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Australian Parliamentary Joint Committee on Human Rights |
1.2 The committee seeks a response from the relevant minister with respect to the following bills and instrument.
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Purpose
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This bill seeks to establish an extended supervision order scheme for high
risk terrorist offenders, whereby a court could impose
any conditions on a
person that it is satisfied on the balance of probabilities are reasonably
necessary, and reasonably appropriate
and adapted, for the purpose of protecting
the community from the unacceptable risk of the offender committing a serious
offence
under Part 5.3 of the Criminal Code.
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Portfolio
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Attorney-General
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Introduced
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House of Representatives, 3 September 2020
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Rights
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Liberty; freedom of movement; prohibition against retrospective criminal
laws; fair trial; privacy; freedom of expression; freedom
of association; right
to work; right to education; life; security of the person
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Status
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Seeking additional information
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1.3 Schedule 1 of the bill seeks to amend the Criminal Code Act 1995 (Criminal Code) to establish an extended supervision order scheme for 'high-risk terrorist offenders'. This scheme would operate in tandem with the existing continuing detention order scheme in Part 5.3 of the Criminal Code (which allows the court to make an order to allow for the continued imprisonment of certain terrorist offenders after completion of their sentence). The orders would be collectively referred to as 'post sentence orders'.
1.4 On application by the Australian Federal Police Minister (or their legal representative),[2] a State or Territory Supreme Court could make an extended supervision order, including as an alternative to a continuing detention order.[3] The effect of an extended supervision order would be to impose conditions on the person, for a period of up to three years, contravention of which would be an offence punishable by imprisonment of up to five years.[4] In addition, a court could make an interim supervision order of up to 28 days, where an application had been made for an extended supervision order.[5] Another extended supervision order could be made after the original three year period expires. [6]
1.5 To make an extended supervision order, the court would have to be satisfied on the balance of probabilities that there is an unacceptable risk of the offender committing a serious terrorism offence.[7] The court may impose any condition it considers is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk.[8] The conditions that the court may impose are not limited in any further way, rather the bill sets out that such conditions may prohibit or restrict specified conduct, or impose obligations on the individual; or impose restrictions, obligations or prohibitions in relation to classes of conduct.[9] The bill also sets out an extensive and non-exhaustive list of the conditions which a court may impose, including conditions that the offender:
• not be present at specified areas or places or classes of areas or places;
• reside at specified premises, and remain there between specified times each day (which should be for no more than 12 hours within any 24 hours);
• not leave Australia or the State or Territory in which they reside;
• not communicate or associate with specified individuals or classes of individuals;
• not access or use specified forms of telecommunications or other technology (including the internet);
• not engage in specified activities or specified work;
• not engage in specified education or training without permission;
• must undertake anything specified in the order or as directed by a specified authority relating to treatment, rehabilitation, intervention programs or activities, or psychological or psychiatric assessment or counselling.[10]
1.6 A person would be eligible for a post-sentence order where: they have been convicted of a specified terrorism related offence;[11] are at least 18 years old at the time their sentence ends; and a precondition for a post-sentence order is met. These pre-conditions include that the person:
• is currently detained in custody (either for the terrorism offence; for another offence but where they have previously been convicted of a terrorism offence;[12] pursuant to a continuing detention order; for breach of an extended supervision order;[13] or if they were subject to an extended or interim supervision order and they were imprisoned for another offence);
• has been released from prison, and is currently subject to an extended or interim supervision order; or
• has been released from prison, and is currently subject to an interim or confirmed control order.[14]
1.7 The AFP minister or their legal representative would be required to apply for review of an extended supervision order within twelve months of the order being in force, or since the most recent review of the order; or if the individual is detained in custody, and the relevant order has consequently been suspended, on or before the day that the person's detention ends.[15] In addition, the AFP minister or the subject of the order (or their respective legal representatives) could apply to a Supreme Court for review of a post-sentence order at any time,[16] but the court must dismiss the application unless there are new facts or circumstances justifying the review, or it would be in the interests of justice to review the order.[17]
1.8 To the extent that an extended (or interim) supervision order may have the effect of protecting the public from harmful acts, this scheme may have the capacity to promote the right to life and security of the person.[18] The right to life imposes an obligation on the state to protect people from being killed by others or identified risks,[19] and the right to security of the person requires the state to take steps to protect people against interference with personal integrity by others.[20] The statement of compatibility notes that the bill promotes the right to life and security of the person by providing an additional tool to manage the risk posed by terrorist offenders post-sentence.[21] It states that the bill is aimed at a cohort of persons, post-sentence offenders, who in an overseas context have been proven to pose a risk to the security of persons by carrying out acts of violence.[22]
1.9 In addition, as a court could now choose to make a supervision order rather than a continuing detention order, which would deprive a person of their liberty by causing them to continue to be imprisoned, this scheme may also promote the right to liberty.[23]
1.10 However, the proposed introduction of an extended (and interim) supervision order scheme, which would be based on an assessment of a person's future risk of engaging in conduct, also appears to engage and limit a number of other human rights. At the outset it is noted that the imposition of a supervision order, that may significantly curtail individual rights and freedoms, which is said to be made not on the basis of criminal conviction but on the basis of future risk of offending, is a serious measure for the state to take. While the proceedings for a supervision order would appear be characterised by the usual procedures and rules for civil proceedings,[24] the application of these indicia of judicial processes does not alter the fact that the proposed supervision order scheme fundamentally inverts basic assumptions of the criminal justice system: that persons may only be punished on the basis of offences, the existence of which has been proven beyond reasonable doubt. This bill proposes that persons who have committed offences and have completed their sentences for those offences may continue to be subject to coercive and invasive supervisory measures, because, on the balance of probabilities (that is, it being more likely than not), the offender poses an 'unacceptable risk' of committing a terrorism offence in the future. This inverts a fundamental assumption of democratic systems of criminal law: that a person should not be punished for a crime which they may commit in the future. The United Nations Human Rights Committee has strongly cautioned against punishing a person again after their initial punishment has concluded, based on an assessment of possible future risk:
The concept of feared or predicted dangerousness to the community applicable in the case of past offenders is inherently problematic. It is essentially based on opinion as distinct from factual evidence, even if that evidence consists in the opinion of psychiatric experts... While Courts are free to accept or reject expert opinion and are required to consider all other available relevant evidence, the reality is that the Courts must make a finding of fact on the suspected future behaviour of a past offender which may or may not materialise.[25]
1.11 The imposition of an extended supervision order may engage the prohibition against retrospective criminal laws. An individual would only be eligible for an extended or interim supervision order where they had been convicted of a specified terrorism offence. This would apply to persons who are currently incarcerated for such offences, although the proposed scheme was not in existence at the point at which they were convicted.[26] Consequently, to the extent that this proposed scheme would apply to persons who have already been convicted and sentenced for a terrorism offence, imposing what could be considered an additional penalty, over and above the original sentence, this scheme could engage the absolute prohibition against retrospective criminal laws.
1.12 Article 15 of the International Covenant on Civil and Political Rights prohibits retrospective criminal laws. This requires that laws not impose criminal liability for acts that were not criminal offences at the time they were committed and that the law not impose greater penalties than those which would have been available at the time the acts were done. The prohibition against retrospective criminal laws is absolute and may never be subject to permissible limitations.
