AFP:

They fill a critical, albeit narrow, gap in state and territory emergency counter-terrorism powers, by enabling the AFP to act immediately in the event of a terrorist threat to, or terrorism incident within, a Commonwealth place.19

2.16 Addressing non-use of the powers, the AFP advised that:

Since the powers were introduced in December 2005, the AFP has not responded to any attacks that have been carried out on a Commonwealth Place. Given the narrow geographical remit of the powers, and given that they are to be used only in very limited circumstances, the AFP would not anticipate frequent use of these powers.20

2.17 There have, however, been recent threats to Commonwealth places:

To date, there have been three disrupted attacks on Commonwealth places (a planned attack on Holsworthy Barracks in 2009; a planned attack on Garden Island Defence Precinct in 2015; and a planned attack on a flight departing Sydney Airport in July 2017). In each of these instances police were able to disrupt the attacks before it became necessary to exercise powers at the target location (the Commonwealth place).21

2.18 In the current security environment, the Department and AFP advised that an attack on a Commonwealth place ‘is not unlikely’.22

18 Attorney-General’s Department and Australian Federal Police, Submission 13, pp. 1-2.

19 Australian Federal Police, Submission 9, p. 3.

20 Australian Federal Police, Submission 9, p. 3.

21 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 5.

22 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 2.

12 REVIEW OF POLICE STOP, SEARCH AND SEIZURE POWERS, THE CONTROL ORDER REGIME AND THE PREVENTATIVE DETENTION ORDER REGIME

2.19 The AFP explained that the purpose of the stop, search and seize powers is so that

police can stop, search and seize either because the area has been declared as a prescribed security zone by the minister or because police have a suspicion, essentially, of a terrorism act. So it just gives police that power to actually do the ‘stop and go through bags’ at an airport scenario. If you get last-minute intelligence you want to make sure you are actually able to stop, search and seize things in that place and act pretty quickly. You won't have time to get a warrant in those situations. That is how it would come about, and that's what it allows police to do effectively.23

2.20 Jacinta Carroll of the National Security College submitted that the powers were a necessary component of Australia’s counter-terrorism laws:

Stop, search and seizure powers provide police the ability to quickly act in the field where there is concern about terrorism. While this is an intrusive power that is not to be used lightly, it is a necessary element of Australia’s laws, necessitated by the short-turnaround times involved in current threats— typically requiring intervention by first responders rather than investigators— and the reasonable public expectation that authorities act quickly where there is a possible threat and where they encounter persons of concern. That these powers are yet to be used speaks to a mature understanding of these powers by police. These powers have significant value for use in the event of a serious and imminent terrorist threat.24

2.21 Ms Carroll noted that the powers were not unique to Australia:

The power to stop and search in relation to terrorism is a power found in other comparable jurisdictions, such as the UK, and also in other liberal democracies, such as France. The UK powers, under the Anti-Terrorism Act 2000, have been reviewed and subject to legal proceedings on occasion since their inception, including with reference to their use and the changing terrorist threat environment, including revision in 2011.25

2.22 Other submitters questioned the need for the powers. The Australian Lawyers Alliance submitted:

They have been available for use for 12 years and during that period numerous raids have been conducted as a part of Australia’s counter-

23 Ms Elsa Sengstock, Australian Federal Police, Committee Hansard, Canberra, 1 December 2017, p. 32.

24 Jacinta Carroll, Submission 7, pp. 8-9.

25 Jacinta Carroll, Submission 7, p. 8.

STOP, SEARCH AND SEIZURE 13

terrorism efforts. As such, we question the need to maintain these extraordinary powers.

Their lack of use also means that there has been no opportunity to test the implementation of these powers, and whether it has been limited to those circumstances where the powers are necessary and proportionate to the threat to which they are responding.26

2.23 Similarly, the joint councils for civil liberties submitted that the AFP’s observation that State and Territory police officers are likely to be the first responders at any terrorism incident ‘is central to the questioning of the necessity for these extraordinary powers’.27 The joint councils explained that its

continued opposition to the provisions is based on lack of any solid evidence that there is a dangerous gap in available powers that can justify the continuation of these extraordinary powers which significantly breach rights and extend arbitrary power.28

2.24 The Human Rights Commissioner, Mr Edward Santow, argued that the suggestion that these powers have a deterrence value is misguided:

It’s difficult … to make an argument that they serve a useful and important deterrence function because they are, of their very nature, police powers. Deterrence has generally been understood to be best achieved through criminal offences as distinct from powers.29

2.25 Acknowledging the increased threat from lone-actor-type terrorist attacks, the Human Rights Commissioner advised the Committee that

the best way of meeting those threats is to have legislation and other measures that specifically respond to those threats. In a human rights sense, to meet the proportionality requirement there needs to be targeting, clear calibration, as I said at the start, between the specific threat and the specific counterterrorism measure that is designed to address that threat.30

26 Australian Lawyers Alliance, Submission 4, p. 7.

27 Joint councils for civil liberties, Submission 8, p. 5.

28 Joint councils for civil liberties, Submission 8, p. 5.

29 Mr Edward Santow, Australian Human Rights Commission, Committee Hansard, Canberra, 1 December 2017, p. 10.

30 Mr Edward Santow, Australian Human Rights Commission, Committee Hansard, Canberra, 1 December 2017, p. 11.

14 REVIEW OF POLICE STOP, SEARCH AND SEIZURE POWERS, THE CONTROL ORDER REGIME AND THE PREVENTATIVE DETENTION ORDER REGIME

2.26 In its submission, the Australian Human Rights Commission suggested that in determining whether the powers are a proportionate response to the legitimate need to protect public safety, the Committee should consider whether there is sufficient evidence of their effective use. If the powers are rarely or if ever used then, in the view of the Commission, this would indicate that the pre-existing stop, search and seizure powers at the Federal, State and Territory level are sufficient to prevent terror attacks.31

2.27 The Committee asked the AFP for an explanation as to the interrelationship between these powers and those of state and territory law enforcement agencies. In response the AFP outlined:

Division 3A was inserted by the Anti-Terrorism Act (No. 2) 2005 following the 2005 COAG decision to strengthen Australia’s counter-terrorism laws. Division 3A expanded the powers of the AFP and State and Territory police forces in relation to terrorist acts. To ensure the AFP had the ability to prevent and respond effectively to a terrorist act, Division 3A extended within Commonwealth jurisdictional limitations the AFP’s powers to stop, question and search people.

While States and Territories have their own special counter-terrorism powers to stop, question and search people, these powers differ from jurisdiction to jurisdiction. Noting the significance of Commonwealth places, and their enduring attraction as targets for terrorist activity, the Government noted, at the time of introducing Division 3A, that there is benefit in having a common approach for policing in Commonwealth places throughout Australia.32 This ensures that AFP officers, located at Commonwealth places, have access to familiar, well understood and nationally consistent powers when safeguarding Commonwealth places, such as airports.33

2.28 The Committee also asked the AFP and the Department for hypothetical examples, realistic in the current threat environment, in which each of the powers in Division 3A would be used. The examples provided in response are as follows:

Box 2.1 Hypothetical examples Garden Island Navy base

‘AFP provides a Uniformed Protection Function at Garden Island

31 Australian Human Rights Commission, Submission 3, p. 9.

32 Anti-Terrorism Bill (No. 2) 2005, Explanatory memorandum, p. 74.

33 Attorney-General’s Department and Australian Federal Police, Submission 13.1, p. 2.

STOP, SEARCH AND SEIZURE 15

Defence Precinct (NSW). The AFP’s function in that regard is to provide for the safety and security of the Precinct and its population along with providing a first response capability in the event of a critical incident.

In this hypothetical example, intelligence indicates that an unidentified person is planning to commit an edged weapon terrorist attack at Garden Island Navy base. A suspect is identified loitering in the public area for a prolonged period of time, constantly keeping his hands in his pocket and trying to secret himself from view of CCTV cameras with a black and white flag visible in his rear pocket. In this scenario reasonable grounds to suspect the person might be about to commit a terrorist act exist to exercise powers under Division 3A. The suspect is approached and required to provide their name and reason for being at the Defence Precinct under section 3UC. The person provides their name and shows a NSW driver’s licence. Intelligence checks identify that they are an associate of a known terrorism suspect. Meanwhile, police search the person under section 3UD, and seize a knife and Islamic State flag found in their possession. The person is arrested on suspicion of planning a terrorist act.’34

Non-Commonwealth place

‘As per subsection 3UB(2), the emergency entry power in relation to terrorism (section 3UEA) is not limited to Commonwealth places. In this hypothetical example, the National Security Hotline receives a tip off about an improvised explosive device hidden in a large shopping centre in Sydney central business district. The device is believed to be controlled by a remote detonator and could be detonated at any moment.

The NSW JCTT must act immediately to prevent the device from exploding. This is a serious and imminent threat to lives in the shopping centre. A delay for the purpose of obtaining a section 3E search warrant (even as an urgent telephone application) would potentially take too long.

The NSW JCTT radios the closest NSW police units to the shopping centre, who exercise emergency entry powers under section 3UEA (noting the Division 3A powers may be exercised by State and Territory

34 Attorney-General’s Department and Australian Federal Police, Submission 13, pp. 2-3.

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police officers, as well as AFP members). Using subsection 3UAE(6), police use reasonable force against persons and things obstructing entry, including breaking doors to enter non-public parts of the shopping centre.

The device is located and secured by NSW police first responders (and the shopping centre evacuated). A police bomb response team is deployed to disable the device, which is then seized under subsection 3UEA(2)(b). Within 24 hours of entry, police notify the occupier of the shopping centre that entry has taken place and provide notice of the item seized.’35

Sydney (Kingsford-Smith) Airport

‘The AFP is the primary law-enforcement agency at Sydney Kingsford Smith Airport. AFP Airport Operations officers provide immediate response to policing matters within the airport precincts as well as a coordinated approach to the deterrence of and response to terrorist threats.

In this hypothetical example, the AFP has received credible intelligence indicating that a group of individuals is planning to detonate an improvised explosive device on an international plane departing Sydney Airport in the next few hours. Police only have a general description of the perpetrators and do not know their exact whereabouts. As a result of that intelligence, the Minister makes a declaration under section 3UJ covering Sydney Airport.

Using section 3UM, police systematically approach persons located at Sydney Airport to confirm their identities. Because the airport is now a prescribed security zone, police do not need to establish reasonable suspicion to use the powers in Division 3A.

When approached by police at the check-in counter, one person makes comments about ISIS and infidels. The person is arrested on suspicion of planning a terrorist act. A person-search on arrest reveals the improvised explosives device.’36

35 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 3.

36 Attorney-General’s Department and Australian Federal Police, Submission 13, pp. 3-4.

STOP, SEARCH AND SEIZURE 17

2.29 As noted earlier, INSLM Renwick concluded that the stop, search and seizure powers are necessary and proportionate, stating:

I am persuaded by the information and submissions provided by the AFP and AGD as to the ongoing utility and importance of the powers in div 3A. The fact the powers have not been exercised is a reflection of their limited (but nevertheless important) application. I accept the observation of ASPI [Australian Strategic Policy Institute] that there is a reasonable public expectation that law enforcement authorities will be properly empowered to respond swiftly to a terrorist situation.37

Committee comment

2.30 The Committee supports the intention of the stop, search and seizure powers in Division 3A of Part IAA of the Crimes Act 1914. The ability for the AFP to be able to prevent a terrorist act through the timely use of powers is an essential part of the terrorism prevention framework.

2.31 The Committee acknowledges the view expressed by some participants in the inquiry that the non-use of these powers to date indicates that there is no need for their continuation. However, the Committee notes the AFP’s evidence that stop, search and seizure powers ‘fill a critical, albeit narrow, gap in state and territory emergency counter-terrorism powers, by enabling the AFP to act immediately in the event of a terrorist threat to, or terrorism incident within, a Commonwealth place’. 38

2.32 The Committee considers that emergency powers such as these can only be expected to be used in rare and exceptional circumstances. The fact that such circumstances have not yet arisen does not mean that the powers should be discontinued. Should such emergency circumstances arise in the future, it would not be acceptable for AFP officers to be required to rely on state and territory powers for which there is inconsistency across jurisdictions and for which there may be doubt about whether the powers can be used in the particular moment.

2.33 A number of plots against Commonwealth places have been disrupted in recent years, which shows that there is a current and real threat to the facilities that these powers are intended to protect. If a terrorist plot developed to the point where, for example, perpetrators had an explosive

37 INSLM, Review of Division 3A of Part IAA of the Crimes Act 1914: Stop, Search & Seize Powers, 2017, p. 32.

38 Australian Federal Police, Submission 9, p. 3.

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device at an airport and the relevant AFP officers were not able to, or were not confident in their legal right to, stop a suspect, and search for and seize any device, then the outcome could be dire.

2.34 The Committee therefore considers that the stop, search and seizure powers in the Crimes Act should continue in their current form, subject to the additional reporting requirements discussed below.

Recommendation 1

2.35 The Committee recommends that the stop, search and seizure powers provided for under Division 3A of Part IAA of the Crimes Act 1914 be continued.

Potential amendments

Prescribed security zones

2.36 To date, the AFP has not applied to the Minister for a Commonwealth place to be declared as a prescribed security zone.39

2.37 The AFP explained the effect of a prescribed security zone as follows:

Where there's a declaration in place, you don't have to have any further suspicion. It just means that it's been recognised externally that this zone is a problem and you can go in and search anything in that zone, whereas for each person who needs to be stopped and searched and there are items seized, the individual officer has to have the suspicion about the terrorism act.40

2.38 The Committee asked the AFP and the Department to provide an example of a situation in which a prescribed security zone may be declared. In response, the AFP and Department provided the following:

The AFP anticipates that it would apply to the Minister to declare a prescribed security zone in a situation where there is strong intelligence of an imminent terrorism threat directed at a Commonwealth place, or where an attack on a Commonwealth place has just occurred.

For example, if there was an attack at a Commonwealth place, the AFP would consider applying to the Minister for a declaration under section 3UJ. Such a declaration would enable police to systematically stop and search individuals

39 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 5.

40 Ms Elsa Sengstock, Australian Federal Police, Committee Hansard, Canberra, 1 December 2017, p. 33.

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within the relevant Commonwealth place, and request evidence of their identity. These powers would be critical in enabling police to contain the scene of the attack, locate perpetrators, and preserve evidence.41

2.39 The Law Council of Australia recommended that there should be an obligation on the Minister to periodically review the necessity of a declaration of a prescribed security zone within the 28 day period the declaration is in place.42 The Law Council submitted:

The broad power of the Minister to declare an area to be a ‘prescribed security zone’ and thus engage the special search and seizure powers has the potential to impact upon the liberty and security of individuals. Moreover, there is no ongoing obligation on the Minister to review the necessity of a declaration within the 28 day period the declaration is in force. This may lead to situations where the liberty of an individual is unnecessarily compromised. In the absence of a mechanism requiring the Minister to consciously decide whether to revoke or extend a declaration, the period imposes a potentially unnecessary and disproportionate intervention upon liberty and security.43

2.40 In a similar vein, the Australian Human Rights Commission expressed concerns with what it considered to be the lack of meaningful review of the ministerial powers to prescribe a security zone. The Commission recommended that there be consideration as to ‘whether the retention of broad unfettered ministerial powers to prescribe security zones can be justified’. The Commission added:

The breadth of the Ministerial prescription power in Division 3A is not insignificant. It is unclear what matters a Minister will take into account in prescribing a security zone, or indeed to revoke a prescription. The concentration of unfettered power compares unfavourably, for example, when considering the detailed scrutiny a court undertakes in judicially reviewing administrative decision-making, where a specified range of detailed information about the decision-making process is considered.44

2.41 In response to these concerns, the AFP and the Department noted that:

The duration of 28 days for a declaration is subject to an important safeguard. Under subsection 3UJ(4), the Minister must revoke a declaration made under paragraph 3UJ(1)(a) or (b) if he or she is satisfied there is no longer a terrorism

41 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 5.

42 Law Council of Australia, Submission 12, p. 9.

43 Law Council of Australia, Submission 12, p. 9.

44 Australian Human Rights Commission, Submission 3, p. 10.

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threat justifying the declaration being continued or, where the declaration is no longer required. This ensures that declarations last no longer than necessary to mitigate the risk posed by a terrorist threat, or mitigate the threat to the community in the aftermath of a terrorist act.45

2.42 The AFP advised the Committee that, if it had to provide a daily briefing to the Minister to allow the daily review of a declaration, ‘it would be invariably [re]source-intensive, particularly in a situation where you’re dealing with a terrorist incident. We have many other challenges to deal with, so I think that would be a challenge for us.’46

2.43 In response to a suggestion that the Minister be required to review a declaration periodically (weekly for example), the AFP stated:

A requirement to periodically consider a declaration may undermine the purpose of the prescribed security zone declaration which is intended to last 28 days. If the Minister had to formally review the declaration regularly, this may require agencies to provide the same detailed briefing and assessments that initially prompted the making of a prescribed security zone declaration. This may cause delays that prevent law enforcement agencies from acting swiftly to prevent terrorist acts, and divert resources from law enforcement and intelligence agencies whose principal focus during this period will be the prevention of a terrorist act.47

2.44 The AFP went on to say that:

if the AFP has information that would support revocation of a declaration, a brief outlining that information would be provided to the Minister. The AFP would consider amending relevant internal governance to make clear the AFP’s obligation in this regard. Compliance with internal governance is part of the AFP’s professional standards integrity framework.48

2.45 INSLM Renwick addressed the suggestion that the Minister powers were unfettered, stating:

I consider that the existing power in s 3UJ is not unfettered; it is clear as to its purpose and the matters which the Attorney-General would take into account in declaring, and where appropriate revoking, a prescribed security zone. Furthermore, the Attorney-General’s exercise of power would be the subject of

45 Attorney-General’s Department and Australian Federal Police, Submission 13, pp. 6-7.

46 Assistant Commissioner Ian McCartney, Australian Federal Police, Committee Hansard, Canberra, 1 December 2017, p. 33.

47 Attorney-General’s Department and Australian Federal Police, Submission 13.1, pp. 1-2.

48 Attorney-General’s Department and Australian Federal Police, Submission 13.1, pp. 1-2.

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parliamentary and committee scrutiny by reason of the requirements to publish a statement on any such declaration. Furthermore, the Attorney-General’s decision(s) could be subject to scrutiny in court proceedings brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) by a person aggrieved by such a decision, although I accept that it is unlikely that any such court challenge could be heard and determined during the period in which the declaration was in effect.49

2.46 The Committee asked the Department and the AFP whether there were any factors, in addition to those required under the legislation, which the Minister would need to consider before declaring a prescribed security zone. They responded:

Subsection 3UJ(1) does not outline other specific criteria that the Minister must consider when determining whether to declare a Commonwealth place to be a prescribed security zone.

In briefing the Minister to make a decision under section 3UJ, the AFP would provide the Minister with a brief outlining all operational information relevant to the question of whether a declaration would assist:

1 in preventing a terrorist act occurring, or

2 in responding to a terrorist act that has occurred.

The content of that information would depend on the circumstances of the threat or attack, but could include information relating to:

 the seriousness of the threat or attack,

 the credibility of the threat,

 the imminence of the attack, and

 the nature of the intelligence relied on.50

2.47 In its 2013 review, the COAG Committee considered whether the Minister should be required to issue reasons for any declaration of a prescribed security zone, concluding that it was ‘not persuaded’:

In this regard, the Committee is conscious of the fact that disseminating operational information can endanger its sources and undermine policing efforts. There is, in the Committee’s view, a sufficient signal generated by the making of a declaration of itself that the nature or scale of an event to occur in

49 INSLM, Review of Division 3A of Part IAA of the Crimes Act 1914: Stop, Search & Seize Powers, 2017, p. 38.

50 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 6.

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a Commonwealth place has invited additional security precautions to mitigate any terrorist threat.51

2.48 The joint councils on civil liberties argued that the ability of police officers to stop and search people ‘freely and randomly’ significantly undermined a person’s right to privacy and movement.52 The councils recommended the Committee give consideration to reducing the duration of the declaration from 28 days to 14 days with the capacity for renewal if necessary.53 The councils added that it was not apparent why a decision to apply for an extension ‘could not be made in good time before the expiry of the initial period so as to avoid any delay or interruption to ongoing police activity.’54 They continued

A declaration will continue for 28 days. A state of emergency does not continue in a particular Commonwealth place for that kind of length of time. From the description of what they want the powers for, it sounds like something is about to happen and we need to control this zone more actively for a period of hours. If it were a power that was restricted to 12 or 24 hours, if a declaration in respect of a zone had that kind of time limit on it, then that would be much more consistent with the kind of use that the police are talking about for it. But to have a declaration for 28 days doesn't match what they are saying.55

2.49 INSLM Renwick, in response to a similar recommendation, stated that

In its review of s 3UJ, the COAG Review Committee recognised that there might be merit in reducing the duration of a declaration, but was cautious about recommending any such change in the absence of evidence to suggest the 28 day period was unreasonable. I have arrived at the same conclusion, including because of the current nature and extent of the terrorist threat. Again, though, if the PJCIS is to be given jurisdiction to review operational matters, it should also be able to review the basis of the minister’s declaration.56

51 Council of Australian Governments, Review of Counter-Terrorism Legislation, 2013, p. 84.

52 Joint councils for civil liberties, Submission 8, p. 7.

53 Joint councils for civil liberties, Submission 8, p. 8.

54 Joint councils for civil liberties, Submission 8, p. 8.

55 Mr Stephen Blanks, Joint councils for civil liberties, Committee Hansard, Canberra, 1 December 2017, p. 17.

56 INSLM, Review of Division 3A of Part IAA of the Crimes Act 1914: Stop, Search & Seize Powers, 2017, p. 38.

STOP, SEARCH AND SEIZURE 23

2.50 The AFP and the Department stated that a reduction of the period for which a declaration is in force to 14 days ‘may prove insufficient for the purposes of mitigating a terrorist threat. If the Minister is required to make a further declaration for another 14 days, this may cause a delay which prevents law enforcement agencies from acting swiftly to prevent, or respond to, terrorist threats and terrorist acts.’57 Further,

There may be instances when a terrorist threat in relation to a Commonwealth place could last for an extended duration, which requires the Minister to make a declaration that a Commonwealth place be a prescribed security zone for up to 28 days.

