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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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The bill seeks to extend for a further three years the declared areas
provisions in sections 119.2 and 119.3 of the Criminal Code
Act 1995, scheduled to sunset on 7 September 2021.
It also seeks to extend by a further 15 months the following Australian
Federal Police powers that are also scheduled to sunset on
7 September
2021:
• the control order regime in Division 104 of the Criminal
Code;
• the preventative detention order regime in Division 105 of the
Criminal Code; and
• the stop, search and seizure powers in Division 3A of Part IAA of
the Crimes Act 1914.
The bill also seeks to amend the Intelligence Services Act 2001 to
provide for the Parliamentary Joint Committee on Intelligence and Security to
review the declared areas provisions prior to the
new sunset date
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Portfolio
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Attorney-General
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Introduced
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Senate, 4 August 2021
Passed both Houses on 23 August 2021
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Rights
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Liberty; freedom of movement; fair trial and fair hearing; privacy; freedom
of expression; freedom of association; equality and non-discrimination;
to be
treated with humanity and dignity; protection of the family; work; social
security; an adequate standard of living; and rights
of children
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1.4 This bill, which has now passed both Houses, extends the operation of a number of counter-terrorism related provisions which are due to sunset on 7 September 2021.
1.5 In particular, it extends by a further three years (to 7 September 2024) the operation of the declared area provisions. Under these provisions, it is an offence, punishable by up to 10 years’ imprisonment, to enter or remain in an area declared by the Minister for Foreign Affairs, unless the accused can raise evidence to demonstrate it is for one of a limited set of purposes as set out in the Criminal Code.[2]
1.6 It also extends by a further 15 months (until 7 December 2022) the operation of the following provisions:
• the control order regime in Division 104 of the Criminal Code, which allows a court to impose on a person a number of obligations, prohibitions and restrictions;
• the preventative detention order regime in Division 105 of the Criminal Code, which allows a person to be taken into custody and detained if it is suspected, on reasonable grounds, that they are preparing to engage in a terrorist act; and
• the stop, search and seizure powers in Division 3A of Part IAA of the Crimes Act 1914, which provide a range of powers for the Australian Federal Police and state and territory police officers to exercise in a Commonwealth place (such as an airport) relating to counter-terrorism.
1.7 The powers extended by this measure are intended to protect Australia’s national security interests and protect against the possibility of terrorist acts in Australia.[3] As such, if these powers were capable of assisting in achieving these objectives, it would appear that extending these powers would promote the rights to life and security of the person. The right to life[4] includes an obligation on the state to protect people from being killed by others or identified risks.[5] The right to security of the person requires the state to take steps to protect people against interference with personal integrity by others.[6]
1.8 However, the extended powers also engage and limit numerous human rights, including the:
• right to liberty;
• right to freedom of movement;
• right to a fair trial and fair hearing;
• right to privacy;
• right to freedom of expression;
• right to freedom of association;
• right to equality and non-discrimination;
• right to be treated with humanity and dignity;
• right to the protection of the family;
• right to work;
• rights to social security and an adequate standard of living; and
• rights of children.[7]
1.9 The committee has previously considered the human rights compatibility of all of the provisions that are extended by this measure. After detailed consideration of these provisions, the committee has previously found that while all of the measures likely sought to achieve a legitimate objective (namely, that of seeking to prevent terrorist acts), there were questions whether the measures would be effective to achieve this and were necessary, and, in particular, the measures did not appear to be proportionate. As a result, the committee previously found the measures were likely to be incompatible with a range of human rights.[8]
1.10 The same human rights concerns as were raised previously apply in relation to the further extension of these coercive powers. In addition, there are questions as to whether all of these powers remain necessary. In relation to the declared area provisions, there has never been a prosecution for breach of these provisions,[9] no areas are currently declared by the minister,[10] and since these provisions were enacted in 2014, new legislation has conferred further powers to investigate terrorism related offences.[11] The Parliamentary Joint Committee on Intelligence and Security (PJCIS) recommended that the declared area provisions be extended for a further three years. It did so, despite noting the limited use of the offence and that there are no currently declared areas, on the basis that it would not be ‘prudent’ to repeal the provisions during a period of uncertainty as caused by COVID-19 and at a time when international borders may be reopening.[12] However, no evidence was presented as to how the implications of the pandemic relate to the need for this specific offence. The statement of compatibility accompanying the bill states generally that the current terrorism threat level to Australia is ‘probable’, but no specific information is provided as to why these provisions remain necessary. As this is the only information presented as to why these powers are required to be extended, it has not been established that the extension for three years of the declared area provisions is necessary and seeks to address a current pressing and substantial need.
1.11 In addition, it is noted that the PJCIS, in recommending the provisions be extended by three years, also recommended changes that may have assisted with the proportionality of the measure, namely that the Criminal Code Act 1995 be amended to allow Australian citizens to request an exemption to travel to a declared area for reasons not listed in the Criminal Code, but which are not otherwise illegitimate under Australian law.[13] While the government adopted the recommendation to extend the provisions by three years, it did not adopt this exemption recommendation.[14]
1.12 Noting this committee’s previous conclusion that the declared area provisions did not contain sufficient safeguards or flexibility to constitute a proportionate limit on rights, and noting the government has not demonstrated the continued necessity of these powers, it has not been established that the extension of these provisions for a further three years is compatible with human rights.