1.13 The statement of compatibility states that the imposition of an extended supervision order is not a penalty for criminal offending, and that it has a protective rather than a punitive or retributive purpose.[27] It states that the decision of a court to impose such an order is based on an assessment of future risk, not punishment for past conduct, and that this proposed scheme consequently does not breach the prohibition against retrospective criminal laws. However, the characterisation of an extended or interim supervision order as being non-punitive does not mean that such an order would not have a punitive effect, nor that it would not constitute a heavier penalty than the one that was applicable at the time the offence was committed. Therefore, further information is required in order to assess whether the measure engages the prohibition on retrospective criminal laws.
1.14 In addition, the proposed introduction of an extended and interim supervision order scheme further engages and may limit a number of human rights. In determining an extended or interim supervision order, a court would be empowered to impose any condition on a person, which the court was satisfied was reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of an offender committing a serious terrorism offence.[28] Consequently, an extended or interim supervision order may engage and limit a wide range of human rights, including the:
• right to privacy, which prohibits arbitrary and unlawful interferences with an individual's privacy, family, correspondence or home; and protects the right to personal autonomy and physical and psychological integrity.[29] A supervision order would involve an individual being subject to monitoring, and possibly being restricted in the activities which they may undertake and the places which they may go. A court may also order that a person must participate in treatment or rehabilitation programs, or undertake psychological or psychiatric assessment or counselling.[30] Further, a court could order that an offender may apply for an exemption from some of the specified conditions, but to do so they would need to apply to a specified authority asking for such an exemption[31] (for example, an offender may need to apply to a police officer to be allowed to go to a specified area to attend a doctor's appointment).[32] In addition, the imposition of a supervision order would trigger a range of other monitoring powers, which are outlined below from paragraphs [1.60] to [1.64].
• right to freedom of movement, which includes the right to move freely both within one's country, and to travel to other countries.[33] A supervision order could require that a person not be present at specified places or classes of place; that they reside at specified premises; that they remain at a specified premises for up to 12 hours per day; that they not leave Australia or their home state or territory; and that they surrender Australian or foreign travel documents.[34]
• right to liberty,[35] which prohibits the arbitrary deprivation of liberty, and potentially applies where a restriction on a person's movement is to such a degree and intensity that it would constitute a 'deprivation' of liberty, particularly where an element of coercion is present.[36] A supervision order may require a person to remain at specified premises for up to 12 hours a day, or on specified days, which may constitute a 'deprivation' of liberty.[37]
• rights to freedom of expression, assembly and association, which protect the right to all forms of expression and the means of their dissemination (including spoken, written and sign language and non-verbal expression), the right of all persons to group together voluntarily for a common goal and to form and join an association, including by gathering as a group.[38] A supervision order may limit the persons or classes of person with whom a person can communicate or associate (including by limiting or prohibiting the use of social media or certain forms of communication).[39]
• right to work, which provides that everyone must be able to freely accept or choose their work, and includes a right not to be unfairly deprived of work.[40] A supervision order may limit the type of work (including voluntary work) which a person is permitted to undertake.[41]
• right to education, which provides that education should be accessible to all.[42] A supervision order may prohibit a person from engaging in any training or education without the prior permission of a specified authority.[43]
• right to protection of the family, which requires the state not to arbitrarily or unlawfully interfere in family life and to adopt measures to protect the family.[44] As a supervision order may prohibit a person from associating with certain persons, and prohibit them from travelling, such conditions could have the effect of interfering with that person's family life, and their ability to associate with their family members.[45]
• right to freedom of religion,[46] which includes the right to demonstrate or manifest religious or other beliefs, by way of worship, observance, practice and teaching.[47] As a supervision order may prohibit a person from being present at specified areas or places (or classes of area or place), or from associating with specified individuals (or classes of persons), such conditions may have the effect of restricting a person's capacity to manifest their religious beliefs (for example, by attending religious worship).[48]
• right to an adequate standard of living, which requires that the state take steps to ensure the availability, adequacy and accessibility of food, clothing, water and housing for all people in its jurisdiction.[49] As a supervision order may require a person to remain in their house subject to curfew-like conditions and either not work, or the conditions may be so stringent they are not capable of working, this may limit their right to an adequate standard of living.
• rights of the child, which provides that children have special rights under human rights law taking into account their particular vulnerabilities.[50] Where a child has been convicted of an offence and sentenced to imprisonment, the aim of the system in which they are incarcerated shall be to foster reformation and social rehabilitation.[51] With respect to persons who were children at the time of their alleged offending, the United Nations Committee on the Rights of the Child directs that child justice systems should extend protection to children who were below the age of 18 at the time of the commission of the offence but who turn 18 during the trial or sentencing process.[52] An individual may be eligible for an extended or interim supervision order where the relevant terrorism-related offence which renders them eligible was committed while they were aged under 18 years.[53] That is, a child who was convicted of a terrorism offence, and subject to a custodial sentence which they completed as an adult, could be subject to an extended or interim supervision order.
1.15 Most of these rights may be subject to permissible limitations. However, in order for a limitation to be permissible under international human rights law it must be prescribed by law, pursue a legitimate objective, be rationally connected to (that is, effective to achieve) that objective and be a proportionate means of achieving that objective.[54]
1.16 The requirement that interferences with rights must be prescribed by law includes the condition that laws must satisfy the 'quality of law' test. This means that any measures which interfere with human rights must be sufficiently certain and accessible, such that people understand the legal consequences of their actions or the circumstances under which authorities may restrict the exercise of their rights.[55]
1.17 In this respect, a court's assessment of whether there is an 'unacceptable risk' of a person committing a serious terrorism offence in the future raises some questions as to whether this would satisfy the quality of law test. It is not clear what would constitute the difference between an acceptable risk that a person may commit a serious terrorism offence in the future, and an unacceptable risk. The statement of compatibility does not address this issue. Therefore it is not clear that the question of whether a person poses an 'unacceptable' risk is sufficiently certain such that a person could understand the circumstances in which a supervision order may be imposed, such that this would satisfy the 'quality of law' test.
1.18 In addition, any limitation on a right must be shown to be aimed at achieving a legitimate objective. A legitimate objective is one that is necessary and addresses an issue of public or social concern that is pressing and substantial enough to warrant limiting the right.
1.19 The statement of compatibility states that the bill seeks to provide an additional tool to manage the risk posed by terrorist offenders post-sentence; to enhance the capabilities of law enforcement agencies to respond to a heightened terrorism threat;[56] and to protect Australia's national security.[57] The explanatory memorandum points to two incidents of terrorism in the United Kingdom in 2019 and 2020 as evidence that extremists continue to pose a threat, including after they have served sentences for terrorism offences.[58] The statement of compatibility further notes that politically motivated violent acts can threaten lives, and 'perpetuate a climate of fear which is socially divisive, threatening the cohesiveness of Australian society'.[59]
1.20 Addressing a risk of future harm to the community posed by persons convicted of terrorism offences would likely be capable of constituting a legitimate objective for the purposes of human rights law. However, it is noted that the explanatory materials do not set out any evidence of a pressing or substantial concern that requires addressing within Australia. In this respect, it is not clear how, or to what extent, two examples of violent incidents in the United Kingdom would evidence a risk of such incidents in Australia.
1.21 Under international human rights law, it must also be demonstrated that any limitation on a right has a rational connection to the objective sought to be achieved. The key question is whether the relevant measure is likely to be effective in achieving the objective being sought.