Seeking successive 14 day declarations may cause delays that prevent the police from acting swiftly to prevent, or respond to, terrorist threats and terrorist acts. It may require a diversion of resources from operational agencies whose priority during this period will be the prevention of a terrorist act.

Noting the ongoing attractiveness of Commonwealth places as a target for a terrorist act, especially those which are locations of mass gathering, a declaration that lasts up to 28 days, which is subject to ongoing review by the Minister, is not unreasonable.58

2.51 The joint councils disputed this argument, saying

What we actually say in our submission is that it’s difficult to conceive of how, really, having to go and apply for an extension is going to make a serious impact on what they’re doing. We have all sorts of electronic means and methodologies of doing things these days, and there’s more than one person doing it, presumably.59

Committee comment

2.52 The Committee acknowledges calls by some submitters for the maximum duration of prescribed security zones declarations to be reduced, or for a periodic review requirement to be added. The Committee notes that no such declarations have been made to date.

2.53 The Committee does not consider a maximum 28 day period for a declaration to be unreasonable. Legislation must be adaptable to a range of

57 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 6.

58 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 7.

59 Mr Michael Cope, Joint councils for civil liberties, Committee Hansard, Canberra, 1 December 2017, p. 18.

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emergency situations of variable duration, and the legislation contains a clear requirement for the Minister to revoke the declaration when it is no longer required or justified. Given the likely public and media interest in any declarations—and associated terrorism threat—there would also be a public expectation for the Minister to revoke any declaration that is no longer required. The Committee therefore does not consider a formal requirement for the Minister to periodically review each declaration to be necessary, noting that such a review would have the potential to divert scarce police resources during an emergency situation.

2.54 The Committee does not consider the Minister is likely to declare a prescribed security zone without compelling evidence concerning the safety of people and infrastructure within that zone. Any retrospective declaration can occur only after a terrorist act has occurred, and up to 28 days is a reasonable timeframe for the AFP to then exercise its powers to preserve evidence and help prevent any follow-up attacks or threats as perceived.

2.55 The Committee agrees with INSLM Renwick and the COAG Review Committee that the Minister’s declaration power is not unfettered, and that it would be subject to external scrutiny when exercised. The Committee considers that a requirement for formal notification to oversight bodies regarding the exercise of these powers is warranted. This requirement is discussed further later in this chapter.

Standard of belief/suspicion

2.56 Under section 3UB, a police officer may exercise any of the stop, search and seizure powers if the person is in a Commonwealth place and the officer suspects on reasonable grounds that the person might have just committed, might be committing or might be about to commit, a terrorist act.60

2.57 The joint councils for civil liberties argued that ‘reasonable grounds to suspect’ is too low a standard, and should be amended to provide that an officer must have a ‘reasonable belief’ prior to exercising powers under Division 3A. The councils added:

Amending the standard of proof to ‘reasonable belief’ would require objective evidence before the exercise of the power. This standard would still permit

60 Crimes Act 1914, s. 3UB(1).

STOP, SEARCH AND SEIZURE 25

extraordinary stop, search, and entry in to premises and seizure without warrant if necessary.61

2.58 It suggested that, given the seriousness of the consequences of the declaration, the higher threshold ought to apply.62

2.59 INSLM Renwick considered this recommendation at length in his review. INSLM Renwick explained that

When a statute prescribes that there must be ‘reasonable grounds’ for suspecting, it requires facts which are sufficient to induce that state of mind in a reasonable person.

The facts which reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. Where a suspicion arises from idle speculation and has no foundation on the facts, it is not a reasonable one.63

2.60 INSLM Renwick continued:

the COAG Review Committee declined to recommend that the threshold of ‘reasonable suspicion’ be raised to ‘reasonable belief’ as there was no empirical evidence that this distinction had led to the misuse of police powers, nor that it had operationally altered police behaviour. I agree. Furthermore, I consider the very purpose of the powers in div 3A, requiring swift action in an emergency situation, makes the existing test in s 3UB appropriate. Accordingly, I recommend that this test be retained.64

2.61 The Committee asked the Attorney-General’s Department and AFP for their views on what the practical implications would be if the ‘reasonable grounds to suspect’ threshold was to be strengthened to ‘reasonable belief’, as recommended by the joint councils. In response, they submitted

The threshold for the exercise of Division 3A powers needs to be considered in light of the purpose of the power. The powers in Division 3A are not directed toward the collection of evidence for offences generally, but are intended to

61 Joint councils for civil liberties, Submission 8, p. 6.

62 Mr Stephen Blanks, Joint councils for civil liberties, Committee Hansard, Canberra, 1 December 2017, p. 18.

63 INSLM, Review of Division 3A of Part IAA of the Crimes Act 1914: Stop, Search & Seize Powers, 2017, p. 33.

64 INSLM, Review of Division 3A of Part IAA of the Crimes Act 1914: Stop, Search & Seize Powers, 2017, p. 34.

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enable the prevention of a terrorist attack which may involve a large number of casualties. For this purpose the threshold is set at an appropriate level.

Currently, the police may exercise stop, search and seize powers in Subdivision B of the Division 3A where an individual is in a Commonwealth place, and the police officer ‘suspects on reasonable grounds’ that the person might have just committed, might be committing, or might be about to commit, a terrorist act (paragraph 3UB(1)(a)).

The powers authorised under Division 3A are designed to be exercised swiftly in response to emergency scenarios, which makes the threshold of ‘suspects on reasonable grounds’ appropriate. In emergency scenarios, it may not be appropriate or in the public interest for police to delay the exercise of stop, search and seize powers in Commonwealth places (particularly places of mass gathering) until sufficient information has been obtained to meet the higher threshold of ‘believes on reasonable grounds’.

State and Territory stop, search and seize power regimes also apply the threshold of ‘suspects on reasonable grounds’ or ‘reasonably suspects’. It is appropriate that the same threshold be applied in relation to the use of these emergency powers in Commonwealth places. In the current operational environment, where low capability techniques may be employed to carry out terrorist acts in a short timeframe, the ability of police officers to respond swiftly to prevent terrorist acts is critical. The effectiveness of the emergency powers in Division 3A may be undermined by increasing the threshold for application to ‘reasonable grounds to believe’.65

Committee comment

2.62 The Committee supports the intention of the stop, search and seizure provisions to allow police to respond rapidly to terrorism incidents. Police therefore need to be in a position to deploy these powers as required and to do so swiftly. The application of the ‘reasonable grounds to suspect’ standard allows police to act in the most expeditious manner when a threat is suspected.

2.63 The Committee notes that the proposal to raise the required standard to ‘reasonable grounds to believe’ has been considered and rejected by the COAG Review Committee and INSLM Renwick on separate occasions. In particular, the Committee notes INSLM Renwick’s conclusion that the current test is appropriate for enabling swift action in an emergency

65 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 8.

STOP, SEARCH AND SEIZURE 27

situation. The Committee agrees that the existing threshold should be retained.

Emergency entry to premises powers

2.64 The AFP explained the need for the warrantless search entry power in section 3UEA of the Crimes Act as follows:

In general—where investigators have sufficient warning of a terrorism plot prior to it being carried out—the AFP must obtain a search warrant. In urgent operations, the AFP is able apply for a warrant by telephone, under section 3R. The section 3UEA power can only be used in circumstances where the immediacy of the threat is such that there is not even enough time to make a telephone warrant application. To date, the AFP has not been faced with a situation warranting the use of the power under section 3UEA. However, this is not an indication that section 3UEA is unnecessary.

The AFP considers the power would be of critical use in a situation where police have no prior warning of an attack and immediate action is required to protect an individual or the public.66

2.65 Australian Lawyers for Human Rights considered fundamental rights to liberty and privacy are undermined by the ability of police officers to enter premises without warrant:

The underlying rationale for search and seizure warrants is to authorise officers of the executive to invade a person’s privacy and property on the grounds of reasonable suspicion that the person may commit a crime. The law has kept the exercise of such powers subject to grave vigilance such that fundamental, and indeed defining, democratic institutions including fundamental rights to liberty and privacy are not unnecessarily or arbitrarily abrogated, or placed in a vulnerable position. This is why the separation of powers safeguard enshrined in judicial oversight of the issue of warrants has remained a mostly unmovable rule of law in law enforcement in western democracies throughout history.67

2.66 The Australian Lawyers Alliance similarly suggested that the powers ‘undermine individuals’ right to privacy by allowing police officers to examine their person or property without a warrant, or indeed any suspicion of wrongdoing.’68

66 Australian Federal Police, Submission 9, pp. 3-4.

67 Australian Lawyers for Human Rights, Submission 10, p. 9.

68 Australian Lawyers Alliance, Submission 4, p. 17.

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2.67 The Law Council submitted that, as a matter of principle, it was preferable to review the existing avenues to obtain a warrant to enter a premises and ensure those processes are effective and may be obtained in times of emergency, rather than using these emergency powers:

The Law Council maintains that the existing avenues to obtain a warrant should first be scrutinised and carefully examined by the [Committee], to ensure that they are effective and may be obtained in times of emergency. This will minimise the possibility of use of the emergency powers without a warrant in Division 3A, Part IAA of the Crimes Act. In the Law Council’s view, if the existing avenues of obtaining a warrant to enter a premises and search and seize a thing are time consuming, then regard should be had to streamlining the procedures, given the breadth of the powers. The warrant system ensures that police search and seizure powers are subject to independent and external supervision and may only be satisfied when prescribed statutory criteria are satisfied. Circumventing this process is a significant matter that should not be lightly permitted by the law.69

2.68 The Australian Lawyers Alliance supported the Law Council’s approach, arguing that warrants must be required before any search takes place. The Alliance added that

warrants must be required before any search takes place. Ex post facto validation is inadequate. While we support increased reporting requirements in line with the COAG recommendation, we also believe that this is inadequate to properly protect the rights that warrants protect. If there is any reform required to facilitate urgent searches, the appropriate reform should ensure that safeguards can also be implemented in a timely fashion, should an urgent need arise. Such reforms might include providing funding for judges to be able to authorise urgent warrants, rather than doing away with essential rights.70

2.69 Legal Aid New South Wales stated that the ability to enter premises without a warrant was in contrast to the ordinary requirement that law enforcement officers obtain a warrant from a judge or magistrate to exercise such powers. It continued:

The requirement to obtain a warrant ensures that police search and seizure powers are subject to independent scrutiny and reduces the risk that the powers will be misused. In light of the ability to obtain a warrant by telephone

69 Law Council of Australia, Submission 12, p. 8.

70 Australian Lawyers Alliance, Submission 4, p. 7.

STOP, SEARCH AND SEIZURE 29

in urgent cases, and the fact that the section 3UEA powers have not been used in five years, retention of these powers is not justified.71

2.70 In its support for the warrantless entry powers, the 2013 COAG Committee noted that it

places particular emphasis on the fact that these are emergency powers intended for use in only genuine emergency situations. In the context of terrorism, we do not consider that there is a need for evidence to justify the conclusion that emergency situations may arise where it is simply impossible or impracticable to obtain a warrant before seizing material that is to be used in connection with a terrorism offence. One has only to contemplate intelligence suggesting the presence of explosives in a house to realise that this is so.72

2.71 In his review, INSLM Renwick considered, on the basis of recommendations from submitters to his review, whether it would be appropriate for police officers to seek ex post facto authorisation of the emergency entry powers. Such a regime would provide that the legality of the exercise of the powers would be conditional on subsequent authorisation. However, INSLM Renwick was not persuaded that such a regime was necessary:

A warrantless search is able to be scrutinised during a criminal trial where a challenge may be made to the legality of the exercise of power under which any evidence was seized. Section 138 of the Evidence Act 1995 provides the court with the discretion to exclude improperly or illegally obtained evidence, and where evidence obtained during a search is found to be beyond power, the discretion is usually exercised to exclude any such evidence. Furthermore, alleged unlawful entry into premises by a police officer can be challenged in a civil action for trespass. So I do not recommend a regime for ex post facto authorisation.73

Committee comment

2.72 The Committee notes the extraordinary nature of the provisions in section 3UEA of the Crimes Act, which allow police entry onto premises in order to search for and seize an item—activities that would usually only be lawful under warrant.

71 Legal Aid New South Wales, Submission 11, p. 4.

72 Council of Australian Governments, Review of Counter-Terrorism Legislation, 2013, p. 88.

73 INSLM, Review of Division 3A of Part IAA of the Crimes Act 1914: Stop, Search & Seize Powers, 2017, pp. 32-33.

30 REVIEW OF POLICE STOP, SEARCH AND SEIZURE POWERS, THE CONTROL ORDER REGIME AND THE PREVENTATIVE DETENTION ORDER REGIME

2.73 Given the purpose of the powers—preventing an imminent attack—it is appropriate that police have access to this power immediately. While a warrant may be available relatively quickly via telephone, this process will inevitably take some time and may not facilitate a response that is fast enough to protect life. The Committee notes that police may only exercise the powers under section 3UEA where it is necessary to do so without a search warrant because there is a serious and imminent threat to a person’s life, health or safety.

2.74 The Committee agrees with INSLM Renwick that an ex post facto warrant authorisation framework is not appropriate. Police are required to notify the occupier of the premises within 24 hours after entry under section 3UEA, and there are a range of potential remedies to affected and aggrieved parties should they wish to challenge the lawfulness of the entry.

2.75 Instead, the Committee believes that in depth post-event reporting and scrutiny is the most effective means of ensuring the powers are used solely for their intended purpose.

2.76 Therefore, the Committee recommends that the emergency entry to premises powers continue, but with increased requirements for notification and reporting after they are exercised, as discussed below.

Oversight and accountability

2.77 Presently there is no formal reporting requirement for the exercise of Division 3A powers by the AFP.

2.78 Submitters raised concerns about a paucity of oversight. The Australian Lawyers Alliance submitted that ‘there are no safeguards included in the existing legislation to ensure that these powers are not exercised discriminatorily or in bad faith, other than the requirement for suspicion on reasonable grounds … Their absence is a cause for concern’.74

2.79 The joint councils for civil liberties submitted ‘that the exercise of these powers, especially given the low standard of proof required, must be subject to strong and independent oversight to prevent misuse’.75

2.80 INSLM Renwick considered oversight issues in his review, and concluded that

74 Australian Lawyers Alliance, Submission 4, p. 6.

75 Joint councils for civil liberties, Submission 8, p. 9.

STOP, SEARCH AND SEIZURE 31

it would be both sound and appropriate for div 3A to be amended to require annual reporting to the Minister and oversight by the Commonwealth Ombudsman in the same manner as for delayed notification search warrants. If the powers are not used, no report will be required. The reports should be copied to the INSLM and to the PJCIS.

I note that the PJCIS is currently precluded from considering operational matters such as the exercise of power under div 3A. When that legislation is reviewed, it may be that the PJCIS is to be given a role to consider operational matters by law enforcement and intelligence agencies. If an operational review function is given to the PJCIS, as is recommended in the 2017 Independent Intelligence Review report, the PJCIS should be able to review a Ministerial declaration of a prescribed security zone and powers used following that declaration. In the meantime, I recommend the report should still be copied to the PJCIS.76

2.81 The Australian Human Rights Commission and Legal Aid New South Wales supported INSLM Renwick’s recommendation that, in the event the powers are retained, oversight by the Commonwealth Ombudsman and annual reporting to the Minister be implemented.77 The joint councils for civil liberties also endorsed the proposal that the Committee be able to review a ministerial declaration of a prescribed security zone and powers used following that declaration, ‘with a caveat that the reporting should be as transparent to the public as is compatible with operational security’.78

2.82 The Committee sought the views of the Department and the AFP of INSLM Renwick’s recommendation. They responded:

The additional reporting requirements suggested by the INSLM are proposed to be modelled on reporting obligations that apply in respect of the delayed notification search warrant (DNSW) regime under Part IAAA of the Crimes Act 1914.

These extensive oversight requirements are tied to the covert nature of the DNSW regime. For instance, the DNSW regime can allow for up to 6 months delayed notification of the execution of a warrant so as to not compromise ongoing operations. In such instances, the Commonwealth Ombudsman’s

76 INSLM, Review of Division 3A of Part IAA of the Crimes Act 1914: Stop, Search & Seize Powers, 2017, p. 36.

77 Australian Human Rights Commission, Submission 3.1, p. 10; Legal Aid New South Wales, Submission 11, p. 4.

78 Joint councils for civil liberties, Submission 8, p. 10.

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oversight is important to ensure the fair and appropriate application of these powers by the AFP.

In contrast, the powers in Division 3A can only be exercised overtly. Even where premises are entered without a warrant under the emergency entry powers in section 3UEA, the occupier of the premises must be notified within 24 hours of the entry. A further distinction between the DNSW regime and Division 3A is that while the powers under the DNSW regime can only be exercised by the AFP, the powers under Division 3A may be exercised by the AFP, and State and Territory police.

There are also existing oversight mechanisms that operate generally in relation to the actions of police, such as the AFP. For instance, if there was a concern about the use of Division 3A powers by the AFP, this could be investigated by the Commonwealth Ombudsman or the Australian Commission for Law Enforcement Integrity. Similarly, the use of these powers by State and Territory police can be reviewed by the appropriate jurisdictional oversight bodies, such as State and Territory Ombudsman.

In addition, the Independent National Security Legislation Act 2010 (INSLM Act) already provides the INSLM with the mandate to review the operation of counter-terrorism legislation. This includes the power to request information or produce documents for the purposes of performing the INSLM’s function (section 24 of the INSLM Act). This enables the INSLM to seek information and review documents associated with the exercise of powers by the AFP under Division 3A.

Accordingly, while there may be merit in requiring reporting on the use of the powers under Division 3A to enhance transparency, the DNSW regime may not be the most suitable model for determining reporting requirements. Given that it is not anticipated that the powers under Division 3A will be utilised frequently, it may be appropriate that, in addition to the annual report requirement … the AFP must also provide a report to the AFP Commissioner as soon as practicable where they have exercised Division 3A powers. The AFP Commissioner could then provide a copy of the report to the Minister, the Commonwealth Ombudsman and the INSLM.79

2.83 They added:

The AFP would not object to a requirement to publicly report on the number of times that each power under Division 3A is used, for example in an annual

79 Attorney-General’s Department and Australian Federal Police, Submission 13, pp. 9-10.

STOP, SEARCH AND SEIZURE 33

report, with appropriate safeguards for sensitive information and ongoing operations.80

2.84 In addition, the AFP advised at the public hearing:

Reporting after the fact would be fine—we’re happy to make that very transparent. We thought the model that the INSLM was proposing was quite onerous in terms of ombudsman inspections and was modelled off a regime that’s more for the use of powers that happen more frequently and more regularly. Where it’s an extraordinary power, we report on it. If there are any concerns about that power, the Ombudsman would be able to look at what had happened anyway. But we felt that the model itself might be a little bit of overkill.81

Sunset provision

2.85 INSLM Renwick formed the view that continuing the legislation with a sunset provision for a further five years was appropriate.82

2.86 The joint councils for civil liberties disagreed with the INSLM’s recommended five year timeframe, arguing that lengthy sunset clauses ‘bring a high risk of “extraordinary” provisions becoming “normal” provisions’ and that ‘the longer extraordinary provisions exist under sunset clauses, the less likely they are to be rolled back by governments or parliaments’. As a result, it submitted that, if the powers are to continue, the legislation should incorporate a sunset period no longer than two years ‘to ensure regular review of the necessity and effectiveness of the provision and to ensure the powers continue to be recognised as targeted, extraordinary and temporary’.83

Committee comment

2.87 The Committee shares the concerns of submitters regarding the lack of oversight for the potential use of Division 3A powers. While there are existing review mechanisms in place—including the INSLM and the

80 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 10.

81 Ms Elsa Sengstock, Australian Federal Police, Committee Hansard, Canberra, 1 December 2017, p. 33.

82 INSLM, Review of Division 3A of Part IAA of the Crimes Act 1914: Stop, Search & Seize Powers, 2017, p. 38.

83 Joint councils for civil liberties, Submission 8, pp. 10-11.

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Ombudsman, as outlined above—the lack of direct reporting to oversight bodies may hamper the effectiveness of these mechanisms.