1.13 In addition, the extension of the remaining powers by a further 15 months is stated as being in order to ensure the powers do not sunset and provide time for the government to consider any recommendations of the PJCIS’s most recent review into these powers.[15] It is noted that the PJCIS was required, under the Intelligence Services Act 2001, to review the operation, effectiveness and implications of these powers and report by 7 January 2021. However, as at the time of tabling, it does not appear that the PJCIS has reported on this inquiry.[16] As such, it appears the lack of reporting under the statutory timeframe is the reason why these coercive powers are being extended by a further 15 months. It is noted that while the statement of compatibility refers to reports from 3-4 years ago as to the continued need for these powers, no recent evidence has been presented that establishes the necessity of continuing these powers. For example, no preventative detention orders have ever been issued in the 16 years since those powers commenced,[17] and no recent evidence demonstrates the continuing need for these powers, including in light of the additional legislative powers that have been enacted since this regime originally commenced. As such, noting the committee’s previous conclusion that these provisions do not contain sufficient safeguards to constitute a proportionate limit on rights, and noting the government has not demonstrated the continued necessity of these powers, it has not been demonstrated that the extension of the control order, preventative detention order and stop, search and seizure provisions for a further 15 months is compatible with human rights.
1.14 The committee notes this bill, now Act, extends the operation of a number of counter-terrorism related measures which are otherwise due to sunset on 7 September 2021. The extended measures are the declared area provisions (which make it an offence for a person to travel to any area which the Minister for Foreign Affairs declares to be a declared area); the control order regime; the preventative detention order regime; and certain police stop, search and seizure powers.
1.15 The committee notes it has previously considered the human rights compatibility of the provisions being extended. The committee has previously found that while all of the measures likely sought to achieve a legitimate objective (namely, that of seeking to prevent terrorist acts), there were questions whether the measures would be effective to achieve this and were necessary, and, in particular, the measures did not appear to be proportionate, and therefore were likely to be incompatible with a range of human rights.
1.16 The committee notes that limited evidence has been presented as to the necessity for continuing these coercive powers beyond their sunset date. In particular, it notes that many of these powers are being extended because no report on their continued effectiveness has been presented to Parliament in the requisite timeframe.
1.17 As such, noting the committee’s previous conclusion that these provisions do not contain sufficient safeguards to constitute a proportionate limit on rights, and noting the government has not demonstrated the continued necessity of these powers, the committee considers it has not been demonstrated that the extension of these provisions is compatible with human rights.
1.18 The committee draws these human rights concerns to the attention of the Attorney-General and the Parliament.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Bill 2021, Report 10 of 2021; [2021] AUPJCHR 91.
[2] Criminal Code Act 1995, section 119.2. Subsection 119.2(3) sets out that the offence will not apply if the person enters, or remains in, the area solely for one or more of the following purposes: providing aid of a humanitarian nature; appearing before a court; performing an official duty; acting as a journalist; making a bona fide visit to a family member; or any other purpose prescribed by the regulations. Subsection 119.2(4) provides it also will not apply if the person was there as part of the person’s service with the armed forces of a foreign country (unless it is a prescribed organisation).
[3] See statement of compatibility, pp. 6, 9, 16 and 20.
[4] 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.
[5] UN Human Rights Committee, General Comment No. 36: article 6 (right to life) (2019) [3]: the right should not be interpreted narrowly and it ‘concerns the entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity’.
[6] International Covenant on Civil and Political Rights, article 9.
[7] See International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights and the Convention of the Rights of the Child.
[8] In relation to the declared area provisions, see Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (October 2014) pp. 34-44; Nineteenth Report of the 44th Parliament (3 March 2015) pp. 75-82; and most recently, Report 6 of 2018, (26 June 2018), pp. 17-21. In relation to control orders, preventative detention orders, and stop, search and seizure powers, see most recently Report 10 of 2018 (18 September 2018) p. 25‑‑53. Note in relation to the stop, search and seizure powers the committee concluded that in circumstances where a police officer believes on reasonable grounds that the person might have just committed, might be committing or might be about to commit a terrorist act, these powers might be a proportionate limit on human rights, however, the scope of the other powers are likely to be incompatible with human rights, see Report 10 of 2018 (18 September 2018) p. 45-53.
[9] See Parliamentary Joint Committee on Intelligence and Security, Review of ‘declared areas’ provisions: Sections 119.2 and 119.3 of the Criminal Code (February 2021) p. 14.
[10] See statement of compatibility, p. 6.
[11] Such as temporary exclusion orders; citizenship cessation; surveillance powers; the grounds for control orders; and a compulsory industry assistance scheme. For further details see Law Council of Australia, Submission 2, p. 14, to the Parliamentary Joint Committee on Intelligence and Security, Review of ‘declared areas’ provisions of the Criminal Code Act 1995 (Cth), 25 August 2020.
[12] See Parliamentary Joint Committee on Intelligence and Security, Review of ‘declared areas’ provisions: Sections 119.2 and 119.3 of the Criminal Code (February 2021) p. 18.
[13] See Parliamentary Joint Committee on Intelligence and Security, Review of ‘declared areas’ provisions: Sections 119.2 and 119.3 of the Criminal Code (February 2021) p. 21.
[14] See Australian Government response to the Parliamentary Joint Committee on Intelligence and Security, Review of ‘declared areas’ provisions: Sections 119.2 and 119.3 of the Criminal Code (July 2021) pp. 2-3.
[15] See Intelligence Services Act 2001, paragraph 29(1)(bb).
[16] See Parliamentary Joint Committee on Intelligence and Security, Review of AFP powers, listed under ‘current inquiries’ on the PJCIS’s webpage.
[17] Statement of compatibility, p. 16.
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