1.22 The statement of compatibility does not provide evidence of the accuracy of expert assessments in predicting a person's potential future risk of engaging in terrorism conduct. If such assessments are not reliably accurate, this raises questions as to whether the extended supervision order scheme would be effective to achieve the goal of protecting the public and national security. This is because, regardless of what conditions were imposed pursuant to an extended supervision order, such an order could only be effective to achieve the goal of protecting the public from terrorism related conduct if the individual in question did, in fact, pose a threat of engaging in such conduct in the future.
1.23 The explanatory memorandum states that, in determining whether to make an extended supervision order, the court could appoint one or more 'suitable qualified experts with medical, psychiatric, psychological or other expertise to assess and report on the risk posed by the offender'.[60] It states that an example of an expert who may be appointed by the court could be a person with expertise in forensic psychology or psychiatry (and, in particular, recidivism) coupled with specific expertise on terrorism, radicalisation to violent extremism and countering violent extremism.[61] The term 'relevant expert' means a registered medical practitioner, psychologist or any other expert who is competent to assess the risk of a terrorist offender committing a serious Part 5.3 terrorism offence if the offender is released into the community.[62]
1.24 It would appear that such an expert would not be restricted in the methodologies which they may apply in making such an assessment. Australian courts have questioned the use of risk assessments, particularly as they can be incorrect,[63] and because they may be regarded as an informed guess.[64] Furthermore, there are questions as to whether the tools currently available to assess a future risk of terrorism—as opposed to the risk of future violent offending—may be insufficient.[65] It is unclear, therefore, whether an expert assessment as to the risk of a person engaging in future terrorism related conduct could be effective to accurately assess such a risk, and consequently whether the imposition of an extended supervision order would be rationally connected with the objective of protecting the public from terrorist acts.
1.25 In assessing the proportionality of a proposed limit on a human right, it is necessary to consider whether the proposed limitation is sufficiently curtailed. This requires consideration of any safeguards, the availability of independent oversight and external review, and the capacity for a proposed scheme to operate flexibly, and treat different cases differently. In this regard, there are questions as to whether the proposed extended supervision order scheme would be proportionate to the objectives sought to be achieved.
1.26 The bill proposes that, in determining whether to issue an extended (or interim) supervision order, the AFP minister would be required to satisfy a lower 'balance of probabilities' standard of proof,[66] in contrast to the 'high degree of probability' standard required in the case of a continuing detention order.[67] The explanatory memorandum states that this reflects the less restrictive nature of an extended supervision order (as compared with a continuing detention order), and reflects the standard that applies in control order proceedings.[68] While it is recognised that an extended supervision order does not amount to a deprivation of liberty in the same way as remaining imprisoned under a continuing detention order does, as set out above, the impact on human rights could be quite considerable, depending on the conditions imposed. The fact that the conditions on which the court can impose must be those that the court is satisfied are appropriate and adapted for the purpose of protecting the community from the unacceptable risk of a terrorist attack, suggests that the conditions may be stringent, in order for them to fulfil the stated purpose. In addition, it would appear that there would be no limit as to the number of conditions which could be imposed under a single order (noting, however, that the court can only impose conditions which it is satisfied are appropriate and adapted for the purpose of protecting the community). As such, it is not clear why it is appropriate that the imposition of potentially extensive and stringent conditions should be able to be imposed only on the basis that it is more likely than not that an offender would pose an unacceptable risk, rather than that there is a high degree of probability that they would.
1.27 It is also not clear how long a person may be required to remain at specified premises under an extended supervision order. The bill provides that the conditions the court may impose include that an offender remain at specified premises between specified times of the day, but this must be no more than 12 hours within any 24 hours'. However, this general condition is stated to apply 'without limiting' the overall section which states that a court could impose 'any conditions' which the court is satisfied 'on the balance of probabilities, are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence'.[69] Therefore, it is not clear, as a matter of statutory interpretation, if a court could impose a condition that a person must remain within specified premises for more than 12 hours a day, if it were satisfied that such a condition was reasonably necessary, and reasonably appropriate and adapted in that particular case. In relation to safeguards, a court could specify that some conditions included in an extended or interim supervision order are ones from which the individual could apply for a temporary exemption from a specified authority.[70] This would enable the individual to then apply in writing to a specified authority for an exemption,[71] providing a reason for the request. The specified authority may grant or refuse the exemption, including granting the exemption subject to reasonable directions. The explanatory memorandum explains that this is intended to ensure that extended supervision orders are sufficiently flexible to manage a person in the community.[72] It provides the following example of where such an exemption may be made:
[A]n [extended supervision order] may prohibit an offender from going to a particular location, such as the area around an airport. If the Court had made that an exemption condition, then the offender could apply to the person or persons specified in the order for an exemption to attend that location at a particular time for a particular reason, such as a medical appointment. The specified authority could approve the exemption subject to certain conditions, such as identifying a specific period of time in which the offender may be present in that location, or requiring the offender to make themselves known to a particular person at the relevant building before attending the appointment.[73]
1.28 This may provide the capacity to treat different cases differently, and assists with the proportionality of the measure. However, it is noted that having to apply to a specified authority (such as a police officer) to do specified things (such as attend medical appointments), itself limits a person's right to privacy, with the possibility of many day-to-day, and highly personal, decisions needing to be approved by another authority. The bill provides no guidance on when, and on what criteria, a specified authority may grant or refuse the exemption. As such, the specified authority is given an absolute discretion to refuse the exemption. There is also no timeframe by which a decision must be made and the bill does not require the specified authority to provide reasons for a decision.[74] Rather, as the explanatory memorandum notes, it would appear that the only remedy which a person could seek would be seeking a variation of the condition (through the courts) where an exemption is refused.[75] Consequently, questions remain as to whether this would operate effectively as a safeguard in practice.
1.29 In addition to the potentially significant number and types of conditions which could be imposed under an extended supervision order, it appears there is no limit to the number of successive extended supervision orders which may be made.[76] Rather, proposed subsection 105A.7A(5) confirms that a court may make an extended supervision order in relation to a person which begins to be in force immediately after a previous extended supervision order (or continuing detention order) ceases to be in force.[77] Consequently, it would appear that a person could feasibly be subject to successive extended supervision orders indefinitely, and the amount of time an offender may be subject to a supervision order could exceed the time spent incarcerated pursuant to the original sentence for the offence.
1.30 There are also concerns as to whether a person who may be made subject to a supervision order would have access to all of the evidence on which the decision to subject them to such an order would be based. An individual would be entitled to reasons for a decision made with respect to a supervision order,[78] and such a decision would be appealable.[79] In addition, the subject of a supervision order, or their legal representative, or the AFP minister (or their legal representative) could apply to the Supreme Court for variation of an order.[80] While the capacity to appeal an extended supervision order, or seek to vary a condition may have the capacity to serve as a safeguard, this could be significantly limited by restrictions on access to evidence associated with the order, as discussed in detail below at paragraphs [1.42] to [1.55].