2.88 The Committee therefore supports in-principle INSLM Renwick’s recommendation for additional reporting requirements in relation to Division 3A, including to the relevant minister, the INSLM and the Committee, subject to operational sensitivities. The Committee accepts the AFP’s concern that the delayed notification search warrant scheme may not be the most appropriate model for these reporting requirements, but considers that any notifications should be made as soon as practicable, taking into account operational priorities. Additionally, the Committee believes that the AFP should be required to report annually on any occasions where Division 3A powers are exercised.

2.89 Committee oversight of the stop, search and seizure powers will be in line with other review and oversight functions that the Committee exercises regarding counter-terrorism functions. Under paragraphs 29 (baa) and (bab) of the Intelligence Services Act 2001, it is currently a function of the Committee to monitor and review the performance by the AFP of its functions under Part 5.3 of the Criminal Code and to report its findings to the Parliament. In order to enable ongoing oversight of stop, search and seizure powers by the Committee, it will be necessary for this provision to be extended to encapsulate Division 3Aof Part IAA of the Crimes Act. The Committee considers that the AFP should be required to brief the Committee, when requested, following any exercise of Division 3A powers.

2.90 The Committee notes the INSLM’s comments (paragraph 2.80) regarding the Committee’s ability to consider operational matters in relation to the stop, search and seizure powers, including the potential for the Committee to review a Minister’s declaration of a prescribed security zone. Schedule 1 to the Intelligence Services Act 2001 provides that the Committee must not require a person or body to disclose operationally sensitive information. This clause does not, however, preclude agencies from providing operationally sensitive information when it is relevant to the Committee’s functions. The Committee notes that its work has benefitted from the provision of such information in the past, in cooperation with agencies. In the context of a new role in monitoring and reviewing the AFP’s exercise of stop, search and seizure powers, the Committee expects that it will continue to be provided with sufficient operational information in order to perform this new function.

STOP, SEARCH AND SEIZURE 35

Recommendation 2

2.91 The Committee recommends that the Australian Federal Police (AFP) be required to provide a report to the AFP Commissioner as soon as practicable after any powers under Division 3A of Part IAA of the Crimes Act 1914 are exercised. A copy of the report should be provided to the responsible minister, the Independent National Security Legislation Monitor and the Committee as soon as practicable. The AFP should brief the Committee when requested.

The Committee further recommends that the Australian Federal Police be required to report annually to the Parliament on the exercise of any powers under Division 3A.

Recommendation 3

2.92 The Committee recommends that the Intelligence Services Act 2001 be amended to enable the Parliamentary Joint Committee on Intelligence and Security to monitor and review the performance by the Australian Federal Police of its functions under Division 3A of Part IAA of the Crimes Act 1914 (the stop, search and seizure powers), including the basis of the Minister’s declaration of a prescribed security zone under section 3UJ. The Committee should be provided with sufficient operational information to enable it to perform this new function.

2.93 The Committee considers there is a clear ongoing need for the Division 3A emergency powers in the current volatile security environment, and suggests that they will continue to be required for a number of years into the future. INSLM Renwick recommended that the powers continue for a further five years. The Committee considers, however, that a sunset period of three years would be more appropriate, with the Committee required to conduct a further statutory review prior to the sunset date. This further review will be well positioned to examine the continued need and appropriateness of the Division 3A powers, and how they fit within the security and counter-terrorism framework at that future point.

Recommendation 4

2.94 The Committee recommends that the Intelligence Services Act 2001 be amended to require the Committee to conduct a further review prior to the sunset date into the operation, effectiveness and implications of the stop,

36 REVIEW OF POLICE STOP, SEARCH AND SEIZURE POWERS, THE CONTROL ORDER REGIME AND THE PREVENTATIVE DETENTION ORDER REGIME

search and seizure powers in Division 3A of Part IAA of the Crimes Act 1914, with the provisions sunsetting after three years.

37

3. Control orders

Overview of the provisions

3.1 Under Division 104 of the Criminal Code, an issuing court (the Federal Court or the Federal Circuit Court) may make a control order in relation to a person for one or more of the following purposes:

1 protecting the public from a terrorist act,

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

3 preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.1

3.2 The court must be satisfied, on the balance of probabilities, that each of the obligations, prohibitions and restrictions to be imposed on the person is reasonably necessary, and reasonably appropriate and adapted for the purposes above.2

3.3 The obligations, prohibitions and restrictions that may be imposed under a control order include:

 a prohibition or restriction on the person being at specified areas or places,  a prohibition or restriction on the person leaving Australia,  a requirement for the person to wear a tracking device,  a prohibition or restriction on the person communicating or associating

with specified individuals, accessing or using specified technologies

1 Criminal Code Act 1995, s. 104.4.

2 Criminal Code Act 1995, s. 104.4.

38 REVIEW OF POLICE STOP, SEARCH AND SEIZURE POWERS, THE CONTROL ORDER REGIME AND THE PREVENTATIVE DETENTION ORDER REGIME

(including the internet), possessing or using specific things, or carrying out specified activities,  a requirement that the person report to specified persons at specified times and places, and allow himself or herself to be photographed or

fingerprinted, and  a requirement that the person participate in specified counselling or education.3

3.4 The maximum penalty for contravening a condition of a control order is five years imprisonment.4

3.5 A control order may be made in relation to any person who is 14 years of age or older.5 A control order may remain in force for up to 12 months6; however, if the subject is under 18 years of age, then the order may remain in force for up to three months.7

3.6 Control orders are initially made in an interim form. Interim control orders are applied for by a senior AFP member, with the Attorney-General’s consent, and made by an issuing court through an ex parte proceeding.8 The terms of the interim control order must specify the date for the court to consider confirmation of the interim order, which may be contested by the subject. This date must be as soon as practicable but at least 72 hours after the interim order was made.9

Review history

2012 INSLM review

3.7 In his 2012 review of the control order provisions, former INSLM, Bret Walker SC, observed that control orders are perhaps the ‘most striking’ of Australia’s counter-terrorism laws:

They are striking because of their provision for restraints on personal liberty without there being any criminal conviction or even charge. They may

3 Criminal Code Act 1995, s. 104.5

4 Criminal Code Act 1995, s. 104.27

5 Criminal Code Act 1995, s. 104.28

6 Criminal Code Act 1995, s. 104.5

7 Criminal Code Act 1995, s. 104.28

8 Criminal Code Act 1995, s. 104.4.

9 Criminal Code Act 1995, s. 104.5.

CONTROL ORDERS 39

superficially resemble the familiar bail jurisdiction of criminal courts, but fundamentally differ on this account. That is, although a CO is founded on the connexion of the person against whom it is sought with the commission of a terrorist offence, there need not be any pending charge or any charge ever at all. COs are therefore radically different from remand in custody or conditional bail, which are judicial powers available only because a trial of pending charges is in prospect.10

3.8 INSLM Walker continued

Because COs do not require the established safeguards of a criminal trial according to law and because they may be very restrictive in their effect on a person’s way of life - personally, socially and occupationally - it is critical that these provisions be scrutinized.11

3.9 INSLM Walker found that control orders in their present form were not effective, not appropriate and not necessary.12

3.10 INSLM Walker argued that the flaws and problems associated with control orders are most evident where controls are proposed to be made against persons before charge and trial, after trial and acquittal or against those who will never be tried. INSLM Walker argued that, for persons who fall in these categories, the proper course is as follows:

First, investigate, arrest, charge, remand in custody or bail, sentence in the event of conviction, with parole conditions as appropriate. Second, and sometimes alternatively, conduct surveillance and other investigation with sufficient resources and vigour to decide whether the evidence justifies arrest and charge. (And, meantime, surveille as intelligence priorities justify.)13

3.11 However, INSLM Walker formed the view that the powers ‘may be effective, would be appropriate and might be regarded as necessary in the case of persons already convicted of terrorist offences whose dangerousness at the expiry of their sentences of imprisonment can be shown.’14

3.12 Ultimately, INSLM Walker recommended that the control order provisions be repealed. He recommended consideration should be given to replacing

10 Independent National Security Legislation Monitor (INSLM), Declassified Annual Report 20th December 2012, p. 6.

11 INSLM, Declassified Annual Report 20th December 2012, p. 7.

12 INSLM, Declassified Annual Report 20th December 2012, p. 4.

13 INSLM, Declassified Annual Report 20th December 2012, p. 43.

14 INSLM, Declassified Annual Report 20th December 2012, p. 43.

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them with ‘Fardon type’15 provisions authorising control orders against terrorist convicts ‘who are shown to have been unsatisfactory with respect to rehabilitation and continued dangerousness’.16

2013 COAG review

3.13 In its 2013 review of the control order regime, the COAG Committee concluded as follows:

The Committee has concluded that, based on the material before it, the control order system should continue at the present time. We believe that the clear purpose of protecting the community and preventing a terrorist attack in Australia presently warrants the continuance of the legislation. There remains a genuine risk of terrorist activity in this country, although its level should not be exaggerated. On that basis, control orders are, for the time being, necessary and justified in the counter-terrorism legislative scheme. We consider however that the present safeguards are inadequate and that substantial change should be made to provide greater safeguards against abuse and, in particular, to ensure that a fair hearing is held.17

3.14 On that basis, the COAG Committee recommended, amongst other things,

 that the Commonwealth Ombudsman be empowered to provide general oversight of interim and confirmed control orders,  that, whenever a control order is imposed, any obligations, prohibitions and restrictions to be imposed constitute the least interference with the

person’s liberty, privacy or freedom of movement that is necessary in all the circumstances,  that the person who is subject to an interim control order be given information as to all appeal and review rights available to that person or

to the applicant in the event that an interim order is confirmed, varied or revoked, and  that the Government give consideration to amending the legislation to provide for the introduction of a nationwide system of ‘special

advocates’ to participate in control order proceedings.18

15 In Fardon v Attorney-General (Qld) (2004) 223 CLR 575, the High Court upheld a scheme allowing for the continued detention of convicted serious sexual offenders after expiry of their sentence where there is an ‘unacceptable risk’ of the prisoner committing a serious sexual offence in the future.

16 INSLM, Declassified Annual Report 20th December 2012, p. 43.

17 Council of Australian Governments, Review of Counter-Terrorism Legislation, 2013, p. 54.

18 Council of Australian Governments, Review of Counter-Terrorism Legislation 2013,, p. x.

CONTROL ORDERS 41

3.15 The COAG Committee formed the view that control orders have three possible areas of operation:

1 where a person has been convicted of a terrorist offence, has served his or her sentence, but where upon release his or her renunciation of extremist views has not been demonstrated,

2 where a prosecution for a terrorist offence is not a feasible or possible alternative, or

3 where a person has been acquitted of a terrorist offence on a purely technical ground, or where the intelligence/evidence pointing to terrorist activity has been rejected otherwise than on the merits.19

Review by the Committee of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014

3.16 In its 2014 advisory report on the Foreign Fighters Bill, the Committee considered and supported amendments to lower the threshold for the AFP to request a control order and to broaden the grounds upon which a control order could be requested and issued. The Committee, though not conducting a comprehensive review of the control order regime, found that it was necessary and appropriate for the AFP to continue to have access to control orders in the fight against terrorism.20 The Committee made a small number of recommendations relating to the control order regime, including that the sunset date for the provisions be extended from 15 December 2015 to 7 September 2018.

Parliamentary Joint Committee on Human Rights

3.17 In its review of proposed amendments to the control order regime via the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, the Parliamentary Joint Committee on Human Rights (the PJCHR) undertook an assessment of whether the control order powers were compatible with human rights. The PJCHR considered that

the control order regime engages a number of human rights, including the right to security of the person and the right to be free from arbitrary detention; the right to a fair trial; the right to freedom of expression; the right to freedom

19 Council of Australian Governments, Review of Counter-Terrorism Legislation, 2013, p. 55.

20 Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, p. 58.

42 REVIEW OF POLICE STOP, SEARCH AND SEIZURE POWERS, THE CONTROL ORDER REGIME AND THE PREVENTATIVE DETENTION ORDER REGIME

of movement; the right to privacy; the right to protection of the family; the rights to equality and non-discrimination; and the right to work.21

3.18 The PJCHR concluded that

The control orders regime involves very significant limitations on human rights. Notably, it allows the imposition of a control order on an individual without following the normal criminal law process of arrest, charge, prosecution and determination of guilt beyond a reasonable doubt.

The committee considers that, notwithstanding the safeguards identified, the control orders regime may not satisfy the requirement of being reasonable, necessary and proportionate in pursuit of their legitimate objective. There are a range of offences that cover preparatory acts to terrorism offences currently prescribed by the Criminal Code Act 1995, which allow police to detect and prosecute terrorist activities at early stages.

The committee considers that, in the absence of further information regarding its necessity and proportionality, the control order regime is likely to be incompatible with the human rights set out...above.22

Review by the Committee of the Counter-Terrorism Legislation Amendment Bill (No.1) 2014

3.19 In its 2014 advisory report on the Counter-Terrorism Legislation Amendment Bill, the Committee considered a range of operational amendments put forward to expand AFP powers related to control orders. These amendments included further broadening the grounds upon which a control order could be requested and issued.23

3.20 While supporting the control order regime and the intention of the amendments, the Committee recommended:

1 finalisation of the appointment of the INSLM and instigation of the INSLM review of safeguards recommended in the 2013 COAG review, with particular consideration of the introduction of special advocates,

21 Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament, 2014, p. 15.

22 Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament, 2014, p. 17.

23 For more detail on the Bill’s proposed changes see pages 7-9 of Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, 2014.

CONTROL ORDERS 43

2 further clarity of the terms ‘supports’ and ‘facilitates’ in the proposed new grounds for issuing a control order,

3 that the Attorney-General be provided with a statement of facts by the AFP when an interim control order is sought,

4 an eight hour requirement for the consent of the Attorney-General be required when an urgent control order is requested, and

5 that an issuing court retain the authority to examine all elements of a request for a control order, and that the AFP be required to explain why each obligation, prohibition and restriction should be imposed on a person.24

2016 INSLM review of control order safeguards

3.21 In January and April 2016, former INSLM, the Hon Roger Gyles AO QC, completed two reports on the safeguards recommended by the 2013 COAG review that had not been implemented.

3.22 INSLM Gyles’ review commenced prior to introduction of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 (see below), but was completed ‘taking into account’ those provisions of the Bill that related to his review.

3.23 The first report considered the advisability of introducing the system of special advocates recommended by COAG. INSLM Gyles made two recommendations, supporting adoption of a special advocates regime.25

3.24 The second report considered other outstanding recommendations regarding:

1 the basis for seeking the Attorney-General’s consent to grant an interim control order regarding a person’s training with a listed terrorist organisation,

2 the definition of an issuing court for control orders,

3 cooperation and information sharing between the AFP and the Commonwealth Director of Public Prosecutions,

4 the minimum standard of disclosure of information to a controlee,

24 Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, 2014. pp. 24-27.

25 INSLM, Control Order Safeguards (INSLM Report) Special Advocates and the Counter-Terrorism Legislation Amendment Bill (No 1) 2015, January 2016, p. 10.

44 REVIEW OF POLICE STOP, SEARCH AND SEIZURE POWERS, THE CONTROL ORDER REGIME AND THE PREVENTATIVE DETENTION ORDER REGIME

5 the conditions of imposing a relocation requirement or a curfew requirement on a controlee,

6 restricting communications of a controlee

7 ensuring that obligations, prohibitions and restrictions imposed on a controlee constitute the least interference with the person’s liberty, privacy or freedom of movement that is necessary in all the circumstances, and

8 oversight by the Commonwealth Ombudsman.26

3.25 INSLM Gyles supported some of the COAG Committee recommendations but, in relation to several others, found that they were either not necessary, had already been accepted or were already implemented. He also noted that the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 addressed the matter of disclosure of information to a controlee.27

Review by the Committee of the Counter-Terrorism Legislation Amendment Bill (No.1) 2015

3.26 In its February 2016 advisory report on the Counter-Terrorism Legislation Amendment Bill, the Committee considered a wide range of amendments to the control order regime proposed in the bill. These amendments included lowering the minimum age of persons for which a control order could be sought from 16 to 14 years; new provisions for the monitoring of compliance with control orders, including telecommunications interception and surveillance; new obligations on a person required to wear a tracking device under a control order; and new provisions for the protection of national security information in control order proceedings.

3.27 The Committee’s report noted the findings of INSLM Gyles’ first report. The Committee supported passage of the bill subject to a number of recommendations, including the introduction of a system of special advocates to represent the interests of persons subject to control order proceedings where they and their legal representative have been excluded.

26 Commonwealth of Australia, Department of the Prime Minister and Cabinet, INSLM Report - Control Order Safeguards Part 2.

27 Commonwealth of Australia, Department of the Prime Minister and Cabinet, INSLM Report - Control Order Safeguards Part 2.

CONTROL ORDERS 45

2017 INSLM review

3.28 In his review, INSLM Renwick found that control orders were necessary to reduce the risk to the Australian community posed by potential terrorist acts and that the orders have the capacity to be effective. This conclusion was based on the following findings:

1 the current threat from terrorism ‘is of great and ongoing concern’,

2 set against those threats, the objectives of Division 4 ‘are all legitimate, important and presently relevant policy aims,’

3 law enforcement agencies provided ‘assurances that they prefer to arrest, charge, prosecute and obtain convictions, rather than seeking a control order’,

4 controlling the movements, associations and communications of individuals outside the criminal justice system by court order have become more widely used and accepted,

5 although ‘control orders are rarely sought, they are always considered as a possible option in counter-terrorism investigations,’ and

6 recent cases of control orders demonstrate their effectiveness in pursuing the objectives of the regime.28

3.29 INSLM Renwick also found that control orders are proportionate to the terrorist threat. This conclusion was formed on the basis of:

1 the finding of necessity, as detailed above,

2 at both the interim and confirmation stage, the making of a control order is a matter for a court,

3 at both the interim and confirmation stage, the issuing court must be satisfied, on the balance of probabilities, that each of the controls to be imposed by the control order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of, for example, protecting the public from a terrorist act,

4 the issuing court is required ‘to strike a balance between the purpose for which the particular controls are sought and the interests of the controlee’ and

28 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, pp. 51-54.

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5 vesting this task in a court ‘ensures an independent judicial assessment of the case for the controls, which are tailored to the purpose of the order and the personal circumstances of the controlee. It ensures that the order addresses the threat as revealed by the evidence’.29

3.30 INSLM Renwick recommended a number of technical and minor amendments to Division 104. Provided that those recommended amendments were made, INSLM Renwick recommended the control order provisions continue for a further period of five years.30

3.31 INSLM Renwick also made recommendations concerning the interoperability between the control order regime and the continuing detention order regime that was introduced via the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2016.31

Use of the provisions

3.32 There have been six control orders made since the introduction of the regime in 2005.32

Necessity of the provisions

3.33 The Attorney-General’s Department and the AFP provided the following explanation as to the role of control orders:

The control order regime plays an important role in circumstances where an investigation has not yet progressed to the point where there is sufficient evidence to arrest and charge, and yet the suspect presents an unacceptable risk to the community. In this situation, the control order regime is a way of mitigating the risk presented by the individual while the AFP continues to collect admissible evidence for a criminal prosecution.

The control order regime plays a different role in Australia’s counter terrorism legislative framework to other key preventative measures, such as preventative detention orders, surveillance and countering violent extremism

29 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, pp. 54-55.

30 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 55.

31 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, pp. 76-77.

32 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 17.

CONTROL ORDERS 47

programs, as it allows a court to place tailored obligations, prohibitions and restrictions on an individual for a period of up to 12 months (and it is an offence to breach these conditions).33

3.34 At a public hearing, the AFP elaborated on the role of control orders in relation to other options available to disrupt terrorist plots:

In the current environment, strong preventative powers are essential. Wherever possible, we disrupt terrorist plots using conventional criminal justice methods—being investigation, arrest and prosecution. However, the paramount objective of the AFP is always community safety. If there is an imminent threat to the community, police will act quickly to disrupt the threat. The trade-off of early overt action can be that insufficient evidence is collected to support a criminal prosecution. Where there is strong intelligence that a person presents a risk to the community, we may need to apply for a preventative detention order to contain that risk, while we continue to progress the investigation. Where prosecution has not progressed nevertheless there is a strong intelligence to indicate the person continues to pose a terrorist threat, a control order may be necessary to manage that threat.34

3.35 A number of submitters to this inquiry disputed the necessity of the control order regime. For example, the Australian Lawyers Alliance submitted that the lack of use of control orders suggests that they are not necessary to combat terrorism:

A number of terrorist plots have been uncovered in the years since these measures were introduced. Despite the rhetoric employed at the time that they were passed, that these measures were essential to ensuring that terrorism did not take hold in Australia, the fact that they have not been regularly used demonstrates this argument to be false.35

3.36 The Law Council of Australia noted that the powers are infrequently used and that, given the expansion of the range of preparatory terrorism offences, it is more appropriate that a person is charged and tried in court than relying on the control order provisions. The Law Council considered that the control order regime should therefore be repealed. Dr David Neal SC, a member of the Law Council, shared with the Committee his experience representing a controlee through the control order process:

33 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 11.

