Counter-Terrorism Legislation Amendment Bill (No 1) 2018 [2018] AUSStaCSBSD 148 (20 June 2018)

• Counter-Terrorism Legislation Amendment Bill (No. 1) 2018
• Extension of sunsetting provisions 47

---

Counter-Terrorism Legislation Amendment Bill
(No. 1) 2018

Purpose	This bill seeks to amend various Acts relating to counter-terrorism to extend for a further three years the following regimes which are scheduled to sunset on 7 September 2018 including: • the control order regime in Division 104 of the Criminal Code • the preventative detention order regime in Division 105 of the Criminal Code • the declared areas provisions in sections 119.2 and 119.3 of the Criminal Code, and • the stop, search and seize powers in Division 3A of Part IAA of the Crimes Act 1914 The bill also seeks to extend the operation of the Australian Security Intelligence Organisation's questioning and detention powers for a further 12 months and to make minor amendments to Part 5.3 of the Criminal Code
Portfolio	Attorney-General
Introduced	House of Representatives on 24 May 2018

Extension of sunsetting provisions ^[47]

1.43 A number of items in the bill seek to extend the operation of significant counter-terrorism measures that are due to sunset in late 2018. In particular, the following measures are proposed to be extended for a further three year period:

• the control order regime,^[48] which allows a court to impose obligations, prohibitions and restrictions on a person without charge, for purposes related to preventing terrorist acts or support for terrorist acts;

• the preventative detention order regime,^[49] which allows a person to be taken into custody for up to 48 hours for the purpose of either preventing a terrorist attack that is capable of being carried out and could occur within the next 14 days, or to preserve evidence relating to a recent terrorist act;

• the declared areas provisions,^[50] which make it an offence for a person to enter or remain in an area declared by the Minister for Foreign Affairs; and

• the stop, search and seizure powers,^[51] which allow a police officer to stop, question and search persons and seize items in a Commonwealth place or prescribed security zone without a warrant (and, in relation to prescribed security zones, without the need for reasonable suspicion).

1.44 In addition the following power, which is due to sunset in late 2018, is proposed to be extended for a further 12 months:

• ASIO's special powers relating to terrorism offences,^[52] which allows the Australian Security and Intelligence Organisation to question and to detain people for questioning in relation to national security.

1.45 The committee has previously raised scrutiny concerns regarding a number of these broad coercive powers as the committee's terms of reference require it to consider whether provisions of a bill trespass unduly on personal rights and liberties. In particular, the committee has previously noted that the control order regime constitutes what is generally acknowledged to be a substantial departure from the traditional approach to restraining and detaining persons on the basis of a criminal conviction.^[53] That traditional approach involves a number of steps: investigation, arrest, charge, remand in custody or bail, and then sentence on conviction.

1.46 In contrast, control orders provide for restraint on personal liberty without there being any criminal conviction (or without even a charge being laid) on the basis of a court being satisfied on the balance of probabilities that the threshold requirements for the issue of the orders have been satisfied. Protections of individual liberty built into ordinary criminal processes are necessarily compromised (at least, as a matter of degree).

1.47 In addition, preventative detention orders (PDOs) are administrative orders, made, in the first instance, by a senior Australian Federal Police member, which authorise an individual to be detained without charge, and without a necessary intention to charge the subject with any offence. The committee considers PDOs raise scrutiny concerns as they permit a person's detention by the executive without charge or arrest.

1.48 The committee has also previously raised concerns regarding the breadth of the offence for entering, or remaining, in declared areas, and the broad delegation of power in allowing the Foreign Minister the power to make this declaration.^[54] In particular, the committee has noted its concerns that the offence could apply even if a person did not know the area was subject to a relevant declaration and they had no intention to commit any particular crime or activity.

1.49 In addition, the committee notes that the power to stop, search and question a person in a prescribed security zone, without the need for any reasonable suspicion, has the potential to be highly invasive and coercive. Once a prescribed security zone is declared, everyone in that zone is subject to stop, question, search and seizure powers, regardless of whether or not the police officer has reasonable grounds to believe the person may be involved in the commission, or attempted commission, of a terrorist act.

1.50 Further, ASIO's special powers regime is coercive in nature as it empowers ASIO to require a person to answer questions or provide information or documents, and a failure to do so constitutes a criminal offence, and abrogates the privilege against self-incrimination. In addition, a questioning and detention warrant allows ASIO to request the detention of a non-suspect for the purpose of intelligence-gathering, and police officers to enter and search any premises where they reasonably believe the person is, and to use reasonable force in order to take the person into custody. In executing a detention warrant, the AFP officer is not required to give the person any information about the grounds for the warrant. A person may be detained for a maximum of seven days. As these powers have been granted to ASIO in support of its role as an intelligence gathering agency, these powers may apply in relation to individuals not suspected of, and not charged with, any offence, let alone a terrorism-related offence. The breadth of these powers raise significant scrutiny concerns that such powers may unduly trespass on personal rights and liberties.

1.51 The extraordinary nature of the regimes listed above is recognised in the current legislation by the inclusion of a sunset period. In extending these significant powers by a further three years (or one year in the case of the ASIO special powers regime), the committee expects that the explanatory materials accompanying the bill should provide a comprehensive justification for the continued need for such powers.

1.52 In this instance, the statement of compatibility gives detailed information about why these powers continue to be necessary and states that the proposed extension is in line with recommendations made by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) in its recent reports.^[55] In the case of ASIO's special powers the PJCIS recommended that legislation be developed to reform the compulsory questioning framework and therefore a 12 month extension of the current framework was suggested to allow sufficient time for legislation to be developed and reviewed.

1.53 While the committee acknowledges the importance of the stated purpose of the measures described above, it reiterates that these measures substantially depart from traditional approaches to the criminal law and the presumption of innocence, particularly in giving coercive powers to detain and restrain persons who may not have been convicted of, or even charged with, a criminal offence. The committee notes there is a risk that measures that were originally introduced on the basis of being a temporary response to an emergency situation may become permanent by their continual renewal. The committee considers the measures being extended by this bill raise significant scrutiny concerns and may, in some instances, unduly trespass on personal rights and liberties.

1.54 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of extending, by a further

1-3 years, the operation of a number of broad coercive powers which raise significant scrutiny concerns.

---

[47] Schedule 1, items 7, 11, 13, 17 and 18. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[48] In Division 104 of the Criminal Code Act 1995 (Criminal Code).

[49] In Division 105 of the Criminal Code.

[50] In sections 119.2 and 119.3 of the Criminal Code.

[51] In Division 3A of Part 1AA of the Crimes Act 1914.

[52] In Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979.

[53] See Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 7 of 2016 and Report No. 8 of 2016.

[54] See Senate Standing Committee for the Scrutiny of Bills, Report relating to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014.

[55] See Parliamentary Joint Committee on Intelligence and Security, Review of police stop, search and seizure powers, the control order regime and the preventative detention order regime, February 2018: for control orders see recommendation 5; for preventative detention orders see recommendation 11 and for stop, search and seizure powers see recommendation 1; Parliamentary Joint Committee on Intelligence and Security, Review of the 'declared area' provisions, February 2018: see recommendation 1; Parliamentary Joint Committee on Intelligence and Security, ASIO's questioning and detention powers, March 2018: see recommendation 4.