1.31 Lastly, questions remain as to how the proposed supervision order scheme will interact with parole provisions. Currently, a person convicted of a terrorism offence may be eligible to be on parole for the last quarter of their sentence.[81] However, the Attorney-General (who makes the decision about parole for terrorism offenders) must not make a parole order unless satisfied exceptional circumstances exist to justify the making of the order.[82] As such, it appears unlikely that many terrorist offenders would be eligible for parole. It appears that in many ways the type of conditions that could be imposed on a person subject to a supervision order may be similar to those imposed on a person subject to parole. The primary difference between parole and the proposed extended supervision order appears to be that parole allows an offender to serve part of their already ordered sentence of imprisonment in the community, and its time span is fixed to that sentence, rather than being in addition to the sentence imposed, and of potentially unlimited time duration. This raises the question of why and how the power to release an offender on parole during the final quarter of their sentence subject to strict conditions (a less rights restrictive alternative to imposing a post-sentence extended supervision order) would not be effective to achieve the objective of protecting the public from the risk of terrorism conduct, and protecting Australia's national security, including by supporting a person to rehabilitate and reduce the risk of recidivism. Indeed, the Crimes Act states that the purposes of parole are to rehabilitate and reintegrate the offender, and to protect the community.[83] Parole provides offenders with a structured, supported and supervised transition so that they can adjust from prison back into the community, rather than returning straight to the community at the end of their sentence without supervision or support, and conditions can be imposed which are designed to minimise their risk of reoffending.[84]
1.32 Further, as an extended supervision order is proposed to be applied post-sentence, the prison environment in which terrorist offenders are held, and the services provided to offenders during that period of incarceration to help reduce the risk of recidivism, are also relevant considerations.[85] This is directly connected with the objective of protecting the community and Australia's national security, as well as with the capacity for strict parole conditions to be effective to achieve this. In this respect, no information has been provided as to whether, how, and to what extent the current prison services and parole conditions available to manage terrorist offenders are failing to reduce the risk of recidivism with respect to terrorism offences.
1.33 The introduction of extended and interim supervision orders would constitute a less rights-restrictive alternative to continuing detention, insofar as an individual subject to a supervision order would not be imprisoned. However, given the breadth of potential conditions which could be imposed under a supervision order, and the absence of any limits on the number of successive orders which could be made, extended supervision orders would raise a host of human rights concerns.
1.34 Foremost, imposing what may, in some circumstances, amount to a penalty (for the purposes of international human rights law) on a person because of a risk that they may engage in future criminal conduct is inherently problematic in that it inverts basic principles of the criminal justice system. Most significantly, where conditions imposed are so severe that they amount to a penalty, this inverts the principle that a person should be punished only for a crime which it has been proven that they have committed, not the risk that they may, in future, commit a crime.
1.35 In addition, the imposition of a supervision order on an individual who was convicted of a terrorism offence before the scheme became law may engage the absolute prohibition against retrospective criminal laws. The imposition of a supervision order could only be made where an individual had been convicted of, and imprisoned for, a terrorism offence (and the court considers the measures are reasonably necessary for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence). Consequently, the imposition of an extended supervision order on those offenders who have completed their sentence, may be regarded as an additional penalty for that past conduct, if the conditions to be imposed on an offender are so severe as to amount to a penalty.
1.36 In addition, the establishment of an extended and interim supervision order scheme engages a significant number of human rights, some of which are not identified in the statement of compatibility. While these rights may be permissibly limited, for a limitation to be permissible under international human rights law it must be prescribed by law, pursue a legitimate objective, be rationally connected to (that is, effective to achieve) that objective and be a proportionate means of achieving that objective. In this respect, further information is required in order to fully assess this.
1.37 Further information is required in order to assess the compatibility of the proposed measures with multiple human rights, and in particular:
(a) whether the type of conditions that may be imposed under an extended supervision order may be so severe as to amount to a penalty;
(b) why it is appropriate to apply the extended supervision order scheme to those who committed offences before this scheme (or the continued detention order scheme) was in operation;
(c) what factors would a court consider in determining whether a person poses an 'unacceptable risk' in the context of a court assessing a person's level of future risk under the proposed supervision order scheme, and what threshold would a court apply in determining whether a risk is an acceptable or unacceptable one;
(d) what evidence is there of a pressing and substantial concern to which the proposed extended and interim supervision order scheme is directed (including evidence of terrorism offenders in Australia who have been released from a custody sentence and subsequently engaged in terrorism related conduct);
(e) how an expert assessment as to the risk of a person engaging in future terrorism related conduct would be effective to accurately assess such a risk, and consequently whether the imposition of an extended supervision order would be rationally connected with the objective of protecting the public from terrorist acts;
(f) why, and in what respects, the power to release an offender on parole during the final quarter of their sentence (subject to conditions) would not be effective to protect the public from any potential risk sought to be addressed by these measures, including by supporting a person to rehabilitate and reduce their risk of recidivism;
(g) whether a person could be released from prison and be subject to both parole conditions and conditions under an extended or interim supervision order, and if so, how would any conflict between the two be managed;
(h) what percentage of persons who have been imprisoned for a terrorism offence under Part 5.3 of the Criminal Code have received parole in the past 10 years;
(i) whether, how, and to what extent the current prison services available to manage terrorist offenders are not effective in reducing the risk of recidivism with respect to terrorism offences;
(j) why it is appropriate that the civil standard of proof (balance of probabilities) should be required for the issue of an extended or interim supervision order, noting the potential significant impact on human rights by the imposition of a supervision order; and
(k) whether, as a matter of statutory interpretation, a court could impose a condition that an offender remain at specified premises for more than 12 hours within any 24 hour period, nothing that the general conditions listed in proposed subsection 105A.7B(3) are expressly stated as being 'without limiting' a court's ability to impose any condition they were satisfied was necessary (under proposed subsection 105A.7B(1)).
1.38 The committee notes that the bill seeks to establish a post-sentence extended supervision order scheme for high-risk terrorist offenders, which would enable a court to impose any conditions on a person that it is satisfied on the balance of probabilities are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence.
1.39 To the extent that a supervision order may have the effect of protecting the public from harmful acts, the committee considers this scheme promotes the right to life and security of the person. The committee also notes that the introduction of extended supervision orders would constitute a less rights-restrictive alternative to the existing continuing detention order scheme, as an individual subject to a supervision order would not be subject to continued imprisonment. In this respect, the committee notes that these measures may promote the right to liberty.
1.40 However, the committee considers that given the breadth of potential conditions which could be imposed under a supervision order, extended supervision orders also engage a number of human rights. The committee notes that most human rights may be permissibly limited if it is shown to be reasonable, necessary and proportionate.
1.41 In order to form a concluded view of the human rights implications of this bill, the committee seeks the Attorney-General's advice as to the matters set out at paragraph [1.37].