34 Assistant Commissioner Ian McCartney, Australian Federal Police, Committee Hansard, Canberra, 1 December 2017, p. 28.

35 Australian Lawyers Alliance, Submission 4, pp. 10-11.

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It seems, in practice, that what’s occurring, really, is that the prosecuting authorities are using acts in preparation for a terrorist act to deal with those situations, and we think that’s the most appropriate way to deal with them, because that gives a range of scope which really provides that information obtained by the police or the security agencies only has to cross a fairly low threshold to get to the point of establishing that there’s an act in preparation for a terrorist act. Then the charge can be tried and tested in the courts in the normal way, rather than the more obscure provisions of control acts and the open-ended nature of them.36

3.37 Dr Neal continued

I say that in relation to the open-ended nature of control orders having defended in the cause of each case a young man who was detained for five months initially on the charge of an act in preparation for a terrorist act in a high-security prison. The case was then dropped by the DPP because the evidence was not sufficient. The AFP then issued a control order based on that same information, which resulted in him being subjected to a number of conditions. In particular, the one that really was the most concerning was that he was required to wear an ankle bracelet for—it was intended to be for the balance of the control order.

That was the case that was contested in the Federal Circuit Court, and the judge found against the AFP in relation to each of the principal factual allegations that were made and ordered that the tracking device be removed. We think that case is an example of the problems, running almost to the extent of abuse of the control order process, when the DPP had concluded that the evidence did not support the case that they were making, namely that he was knowingly involved in the Anzac Day event. On testing in evidence during the control order proceeding, the AFP was not able to produce any evidence of his knowledge of those things, and that’s what the judge found, and ordered that the tracking device be removed. Two months later, when the time of the control order had expired, there was no attempt to renew it.

So, we see that as an abuse, but we also say that the real remedy for the problem lies in charging people with acts in preparation for a terrorist act through the extensive surveillance technology that’s available to the police, and that was overwhelmingly displayed in this case. There were some thousands of pages of intercepts, computer analysis, telephone and physical observations and so on. If that doesn’t establish enough to show that you are preparing to do a terrorist act, we’d say that’s where the balance or the line

36 Dr David Neal SC, Law Council of Australia, Committee Hansard, Canberra, 1 December 2017, p. 2.

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should be drawn between the need for security and the protection of individuals.37

3.38 The Australian Human Rights Commission argued that, rather than relying on control orders and similar regimes to prevent terrorism, the preferable course is instead to rely on the prosecution of individuals who pose a threat to the community:

We think that relying on actual offence provisions, of which there’s quite an extensive array, is the most appropriate way of addressing a counterterrorism threat, partly because it enables the police to do what they are best placed to do and what is their core function, which is to investigate crimes. It is much harder, as the Law Council of Australia and others have identified, to predict future behaviour. So I guess what we would strongly urge is that the government focus on the offence provisions—making sure that they’re appropriate—and also sometimes the more difficult issues of resourcing the Federal Police and other security agencies appropriately so that they can investigate and prosecute crimes, and some of the other countering violent extremism measures that can be really important in building a more harmonious community.38

3.39 Dr Jessie Blackbourn et al argued that the extensive range of preparatory terrorism offences that now exist has meant that preventative control orders (as distinguished from post-sentence control orders) are not necessary. They argued that this is demonstrated by the limited use of control orders to date:

That experience shows that the emphasis that is often placed upon the need to address situations in which there is insufficient evidence to lay charges, is, in practice, barely significant and cannot be used to strongly support the retention of COs.39

3.40 The Law Council of Australia agreed, suggesting that ‘there appears to have been a growth in the prosecutions relating to preparatory terrorism offences. This may also indicate that, in practice, COs are not needed or have little operational utility.’40

37 Dr David Neal SC, Law Council of Australia, Committee Hansard, Canberra, 1 December 2017, p. 2.

38 Mr Edward Santow, Australian Human Rights Commisison, Committee Hansard, Canberra, 1 December 2017, p. 11.

39 Dr Jessie Blackbourn, Professor Andrew Lynch, Dr Nicola McGarrity, Dr Tamara Tulich, and Professor George Williams AO, Submission 2, p. 16.

40 Law Council of Australia, Submission 12, p. 10.

50 REVIEW OF POLICE STOP, SEARCH AND SEIZURE POWERS, THE CONTROL ORDER REGIME AND THE PREVENTATIVE DETENTION ORDER REGIME

3.41 Dr Blackbourn et al also added that the redundancy of the control order regime

is demonstrated by over a decade’s operation of the Division and its highly marginal significance to the work of Australian agencies. The value of maintaining Division 104 has long been unclear; the difficulties now posed to its operation and the confusion as to its purpose made plain by the insertion of Division 105A by the HRTO Act provide the strongest reason to date for its repeal.41

3.42 The Australian Human Rights Commission disputed the argument raised by INSLM Renwick that the present threat environment may justify the retention of the control order regime. The Commission stated

The present INSLM states that control orders may be useful to limit radicalisation and disrupt planning of terrorist attacks. These are legitimate aims of the control order regime. The INSLM also refers to the increased risk of terrorism.

To the extent that it may be argued that the retention of the control order regime is justified by the changed security landscape, it is not self-evident that this justification is particularly relevant to the increased risk posed by lone actors, rapidly radicalised, carrying out simple attacks. In those circumstances, there is, ex hypothesi, limited if any warning that an attack will occur (and hence also of the fact that a person may be liable to radicalisation). There is also limited planning to be disrupted.42

3.43 Legal Aid New South Wales submitted that

The control order scheme undermines the right to a fair trial and the presumption of innocence. Prior to this scheme, generally speaking, restrictions on liberty could be imposed only after a fair trial, with all its safeguards, and a conviction for an offence. The control order scheme replaces this process with a civil process that allows restrictions on liberty

 in the absence of a charge, trial or conviction, or even the suspicion of an offence

 based on findings made on the civil standard, rather than the criminal standard, and

41 Dr Jessie Blackbourn, Professor Andrew Lynch, Dr Nicola McGarrity, Dr Tamara Tulich, and Professor George Williams AO, Submission 2, p. 17.

42 Australian Human Rights Commission, Submission 3.1, p. 12.

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 based on information that is not fully disclosed to the person subject to the order.43

3.44 It argued that the need for the powers had not been demonstrated, and they are, therefore, disproportionate. As a result, it recommended that Division 104 should be repealed, or allowed to expire. However, if the provisions are allowed to continue, then Legal Aid New South Wales considered that the recommendations of INSLM Gyles regarding safeguards on the power to make control orders should be implemented.44

3.45 In contrast with most non-government submitters, Jacinta Carroll of the National Security College supported the control order regime, arguing that control orders ‘provide useful options short of arrest and charging to deal with those involved in terrorism.’ Ms Carroll argued that that an example of the potential usefulness of control orders is in relation to foreign fighters returning from the Iraq/Syria conflict. A further benefit was that control orders could be used as an opportunity for would-be-offenders to remove themselves from violent extremism:

Notably in the case of young offenders—highlighted by authorities as a growing area of concern—control orders provide the option for action short of a custodial sentence and the opportunity for the individual to remove themselves from engagement in violent extremism. This is therefore a particularly valuable tool to support efforts to counter violent extremism and assist at-risk youth.45

3.46 The Committee put this issue to the AFP at the public hearing. It stated that

the key focus [of a control order] is to mitigate the risk of a terrorist event happening. That’s the lens we look through in terms of the use of control orders, not so much from a CVE perspective—although I dare say, with some of the cases we’d done in the past, there’s been an overlap. From an operational perspective, the core focus is removing that risk and protecting the community46

43 Legal Aid New South Wales, Submission 11, p. 6.

44 Legal Aid New South Wales, Submission 11, p. 7.

45 Jacinta Carroll, Submission 7, p. 10.

46 Assistant Commissioner Ian McCartney, Australian Federal Police, Committee Hansard, Canberra, 1 December 2017, p. 36.

52 REVIEW OF POLICE STOP, SEARCH AND SEIZURE POWERS, THE CONTROL ORDER REGIME AND THE PREVENTATIVE DETENTION ORDER REGIME

3.47 In addition,

The other thing I might add is, if we were to use it for those purposes, purely, it probably is adaptable to it. But it’s a five-year criminal offence for a breach, which may be a bit of a big stick for someone you’re just trying to deradicalise. There may be other more appropriate ways to do it.47

Human rights considerations

3.48 The Australian Human Rights Commission submitted that control orders may limit a number of human rights protected under international human rights law. These include:

 The conditions of a control order may amount to detention. That may raise questions about whether the prohibition on arbitrary detention in article 9(1) of the ICCPR is engaged,

 Restrictions on association may interfere with the right to family life (protected by articles 17 and 23 of the ICCPR) and the right to freedom of association (protected by article 22 of the ICCPR),

 Warrants issued to monitor compliance with control orders will interfere with the right to privacy protected by article 17 of the ICCPR,

 The ‘chilling effect’ of monitoring may interfere with the right to expression contained in article 19 of the ICCPR,

 Restrictions on the material that may be made available to the respondent to control order proceedings may interfere with the right to fair trial protected by article 14(1) of the ICCPR.48

3.49 The Commission noted that a range of recent amendments to the control order regime, including the ability to obtain warrants to monitor controlees, ‘have exacerbated the extent to which the grant of a control order will interfere with the human rights of its subject.’49 As a result,

The Commission urges [the Committee] to consider whether, in light of all available evidence, the control order regime is necessary and proportionate to the legitimate objective of reducing the risk to the Australian community posed by potential terrorist acts. In the absence of compelling evidence that the regime is necessary and proportionate to that goal, the Commission recommends that there be significant amendment to the control order regime

47 Mr Andrew Kelly, Australian Federal Police, Committee Hansard, Canberra, 1 December 2017, p. 37.

48 Australian Human Rights Commission, Submission 3, p. 18.

49 Australian Human Rights Commission, Submission 3, p. 19.

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to ensure Australia complies with its obligation under international human rights law to ensure that all counter-terror legislative measures are both necessary to achieve a legitimate aim and proportionate to achieving that aim. If [the Committee] is of the view that the regime cannot be amended to achieve human rights compliance, the control order regime should be repealed.50

3.50 The Commission also submitted that there should be no acceptance of the argument that the retention of control orders is justified in light of the range of other intrusive counter-terrorism powers now in existence:

From the point of view of human rights law, the fact that human rights have been limited in one sphere cannot of itself justify further limitations in another sphere… [C]are must be taken to ensure that legislators and citizens do not inadvertently accept a circular argument for the retention or expansion of particular counter-terrorism measures, and the consequent erosion of fundamental rights and liberties. The necessity and proportionality of each proposed limitation of human rights must be independently assessed.51

3.51 Further, the Commission stated

the relevant question for the purposes of human rights law is whether the government has demonstrated that there is compelling and objective justification for the measures, including the proportionality of the limitation on rights in light of the likely efficacy of the measure and the magnitude of the risk it responds to.52

Committee comment

3.52 Domestic terrorism continues to be an alarming feature of the Australian security environment in 2018. The security environment has in fact deteriorated since the control order regime was introduced in 2005, with a proliferation of less sophisticated and ‘lone actor’ terrorist plots occurring alongside an ongoing threat of complex, mass-casualty plots. The Committee continues to support empowering police and security agencies with the necessary and proportionate powers to respond to this environment and to keep the Australian community safe.

3.53 The Committee recognises that the control order regime is a serious and contentious power. Subject to judicial oversight, control orders enable significant restrictions to be placed on a person’s rights and liberties without

50 Australian Human Rights Commission, Submission 3, pp. 19-20.

51 Australian Human Rights Commission, Submission 3.1, p. 13.

52 Australian Human Rights Commission, Submission 3.1, p. 13.

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that person being charged, prosecuted and found guilty of a criminal offence. However, in the current environment the Committee considers the control order regime continues to be a necessary and proportionate response.

3.54 The Committee accepts the AFP’s evidence that there are occasions in which it is necessary for police to act quickly to disrupt and prevent an imminent threat. This action may come at the cost of admissible evidence to support a criminal prosecution. In such circumstances, the Committee considers it appropriate that where strong intelligence indicates that person continues to pose a threat to the community, police may seek a control order to manage that threat.

3.55 The making of control orders is rightly subject to oversight by the courts, with avenues available for persons to contest the making of an order. Control orders also require the consent of the Attorney-General, and are subject to oversight by the Commonwealth Ombudsman and this Committee.

3.56 Control orders have been made sparingly to date, with only six orders being made since the introduction of the regime. Rather than indicating that control orders are not necessary, the Committee considers that the limited use of the provisions reflects the AFP’s position that, in circumstances where there is enough evidence to formally charge and prosecute a person, the AFP will always take this approach over seeking the imposition of a control order. The limited use to date of the powers may also indicate some operational issues with the provisions—matters raised will be discussed in the following section.

3.57 The Committee therefore considers that the control order regime should continue, subject to the additional recommendations discussed below.

3.58 INSLM Renwick recommended that the control order regime continue for a further five years. The Committee considers, however, that a sunset period of three years would be more appropriate, with the Committee required to conduct a further statutory review prior to the sunset date. This further review will provide an opportunity to examine the appropriateness and effectiveness of the control order regime with regard to the security environment and legislative framework at that time.

CONTROL ORDERS 55

Recommendation 5

3.59 The Committee recommends that the control order regime provided for under Division 104 of the Criminal Code Act 1995 be continued, with the provisions sunsetting after three years.

Recommendation 6

3.60 The Committee recommends that the Intelligence Services Act 2001 be amended to require the Committee to conduct a further review into the operation, effectiveness and implications of the control order regime in Division 104 of the Criminal Code Act 1995 prior to the sunset date.

Potential revisions and safeguards

3.61 The AFP advised that, in its experience, control orders ‘are an effective tool for managing persons who present a significant terrorism risk’. However, the AFP also noted that ‘operational experience has demonstrated that the process is complex and resource-intensive’.53 The AFP acknowledged that it has ‘experienced some challenges with the control order regime and consider there is room for improvement’.54

3.62 The AFP and the Attorney-General’s Department summarised their concerns as follows:

[E]xperience has demonstrated that in order to meet the control order threshold a significant body of police holdings must be produced and converted into an admissible form. For example, a person’s online communications over a long period of time may cumulatively demonstrate their ideology and it may not be possible to convince a court to issue a control order unless all of that information is presented …

In particular:

(i) There is no ability under the current legislation to amend the conditions of an interim control order. Under paragraph 104.14(7)(b) when a control order is confirmed, the order can be varied by removing a condition at the time of confirmation. The Criminal Code does not permit it to be varied by amending the condition, for example where a respondent seeks to amend

53 Australian Federal Police, Submission 9, p. 4.

54 Assistant Commissioner Ian McCartney, Australian Federal Police, Committee Hansard, Canberra, 1 December 2017, p. 28.

56 REVIEW OF POLICE STOP, SEARCH AND SEIZURE POWERS, THE CONTROL ORDER REGIME AND THE PREVENTATIVE DETENTION ORDER REGIME

particulars in order to facilitate a change of residential, educational or employment arrangements.

(ii) It is not clear the extent to which the Federal Court Rules apply to control order proceedings, and there are instances where the Rules appear to be in conflict with the procedures articulated for control orders in the Criminal Code. For example, there is uncertainty about whether evidence should be led by affidavit or in person, and whether the respondent is required to comply with rules regarding notices to admit and agreed statements of facts.

(iii) The full civil rules of evidence do not apply to interim control order proceedings, but do apply to confirmation proceedings. This is problematic because:

 At confirmation stage, the court is required under sub-section 104.13(3) to consider the material put forward in the interim proceedings; but as the court cannot take into account information not in admissible form, the exact status of this material in the confirmation proceedings is unclear. This creates a tension for the court.

 Control orders are a preventative measure designed to protect the community where there is strong intelligence and information to suggest that the person poses a risk. Operational sensitivities surrounding the capability, methodology or nature of intelligence or other information means certain information or intelligence may not be available in admissible form.55

3.63 The AFP and the Department added that recommendations made by INSLM Renwick would clarify issues raised by the AFP in points (i) and (iii) above, but that the INSLM had not made any specific recommendations addressing the concerns raised in point (ii).56

3.64 The Law Council submitted that while it does not support the continuation of the control order scheme, if the scheme is to be retained, it ‘requires revising and updating to ensure that it is a necessary and proportionate response to the threat of terrorism’. The Law Council noted its support for a number of the recommendations in INSLM Renwick’s report, including:

 the power to vary interim control orders,  retention of the rules of evidence,  provision of legal aid, and

55 Attorney-General’s Department and Australian Federal Police, Submission 13, pp. 12-13.

56 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 13.

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 abolition of costs.57

3.65 The Law Council also submitted that ‘it is essential that the recommendations of the second INSLM be implemented’. Specifically, INSLM Gyles:

 accepted recommendation 28 of the COAG Review Committee that only the Federal Court have jurisdiction to make control orders, but recommended in turn that it be given the power to remit a request for an interim control order to the Federal Circuit Court,

 supported recommendation 33 of the COAG Review Committee that s 104.5(3)(a) be amended to ensure that a control imposed by a control order not constitute a relocation order, noting that the current wording ‘would literally permit de facto relocation by excluding the place of residence of the controlee’,

 recommended early consideration to including an overnight residence requirement, similar to that provided for in the United Kingdom (see sch 1 pt 1 to the Terrorism Prevention and Investigation Measures Act 2011 (UK)),

 supported a variation of recommendation 37 of the COAG Review Committee (advocating a least interference test) to the effect that the issuing court be required to consider ‘whether the combined effect of all of the proposed restrictions is proportionate to the risk being guarded against’ in addition to the existing requirement to assess each restriction individually, and

 recommended that withholding national security information from the controlee be dealt with only by the NSI [National Security Information] Act, and that div 104 be amended accordingly.58

3.66 The Law Council further suggested that a number of INSLM Walker’s recommendations in relation to control orders should be implemented:

 if COs are to be retained in general, the onus of showing that grounds exist and, if challenged, that they existed when a control order was first made, should clearly be imposed on the authorities applying for confirmation of an interim control order (Recommendation II/1),

 if COs are to be retained in general, the prerequisites for making an interim control order, including on an urgent basis, should include satisfaction that proceeding ex parte is reasonably necessary in order to avoid an unacceptable risk of a terrorist offence being committed were the respondent to be notified before a control is granted (Recommendation II/2),

57 Law Council of Australia, Submission 12, p. 10.

58 Law Council of Australia, Submission 12, pp. 11-12.

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 if control orders are to be retained in general, the provisions governing confirmation hearings should expressly impose, perhaps by a presumption, the onus on the AFP to show the control order should continue in force (Recommendation II/3).59

3.67 Finally, the Law Council indicated the inclusion of special advocates in the control orders regime is ‘an important safeguard: they are a component of the balance struck between measures necessary to respond to counter-terrorism and national security threats on the one hand, and protecting the rights of individuals on the other’.60

3.68 Dr Neal of the Law Council agreed with the AFP as to the burden the control order processes place on legal counsel:

The resource intensiveness of control orders exists on both sides. We received a 50-page notice to respond to a series of questions that the police issued in that case. The resources involved in that were massive. I don’t think that’s avoidable when it’s dependent on the collection of thousands and thousands of pages of transcripts and so on.61

3.69 The Committee asked the Law Council whether the relative infrequency of the control order process makes it difficult to engage properly as a defence and to anticipate what might be needed at each stage of the court process. Dr Neal responded

There are evidentiary problems—which Stephen Donoghue and I argued about through the [Causevic] case—about admissibility of evidence … There are rules about the drawing of inferences in cases which apply in civil proceedings which are much more lax than they are in criminal proceedings. We think that the drawing of inferences at a lower standard than the criminal standard in this atmosphere, which is very hot, is, too, something that shouldn’t happen. I’m a traditionalist on those things. I think that the prosecution ought to have to prove the case on the rules of evidence and beyond reasonable doubt. I feel happy with that traditional position.62

59 Law Council of Australia, Submission 12, p. 12.

60 Law Council of Australia, Submission 12, p. 12.

61 Dr David Neal SC, Law Council of Australia, Committee Hansard, Canberra, 1 December 2017, p. 3.

62 Dr David Neal SC, Law Council of Australia, Committee Hansard, Canberra, 1 December 2017, p. 6.

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Rules of evidence

3.70 In its submission to the 2017 INSLM Review, the AFP submitted that the rules of evidence should be applied consistently across both the interim and confirmation stage of control order proceedings, and supported ‘streamlining the system to allow a final order to be made on the same evidential basis as an interim order’.63 The AFP noted in its submission to this inquiry that

intelligence may not always be in a form required for admissible evidence. Law enforcement continues to face challenges regarding converting intelligence material into an evidentiary form in a variety of contexts, including in relation to counter-terrorism operations.64

3.71 In his report, INSLM Renwick noted

Division 104 does not expressly state that confirmation proceedings are civil proceedings for the purposes of the rules of evidence, nor does it specify the rules of evidence and procedure that are to apply. In part 2 of his report on control order safeguards, the second INSLM expressed the view that the proceedings were civil in character, that the role of the court was the same as for all federal civil proceedings, and that the rules of evidence in civil rather than criminal proceedings, as prescribed in the Evidence Act 1995 (Cth), applied to their resolution. I agree generally with this proposition.65

3.72 INSLM Renwick explained

The requirement for the issuing court, in the confirmation proceedings, to consider the original request, which was given to it in the interim proceedings, appears to be motivated by a presumption that making the interim control order and confirming the control order are two stages in the same proceedings, and that a control order would be confirmed (or otherwise dealt with) within a short period of time after the interim order is made. This presumption is reflected in ss 104.5(e) and 104.5(1A), which provide that the interim control order must specify a day for the controlee to attend court to confirm the order, which day must be ‘as soon as practicable, but at least 72 hours’ after the order is made. If the issuing court is to take action at the confirmation stage within a short period of time after it makes the interim

63 Australian Federal Police, Submission to the INSLM, ‘Attachment: Additional Information’, Statutory Deadline Reviews, 2 May 2017, p. 10.