1.42 The bill sets out the requirements for providing offenders and their legal representatives with a copy of applications and materials where the AFP minister (or their legal representative) applies to the court in relation to a supervision order.[86] However, it also sets out mechanisms whereby sensitive information may be excluded from applications or materials where the information is national security information, subject to a claim of public interest immunity, or is terrorism material.[87]
1.43 In particular, proposed section 105A.14B provides that the AFP minister (or their legal representative) is not required to include in the application or material given to a terrorist offender, any information where the AFP minister is likely to seek to refuse disclosure of the information under the National Security Information (Criminal and Civil Proceedings) Act 2004 (National Security Information Act).[88] Schedule 1[89] also seeks to amend the National Security Information Act to prevent the disclosure of information relating to interim or extended supervision order proceedings where such disclosure is likely to prejudice national security (except to the extent that preventing the disclosure would seriously interfere with the administration of justice).[90]
1.44 This would enable a court to make special orders allowing the court to consider information which is not disclosed to the offender or their legal representative,[91] including in proceedings relating to an application for a supervision order, or for variation or review of a supervision order, or an application for a continuing detention order where the court considers whether to make an extended supervision order instead. Where the Act has been invoked, the court may hold a closed hearing, which the offender and their legal representative could be excluded from,[92] to address whether disclosure of the information in question would be potentially prejudicial to national security, and whether to allow a witness to be called.[93] The court could then order that it may consider information which has not been disclosed to the offender or their legal representative as part of the substantive proceedings.[94]
1.45 In determining whether to make such an order, the court must be satisfied that the offender has been given sufficient information about the allegations to enable effective instructions to be given, taking into consideration: the risk of prejudice to national security if an order were not made; whether an order would have a substantial adverse effect on the substantive hearing in the proceeding; and any other matter the court considers relevant.[95] The individual and their legal representative could be excluded from both the initial closed hearing and the substantive extended supervision order hearing where information which the individual has been excluded from seeing is being considered by the court. In such instances, the court may appoint a 'special advocate' to represent the interests of the offender by making submissions, adducing evidence and cross-examining witnesses.[96] The explanatory memorandum explains that a special advocate is a security-cleared lawyer or former judge.[97]
1.46 The capacity to restrict the subject of an application for an extended or interim supervision order from accessing evidence which may nevertheless be used against them, or from being able to appear at a hearing regarding the admissibility of such evidence, engages and may limit the right to a fair hearing.
1.47 The right to a fair hearing applies to both criminal and civil proceedings, to cases before both courts and tribunals, and extends to the pre-trial stages of substantive proceedings.[98] It is concerned with procedural fairness, and encompasses notions of equality in proceedings, the right to a public hearing and the requirement that hearings be conducted by an independent and impartial body. The ability to test evidence on which allegations are based is a fundamental component of the right to a fair hearing. Limitations on the right to a fair hearing are permissible where the measures pursue a legitimate objective and are rationally connected with and proportionate to that objective.
1.48 The statement of compatibility notes that these proposed measures would engage the right to a fair hearing.[99] It states that these measures seek to achieve the legitimate objective of protecting Australia's national security, as the inappropriate disclosure of national security information has the potential to prejudice Australia's national security and the security of all Australians.[100] It states that information relevant to supervision order proceedings may disclose sensitive sources, methodologies and capabilities employed by security agencies to obtain information about terrorist activities, and revealing this to the offender risks jeopardising ongoing investigations and has consequences for the safety of human sources.[101] Protecting national security and investigations is likely to constitute a legitimate objective for the purposes of international human rights law, and the measures may be rationally connected to that objective.
1.49 With respect to proportionality, the statement of compatibility states that the extent to which information may be excluded, or the individual's access to that information controlled, is limited to the extent necessary to protect national security, and is to be ultimately decided on by the court.[102] The statement of compatibility states that, where the National Security Information Act has been successfully invoked and the court has ordered a closed hearing, the appointment of a special advocate is one mechanism available to ensure a fair hearing where the individual is not able to receive certain highly sensitive information, and that the offender will be given sufficient information about the allegations to enable effective instructions to be given in relation to those allegations.[103]
1.50 With respect to the proportionality of the measure, the fact that the court makes the assessment as to whether to hold a closed hearing, and to admit certain evidence without providing it to both parties, may operate to safeguard the right to a fair hearing. However, it is noted that the National Security Intelligence Act provides that in deciding whether to disclose information to the offender, the court must give greatest weight to the Attorney-General's certificate stating that there would be a risk to national security if the information were disclosed, than to whether it would have a substantial adverse effect on the right to a fair trial.[104]
1.51 In addition, the ability of an offender to communicate with the special advocate would appear to be heavily restricted. The Act states that, although legal professional privilege would operate between a special advocate and the individual, the relationship between them is not that of legal representative and client.[105] The court could make orders prohibiting or restricting communication between the special advocate and the individual before the disclosure of information to the special advocate, if it were satisfied that it is in the interests of national security to do so.[106] In addition, once the relevant national security information had been disclosed to the special advocate, their ability to disclose the information to the offender would be restricted,[107] as would their ability to communicate with any person about any matter connected with the proceeding.[108] The person in relation to whom an extended supervision order was being sought could only communicate with a special advocate in writing through their legal representative,[109] and the special advocate could only correspond with them in writing and with the prior approval of the court.[110] It is unclear, therefore, how the individual could provide the special advocate with adequate instructions with respect to the restricted information. This would appear, in such instances, to defeat the capacity of the special advocate scheme to protect the individual's right to a fair hearing. It is also noted that while a court may appoint a special advocate, there is no requirement that a court do so even where it is considering withholding sensitive information from the offender or their legal representative.[111]
1.52 The United Nations Human Rights Committee has explained that the right to a fair hearing requires that each side to a matter be given the opportunity to contest all the arguments and evidence adduced by the other party,[112] and that arguments must be open to challenge by the parties.[113] With respect to the use of special advocates, the European Court of Human Rights has recognised that in some limited circumstances (including those relating to national security), full disclosure of evidence may not always be possible.[114] However, the court has held that a hearing will not be fair ‘unless any difficulties caused to the defendant by a limitation on his rights are sufficiently counterbalanced by the procedures followed by the judicial authorities’.[115] In this respect, the court considered that the use of a special advocate may have the capacity to serve as such a counterbalance, but not if the individual was not provided with sufficient information about the allegations against them such that they could give the special advocate effective instructions.[116] The United Nations Special Rapporteur on human rights while countering terrorism has similarly cautioned that a special advocate cannot always cure the disadvantages of a person not being made aware of the case against them.[117]
1.53 The statement of compatibility states that a special advocate may make arguments querying the need to withhold information from the offender, and challenge the relevance, reliability and weight of such information.[118] It further states that the appointment of such an individual ensures that the offender has a reasonable opportunity to present their case 'under conditions which do not disadvantage them as against other parties in the proceedings'.[119] However, it appears that an individual who is unable to communicate freely and confidentially with a special advocate at all stages of the relevant proceedings may be at a disadvantage compared with the other party (being the AFP minister or their legal representative).
1.54 The statement of compatibility also states that, in contrast to a supervision order, when a court is considering making a continuing detention order, it cannot take into account evidence that has not also been given to the offender. It states that in these circumstances a court could instead consider the sensitive information and the potential harm from its disclosure and weigh that against the public interest in the offender receiving all relevant material. After making this assessment the court may order the redaction of sensitive information, summarising information to remove sensitivities or that the material be disclosed to the offender. This means that the AFP minister is not able to rely on evidence that is not put to the offender in relation to continuing detention orders. These safeguards do not apply to supervision orders because, the statement of compatibility says, these orders allow for supervision rather than detention.[120] However, as noted above at paragraph [1.26], while an extended supervision order does not amount to a deprivation of liberty, the impact on human rights could be quite considerable, depending on the conditions imposed, many of which could be very stringent. As such, it is not clear why it is appropriate to allow the court to rely on evidence that the offender may not have had a sufficient opportunity to challenge. It is noted that evidence is susceptible to being misleading if it is insulated from effective challenge, and this risk is magnified in circumstances where the standard of proof is lower than that applying in criminal proceedings (as is the case with extended supervision orders, see paragraph [1.26] above).