64 Australian Federal Police, Submission 9, p. [4].

65 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 60.

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control order, there is some sense in requiring the court to consider the material that was given to it at the interim stage.66

3.73 Further, he added

As proceedings in relation to a request for an interim control order are treated as interlocutory proceedings, it is unclear as a matter of principle why the original request would need to be tendered as evidence in confirmation proceedings, rather than being judicially noticed as the originating court document, with the applicant at the confirmation hearing tendering admissible evidence (which may or may not be new) to seek to satisfy the issuing court of the matters in s 104.4(c) and (d). This appears to be the intention of s 104.14(3), which distinguishes between evidence tendered on the one hand, and the original request on the other. Because of the seriousness of confirmation proceedings, the issuing court should only act on the basis of evidence received in accordance with the Evidence Act 1995 (Cth).

For these reasons, I do not recommend any amendment to div 104 regarding the applicable rules of evidence. However, I recommend that s 104.14 be amended to clarify that:

a. The original request for an interim control order need not be tendered as evidence of the proof of its contents.

b. The issuing court may take judicial notice of the fact that an original request in particular terms was made, but it is only to act on evidence received in accordance with the Evidence Act 1995 (Cth).67

3.74 The Law Council of Australia supported this recommendation.68

3.75 The Committee asked the Department and the AFP for their view on INSLM Renwick’s recommendation that the rules of evidence for civil proceedings should continue to apply to control order confirmation proceedings, but that it be clarified that the issuing court ‘may take judicial notice of the fact that the original request in particular terms was made’. They responded

The INSLM made this recommendation because of a perceived tension with the current control order provisions. Under paragraph 104.14(3)(a), the court is required to consider the original interim control order request before deciding whether to confirm that control order. An interim control order proceeding is

66 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 61.

67 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 62.

68 Law Council of Australia, Submission 12, p. 10.

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an interlocutory proceeding for the purposes of the Evidence Act 1995 and not all the rules of evidence apply. That is, the Court may rely on the sworn testimony (usually by affidavit), which contains indirect evidence. In contrast, a confirmation proceeding is not an interlocutory proceeding and the rules of evidence apply, meaning a Court may only consider admissible evidence put before the court in a proceeding. This means that although the court is required under paragraph 104.13(3)(a) to consider the interim control order request, as it is not in an admissible form and likely to contain hearsay (to which exceptions to the hearsay rule are unlikely to apply), there is uncertainty as to the role of the interim control order request in the confirmation hearing and the weight or level of judicial notice which may be given to that request in accordance with paragraph 104.13(3)(a).

The INSLM’s recommendation would clarify this issue. In practice, this is consistent with the approach that the AFP already adopts in relation to control order confirmation proceedings. That is, the AFP does not seek to rely on the interim control order request in confirmation proceedings, instead, leading admissible evidence to support its submissions in a confirmation proceeding.69

3.76 The AFP elaborated on this issue at the public hearing:

I think what we are looking for is some clarification that the rules of civil proceedings apply. It sounds as though the Law Council is asking for some sort of modified criminal-type rules to govern the proceedings and that’s a path which we would say, if we did that, we would need to be in the criminal space. This is a civil proceeding—yes, it is different to other types of civil proceedings and, yes, there are very serious consequences—but the balance of probabilities and the other rules of civil procedure would actually help frame all of the different steps that the court [and] the parties have to go to, and that would give some clarity.70

3.77 In response to further questions from the Committee, the AFP provided supplementary comments regarding the application of rules of evidence and associated procedures:

Control order proceedings can be complex, being civil proceedings in relation to which the conduct is governed by provisions in the Criminal Code. The INSLM’s report noted that civil rules of evidence apply to control order proceedings. However, the novelty of the regime as compared with traditional civil proceedings, means that in practice, there may be differing expectations as to how matters should be conducted.

69 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 14.

70 Ms Elsa Sengstock, Australian Federal Police, Committee Hansard, Canberra, 1 December 2017, p. 34.

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Some of the practical considerations that have arisen include differing expectations by parties around:

 The obligation to seek documents through the usual discovery process in civil proceedings. Uncertainty around the correct process for obtaining documents, including where a party considers that pre-trial disclosure obligations from criminal procedure apply, can cause delays to proceedings.

 Processes for narrowing the facts in contention, including through pleadings, an agreement as to facts in dispute, or a notice to admit facts or documents. Certainty around the scope of issues in dispute could significantly reduce the length and complexity of proceedings.

 The form of evidence for a confirmation hearing, including whether written material should be in affidavit form and the requirement for expert witness reports to appropriately qualify the expert witness. Such uncertainty can also cause delays in proceedings.

In addition to any amendments required to implement the INSLM’s recommendations, there may be benefit in considering whether any further improvements could be made to ensure there is clarity around how civil procedure rules apply in a control order proceeding. The views of the Federal Circuit Court and Federal Court would be important in informing these considerations.71

Standard of proof

3.78 The standard of proof applied to control order proceedings, being civil proceedings and not criminal, is the lower ‘balance of probabilities’ standard. This standard was contested by a number of submitters to this inquiry as well as to INSLM Renwick’s 2017 review; however, it has been affirmed in the Courts in the cases of Thomas v Mowbray and Gaughan v Causevic (No 2).

3.79 Australian Lawyers for Human Rights noted that control orders allow restrictions to be placed on a person who has not been charged, tried or convicted of an offence. It suggested the available restrictions are of a magnitude only previously seen in relation to a convicted criminal. It therefore argued that to adequately protect human rights, ‘the imposition of the orders should be subject to the same safeguards as exist in relation to a person charged with a criminal offence. The legislation should provide for the right to a fair trial as per Article 14 ICCPR.’ It continued

71 Attorney-General’s Department and Australian Federal Police, Submission 13.1, p. 7.

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ALHR submits that the control order regime violates the right to a fair trial on a number of bases. The ex parte nature of the interim control order proceedings violates the right of the person to be tried in his or her presence and to be informed of the case against him or her. The inter partes proceedings to confirm the order also violate the right to a fair trial as there is a lack of complete disclosure of the case against the person. The onus of proof is also reversed and the onus is on the person to prove that the order should be revoked.

ALHR submits that the orders should be subject to the same safeguards as for a person charged with a criminal offence. The criminal standard of proof should apply, not the balance of probabilities.72

3.80 The Australian Lawyers Alliance suggested that the control orders regime be repealed. Failing that,

we believe that the Criminal Code Act should be amended to significantly limit the circumstances in which control orders are available, and the conditions that they can impose. Controlees should be afforded the opportunity to rebut allegations prior to the order being made, and it should not be possible to obtain a control order merely on circumstantial evidence. Control orders should never be, or be seen to be, a convenient means of avoiding more rigorous criminal standards of proof.73

3.81 The Department and the AFP disputed this assertion, arguing that ‘in circumstances where there is enough evidence to formally charge and prosecute a person, the AFP will always take this approach over seeking the imposition of a control order’.74

3.82 The Law Council of Australia similarly submitted to the 2017 INSLM Review that the burden of proof should be raised to the higher ‘beyond reasonable doubt’ standard. The Law Council raised concerns regarding the application of the rule in Jones v Dunkel to control order proceedings.75

72 Australian Lawyers for Human Rights, Submission 10, p. 12.

73 Australian Lawyers Alliance, Submission 4, p. 11.

74 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 11.

75 ‘In civil proceedings, under the common law (the “rule in Jones v Dunkel”), adverse inferences may be drawn from the failure of a party to adduce particular evidence, where such evidence would reasonably have been expected.’ Stephen Odgers, Uniform Evidence Law (11th ed, 2014), [1.3.110].

64 REVIEW OF POLICE STOP, SEARCH AND SEIZURE POWERS, THE CONTROL ORDER REGIME AND THE PREVENTATIVE DETENTION ORDER REGIME

3.83 INSLM Renwick acknowledged that the standard of proof could cause issues for a controlee, but did not support raising the standard to the criminal standard of ‘beyond reasonable doubt’:

While I accept that the rule in Jones v Dunkel may be a practical problem for a controlee who does not wish to give evidence at the confirmation hearing, this problem is not unique to control order proceedings. It does not justify such a significant change. Moreover, it seems open to a controlee to contest inferences that may otherwise be drawn by application of the rule in Jones v Dunkel by relying on the privilege against self exposure to a penalty in the form of controls imposed by the control order.76

3.84 In the current inquiry, the Law Council submitted that an inference should only be drawn in a control order matter if it is the only rational inference.77

3.85 When asked about this issue, the Attorney-General’s Department provided the following response

The LCA argued that adducing evidence to avoid an adverse inference may, for example, re-enliven criminal charges against the person subject to the control order proceedings. The LCA recommended that the criminal rules of evidence should apply to inference …

Generally, where the Commonwealth is able to meet a higher standard of proof the preferred option will be to arrest, charge and prosecute the person rather than apply for a control order. Requiring the Commonwealth to meet a higher standard than that which currently applies to the control order proceedings reduces the effectiveness of the control order regime and defeats its purpose.78

Committee comment

3.86 The Committee notes the view expressed by INSLM Gyles, and supported by INSLM Renwick, that control order proceedings are civil in character, that the role of the court is the same as for all federal civil proceedings, and that the rules of evidence in civil rather than criminal proceedings applied to their resolution.

3.87 The Committee notes the views of some participants in the review that the criminal standard of proof should apply to control order confirmation

76 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 60.

77 Law Council of Australia, Submission 12, p. 11.

78 Attorney-General’s Department and Australian Federal Police, Submission 13.1, p. 6.

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proceedings. However, the Committee accepts the INSLM’s conclusion that the civil standard of proof and civil rules concerning inferences should continue to apply.

3.88 It is clear from the evidence received that there is a desire for clarity, from both external stakeholders and the AFP, around how control order hearings are intended to be conducted and the procedural rules that should apply. Clarifying these matters has the potential to significantly reduce the duration and complexity of proceedings.

3.89 The Committee notes support from both the Law Council and the AFP for the INSLM’s recommendation to clarify the status of the initial request for a control order at a confirmation hearing.

3.90 The Committee endorses the INSLM’s recommendation. The Committee also supports the Government undertaking further consideration, in consultation with the relevant courts and other stakeholders, including the Law Council of Australia, as to what further improvements could be made to provide greater clarity around how civil procedure rules apply in control order proceedings.

Recommendation 7

3.91 The Committee recommends that section 104.14 of the Criminal Code Act 1995 be amended to clarify the status of the original request for an interim control order during confirmation proceedings. This is in line with the Independent National Security Legislation Monitor’s recommendation at paragraph 8.61 of his 2017 review.

The Committee further recommends that the Attorney-General consider, in consultation with the Federal Circuit Court, the Federal Court, and appropriate legal stakeholders, what further improvements could be made to provide greater clarity around how civil procedure rules apply in control order proceedings, noting operational sensitivities.

Varying an interim control order

3.92 In his review, INSLM Renwick noted that, presently, there is no express capacity for the controlee to apply to vary an interim control order:

This is despite the fact that, of the six control orders that have been made:

a. three were never confirmed (and the interim control order was in force for the full year)

66 REVIEW OF POLICE STOP, SEARCH AND SEIZURE POWERS, THE CONTROL ORDER REGIME AND THE PREVENTATIVE DETENTION ORDER REGIME

b. two involved a delay of over six months between the interim order being made and confirmation of the order.

The reason for this delay is largely due to the time required to prepare for, and participate in, confirmation proceedings. During this time, the parties may agree to vary the controls imposed on the controlee, which the court ostensibly has no power to effect.79

3.93 Therefore, he recommended that Division 104 be amended so that

 the controlee may apply to vary an interim control order prior to confirmation of the control order,

 the court has power to amend an interim control order if the AFP Commissioner and controlee agree.80

3.94 In response to this recommendation, the Attorney-General’s Department and the AFP explained

Under the control order regime an interim control order cannot be varied. This is because when the provisions were originally introduced it was anticipated that the confirmation proceeding would follow soon after the interim control order was made. If the conditions in an interim control order needed to be varied it was intended that the changes could be made in the confirmation process. Any subsequent variations could be made using the variation provisions under Subdivision E or F of Division 104 of the Criminal Code.

However, as noted by the INSLM, experience to date has shown that the confirmation proceeding can occur many months after the interim control order is made. This means that if the obligations, prohibitions or restrictions in an interim control order are no longer appropriate there is no way to vary those conditions. For example, if there is a requirement in the control order that the person remain at their home between specified times, and the person decides to move home.

Allowing an interim control order to be varied would allow some flexibility to be applied to the conditions imposed by the order where those conditions are no longer appropriate. Given the broad range of possible circumstances where it may be appropriate to vary an interim control order, it would seem reasonable for both the subject of the interim control order and the AFP to be

79 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, pp. 62-63.

80 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 63.

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able to apply to vary the order. However, care would need to be taken to ensure that the court is not burdened with an unreasonable number of applications for variation.81

Committee comment

3.95 The Committee notes that while it may have been initially envisaged that an interim control order would remain in effect for only a short period prior to being confirmed (or revoked), the reality has been that all interim orders made to date have stayed in effect for many months.

3.96 The Committee therefore supports the INSLM’s recommendation that a controlee be able to apply to vary an interim control order prior to its confirmation, and the court have the power to make such an amendment if the AFP and the controlee agree. The Committee agrees with the AFP that restrictions will be required to ensure that the court is not burdened with an unreasonable number of applications for variation by a controlee. The Committee also considers it reasonable for the AFP to similarly be able to apply to the issuing court for a variation.

Recommendation 8

3.97 The Committee recommends that Division 104 of the Criminal Code Act 1995 be amended to allow for either the controlee, or the Australia Federal Police, to apply to the issuing court to vary the terms of an interim control order under section 104.5. In making this recommendation, the Committee notes that restrictions will be required to ensure that the court is not burdened with an unreasonable number of applications for variation by a controlee.

The interval between interim and confirmation proceedings

3.98 When making an interim control order, the court must specify a day on which the person who is the subject of the order may attend the court for the court to confirm the order, declare it void, or revoke the order (the confirmation hearing). Under subsection 104.5(1A) of the Criminal Code, this day must be as soon as practicable, but at least 72 hours after the order is made.

3.99 The Attorney-General’s Department and the AFP outlined the effect of amendments, passed in 2014, which specified matters which the issuing

81 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 16.

68 REVIEW OF POLICE STOP, SEARCH AND SEIZURE POWERS, THE CONTROL ORDER REGIME AND THE PREVENTATIVE DETENTION ORDER REGIME

court must take into account when specifying the dates of a confirmation hearing:

In 2014, the Counter Terrorism Legislation Amendment Act (No. 1) 2014 inserted subsection 104.5(1A) into the Criminal Code. This subsection provides that when specifying a day for the purposes of a confirmation hearing, the issuing court must take into account that a party may need to prepare in order to adduce evidence or make submission to the court in a confirmation proceeding (and any other matter the court considers relevant). The purpose of subsection 104.5(1A) is to provide additional protection to the subject of an interim control order who may, for example, need time to obtain the assistance of a legal representative or contact witnesses.82

3.100 However, the Department and the AFP advised that the minimum 72 hour period specified in the legislation ‘still creates some difficulty’ for the AFP:

This is because it is always open for a court to specify a date for confirmation proceedings that is as little as 72 hours after the date of the interim order. As a model litigant, it is incumbent on the AFP to be prepared to progress a confirmation application after 72 hours, if ordered by the Court. To mitigate the risk of not being prepared to make a confirmation order, the AFP needs to be in a reasonable position to make a confirmation application when applying for the interim order. This can delay the AFP’s decision to apply for an interim order, and undermines the intended purpose of the interim control order process (as a preventative power).83

3.101 They explained that both interim and confirmation proceedings ‘tend to be very lengthy’ due to the seriousness of the restrictions involved:

As an example, the Causevic interim control order application was over 140 pages long and attached over 2000 pages of annexures containing primary materials. This material needed to be considered to prepare approximately 15 affidavits for the confirmation hearing. Preparation of material for the confirmation hearing involved one to two AFP lawyers and three investigators working full time between interim and confirmation stages. In the three months prior to the confirmation proceedings, the Australian Government Solicitor (AGS), junior counsel and senior counsel were also engaged in preparation of the confirmation application.84

82 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 14.

83 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 15.

84 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 15.

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3.102 The Department and the AFP suggested that any period of less than 14 days between interim and confirmation proceedings would ‘create significant challenges for the AFP’ and ‘may also create challenges for the respondent in preparing for the confirmation proceeding’.

3.103 The AFP further elaborated on its concern at the public hearing:

we haven’t yet had an experience where we’ve had to move from an interim order being granted to confirmation happening within 72 hours. But our experience with what is required—because you are converting essentially what is intelligence and hearsay based into admissible evidence to support the control order—is that 72 hours is quite difficult to meet in that regard. So we would be seeking some more time. Like all things in the Commonwealth realm, it will depend on the Constitution and how far that limit would go. Whether that is seven days or 14 days is something that we would need to explore with the Attorney-General’s Department. Our concern is that three days may just not be enough time.

The concern is that we may delay seeking an interim order until we’re almost ready to confirm. That means that, rather than relying on the controls in the interim order to mitigate the risk posed by the person, we’re relying on intense physical surveillance and other issues, so our risk management tool isn’t available to us because we’re concerned about the next steps. Whether it’s five days, seven days or 14 days, I think we’d be looking to take what is permissible under the Constitution, and that’s not a question I can answer, unfortunately.85

Committee comment

3.104 While the reality has been that many months have elapsed between the interim and confirmation phases of control orders made to date, the legislation provides for a minimum period of just 72 hours. The Committee is concerned by evidence from the AFP that, due to this relatively short minimum period, it may seek to delay seeking an interim control order under it is almost ready to confirm. This has the potential to significantly impact the effectiveness of the regime and risk community safety.

3.105 Balanced against this concern is the importance of a person subject to an interim control order being able to contest the order in a timely manner. The confirmation hearing is an essential safeguard in the legislation that

85 Ms Elsa Sengstock, Australian Federal Police, Committee Hansard, Canberra, 1 December 2017, p. 36.

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provides a controlee with their first and only opportunity to have an interim order revoked.

3.106 These two concerns must be carefully balanced. It is the view of the Committee that a minimum seven day period between the interim and confirmation proceedings would be appropriate. In forming this conclusion, the Committee takes into account the experience for control orders made to date, the complexity and resource-intensiveness of the confirmation process, the existing judicial and other external oversight of the regime, and importantly the previous recommendation that a controlee be able to apply to vary an interim control order prior to confirmation - this provides an additional safeguard.

3.107 The Committee is also mindful that any extension to the minimum timeframe may potentially raise constitutional concerns and advice should be sought prior to any amendment. The Committee recommends that the Government seek legal advice regarding the constitutionality of extending the timeframe to seven days.

Recommendation 9

3.108 The Committee recommends that the Government extend the minimum time period between an interim and a confirmation hearing for a control order under subsection 104.5(1A) of the Criminal Code Act 1995 to seven days, subject to legal advice regarding any constitutional concerns arising from this extension.

Costs and legal aid

3.109 Based on the experience of the six control orders imposed since the introduction of the regime, concerns have been raised about possible cost orders against a controlee and also their access to appropriate legal assistance.

3.110 In his report, INSLM Renwick stated

Although div 104 involves civil proceedings, the proceedings are matters of great seriousness for the controlee as, if an interim order is made or confirmed, significant obligations, prohibitions and restrictions may be placed on a controlee, breach of which are potentially punishable by imprisonment. It is not appropriate that any controlee is additionally at any risk of an adverse costs order and I recommend that div 104 provide that there is to be no order as to costs made by the issuing court in such proceedings. For the same reasons, and also to ensure there is proper assistance to the court and some

CONTROL ORDERS 71

‘equality of arms’ in the proceedings, I recommend that the Attorney-General give consideration to the adequacy of legal aid for controlees in control order proceedings.86

3.111 In response to the INSLM’s recommendation, the Attorney-General’s Department and the AFP advised that, of the six control orders issued, no adverse costs order has been made against the subject of a control order proceeding:

It is anticipated that this approach will continue in relation to any future control order proceedings.

However, there may be a rare occasion where it is appropriate that an adverse costs order be made against a person who is the subject of a control order application. For example, a person subject to a control order application may unreasonably and excessively delay proceedings causing the Commonwealth to incur significant legal costs. The Court should always have discretion to make costs orders should they consider such an order appropriate in all the circumstances.87

3.112 In relation to legal aid, the Department and the AFP advised the Committee

Under the National Partnership Agreement on Legal Assistance Services 2015-20 (the Agreement), the Commonwealth provides funding for state and territory legal aid commissions and community legal centres to deliver frontline legal assistance services to vulnerable and disadvantaged Australians.

Under the Agreement, legal assistance service providers should prioritise their services to people experiencing financial disadvantage and who fall within one or more priority client groups, including children and young people, people in custody and prisoners, people who are culturally and linguistically diverse, people with a disability or mental illness, and people with low education levels.

Legal aid commissions and community legal centres determine eligibility for their legal services and the extent of assistance they will provide in individual cases.

86 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 63.

87 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 16.

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The Attorney General and the Attorney General’s Department cannot intervene in, or influence, individual decisions made by a legal aid commission or community legal centre.88

3.113 Dr Neal SC, from the Law Council of Australia, provided an example of the need for proper legal aid assistance in these matters:

In the course of each case the AFP had briefed Stephen Donoghue before his recent elevation, plus a junior. I think there were two AGS solicitors plus AFP backup. The firm instructing me has I think done it entirely pro bono. My junior and I got paid small amounts but had to do vast volumes of work that was unpaid. We consider it part of our pro bono duty to do those sorts of things, but it’s not a good system that would depend on the goodwill of practitioners.89

3.114 Dr Neal added that the Law Council is seeking ‘something more definite and substantive’ in relation to legal aid:

We understood that, in the Causevic case, there was a scheme within the Attorney-General's Department which would have allowed for legal aid in those cases. That application was rejected on the basis that this case didn’t raise any novel point of law, which we were puzzled by, but there does need to be some genuine and substantial funding to ensure that there is an equality of arms where these control order cases are brought.90

Committee comment

3.115 Despite being civil proceedings, control order confirmation proceedings have very serious implications for the rights and liberties of the individual in question, akin to criminal proceedings. The Committee notes evidence that, as civil proceedings, control order proceedings may not be granted priority for legal aid.

3.116 The Committee notes that legal representation is already guaranteed by section 104.28 of the Criminal Code for any person under the age of 18 years if they are unrepresented.

3.117 Similar representation issues were considered by the Committee in its advisory report on the Criminal Code Amendment (High Risk Terrorist

88 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 17.

89 Dr David Neal SC, Law Council of Australia, Committee Hansard, Canberra, 1 December 2017, p. 2.

90 Dr David Neal SC, Law Council of Australia, Committee Hansard, Canberra, 1 December 2017, p. 7.

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Offenders) Bill 2016. In that case, the Committee recommended that the Court have the power to stay proceedings and order for reasonable costs to be funded for the subject to obtain legal representation.

3.118 The Committee notes the INSLM’s recommendation that the Attorney-General give consideration to the adequacy of legal aid for controlees in control order proceedings. The Committee also notes the INSLM’s recommendation regarding adverse costs orders for proceedings. The Committee supports the Government’s continued consideration of these recommendations.

Interoperability between control orders and continuing detention orders

3.119 The Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 introduced Division 105A into the Criminal Code, providing a regime for the continued detention of terrorist offenders who continue to pose a risk to the community at the end of their sentence. On referring the Bill to the Committee for review in September 2016, the Attorney-General noted that the Court would not be able to make a control order as an alternative to a continuing detention order (as provided for in the Bill) because

the two regimes are distinct with different procedural and threshold requirements (for example, different courts issue control orders, there are different applicants, and different threshold requirements).91

3.120 The Attorney-General made the following suggestion as to how the Committee should approach this issue:

The Independent National Security Legislation Monitor and the Committee will conduct reviews into the control order regime by 7 September 2017 and 7 March 2018 respectively, which are likely to be relevant to this issue. In light of these proposed reviews, it may be better to defer a detailed consideration of how the control order regime and the regime under the HRTO Bill might better interact with each other until those reviews occur.92

3.121 In its review of the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, the Committee recommended that the Attorney-

91 Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, November 2016.

92 Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, November 2016.

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General’s Department give further consideration to the interoperability issues raised in that inquiry with a view to developing a preferred solution to be considered as part of the INSLM’s 2017 review and the current review by the Committee.93

3.122 The issue of interoperability between the two regimes, including the findings and recommendations of INSLM Renwick, is considered in this section.

Continuing detention order provisions

3.123 According to the Attorney-General’s Department, as of May 2017 there were 20 persons imprisoned for terrorist offences who may be subject to a continuing detention order under Division 105A of the Criminal Code upon the completion of their custodial sentence.94

3.124 Division 105A enables the continued detention of terrorist offenders (persons convicted of a defined range of terrorist-related offences) 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.95

3.125 The court can only make a continuing detention order if:

 it is 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 released into the community, and

 it is satisfied that there are no other less restrictive means that would be effective in preventing the unacceptable risk. A note to section 105A.7 (Making a continuing detention order) specifies that a control order is an example of a less restrictive measure.96

3.126 The Attorney-General (the applicant) bears the onus of satisfying the court of these matters.97

93 Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, November 2016, p. 101.

94 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 67.

95 Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, Explanatory Memorandum, p. 3.

96 Criminal Code, section 105A.7(1).

97 Criminal Code, section 105A.7(3).

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3.127 The period of detention ordered by the court cannot be more than three years and must be limited to the period reasonably necessary to prevent the unacceptable risk. However, there is no limit on the number of orders that can be made.98

INSLM Review of 2017

3.128 INSLM Renwick devoted considerable time to this interoperability issue in his review of control orders.

3.129 INSLM Renwick summarised the issue as

the current position is that divs 104 and 105A of the Criminal Code potentially give rise to the need for different applicants to make separate applications in respect of the same offender, in different courts, and seeking to satisfy different tests. That is not in the interests of the offender, the agencies responsible for making the respective applications, or the multiple courts which may have to hear them.99

3.130 INSLM Renwick recommended:

 that state and territory supreme courts be authorised to make an extended supervision order (ESO) which would include any of the controls that can be imposed under a control order, and

 that Division 105A be amended to allow the state and territory supreme courts, on the application of the Commonwealth Attorney-General, to make either a CDO or an ESO for a period of up to three years (at a time) if 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 without either of those orders being made. The court should only make a CDO if satisfied that an ESO would not be effective in preventing the identified risk.100

3.131 INSLM Renwick further recommended that:

 the Commonwealth Attorney-General also be the applicant for an ESO,

98 Criminal Code, sections 105A.7(5)-(6).

99 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 71.

100 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 76.

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 there be no new pre-conditions before the Attorney-General commences div 105A proceedings for an ESO,  an application may be made for an ESO in relation to a person who is already the subject of a CDO or ESO,  the same controls and monitoring regime be available for an ESO made

under div 105A as a control order made under div 104,  the government consider making the special advocates regime available for applications under div 105A,  the Attorney-General be unable to give consent under s 104.2 while div

105A proceedings are pending,  in requesting an interim control order in relation to a person, the senior AFP member be required to give the issuing court a copy of any div

105A application made in relation to that person, and any order (including reasons) of the relevant court in respect of that application, and  no control order may be in force in relation to a person while a CDO or ESO is in force in relation to that person.101

Comments from participants in the review

3.132 In its submission, the Law Council of Australia noted that the INSLM’s recommendation that an ESO may be made for a period of up to three years (at a time) is consistent with the duration for a CDO, and stated that it would not oppose a period of up to three years for an ESO, provided that there are appropriate powers for review applications during that period.102 However, the three year timeframe is not consistent with the maximum duration of a control order, which is 12 months (with the ability to renew). As a result, the Law Council indicated that it was

concerned that there will be then be a suggestion that, for consistency, the maximum period for COs should then be extended to up to three years. Given the intrusive nature of a CO…the Law Council does not consider that it would be necessary or proportionate to allow a CO to be extended for a three year period.’103

101 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, pp. 76-77.

102 Law Council of Australia, Submission 12, p. 17.

103 Law Council of Australia, Submission 12, p. 17.

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3.133 The Law Council, in response to further questions from the Committee, submitted that the powers of review under any ESO regime should include the power to:

 vary the duration of an ESO;

 vary the conditions that have been included in the order; and

 review and revoke an order where the purpose of the review is to determine whether the offender should remain subject to the ESO.

State and Territory Supreme Courts should be given the power to at any time vary or revoke an extended supervision order or interim supervision order on the application of the Attorney-General or the person subject to the order.

The period of an order must not be varied so that the period is greater than that of up to three years …

In other words, the Law Council supports a responsive and flexible ESO regime in the case of high-risk terrorist offenders with the inclusion of the full gamut of review powers.104

3.134 Dr Blackbourn et al submitted support for urgent clarification regarding interoperability of Divisions 104 and 105A of the Criminal Code.105 They further commented on the current review mandate:

The deferral to post-enactment review processes of the challenge of resolving the interoperability of control orders (COs) and CDOs is, regrettably, not without precedent in Australian anti-terrorism lawmaking. We feel it necessary to emphasise the serious deficiencies of enacting legislative provisions on the basis that their acknowledged shortcomings or uncertain impact alongside existing anti-terrorism powers and processes can be fixed by later review.106

3.135 Three key issues regarding interoperability were raised in their submission:

1 Whether an interim CO could be applied for in respect of someone serving a sentence of imprisonment;

2 The distinct procedural and threshold requirements of each regime; and

104 Law Council of Australia, Submission 12.1, p. 2.

105 Dr Jessie Blackbourn, Professor Andrew Lynch, Dr Nicola McGarrity, Dr Tamara Tulich, and Professor George Williams AO, Submission 2, p. 8.

106 Dr Jessie Blackbourn, Professor Andrew Lynch, Dr Nicola McGarrity, Dr Tamara Tulich, and Professor George Williams AO, Submission 2, pp. 8-9.

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3 The absence of discretion of a court dealing with a CDO application to impose a CO if the court thinks that more appropriate.107

Committee comment

3.136 The Committee agrees that it is essential to resolve the interoperability issues in order for continuing detention orders under Division 105A and control orders under Division 104 to operate effectively and without duplication.

3.137 Both regimes are aimed at protecting the community, with varying degrees of restriction placed on the subject. It is critical that, where a person is found to continue to pose an unacceptable risk to the community at the completion of a term of imprisonment, a court is able to consider a range of options in order to appropriately mitigate that risk without undue restrictions. While a control order is a less restrictive option than a continuing detention order, due to different threshold requirements and procedural arrangements, currently a court cannot in effect consider a control order as an alternative to a continuing detention order.

3.138 The ESO model recommended by the INSLM would provide a court with a less restrictive option that has similar controls and monitoring provisions to the control order regime, but with thresholds and procedural arrangements in line with the continuing detention order regime. The INSLM’s recommendation would therefore enable a State or Territory Supreme Court to consider a range of restrictions on a person who continues to pose an unacceptable risk to the community, with the (shorter duration) control order regime continuing to operate separately through the Federal Court. The Committee therefore supports the model recommended by the INSLM, noting that it appears to have broad support from stakeholders.

3.139 The Committee acknowledges the Law Council’s concern that regular review be available under the ESO regime. The existing provisions for continuing detention orders in the Criminal Code include provisions for the periodic review of an order every 12 months, and on application by the offender.108 The Committee considers that the same review requirements should be extended to the ESO regime, including the capacity for the court to amend the conditions of the order.

107 Dr Jessie Blackbourn, Professor Andrew Lynch, Dr Nicola McGarrity, Dr Tamara Tulich, and Professor George Williams AO, Submission 2, p. 9.

108 Criminal Code, sections 105A.10-105A.11.

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Recommendation 10

3.140 The Committee recommends that the Criminal Code Act 1995 be amended as required to implement an Extended Supervision Order (ESO) regime which would include any of the controls that can be imposed under a control order, similar review mechanisms, and other associated changes consistent with the model recommended by the Independent National Security Legislation Monitor at paragraphs 9.40 to 9.47 of his 2017 review. This will address interoperability issues between Division 104 and 105A.

Independent National Security Legislation Monitor review

3.141 Throughout this inquiry, and especially in relation to control orders, both non-government and government submitters have recognised the importance of the reviews undertaken by the former and current INSLMs.

3.142 In his report, however, INSLM Renwick noted that a number of recommendations made by INSLM Gyles in his 2016 review of control order safeguards had not yet been responded to. He stated that these recommendations ‘stand as the views of my office’.109

3.143 The Committee asked the Attorney-General’s Department about the status of the government response to these recommendations at its public hearing. The Government’s response to INSLM Gyles’ recommendations was provided to the Committee in a supplementary submission.110 The Committee notes that this Government response is not easily sourced elsewhere.

3.144 In its submission, the Law Council noted that government responses to INSLM reports, and implementation of recommendations, had been ad hoc. The Law Council recommended that the Independent National Security Legislation Monitor Act 2010 (the INSLM Act) be amended to require ‘formal and prompt government response to INSLM reports (for example, within six to twelve month timeframe)’.111

109 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 65.

110 Attorney-General’s Department and Australian Federal Police, Submission 13.1, p. 6 and Attachment A.

111 Law Council of Australia, Submission 12, p. 7.

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3.145 The Law Council expressed its support for a reform to the INSLM Act that was first noted by INSLM Walker:

There should be an express power for the INSLM to report on a matter or matters within the statutory mandate but more urgently or particularly than by the annual report. The INSLM’s statutory mandate should include an ability to review a range of legislation to the extent that they may impact on national security matters (e.g. the Telecommunications (Interception and Access) Act 1979 (Cth), Telecommunications Act 1997 (Cth), Surveillance Devices Act 2004 (Cth), Part IAAB of the Crimes Act 1914 (Cth), relating to the monitoring of compliance with control orders).112

Committee comment

3.146 The Committee agrees with stakeholders on the important scrutiny role of the INSLM in reviewing national security legislation. The findings of each INSLMs reports have been given substantial weight by the Committee. In particular, INSLM Renwick’s statutory reviews have been crucial in informing the Committee’s own review of the control order regime, as well as the other powers considered in this report.

112 Law Council of Australia, Submission 12, p. 7.

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4. Preventative detention orders

Overview of the provisions

4.1 A Commonwealth preventative detention order (PDO) allows a person to be taken into custody by police and detained for a period of time (up to 48 hours) in order to:

1 prevent a terrorist act that is capable of being carried out, and could occur, within the next 14 days from occurring; or

2 preserve evidence of, or relating to, a recent terrorist act.1

4.2 A PDO may be made in relation to any person over 16 years of age.

4.3 To make a PDO, the issuing authority2 must be satisfied that there are reasonable grounds to suspect that the subject:

1 will engage in a terrorist act, or

2 possess a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act, or

3 has done an act in preparation for or planning a terrorist act.

1 Criminal Code Act 1995, s. 105.1

2 Division 105 makes provision for initial PDOs and continued PDOs. To obtain an initial PDO (which authorises detention for up to 24 hours), an AFP member may apply for an initial PDO to a senior AFP member. To obtain a continued PDO (which authorises detention for up to 48 hours), applications may be made to persons appointed by the Attorney-General who are a judge of a State or Territory Supreme Court, or of the Federal Court or Federal Circuit Court, or a person who has served as a judge in a superior court, or a person who is the President or Deputy President of the Administrative Appeals Tribunal.

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4.4 Further, the issuing authority must be satisfied that making the order would substantially assist in preventing a terrorist act occurring, and that detaining the subject for the period for which the person is to be detained under the order is reasonably necessary.

4.5 A PDO may also be made against a subject if the issuing authority is satisfied that:

1 a terrorist act has occurred within the last 28 days, and

2 it is reasonably necessary to detain the subject to preserve evidence of, or relating to, the terrorist act, and detaining the subject for the period for which the person is to be detained is reasonably necessary for preserving that evidence.3

4.6 The police must not question the subject while he or she is detained, except for the purpose of identifying the person, ensuring the person’s safety and well-being, or allowing the police to comply with a requirement under the Criminal Code in relation to the person’s detention under the PDO.4

4.7 There are restrictions on who the subject of the PDO can contact while detained. The subject may contact a family member or employer; however, such contact can be monitored by police and can only occur for the purposes of letting the contacted person know that the subject being detained is safe but is not able to be contacted for the time being.5

Review history

2012 INSLM review

4.8 In his 2012 review of the PDO provisions, INSLM Walker found that ‘preventative detention orders are not effective, not appropriate and not necessary. They should simply be abolished’.6

4.9 INSLM Walker explained this conclusion:

The combination of non-criminal detention, a lack of contribution to CT [counter-terrorism] investigation and the complete lack of any occasion so far

3 Criminal Code, s. 105.4(6).

4 Criminal Code, s. 105.42.

5 Criminal Code, s. 105.35.

6 Independent National Security Legislation Monitor (INSLM), Declassified Annual Report 20th December 2012, p. 4.

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considered appropriate for their use is enough to undermine any claim that PDOs constitute a proportionate interference with liberty.7

4.10 INSLM Walker found that PDOs offered no benefit beyond other available counter-terrorism powers. The inability to question a person subject to a PDO was particularly problematic.8

4.11 He continued:

There is no demonstrated necessity for these extraordinary powers, particularly in light of the ability to arrest, charge and prosecute people suspected of involvement in terrorism. No concrete and practical examples of when a PDO would be necessary to protect the public from a terrorist act because police could not meet the threshold to arrest, charge and remand a person for a terrorism offence have been provided or imagined.9

4.12 INSLM Walker concluded with the recommendation that the PDO provisions be repealed.10

2013 COAG review

4.13 In its 2013 review, a majority of the COAG Committee concluded that the preventative detention scheme was neither effective nor necessary and should be repealed, as should the complementary State and Territory legislation dealing with preventative detention.11 The COAG Committee was persuaded by, amongst other things, submissions from the police forces of Victoria, South Australia and Western Australia that, from an operational perspective, those police forces would be unlikely to use the preventative detention regime:

Various reasons have been provided to the Committee as to why this is so. First, the complexities of preparing an initial detention application, compliance with the law and securing an initial order was thought by some to be unduly onerous and cumbersome. Secondly, the ‘thresholds’ were, to others impractical. (What if, for example, the available intelligence suggested an attack in the next few weeks rather than within 14 days? What if the date of the attack was known as ‘soon’ but nevertheless uncertain?). Thirdly, there was overall agreement that the inability to question a detained suspect, even if

7 INSLM, Declassified Annual Report 20th December 2012, p. 45.

8 INSLM, Declassified Annual Report 20th December 2012, p. 57.

9 INSLM, Declassified Annual Report 20th December 2012, p. 67.

10 INSLM, Declassified Annual Report 20th December 2012, p. 67.

11 Council of Australian Governments, Review of Counter-Terrorism Legislation, 2013, p. 71.

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he or she were willing to give information, was virtually fatal to operational effectiveness. Finally, the view was expressed that, at a practical level, if there were sufficient material to found a detention order, there would be, more likely than not, sufficient material to warrant conventional arrest and charge. State enforcement agencies, it might be said, were clearly more comfortable with this traditional procedure and much less comfortable with the complexities of the detention procedure.12

2014 review by the Committee

4.14 In 2014, the Committee considered the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 which proposed, amongst other things, for the PDO regime to be extended for a further 10 years (until 15 December 2025). In its review, the Committee supported the continued operation of the PDO regime, noting:

While there has been very limited use of the regime until recently, the increased threat environment demands appropriate tools are available to law enforcement to both prevent and prosecute terrorist acts.13

4.15 However, the Committee did not support any change to the regime to allow for questioning. The Committee found:

As raised in evidence, the PDO regime is focussed on preventing a terrorist act, rather than an information gathering tool to assist with investigations and prosecutions. Any change to allow questioning would fundamentally change the nature of the regime.14

4.16 The Committee concluded by recommending that the Bill be amended so that the PDO regime sunsets 24 months after the date of the next Federal election.15

12 Council of Australian Governments, Review of Counter-Terrorism Legislation, 2013, pp. 69-70.

13 Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, p. 68.

14 Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, p. 68.

15 Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, p. 79.

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2014 review by the Parliamentary Joint Committee on Human Rights

4.17 In its review of proposed amendments to the PDO regime via the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, the Parliamentary Joint Committee on Human Rights (the PJCHR) undertook a ‘foundation assessment’ of whether the PDO powers are compatible with human rights. The PJCHR found:

The committee considers that PDOs engage a number of human rights, including the right to security of the person and the right to be free from arbitrary detention; the right to a fair trial; the right to freedom of expression; the right to freedom of movement; the right to privacy; the right to be treated with humanity and dignity; the right to protection of the family; and the rights to equality and non-discrimination.16

4.18 The PJCHR continued:

The committee notes that the PDO regime involves very significant limitations on human rights. Notably, it allows the imposition of a PDO on an individual without following the normal criminal law process of arrest, charge, prosecution and determination of guilt beyond a reasonable doubt. Effectively, PDOs permit a person’s detention by the executive without charge or arrest. The provision for detention of an innocent person (who may not themselves pose a risk to society) for the purpose of preserving evidence is beyond the scope of what is recognised as a permissible denial of the traditional human right to liberty. These have usually been limited to situations where there is reason to believe that an individual would pose a serious danger to society if not detained.17

4.19 The PJCHR ultimately determined that the PDO regime is likely to be incompatible with the human rights engaged above.18

16 Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament, 2014, p. 20.