1.55 Consequently, further information is required in order to assess the compatibility of these proposed measures with the right to a fair hearing, and in particular:
(a) noting the potential significant impact on human rights by the imposition of a supervision order, why it is appropriate that a court considering a supervision order should have different powers to admit evidence, which the offender may not have had a sufficient opportunity to challenge, than those applicable in continuing detention order proceedings;
(b) when will sufficient information be provided to an offender in order to allow them to give effective instructions to a special advocate, and will this information be given before restrictions are placed on communication with the special advocate; and
(c) will there be circumstances in which a special advocate will not be appointed where a court is considering whether to admit evidence which has not been provided to an offender or their legal representative.
1.56 The committee notes that the bill sets out mechanisms whereby an offender and their legal representative may not be provided with national security information relating to a supervision order. This may result in information being used in evidence against the offender without them being able to directly challenge it.
1.57 The committee notes that these measures engage and may limit the right to a fair hearing. This right may be permissibly limited if it is shown to be reasonable, necessary and proportionate.
1.58 The committee considers these measures seek to achieve the legitimate objective of protecting Australia's national security, as the inappropriate disclosure of national security information has the potential to prejudice Australia's national security and the security of all Australians. The committee notes that where a court has ordered a closed hearing, there is a process whereby a special advocate may be appointed where the offender is not able to receive certain highly sensitive information, and that the offender will be given sufficient information about the allegations to enable instructions to be given in relation to those allegations. However, the committee notes that questions remain as to the adequacy of these safeguards.
1.59 In order to form a concluded view on these matters, the committee seeks the Attorney-General's advice as to the matters set out at paragraph [1.55].
1.60 The bill also seeks to amend the monitoring and surveillance powers under the Crimes Act 1914 (Crimes Act), Surveillance Devices Act 2004 (Surveillance Devices Act), and Telecommunications (Interception and Access) Act 1979 (Interception and Access Act).[121] This would extend the following surveillance and monitoring powers to the proposed extended (and interim) supervision order powers, and to decisions concerning the making of a continuing detention order:
• monitoring warrants under the Crimes Act, which may include powers to search premises; inspect, examine, measure or test things on the premises; inspect or copy documents; operate electronic equipment to put data into documentary form or to transfer data to a disk, tape or other storage device; and ask the occupier to answer questions and produce any document relevant to determining compliance with the conditions of a relevant order;[122]
• surveillance device warrants, surveillance device powers without a warrant and computer access warrants in the Surveillance Device Act (including allowing law enforcement agencies to obtain surveillance device or computer access warrants in determining whether to apply for either a continuing detention order or an extended supervision order).[123] These may authorise: the installation and use of a surveillance device; entry to premises; adding or altering data on a target computer, removing a computer or other thing from premises; or intercepting a communication passing over a telecommunications system);[124] and
• telecommunications service warrant and named person warrant framework under the Interception and Access Act.[125] These may authorise interception of communications (including stored communications); and entry on any premises for the purpose of installing, maintaining, using or recovering any equipment used.[126]
1.61 In addition, the bill would extend the operation of the proposed international production order regime (contingent on the passage of the Telecommunications Legislation Amendment (International Production Orders) Bill 2020). Such orders would allow Commonwealth, state and territory law enforcement and national security agencies to acquire data held in a foreign country by a designated communications provider, and to allow foreign governments to access private communications data.
1.62 The extension of these existing surveillance and monitoring powers engage and limit a number of human rights, in particular the right to privacy. The right to privacy includes respect for informational privacy, including the right to respect private and confidential information, particularly the storing, use and sharing of such information. It also includes the right to control the dissemination of information about one's private life. The right to privacy may be permissibly limited. Any limitation must be prescribed by law, directed towards a legitimate objective, be rationally connected to (that is, effective to achieve) that objective, and be proportionate.
1.63 The statement of compatibility states that the proposed extension of these surveillance and monitoring powers would provide law enforcement agencies with sufficient powers to monitor compliance with supervision orders and detect breaches, and to ensure community safety by potentially preventing the person from engaging in terrorism-related activities or terrorism offences.[127] It further states that permitting surveillance of an individual who is incarcerated would inform the minister in determining whether it would be appropriate for the minister to apply for a post-sentence order.[128] As noted above, protecting the public from acts of terrorism is likely to constitute a legitimate objective for the purposes of international human rights law. However, it is not clear that the proposed expanded use of these monitoring and surveillance powers would be sufficiently constrained such that they would constitute a proportionate limitation on the right to privacy. For example, the committee recently considered that the establishment of the proposed International Production Order regime pursuant to the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 was insufficiently circumscribed and lacked sufficient safeguards such that it risked arbitrarily limiting the right to privacy.[129]
1.64 As many of the monitoring and surveillance powers set to be applied to the supervision order scheme were legislated prior to the establishment of the committee, these powers have not been required to be subject to a foundational human rights compatibility assessment in accordance with the terms of the Human Rights (Parliamentary Scrutiny) Act 2011. It is therefore difficult to assess the human rights compatibility of extending these powers to this new scheme without the benefit of a foundational human rights assessment of those Acts. The expansion of these powers to the supervision order scheme would therefore appear to engage and significantly limit the right to privacy, but without a foundational review of the existing and extensive monitoring and surveillance powers it is not possible to determine the full extent of the privacy implications of this measure.
1.65 The committee notes that the bill would expand the application of existing monitoring and surveillance powers as part of the proposed expanded supervision order scheme. The committee notes that this would engage and limit the right to privacy. This right may be permissibly limited if it is shown to be reasonable, necessary and proportionate.
1.66 The committee considers the measure seeks to achieve the legitimate objective of providing law enforcement agencies with sufficient powers to monitor compliance with supervision orders and detect breaches or orders and thereby help protect community safety by potentially preventing terrorist acts.
1.67 As many of the monitoring and surveillance powers set to be applied to the supervision order process were legislated prior to the establishment of the committee, these powers have never been required to be subject to a foundational human rights compatibility assessment in accordance with the terms of the Human Rights (Parliamentary Scrutiny) Act 2011. It is therefore difficult for the committee to assess the human rights compatibility of extending these powers to this new scheme without the benefit of a foundational human rights assessment of those Acts.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, Report 11 of 2020; [2020] AUPJCHR 133.
[2] Schedule 1, Part 1, item 62, proposed subsection 105A.5(1).
[3] Schedule 1, Part 1, item 82, proposed section 105A.6A.
[4] Schedule 1, Part 1, item 59, proposed subsections 105A.3(3); and sections 105A.18A-18B.
[5] Schedule 1, Part 1, item 95, proposed section 105.9A. While a court could make a series of successive interim supervision orders, the total period of all such interim order could not be more than three months, unless the Court was satisfied that there were exceptional circumstances: proposed subsection 105A.9A(8).
[6] Schedule 1, Part 1, item 87, proposed subsection 105A.7A(5).
[7] Namely, an offence under Part 5.3 of the Criminal Code.
[8] Schedule 1, Part 1, item 87, proposed subsections 105A.7A(1) and 105A.7B(1).
[9] Schedule 1, Pat 1, item 87, proposed subsection 105A.7B(2).
[10] Schedule 1, Pat 1, item 87, proposed subsection 105A.7B(3).
[11] Schedule 1, Part 1, item 59, proposed subsection 105A.3(1) provides that a person would be eligible where they had been convicted of: an offence against Subdivision A of Division 72 of the Criminal Code Act 1995 (Criminal Code) (international terrorist activities using explosive or lethal devices); a serious Part 5.3 offence (being terrorism offences carrying a maximum penalty of 7 or more years imprisonment); an offence against Part 5.5 (Foreign incursions and recruitment) (other than an offence against subsection 119.7(2) or (3)); or an offence against the now repealed Crimes (Foreign Incursions and Recruitment) Act 1978, other than an offence against paragraph 9(1)(b) or (c) of that Act.