17 Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament, 2014, p. 21.

18 Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament, 2014, p. 22.

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Committee review of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015

4.20 In its review of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, the Committee supported two amendments to the PDO regime:

1 amending the basis upon which a PDO may be applied for by the AFP to relate to reasonable grounds to suspect that a terrorist act ‘is capable of being carried out, and could occur, within the next 14 days’. Prior to this amendment, the legislation provided that the terrorist act must be ‘imminent’ and ‘is expected to occur, in any event, at some time in the next 14 days’, and

2 removing the ability for serving or retired judges of the Family Court of Australia to be appointed as issuing authorities in relation to PDOs.19

2017 INSLM review

4.21 In his review, INSLM Renwick found that the non-use of PDOs did not automatically lead to a finding that the powers are redundant. He observed that the rise of lone actor threats, who provide little to no investigative lead time for authorities, means there may be a need to act quickly to disrupt those threats, including via use of the PDO regime. Nonetheless, INSLM Renwick accepted that the PDO regime was

of significantly less utility than the complementary regimes which are in force pursuant to state and territory legislation. Given the significant degree of cooperation between law enforcement agencies at the Commonwealth and state and territory level, in particular through the JCTT [Joint Counter-Terrorism Team], there is a real question as to whether the regime in div 105 will ever be used in preference to a state or territory PDO, should circumstances arise which call for a PDO.20

4.22 INSLM Renwick observed that the issue of proportionality of PDOs was ‘finely balanced and difficult’, but

19 Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, February 2016, pp. 151, 154.

20 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 80.

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in view of the nature and extent of current terrorist threats, I find that a preventative detention regime in terms of div 105 is necessary and proportionate to that threat.21

4.23 INSLM Renwick recommended that the PDO provisions be continued for a further period of five years. However, he observed that he was not convinced that Division 105 adequately responds to its intended purpose. He stated that the AFP had conceded in evidence to him that complementary state and territory regimes were more likely to be invoked than Division 105, and that the use of Division 105 was ‘likely to be limited to a case where there is a disagreement between the AFP and relevant state police force as to the need for a PDO (or, in the case of NSW, investigative detention).’22

Use of the provisions

4.24 The AFP has not used a Commonwealth PDO since the introduction of the regime in 2005.23

4.25 State and territory PDOs have been used on two occasions, in relation to three individuals in New South Wales in 2014 and one individual in Victoria in 2015.24

Developments in other legislation

4.26 Complementary PDO legislation in states and territories allows for detention of an individual for a period of up to 14 days, rather than the 48 hours allowed for under the Commonwealth regime.25

4.27 Separately, pre-charge detention under Part IC of the Crimes Act 1914 enables persons arrested for terrorism offences to be detained for the

21 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 80.

22 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, pp. 80-81.

23 Australian Federal Police, Submission 9, p. [5].

24 Dr Jessie Blackbourn, Professor Andrew Lynch, Dr Nicola McGarrity, Dr Tamara Tulich, and Professor George Williams AO, Submission 2, p. 5.

25 See Attorney-General’s Department, ‘Preventative Detention Orders’, viewed 17 January 2018.

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purpose of investigating whether they committed the offence, committed another Commonwealth offence, or both. The time for which a person can be detained is complex with certain limitations and provisions for extension in certain circumstances —for more details see Appendix C.

4.28 In 2014, the threshold for police to arrest a person without warrant was lowered from ‘belief on reasonable grounds’ to ‘suspicion on reasonable grounds’ for terrorism offences.26 This became the new threshold that determines whether a person can be held in pre-charge detention under Part IC.27 In reviewing the pre-charge detention model in 2016, INSLM Gyles commented that the lower arrest threshold ‘significantly added to the breadth of practical operation of the power of arrest and subsequent detention prior to charge’.28

4.29 In 2016, NSW introduced ‘investigative detention’ into the Terrorism (Police Powers) Act 2002 (NSW), which used similar thresholds to PDOs to enable detention and questioning of terrorism suspects for up to 14 days.29

4.30 Also in 2016, COAG agreed to introduce nationally consistent laws for pre-charge detention for terrorism suspects, with the NSW model as the basis for any such consistent model.30

4.31 Victoria’s Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers recommended in 2017 that Victoria enhance its preventative detention and investigation powers, in response to perceived deficiencies in the state’s current scheme and in line with the COAG agreement. This would include a new power for police to question a detained person regarding the terrorist act in relation to which they were detained.31 The Victorian Government indicated that it had accepted in-principle the Expert Panel’s recommendations.32

4.32 In October 2017, COAG agreed to the enhancement of the existing Commonwealth pre-charge detention regime under Part IC of the Crimes

26 Crimes Act 1914, section 3WA.

27 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 19.

28 INSLM, Certain Questioning and Detention Powers in Relation to Terrorism, October 2016, p. 32.

29 Terrorism (Police Powers) Amendment (Investigative Detention) Act 2016 (NSW).

30 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 21.

31 State of Victoria (Department of Premier and Cabinet), Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers - Report 1, 2017, p. 24.

32 Victorian Government, Submission 5, p. [1].

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Act.33 The key features of the proposed model to enhance the Commonwealth pre-charge detention model are:

 an initial detention period of 8 hours;

 a maximum overall detention period of 14 days, based on a tiered extension application process that enables:

 magistrate approved extensions for up to 7 days based on the existing extension application criteria under section 23DF, and

 magistrate approved extensions for a further 7 days based on a magistrate being satisfied to a higher threshold that ongoing detention is necessary.

 removing disregarded and specified time provisions for Commonwealth terrorism offences, and creating a clear cap on the maximum period of detention.34

4.33 The Attorney-General’s Department submitted that if the proposed COAG enhancements are implemented, then states and territories may ‘no longer find it desirable to implement a model similar to the NSW investigative detention regime’.35

Necessity of the provisions

4.34 Despite the non-use of the Commonwealth provisions to date, the AFP submitted that PDOs play a ‘critical’ role in providing the AFP with powers to prevent terrorist attacks. According to the AFP, the powers are particularly important where

police need to act quickly, and with little warning to prevent a potentially catastrophic attack or to preserve vital evidence in the aftermath of an attack. In those circumstances, traditional policing powers may not be sufficient.

To date, the AFP has not used a Commonwealth PDO since their introduction in 2005. However, the JCTTs have used state-based PDO legislation on a number of occasions in NSW and Victoria, where PDO legislation permits police to detain a person for considerably longer.

The AFP considers Commonwealth PDOs an important emergency power that complements state and territory PDO powers. The JCTT model allows law

33 Council of Australian Governments, Special Meeting of the Council of Australian Governments on Counter-Terrorism: Communiqué, Canberra, 5 October 2017, p. 2.

34 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 20.

35 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 21.

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enforcement to utilise the best tools available in any particular investigation, whether they be state/territory or Commonwealth powers. Decisions around which powers to use are made jointly between Commonwealth and the relevant state/territory police agency.36

4.35 Non-government submitters to this inquiry generally did not agree with the AFP’s submission, or the findings of INSLM Renwick, instead arguing that the PDO regime was unnecessary, disproportionate to its objective, and should be repealed.

4.36 For example, Legal Aid New South Wales submitted that Division 105 ‘should be allowed to expire as these powers are an unnecessary and disproportionate response to the threat of terrorism.’37

4.37 Similarly, Dr Jessie Blackbourn et al submitted that PDOs are an extraordinary power, are unnecessary and should be repealed. They argued:

The power to detain individuals incommunicado on the basis that they are reasonably suspected of involvement in terrorism is extraordinary and does not exist in any comparable nation. Division 105 clearly infringes the freedoms of movement, association and from arbitrary detention. It also infringes client legal privilege as any communication between the person and a lawyer must be capable of being monitored. The infringement of these rights is unjustified.38

4.38 Dr Blackbourn et al noted that a range of other law enforcement powers are likely to be available to prevent an imminent terrorist act from occurring which are likely to be more effective than PDOs due to the prohibition on questioning persons subject to a PDO. They submitted:

where evidence is available to support Ground A (i.e. to prevent an imminent terrorist attack from occurring), one would expect a range of alternative measures to be available. These include: questioning under the pre-charge detention regime in Part IC of the Crimes Act 1914 (Cth); laying of charges for preparatory or other terrorism offences (especially in combination with the inchoate offences of attempt, conspiracy and incitement); obtaining control orders over relevant persons; or, finally, applying for an Australian Security Intelligence Organisation Questioning Warrant. Each of these measures is

36 Australian Federal Police, Submission 9, p. [4].

37 Legal Aid New South Wales, Submission 11, pp. 8-9.

38 Dr Jessie Blackbourn, Professor Andrew Lynch, Dr Nicola McGarrity, Dr Tamara Tulich, and Professor George Williams AO, Submission 2, p. 3.

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likely to be far more effective in preventing terrorism because it permits questioning of the subject.39

4.39 They argued that in light of the range of other powers that are likely to be available, and the ‘extreme impact of detention as a means of preserving evidence’, PDOs are unnecessary and should be repealed.40

4.40 INSLM Walker raised similar concerns in his 2012 review:

There is, simply, no actual experience of any kind to draw on when reporting on the CT Laws’ innovation which is the PDO. None has been made. No-one has seriously considered seeking a PDO, according to an exhaustive review of all relevant files. This must raise serious doubts about the effectiveness, appropriateness and necessity of the PDO provisions. These doubts do not lessen upon consideration of these provisions as policy and in principle.41

4.41 INSLM Walker concluded that, rather than using PDOs, police should instead rely on their established powers to take action against suspected criminals through the arrest, charge, prosecution and lengthy incarceration of suspected terrorists:

This traditional law enforcement approach operates in accordance with fair trial and due process rights and is undoubtedly more effective as a preventive tool. The best possible outcome from a policing perspective is to prosecute individuals involved in terrorism. The prosecution, conviction and incarceration of such people will protect the public for a far greater period of time, with lengthy incarceration unquestionably more effective as a preventive strategy than detention for a maximum of two days under a PDO (or 14 days under a State or Territory PDO).42

4.42 In light of the range of powers available to law enforcement agencies to deal with terrorism threats, INSLM Walker noted that:

There is no demonstrated necessity for these extraordinary powers, particularly in light of the ability to arrest, charge and prosecute people suspected of involvement in terrorism. No concrete and practical examples of when a PDO would be necessary to protect the public from a terrorist act

39 Dr Jessie Blackbourn, Professor Andrew Lynch, Dr Nicola McGarrity, Dr Tamara Tulich, and Professor George Williams AO, Submission 2, p. 4.

40 Dr Jessie Blackbourn, Professor Andrew Lynch, Dr Nicola McGarrity, Dr Tamara Tulich, and Professor George Williams AO, Submission 2, p. 6.

41 INSLM, Declassified Annual Report 20th December 2012, p. 45.

42 INSLM, Declassified Annual Report 20th December 2012, p. 67.

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because police could not meet the threshold to arrest, charge and remand a person for a terrorism offence have been provided or imagined.43

4.43 In response to these concerns, the Attorney-General’s Department and the AFP explained that the purposes of the various powers available to law enforcement vary. The purpose of a PDO is to protect the public from harm by detaining an individual for the purpose of preventing a terrorist act, or to preserve evidence relating to a terrorist act. In contrast, the purpose of detaining a person post-arrest under Part IC of the Crimes Act 1914 is to investigate whether a person has committed an offence. The legislative gap that PDOs are intended to fill and their relationship with other powers was described as follows:

To obtain a PDO, it is not necessary that an individual be arrested pursuant to section 3WA [of the Crimes Act]. However, nothing prevents an individual who has been detained under a PDO from being later arrested on suspicion of having committed a Commonwealth terrorism offence and being transferred to detention under Part IC.

In the current threat environment, where there is an increase in the threat of smaller-scale opportunistic attacks by lone actors, and where there is less time for law enforcement agencies to respond to an attack, the PDO is a valuable tool which enables police to disrupt terrorist activity. Where there is little to no lead time to disrupt a terrorist act, there may not be sufficient information available on the individual(s) to meet the arrest threshold under section 3WA of the Crimes Act 1914. Under such circumstances, a PDO will enable police to detain an individual for up to 48 hours, in order to prevent a terrorist act.44

4.44 The Committee sought to ascertain whether the agreed enhancements to the Commonwealth pre-charge detention regime, agreed to by COAG in October 2017, would reduce the need for separate PDO provisions. In particular, the Committee sought to clarify whether the threshold for pre-charge detention under Part IC of the Crimes Act would be amended under the enhancements. In doing so, the Committee noted that the ‘investigative detention’ regime implemented in New South Wales allows a person to be taken into custody and questioned using a similar threshold to that available under a PDO.45 However, the AFP confirmed that the existing arrest threshold would continue to apply to the Part IC regime:

43 INSLM, Declassified Annual Report 20th December 2012, p. 67.

44 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 19.

45 Terrorism (Police Powers) Amendment (Investigative Detention) Act 2016 (NSW). The provisions define a ‘terrorism suspect’ as a person for whom there are reasonable grounds for suspecting

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The threshold for arrest would still be ‘reasonable suspicion’ of the commission of a terrorist offence, whereas PDOs are more directed at wanting to prevent a terrorist act from happening or where a terrorist incident has occurred—where there’s been a bomb going off or what have you. That’s a lower threshold than suspecting the commission of an offence itself. The COAG reforms would be looking to streamline and clarify how long we can hold a person for detention after arrest and how questioning works during that period, with an ultimate cap of 14 days, to make it clear. State PDO legislation is 14 days. In theory, they could look like they run alongside, but the key difference for the part 1C powers is being able to question the person while your investigation is continuing.46

4.45 Legal Aid New South Wales considered that the short life span of a Commonwealth PDO—a person may be detained for up to 48 hours in total—meant that ‘the powers are unlikely to be used, as most states have powers to detain that extend for up to 14 days.’47

4.46 INSLM Renwick similarly found this to be an issue. He stated:

as the AFP acknowledged at the public hearing, the PDO regime in div 105 is of significantly less utility than the complementary regimes which are in force pursuant to state and territory legislation. Given the significant degree of cooperation between law enforcement agencies at the Commonwealth and state and territory level, in particular through the JCTT, there is a real question as to whether the regime in div 105 will ever be used in preference to a state or territory PDO, should circumstances arise which call for a PDO.48

4.47 However, the Department and the AFP disputed any suggestions that state powers, which are potentially available under JCTT arrangements, make Commonwealth PDOs unnecessary:

there are a number of reasons why Commonwealth PDO powers are not rendered unnecessary by these arrangements. State and Territory PDO regimes are not uniform, and Commonwealth PDOs have the benefit of applying consistently across Australia. Furthermore, State and Territories may

that the person has committed or will commit a terrorist act; or the person is or has been involved in preparing or planning for a terrorist act, or the person possesses a thing that is connected with the commission of, or the preparation or planning for, a terrorist act.

46 Ms Elsa Sengstock, Australian Federal Police, Committee Hansard, Canberra, 1 December 2017, p. 37.

47 Legal Aid New South Wales, Submission 11, p. 8.

48 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 80.

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review and amend their powers as they see fit. Given AFP counter-terrorism teams work across all jurisdictions, Commonwealth PDOs provide an important baseline level of national consistency for the AFP.

Given the differences in PDO regimes across the State and Territory jurisdictions there are some hypothetical scenarios in which the JCTTs may consider using Commonwealth PDO powers. For example, NSW interim PDOs can only be issued by the NSW Supreme Court, whereas a Commonwealth PDO may be issued by a senior AFP member (an AFP member of, or above, the rank of Superintendent). In a scenario where the NSW JCTT needed a PDO to be issued very urgently, it would likely be faster to apply for a Commonwealth PDO. This would of course be balanced by the different periods of detention available under the State and Commonwealth regimes.

As another example, in the ACT, a PDO cannot be issued for a child under the age of 18 years, whereas Commonwealth PDOs may be issued in relation to a person who is 16 years of age or older. In circumstances where the AFP needed to detain a 16 or 17 year old for preventative purposes, the AFP would consider applying for a Commonwealth PDO.49

4.48 The Committee asked the AFP and the Attorney-General’s Department for hypothetical scenarios which would demonstrate why PDOs were necessary, and what gap in legislative powers they filled. In response the AFP provided the following hypothetical example.

Box 4.1 Hypothetical example Mass casualty attack

Consider there has been an explosion in a crowded place in the Melbourne central business district. There are significant casualties. Police arrest a person suspected of causing the explosion and establish that the terrorist suspect had called an unknown associate around the time of the attacks. The associate is previously unknown to police, and at this stage, there is insufficient information to reach the threshold for arrest, and further investigation is required. A Commonwealth PDO is issued by a senior AFP member in relation to the associate.50

49 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 23.

50 Attorney-General’s Department and Australian Federal Police, Submission 13.1, p. 3.

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Questioning a detained person

4.49 A further issue considered during this inquiry was the impact on counter-terrorism investigations of the inability to question a person subject to a PDO. In 2012, INSLM Walker found that this prohibition on questioning was particularly problematic:

The inability to question a person detained under a PDO for law enforcement or intelligence purposes renders them useless as an investigative tool… This is a complete and automatic statutory bar on all communication between police or intelligence officers and a person detained under a PDO and applies even where the detained person volunteers to cooperate and answer questions or provide information that may assist in preventing a terrorist act.51

4.50 INSLM Walker suggested that this prohibition on questioning ‘could have a detrimental effect on the prevention of terrorist acts by preventing the voluntary sharing of information with police and intelligence agencies.’52

4.51 The Attorney-General’s Department and the AFP explained that the purpose of this prohibition ‘is to ensure there is a clear demarcation between those police powers which are preventative in nature, and those which are investigative in nature.’ They continued:

The PDO regime serves a preventative purpose by ensuring that police officers have a disruption tool available where there is not sufficient evidence to arrest an individual in relation to a Commonwealth terrorism offence. Where an individual is arrested on suspicion of having committed a Commonwealth terrorism offence under section 3WA of the Crimes Act 1914, they may be detained under Part IC and questioned for the purposes of laying charges.

A clear demarcation between preventative and investigative police powers ensures that there is clarity for law enforcement agencies in the application of these powers. It ensures that at any point in time during the course of detention, both police officers and the detainee are aware of the purpose of detention.53

4.52 The Attorney-General’s Department and the AFP acknowledged that comparable nations, such as the United Kingdom, Canada, New Zealand

51 INSLM, Declassified Annual Report 20th December 2012, p. 56.

52 INSLM, Declassified Annual Report 20th December 2012, p. 57.

53 Attorney-General’s Department and Australian Federal Police, Submission 13, p. 21.

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and the United States, ‘do not have powers directly equivalent to the PDO regime’. However, they advised that those countries

have other mechanisms, with similar effect, allowing police to detain, control and monitor individuals suspected of conducting terrorism acts prior to charging those individuals. For example, the United Kingdom permits up to 14 days of investigative detention without charge for individuals suspected of committing terrorism offences, or individuals concerned in the commission or preparation of terrorist acts. The Canadian Criminal Code also has preventative arrest provisions which allow for a peace officer to arrest and detain an individual if it is likely to prevent terrorist activity.54

4.53 In his report, INSLM Renwick observed that, in light of the increase in the threat of smaller-scale opportunistic attacks by lone actors, with the concomitant risk of little to no lead time to prevent a spontaneous attack, the need to act quickly to disrupt terrorist activity, and prevent potentially catastrophic consequences, may call for the use of PDOs.55

4.54 However, the Australian Human Rights Commission questioned the INSLM’s finding that the advent of lone-actor attacks justified the retention of PDOs. In its view, PDOs ‘would appear to be much more relevant to responding to complex plots involving multiple parties and significant planning than to simple attacks by lone actors.’ The Commission submitted that it remained unclear why PDOs are necessary and well-adapted to respond to this increased lone-actor threat, particularly in light of the range of police powers to arrest a person suspected of committing terrorism offences.56

Use of PDOs for preservation of evidence

4.55 Dr Jessie Blackbourn et al expressed their concerns about the prospect of the PDO powers being used for the purpose of preserving evidence of a terrorist act. They submitted:

where evidence is available to support Ground B (i.e. to preserve evidence relating to a recent terrorist attack), it is arguably easier to appreciate the function that a PDO may serve. However, even though it aims to assist criminal investigations, detention of individuals - without any requirement of wrongdoing or even suspicion of wrongdoing on their part - is an

54 Attorney-General’s Department and Australian Federal Police, Submission 13, pp. 19-20.

55 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 80.

56 Australian Human Rights Commission, Submission 3.1, p. 15.

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extraordinary measure. It may potentially allow detention of large groups of people from ‘suspect communities’ based upon crude racial profiling in the wake of a terrorist incident. This occurred in the United States after September 11, with many people held under ‘material witness’ provisions. This is a highly undesirable way in which to conduct efficient police investigations that respect the rights of innocent people.57

4.56 INSLM Walker, in his 2012 review, similarly expressed concern at a PDO being issued against an innocent person. He stated:

A person should not be detained solely on the basis of their having some evidence of a terrorist act. The PDO provisions do not even require that the evidence be material evidence, just that it be evidence. The situation where an innocent bystander with no guilty knowledge of or involvement in a terrorist act has such crucial evidence that their detention is necessary to preserve the evidence is an unlikely one, bordering on the fantastic. Such an unlikely situation could be dealt with by normal police powers to search and seize evidence (search warrants are readily available to the police on a reasonable suspicion basis). The arrest provisions in the Crimes Act will adequately capture a situation where an accomplice to a terrorist act has evidence of the terrorist act and their detention is necessary to preserve that evidence. The arrest provisions under the Crimes Act provide police with the power to arrest a person where a police officer believes on reasonable grounds that the person has committed or is committing an offence and their arrest is necessary to prevent the concealment, loss or destruction of evidence relating to the offence. And questioning warrants under the ASIO Act … are made to measure for this situation.58

4.57 In response to a question from the Committee, the Attorney-General’s Department and the AFP provided the following explanation as to the circumstances in which a PDO may be available against a non-suspect for the purpose of preserving evidence of a terrorist act:

The AFP would consider applying for a PDO for the purpose of preserving evidence in a situation where there are reasonable grounds to suspect an individual possesses a thing that is connected to a terrorist act. As a hypothetical example, the AFP may consider applying for a PDO in a situation where a terrorist suspect has given a bag containing an explosive device to a second person who is believed to have no knowledge of its contents and refuses to cooperate with police.

57 Dr Jessie Blackbourn, Professor Andrew Lynch, Dr Nicola McGarrity, Dr Tamara Tulich, and Professor George Williams AO, Submission 2, pp. 4-5.

58 INSLM, Declassified Annual Report 20th December 2012, p. 56.

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In order to apply for a Commonwealth PDO, the applicant must be satisfied that detaining the subject for the specified period is reasonably necessary for the purpose for which the PDO has been applied for. Where a less restrictive power is available and appropriate, it is unlikely the AFP would satisfy the test for a Commonwealth PDO. The availability of other, less restrictive powers would depend on the specific circumstances of the case, including the degree of information available to support use of other powers including arrest, and for a non-suspect, whether that person is cooperating voluntarily with police directions. Where an individual is not a suspect and is cooperating with police, it is unlikely that police would apply for a PDO.59

4.58 In response to a further question, the AFP stated:

The AFP considers that a PDO (whether under Commonwealth or State/Territory legislation) may be an appropriate response for dealing with a non-suspect for the purpose of preserving evidence in limited circumstances. Such circumstances may arise, for example, where it is clear that a terrorist attack has occurred but police do not yet have any other information available to them to support the use of other powers. In this scenario, it may not be clear whether the person is a suspect or not. If the person fails to cooperate with police, there may not be any alternative powers for police to rely on to contain the threat presented by the person or to preserve vital evidence.60

Human rights considerations

4.59 A number of submitters expressed their concerns with the way in which, in their view, the PDO regime restricts human rights.

4.60 For example, Dr Jessie Blackbourn et al observed that ‘Division 105 clearly infringes the freedoms of movement, association and from arbitrary detention. It also infringes client legal privilege as any communication between the person and a lawyer must be capable of being monitored. The infringement of these rights is unjustified.61

4.61 Australian Lawyers for Human Rights suggested that PDOs:

violate a person’s right to freedom from arbitrary detention and the right to a fair trial. Moving perilously close to a system which allows arbitrary detention at the discretion of the executive arm of government does not make Australia

59 Attorney-General’s Department and Australian Federal Police, Submission 13, pp. 23-24.

60 Attorney-General’s Department and Australian Federal Police, Submission 13.1, p. 3.

61 Dr Jessie Blackbourn, Professor Andrew Lynch, Dr Nicola McGarrity, Dr Tamara Tulich, and Professor George Williams AO, Submission 2, p. 3.

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a safer place. In fact it makes us less safe by threatening the principles that form the fundamental structure of our criminal justice system.62

4.62 The Australian Human Rights Commission submitted that the PDO regime is ‘extraordinary’ and places ‘very severe restrictions on the human rights of those subject to them’. In particular, the Commission suggested the PDO regime:

 Does not require the subject of a PDO to be informed of the reasons for their detention, impinging significantly on article 9(2) of the ICCPR. Applications for a PDO are made ex parte and key information supporting the PDO application may be withheld on national security grounds.

 Does not allow for meaningful review of the merits of the issuance of a PDO by a competent judicial authority while the PDO remains in force. The subject of the PDO, therefore, has no meaningful opportunity to challenge their detention, contrary to article 9(4) of the ICCPR.

 Arguably infringes the right to a fair trial in a suit at law, contrary to article 14(1) of the ICCPR. The subject of a PDO is, in effect, being restricted by punitive measures without ever having been convicted of a criminal offence. The opportunity to challenge the information supporting the order is restricted, if not impossible. The subject of a PDO also has limited opportunity to speak with a legal representative and such communication is not protected by legal professional privilege.63

4.63 As a result, the Commission recommended that ‘in the absence of compelling evidence that the provisions are necessary and proportionate to achieving a legitimate objective, Division 105 of Part 5.3 of the Criminal Code should be repealed.’64

4.64 The Australian Lawyers Alliance similarly argued that PDOs ‘effectively constitute incommunicado detention, without charge or trial’65 and that ‘there should be no place for such powers in a liberal democracy such as Australia.’66 The Alliance added that PDOs:

impact on the right to liberty, and can have broader ramifications in relation to a person’s ability to work, maintain a family life or engage in education. They also impact on the right to freedom of expression of the detainee, or anyone

62 Australian Lawyers for Human Rights, Submission 10, p. 15.

63 Australian Human Rights Commission, Submission 3, pp. 15-16.

64 Australian Human Rights Commission, Submission 3, p. 19.

65 Australian Lawyers Alliance, Submission 4, p. 13.

66 Australian Lawyers Alliance, Submission 4, p. 14.

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who knows about the order, imposing criminal sanctions for disclosing the existence of the order or other details.67

4.65 Similar concerns were expressed to INSLM Renwick during his review. INSLM Renwick ultimately concluded that Division 105 was proportionate to the current terrorist threats, and provides ‘adequate protection of individual rights’.68

Threshold test

4.66 The Law Council submitted that the current legislative test for the issue of a PDO—that a terrorist act is one that ‘is capable of being carried out, and could occur, within the next 14 days’—is too broad and may not ensure that only situations where there is a real risk of a terrorist act occurring are captured. The Law Council argued:

The current test does not appear to balance the intrusion on a person’s liberty against the low possibility of a terrorist attack occurring. A more appropriate balance needs to be struck. 69

4.67 As a result, the Law Council recommended that the threshold be amended from ‘a terrorist act is one that … is capable of being carried out, and could occur, within the next 14 days’ to ‘a terrorist act is one … that is likely to occur within the next 14 days.’70

4.68 Jacinta Carroll of the National Security College questioned the appropriateness of this threshold change in a counter-terrorism environment where plots can emerge with little warning. She noted:

… We have seen, for example—I’ll note two things—a disruption that occurred in Bankstown last year that you would be aware of, where there were two young men who were assessed to be minutes away from conducting a terrorist attack using bladed weapons. The Joint Counter Terrorism Team, which was watching this from some distance away and linked effectively into the police operational response, could see this thing happening and did not have the time to be able to deploy the right specialist people to respond to it. General duties police in the local area command had to respond to this incident. It’s useful in that situation that these people, because of their

67 Australian Lawyers Alliance, Submission 4, pp. 17-18.

68 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 80.

69 Law Council of Australia, Submission 12, pp. 14-15.

70 Law Council of Australia, Submission 12, p. 15.

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associations, were under active investigation and real-time investigation by the JCTT, but that won’t always be the case.

So, we have two elements: what can the first responders do, and, secondly, in a case for the first responder just comes upon an action and an attack that is in progress, without any assessed understanding of what else might be going on, then they need to have all the powers that they need to be able to protect the public.71

4.69 In response to the Law Council’s recommendation, the AFP stated:

I think each time you try and adjust the threshold it creates more challenges for where we can and cannot use the powers. We’ve worked to a point where we think that the settings in the current legislation are probably the most appropriate. Any further raising of the threshold, which those words might do, would make it a bit more problematic for us to use, noting that we would probably only use them in very limited circumstances.72

4.70 INSLM Renwick considered the Law Council’s proposed threshold change during his review, but ultimately did not support it:

The test that the LCA advocates imposes a less onerous requirement than the original provision, formulated as it is in terms of likelihood. Nonetheless, it requires a higher level of certainty than is, to my view, practical in view of the threat of terrorist activity in the present day. Subject to the views that I have expressed above regarding the availability of PDOs more generally, I am satisfied that the test in s 105.4 of the Criminal Code is appropriately formulated; if div 105 remains in force, it should remain in place.73

4.71 A similar recommendation was also considered by the Committee in its review of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, which introduced the current threshold (as outlined earlier in this chapter). The Committee did not accept the proposal at that time, and considered that it was unclear that such an amendment would overcome the problems with

71 Ms Jacinta Carroll, National Security College, Committee Hansard, Canberra, 1 December 2017, p. 22.

72 Ms Elsa Sengstock, Australian Federal Police, Committee Hansard, Canberra, 1 December 2017, p. 37.

73 INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 82.

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the existing overly-restrictive requirement that a terrorist act must be ‘expected to occur, at any event, within 14 days’.74

Committee comment

4.72 The Committee recognises at the outset that the PDO regime is extraordinary. No comparable country possesses similar powers to detain people without suspicion or charge in order to prevent a terrorist act or preserve evidence relating to a terrorist act.

4.73 The Committee supports the intention of this legislation—the protection of the community from terrorist acts—and reiterates its long-stated position that Australia’s law enforcement and security agencies must be suitably equipped to respond to the security environment. However, the powers must be tailored and proportionate to their legitimate purpose, and subject to scrutiny and oversight.

4.74 The powers were introduced in 2005 to respond to what was seen, at the time, as the principal threat to Australia from terrorism: sophisticated, large-scale attacks, such as that which had just occurred in London. The Committee notes the evidence of the AFP that, while those large-scale threats have not gone away, the current security environment also faces smaller-scale, lone-actor attacks. These threats present significant challenges for law enforcement and security agencies to identify and address.

4.75 The question for the Committee, therefore, is whether these extraordinary powers remain necessary, appropriately targeted and proportionate in the current threat environment.

4.76 INSLM Renwick pointed to the ‘lone-actor’ threat as, in part, justification for his recommendation that the PDO regime be continued. The Committee notes the view of INSLM Renwick that, despite the issue being ‘finely balanced and difficult’, the regime is necessary and proportionate to the current threat. INSLM Renwick also concluded that there is adequate protection of human rights.

4.77 The Committee acknowledges the views of some submitters to this inquiry that the non-use of the provisions in twelve years, and the potential availability of alternative law enforcement powers (including, state-based

74 Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, February 2016, p. 149.

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PDO regimes and the Commonwealth pre-charge detention regime), points to a conclusion that Commonwealth PDOs are unnecessary.

4.78 However, the Committee considers PDOs to be a power of ‘last resort’ that are only expected to be used in times of an unfolding emergency (or in its immediate aftermath) and when the traditional investigative powers available to law enforcement are inadequate to contain the threat. The fact that the AFP has never used PDOs at a Commonwealth level reflects that this purpose is understood. Similarly, the existence of state and territory powers does not obviate the need for the Commonwealth regime.

4.79 The bar on questioning a person subject to a PDO has led some to conclude that the powers are not necessary, as they do not assist the investigation of terrorism acts. However, the Committee notes that the purpose of the provisions is the protection of the community via the prevention of terrorism acts, not the investigation of terrorism offences. Alternative powers are available to law enforcement and security agencies for the purpose of investigations include pre-charge detention of terrorism suspects under Part IC of the Crimes Act, and coercive questioning powers under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979.

4.80 The Committee accepts evidence from the AFP that Commonwealth PDOs are important emergency powers that complement state and territory PDO powers. In the current threat environment, it is important that the AFP be empowered to respond to a range of possible threats to the community. The Committee therefore considers that the PDO regime should be continued.

4.81 INSLM Renwick recommended that the PDO regime continue for a further five years. The Committee considers, however, that a sunset period of three years would be more appropriate, with the Committee required to conduct a further statutory review prior to the sunset date. This further review will provide an opportunity to examine the continued necessity for the PDO regime in light of the security environment at the time and any developments in other legislation.

Recommendation 11

4.82 The Committee recommends that the preventative detention regime in Division 105 of the Criminal Code Act 1995 be continued, with the provisions sunsetting after three years.

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Recommendation 12

4.83 The Committee recommends that the Intelligence Services Act 2001 be amended to require the Committee to conduct a further review into the operation, effectiveness and implications of the preventative detention order regime in Division 105 of the Criminal Code Act 1995 prior to the sunset date.

4.84 Under paragraphs 29 (baa) and (bab) of the Intelligence Services Act 2001, it is currently a function of the Committee to monitor and review the performance by the AFP of its functions under Part 5.3 of the Criminal Code (including the PDO regime) and to report its findings to the Parliament. In line with this existing function, the Committee recommends that that the AFP be required to notify this Committee as soon as practicable after any PDO is made. The Committee may then request a written or oral briefing on the circumstances surrounding the making of the order.

Recommendation 13

4.85 The Committee recommends that the Australian Federal Police be required to notify the Committee as soon as practicable after a preventative detention order is made under Division 105 of the Criminal Code Act 1995, and to brief the Committee if requested.

Mr Andrew Hastie MP Chair

105

A. List of submissions

1 Commonwealth Ombudsman

2 Dr Jessie Blackbourn, Professor Andrew Lynch, Dr Nicola McGarrity, Dr Tamara Tulich and Professor George Williams AO

3 Australian Human Rights Commission

 3.1 Supplementary to submission 3

4 Australian Lawyers Alliance

5 Victorian Government

 Attachment 1

6 Dominic Wy Kanak

7 Jacinta Carroll

8 Joint councils for civil liberties

9 Australian Federal Police

10 Australian Lawyers for Human Rights

11 Legal Aid New South Wales

12 Law Council of Australia

 12.1 Supplementary to submission 12

13 Attorney-General's Department and Australian Federal Police

 13.1 Supplementary to submission 13

107

B. Witnesses appearing at public and private hearings

Friday, 1 December 2017 (private hearing)

Parliament House, Canberra

Australian Federal Police

 Andrew Colvin, Commissioner  Ian McCartney, Acting Deputy Commissioner  Elsa Sengstock, Coordinator Legislation Program  Andrew Kelly, Senior Legal Counsel

Friday, 1 December 2017 (public hearing)

Parliament House, Canberra

Attorney-General’s Department

 Anthony Coles, Acting First Assistant Secretary  Julia Galluccio, Principal Legal Officer  Emma Swinbourne, Principal Legal Officer

Australian Federal Police

 Ian McCartney, Acting Deputy Commissioner  Elsa Sengstock, Coordinator Legislation Program  Andrew Kelly, Senior Legal Counsel

Australian Human Rights Commission

 Edward Santow, Human Rights Commissioner

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 Sophie Farthing, Adviser to the Human Rights Commissioner

Department of Foreign Affairs and Trade

 Rebekah Grindlay, Director, Iraq and Syria Taskforce

Individuals

 Jacinta Carroll, Director of National Security Policy, National Security College, Australian National University

Joint councils for civil liberties

 Stephen Blanks, President, NSW Council for Civil Liberties  Michael Cope, President, Queensland Council for Civil Liberties

Law Council of Australia

 Dr Sarah Pritchard, Chair, National Human Rights Committee  Dr Natasha Molt, Deputy Director of Policy, Legal Policy Division  Dr David Neal SC, Member, National Criminal Law Committee

Office of the Commonwealth Ombudsman

 Michael Manthorpe, Commonwealth Ombudsman  Fiona Sawyers, Senior Assistant Ombudsman  Erica Welton, Director, National Assurance and Audit

Friday, 1 December 2017 (private hearing)

Parliament House, Canberra

Attorney-General’s Department

 Anthony Coles, Acting First Assistant Secretary  Julia Galluccio, Principal Legal Officer

Australian Federal Police

 Ian McCartney, Acting Deputy Commissioner  Elsa Sengstock, Coordinator Legislation Program  Andrew Kelly, Senior Legal Counsel

Australian Security Intelligence Organisation

 First Assistant Director-General, Security Advice and Assessments  Acting Coordinator, National Threat Assessment Centre

WITNESSES APPEARING AT PUBLIC AND PRIVATE HEARINGS 109

Department of Foreign Affairs and Trade

 Rebekah Grindlay, Director, Iraq and Syria Taskforce

111

C. Comparison table of control and detention powers

Type of power Approving authority Burden of proof/evidentiary requirement Operational effect Other considerations or requirements

Control order Interim control order requested by senior AFP member, consented to by Attorney-General, then authorised by the Federal Court or Federal Circuit Court.

Balance of probabilities that conditions imposed by the order are reasonably necessary, and responsibly appropriate and adapted, for the purpose of preventing a terrorist act or support for terrorist activities.

A range of obligations, prohibitions and restrictions may be placed upon the person (excluding detention). Duration as determined in the order, up to a maximum of 12 months.

Maximum of three months for a person aged between 14 and 17 years.

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Type of power Approving authority Burden of proof/evidentiary requirement Operational effect Other considerations or requirements

Continuing detention order (Commonwealth)

Attorney-General (or legal representative) may apply to a Supreme Court of a state or territory.

The Court must be satisfied to a high degree of probability, on the basis of admissible evidence, that the person poses an unacceptable risk of committing a serious terrorism offence if released; and satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

Continued post-sentence detention for a period, up to three years, that the Court is satisfied is reasonably necessary to prevent the unacceptable risk.

No limit on the number of orders that can be made.

Preventative detention order (Commonwealth)

Initial (up to 24 hours detention) - a senior AFP officer.

Continuing (up to 48 hours detention) - a relevant judge, retired judge, or AAT member appointed as an issuing

Issuing authority is satisfied there are reasonable grounds to suspect that

- the subject will engage in a terrorist act that is capable of being carried out, and could occur, within the next 14 days;

Person can be detained, for up to 48 hours, with restrictions on who they may contact.

Questioning for investigatory purposes is prohibited.

Children under 16 years of age cannot be detained.

COMPARISON TABLE OF CONTROL AND DETENTION POWERS 113

Type of power Approving authority Burden of proof/evidentiary requirement Operational effect Other considerations or requirements

authority. - possesses a thing in

connection with such a terrorist act; or - has done an act in preparation for, or planning, such a terrorist act.

Satisfied that making the order would substantially assist in preventing a terrorist act occurring; and that detaining for the specified period is reasonably necessary for this purpose.

OR

Satisfied that it is reasonably necessary to detain the subject to preserve evidence of, or relating to, a recent terrorist act that has occurred within the last 28 days.

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Type of power Approving authority Burden of proof/evidentiary requirement Operational effect Other considerations or requirements

Preventative detention order (states and territories)

In most states (including NSW and Victoria), may only be issued by the Supreme Court of that state or by an eligible judge. Some states have similar approving powers to the Commonwealth (senior police officer).

Mostly similar to Commonwealth requirements.

ACT - issuing authority must be satisfied that a PDO is the ‘least restrictive way’ of preventing the act.

Person can be detained for up to 14 days.

Questioning for investigatory purposes is prohibited.

Children under 16 years of age cannot be detained.

ACT - children under 18 years of age cannot be detained.

Part IC Crimes Act 1914 detention powers

Initial arrest by a police officer for a terrorism offence. Extensions to the investigation period must be sought from a magistrate.

Person must be arrested for a terrorism offence. The threshold for arrest is ‘suspects on reasonable grounds’ (section 3WA).

Person may be detained for the purpose of investigations (i.e. including questioning).

The duration of initial investigation period can be no longer than four hours after arrest.

Magistrate may extend

If a person is under 18, an Aboriginal or Torres Strait Islander person, the initial maximum duration of the investigation period is no longer than 2 hours after arrest.

COMPARISON TABLE OF CONTROL AND DETENTION POWERS 115

Type of power Approving authority Burden of proof/evidentiary requirement Operational effect Other considerations or requirements

investigation period any number of times, but cannot exceed 20 hours (24 hours total)

The investigation period time does not include any time disregarded under ss23DB(9). Magistrate may declare extra time as ‘specified time’ not exceeding seven days.

New South Wales investigative detention powers

Initial arrest by any police officer if satisfied that the investigative detention will substantially assist in responding to or preventing a terrorist act.

Senior police officer

A police officer may, without a warrant, arrest a terrorism suspect for the purpose of investigative detention if:

(a) the terrorist act concerned occurred in the last 28 days, or

(b) the police officer has reasonable grounds to

The person may be detained and questioned for the purposes of investigation.

Maximum initial detention period of four days, or up to a maximum of 14 days

Person under 14 years of age cannot be detained.

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Type of power Approving authority Burden of proof/evidentiary requirement Operational effect Other considerations or requirements

must review detention as soon as practicable after the arrest and every 12 hours after that.

An eligible Judge may issue a detention warrant that extends the maximum period of investigative detention.

suspect that the terrorist act concerned could occur at some time in the next 14 days,

and the police officer is satisfied that the investigative detention will substantially assist in responding to or preventing the terrorist act.

‘Terrorism suspect’ is defined in similar terms to the requirements for a person subject to a preventative detention order (see above).

extended through detention warrants.