[12] Schedule 1, Part 1, proposed subsection 105A.3A(9) confirms that this would include sentences of imprisonment for an offence against a law of the Commonwealth, or a State or Territory, whether or not the sentence was imposed before, after, or at the same time as the sentence for an offence referred to in proposed subsection 105A.3(1) (being a terrorism-related offence).
[13] Schedule 1, Part 1, item 59, proposed subsections 105A.3A(1)-(5).
[14] Schedule 1, Part 1, item 59, proposed section 105A.3A.
[15] Schedule 1, Part 1, item 102, proposed subsection 105A.10(1B).
[16] Schedule 1, Part 1, item 106, proposed subsection 105A.11(1).
[17] See Criminal Code, existing subsections 105A.11(2) and (3).
[18] International Covenant on Civil and Political Rights, articles 6 and 9. Statement of compatibility, p. 11.
[19] International Covenant on Civil and Political Rights, article 6(1) and Second Optional Protocol to the International Covenant on Civil and Political Rights, article 1.
[20] International Covenant on Civil and Political Rights, article 9.
[21] Statement of compatibility, p. 11.
[22] Statement of compatibility, p. 11.
[23] International Covenant on Civil and Political Rights, article 9.
[24] That is, an application for such an order would need to be made to a court, evidence adduced, and a member of the judiciary satisfied as to the level of potential risk posed by the individual.
[25] Fardon v Australia, UN Human Rights Committee Communication No. 1629/2007 (2010), CCPR/C/98/D/1629/2007 [7.4(4)]. See also Tillman v Australia, UN Human Rights Committee Communication No. 1635/2007 (2010), CCPR/C/98/D/1635/2007.
[26] See, statement of compatibility, p. 35.
[27] Statement of compatibility, p. 35.
[28] Schedule 1, Pat 1, item 87, proposed subsection 105A.7B(1).
[29] International Covenant on Civil and Political Rights, article 17.
[30] Schedule 1, Part 1, item 87, proposed subsection 105A.7B(3).
[31] Schedule 1, Part 1, item 87, proposed section 105A.7C.
[32] See example at p. 74 of the explanatory memorandum.
[33] International Covenant on Civil and Political Rights, article 12.
[34] Schedule 1, Part 1, item 87, proposed subsection 105A.7B(3). See, statement of compatibility, p. 17.
[35] International Covenant on Civil and Political Rights, article 9.
[36] United Nations Human Rights Committee, General Comment No.27: Article 12 (Freedom of Movement) (1999) [7]; see also United Nations Human Rights Council, Report of the Working Group on Arbitrary Detention, A/HRC/22.44 (2012) [55] and [57]; Foka v Turkey, European Court of Human Rights Application No.28940/95, Judgment (2008) [78]; Gillan and Quinton v United Kingdom, European Court of Human Rights Application No.4158/05, Judgment (2010) [54]-[57]; Austin v United Kingdom, European Court of Human Rights Application Nos. 39692/09, 40713/09 and 41008/09, Grand Chamber (2012) [57]; Gahramanov v Azerbaijan, European Court of Human Rights Application No.26291/06, Judgment (2013) [38]–[45].
[37] Schedule 1, Part 1, item 87, proposed subsection 105A.7B(3). The statement of compatibility notes that the right to liberty may be engaged with respect to a continuing detention order, but not pursuant to a condition imposed under a supervision order. See, pp. 12–16.
[38] International Covenant on Civil and Political Rights, articles 19–22.
[39] See, statement of compatibility, pp. 33-34. The statement of compatibility does not identify that a condition imposed under a supervision order may limit the right to freedom of assembly.
[40] International Covenant on Economic, Social and Cultural Rights, articles 6–7.
[41] Schedule 1, Part 1, item 87, proposed subsections 105A.7B(3) and 105A.7B(8). See, statement of compatibility, p. 35.
[42] International Covenant on Economic, Social and Cultural Rights, article 13.
[43] Schedule 1, Part 1, item 87, proposed subsection 105A.7B(3). The statement of compatibility does not identify that such a condition may engage and limit the right to education.
[44] International Covenant on Economic, Social and Cultural Rights, article 10(1).
[45] Schedule 1, Part 1, item 87, proposed subsection 105A.7B(3). The statement of compatibility does not identify that such conditions may engage and limit the right to protection of the family.
[46] International Covenant on Civil and Political Rights, article 18.
[47] UN Human Rights Committee, General Comment No. 22: Article 18 (Freedom of thought, conscience or religion) (1993) [4].
[48] Schedule 1, Part 1, item 87, proposed subsection 105A.7B(3). The statement of compatibility does not identify that such conditions may engage and limit the right to freedom of religion.
[49] International Covenant on Economic, Social and Cultural Rights, article 11.
[50] UN Human Rights Committee, General Comment No. 17: Article 24 (1989) [1]. See also, Convention on the Rights of the Child. The statement of compatibility does not identify if the measures engage the rights of the child.
[51] UN Human Rights Committee, General Comment No. 17: Article 24 (1989) [2]. See also General Comment 21: Article 10 (1992) [13] in which the committee notes that the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) are a relevant consideration for States. See also UN Human Rights Committee, General Comment No. 32: right to equality before courts and tribunals and to a fair trial (2007) [42]–[44].
[52] UN Committee on the Rights of the Child, General comment No. 24 (2019) on children’s rights in the child justice system (2019) [31].
[53] Schedule 1, Part 1, item 59, proposed subsection 105A.3(1)(c), stating that the person will be at least 18 years old when the sentence for the relevant conviction ends.
[54] See, for example, Leyla Sahin v Turkey, European Court of Human Rights (Grand Chamber) Application No. 44774/98 (2005); Al-Adsani v United Kingdom, European Court of Human Rights (Grand Chamber) Application No. 35763/97 (2001) [53]–[55]; Manoussakis and Others v Greece, European Court of Human Rights, Application No. 18748/91 (1996) [36]–[53]. See also the reasoning applied by the High Court of Australia with respect to the proportionality test in Lange v Australian Broadcasting Corporation [1997] HCA 25.
[55] Pinkney v Canada, UN Human Rights Communication No.27/1977 (1981) [34].
[56] Statement of compatibility, p. 11.
[57] Statement of compatibility, p. 17.
[58] Explanatory memorandum, p. 4.
[59] Statement of compatibility, p. 23.
[60] Explanatory memorandum, p. 6.
[61] Explanatory memorandum, pp. 13-14.
[62] Criminal Code, section 105A.2.
[63] See, for example, Kirby J in Fardon v Attorney-General (Qld) [2004] HCA 46, [124].
[64] Fardon v Attorney-General (Qld) [2003] QCA 416 at [91], applying the language of Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51 at 106 per Gaudron J, 123 per McHugh J. There is also evidence to suggest that psychiatric or clinical predictions of dangerousness have only a one-third to fifty per cent success rate, and that although actuarial predictions are better than clinical predictions, they can also be inaccurate because they are based on group data and do not necessarily allow for consideration of individual or situational factors. See, Professor Kate Warner, "Sentencing review 2002-2003", (2003) 27 Criminal Law Journal 325 at 338. See also Charisse Smith and Mark Nolan, 'Post-sentence continued detention of high-risk terrorist offenders in Australia', (2016) 40 Crim LJ 163 [168].
[65] Noting that the factors that relate to and motivate acts of terrorism (for example, a commitment to an ideology that demands self-sacrifice and acts of violence) generally differ from the typical motivations behind violent offences (for example, personal gain, impulse control, or uncontrolled rage), and so violent offender tools may not accurately measure future risk. See Charisse Smith and Mark Nolan, 'Post-sentence continued detention of high-risk terrorist offenders in Australia' (2016) 40 Crim LJ 163 [169]. See also John Monahan, “The Individual Risk Assessment of Terrorism” (2012) 18 Psychology, Public Policy, and Law 167 [175]; and Mark R Kebbell and Louise Porter, “An Intelligence Assessment Framework for Identifying Individuals at Risk of Committing Acts of Violent Extremism against the West” (2012) 25 Security Journal 212 [215].
[66] Schedule 1, Part 1, item 87, proposed section 105A.7A.
[67] Criminal Code, subsection 105A.7(1)(b).
[68] Explanatory memorandum, p. 67.
[69] Schedule 1, Part 1, item 87.
[70] Schedule 1, Part 1, item 87, proposed section 105A.7C.
[71] A 'specified authority' means a person or class of persons specified in an order for a requirement or condition in an order. These would include a police officer, or class of officers, a person or class of persons involved in electronically monitoring the person, or any other person or class of persons. See, Schedule 1, Part 1, item 2, proposed subsection 100.1(1).
[72] Explanatory memorandum, p. 74.
[73] Explanatory memorandum, p. 74.
[74] See, Schedule 1, Part 1, item 87, proposed subsection 105A.7C(5).
[75] Explanatory memorandum, p. 74.
[76] See statement of compatibility, p. 6.
[77] Schedule 1, Part 1, item 87.
[78] Schedule 1, Part 1, item 123, proposed section 105A.16.
[79] Schedule 1, Part 1, items 125-126. See also, Criminal Code, section 105A.17.
[80] Schedule 1, Part 1, item 95, proposed sections 105A.9B–105A.9E.
[81] Crimes Act 1914, section 19AG.
[82] Crimes Act 1914, section 19ALB.
[83] Crimes Act 1914, section 194KA.
[84] For example, in 2014, a study by the Australian Institute of Criminology found that offenders who received parole supervision on release from custody took longer to commit a new offence, were less likely to commit a new indictable offence and committed fewer offences than offenders who were released unconditionally into the community. See, Dr Wai-Yin Wan et al, 'Parole Supervision and reoffending', Trends and issues in crime and justice (No. 485) Australian Institute of Criminology (2014). See also, Adult Parole Board Victoria, What is parole? Purpose and benefits, https://www.adultparoleboard.vic.gov.au/purpose-and-benefits, accessed 15 September 2020; Office of the Inspector of Custodial Services of Western Australia, Recidivism rates and the impact of treatment programs (2014).
[85] See, for example, United Nations Office on Drugs and Crime, Handbook on the management of violent extremist prisoners and the prevention of radicalization to violence in prisons (2016).
[86] Schedule 1, Part 1, item 120, proposed sections 104A.14A.
[87] Schedule 1, Part 1, item 120, proposed sections 104A.14B–104A.14D.
[88] Schedule 1, Part 1, item 120, proposed sections 104A.14B.
[89] Schedule 1, Part 2, items 189 –210.
[90] National Security Information (Criminal and Civil Proceedings) Act 2004, section 3.
[91] National Security Information (Criminal and Civil Proceedings) Act 2004, section 38J.
[92] National Security Information (Criminal and Civil Proceedings) Act 2004, section 38I
[93] National Security Information (Criminal and Civil Proceedings) Act 2004, section 38G.
[94] National Security Information (Criminal and Civil Proceedings) Act 2004, section 38J.
[95] National Security Information (Criminal and Civil Proceedings) Act 2004, subsection 38J(5).
[96] National Security Information (Criminal and Civil Proceedings) Act 2004, section 38PB.
[97] Explanatory memorandum, p. 115.
[98] International Covenant on Civil and Political Rights, articles 14-15.
[99] Statement of compatibility, pp. 15-16.
[100] Statement of compatibility, p. 15.
[101] Statement of compatibility, p. 20.
[102] Statement of compatibility, p. 19.
[103] Statement of compatibility, pp. 20–21.
[104] National Security Information (Criminal and Civil Proceedings) Act 2004, subsection 31(8). Note also the comments by former Justice Michael McHugh AC QC in 'Terrorism legislation and the Constitution' (2006) 28 Australian Bar Review 117: '[The National Security Information (Criminal and Civil Proceedings) Act 2004] weights the exercise of the discretion in favour of the Attorney-General and in a practical sense directs the outcome of the closed hearing. How can a court make an order in favour of a fair trial when in exercising its discretion, it must give the issue of a fair trial less weight than the Attorney-General's certificate'.
[105] National Security Information (Criminal and Civil Proceedings) Act 2004, section 38PC.
[106] National Security Information (Criminal and Civil Proceedings) Act 2004, subsection 38PD(2).
[107] National Security Information (Criminal and Civil Proceedings) Act 2004, subsection 38PE.
[108] National Security Information (Criminal and Civil Proceedings) Act 2004, section 38PF.
[109] National Security Information (Criminal and Civil Proceedings) Act 2004, subsection 38PF(8).
[110] National Security Information (Criminal and Civil Proceedings) Act 2004, subsection 38PF(3).
[111] National Security Information (Criminal and Civil Proceedings) Act 2004, section 38PA.
[112] UN Human Rights Committee, General Comment No. 32: The right to equality before courts and tribunals and to a fair trial (2007) [13].
[113] Morael v France, UN Human Rights Committee (1989) UN Doc CCPR/C/36/D/207/1986 [9.4].
[114] A v United Kingdom [2009] ECHR 301; (2009) 49 EHRR 29.
[115] A v United Kingdom [2009] ECHR 301; (2009) 49 EHRR 29 [205].
[116] A v United Kingdom [2009] ECHR 301; (2009) 49 EHRR 29 [220]. Affirmed by the United Kingdom House of Lords in Secretary of State for the Home Department v AF [2009] UKHL 28 [59].
[117] Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin (A/63/223), [41]. See also, Report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism (A/HRC/22/26), [36]; and United Nations Counter-Terrorism Implementation Task Force, Basic Human Rights Reference Guide: Right to a Fair Trial and Due Process in the Context of Countering Terrorism (2014).
[118] Statement of compatibility, p. 20.
[119] Statement of compatibility, p. 20.
[120] Statement of compatibility, p. 20
[122] Crimes Act 1914, Part IAAB.
[123] Schedule 1, Part 2, items 211-312.
[124] Surveillance Device Act 2004, sections 18 and 27E. See also Part 4 regarding the use of optical and listening or recording surveillance devices without a warrant.
[125] Telecommunications (Interception and Access) Act 1979.
[126] Telecommunications (Interception and Access) Act 1979, sections 46-46A.
[127] Statement of compatibility, p. 25-27.
[128] Statement of compatibility, p. 25.
[129] Parliamentary Joint Committee on Human Rights, Report 7 of 2020, committee view at pages 117 and 123. See also, in relation to computer access warrants: Parliamentary Joint Committee on Human Rights, Report 13 of 2018 (4 December 2018), pp. 71–81.
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