Counter-Terrorism Legislation Amendment Bill 2019 [2019] AUSStaCSBSD 29 (28 March 2019)

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Purpose	This bill seeks to amend the Crimes Act 1914 and the Criminal Code Act 1995 to: • introduce new restrictions on the existing arrangements for bail and parole; and • amend the operation of the continuing detention order scheme
Portfolio	Attorney-General
Introduced	House of Representatives on 20 February 2019

Right to liberty – presumption against bail and parole^[104]

1.140 Section 15AA of the Crimes Act 1914 (Crimes Act) currently provides for a presumption against bail for persons charged with, or convicted of, certain Commonwealth terrorism offences unless exceptional circumstances exist.

1.141 Schedule 1 to the bill proposes to significantly expand the presumption against bail in section 15AA in relation to several categories of people:

1.142 The presumption against bail applies both to those convicted of, but also those charged with, certain offences. The committee notes that it is a cornerstone of the criminal justice system that a person is presumed innocent until proven guilty, and presumptions against bail (which deny a person their liberty before they have been convicted) test this presumption. As such the committee expects that a clear justification be given in the explanatory materials for imposing a presumption against bail and expects that the explanatory materials would include any evidence that courts are currently failing to consider the serious nature of an offence in determining whether to grant bail.

1.143 In relation to the expansion of the presumption against bail to persons for any offences against a law of the Commonwealth where a person has previously been charged with, or convicted of, terrorist offences, the statement of compatibility notes that a person 'who is convicted of a terrorism offence has been proven, to the satisfaction of the law, to be a danger to the Australian community'.^[107] However the explanatory materials do not address why or how a person who has been previously been charged with but not necessarily convicted of a terrorism offence is a risk to the community. The committee notes a person may have been charged with a terrorism offence but charges were later dropped or they may have been acquitted, yet a presumption against bail would exist in relation to them if later charged with any Commonwealth offence. The committee notes that this places the onus of proof onto the accused to prove that exceptional circumstances exist. It is not clear to the committee that providing evidence that a past charge for terrorism was dropped will be sufficient in all circumstances to satisfy the high bar of proving exceptional circumstances exist to override a presumption.

1.144 The committee also notes that no justification has been provided for expanding the presumption against bail to apply to the offence of associating with terrorist organisations. The committee notes that when the offence of associating with a terrorist organisation was introduced,^[108] the Senate Legal and Constitutional Affairs Committee raised concerns about the breadth of the offence and recommended that provisions relating to the presumption against bail not apply to this offence.^[109] Government amendments were introduced in 2004 in line with this recommendation. It is of concern that the presumption against bail is proposed to be extended to an offence of association with a terrorist organisation in circumstances where previously the Senate has rejected this extension and where no justification is provided in the explanatory memorandum as to why it is necessary to do so.

1.145 In relation to expanding the presumption against bail to persons subject to control orders, the explanatory memorandum states:

1.146 In relation to expanding the presumption against bail to persons who have made statements or carried out activities supporting, or advocating support for, terrorist acts, the explanatory memorandum states:

1.147 The committee has previously raised serious scrutiny concerns about the impact of control orders on an individual's personal liberty as a control order may be issued by a court without any criminal conviction (or without even a charge being laid).^[112] The committee notes that no evidence has been provided in the explanatory materials to address whether courts are currently not taking into account the risks posed by persons subject to control orders or persons who support or advocate support for terrorist acts when exercising their discretion to grant bail. Rather, the only evidence pointed to is that the amendments are in response to one incident in 2017 committed by a person on parole (not bail) for Victorian offences in circumstances where he had previously been acquitted of a terrorism offence.^[113]

1.148 The committee also notes that what could constitute someone 'who supports or advocates support for terrorist acts' may be very broad and may, for example, include statements on social media made a number of years ago. As a result, a person may be subject to a permanent presumption against bail for any offence against a Commonwealth law regardless of whether they have continued to support or advocate support for terrorist acts. The committee also notes that the explanatory materials do not indicate whether there are any other comparable instances in other Commonwealth or state legislation where such a broad presumption against bail exists.

1.149 In addition, the committee notes that proposed section 19ALB seeks to introduce a presumption against parole for persons who have been convicted of a terrorism offence, persons subject to control orders and persons who have made statements, or carried out activities supporting, or advocating support for, terrorist acts. The committee considers that this provision similarly limits a person's right to liberty as outlined above in relation to the presumption against bail. The explanatory memorandum states that:

1.150 The committee notes that the expansion of the presumption against parole includes persons who may not have been convicted for terrorism related offences. The explanatory materials do not adequately justify why the presumption against parole should apply to persons who have not (or may never have been) convicted of a terrorism offence. In addition, the committee notes that while the presumption against parole will not technically be of retrospective effect, in practice there may be people who have been convicted of offences prior to the commencement of this bill who will now be subject to a presumption against parole that did not exist when they were initially sentenced.

1.151 The committee notes its significant scrutiny concerns regarding the expansion of the presumption against bail and parole. The committee considers that these measures, as currently drafted, have the potential to significantly and unduly trespass on personal rights and liberties. The committee considers that the explanatory materials do not adequately address these concerns and draws this matter to the attention of the Senate.

Trespass on rights and liberties – continuing detention orders^[115]

1.152 Schedule 2 of this bill seeks to make amendments to the continuing detention order scheme (the scheme). The scheme allows for the continued detention of those judged to be high risk terrorist offenders who are serving custodial sentences, after those sentences have been served. Schedule 2 of the bill seeks to extend the scheme to persons serving concurrent or cumulative sentences for an eligible terrorism offence and another offence.

1.153 Currently the Australian Federal Police (AFP) Minister can apply for a continuing detention order not more than 12 months before the end of a person's sentence for an eligible terrorism offence, at the end of which a person would be required to be released into the community. The AFP Minister is currently unable to apply for such an order where an eligible offender has also been sentenced for a further non-terrorist related offence that expires after the eligible sentence.

1.154 The committee commented on the introduction of the scheme by the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 in Alert Digest 10 of 2016.^[116] The committee raised significant scrutiny concerns in relation to the scheme. The committee noted that while proceedings for a continuing detention order are characterised by the usual procedures and rules for civil proceedings, the application of these indicia of judicial process did not change the fact that the scheme for the continuing detention of terrorist offenders fundamentally inverts basic assumptions of the criminal justice system. The committee noted that 'offenders' in our system of law may only be punished on the basis of offences which have been proved beyond reasonable doubt, whereas the scheme proposed to detain persons, who have committed offences and have completed their sentences for those offences, on the basis that there is a high degree of probability they will commit similar offences in the future.

1.155 The committee also noted that it may be accepted that in some circumstances detention may be justified on the basis of protecting the public from unacceptable risks without undermining the presumption of innocence, or the principle that persons should not be imprisoned for crimes they may commit. For example, detention on the basis of risks associated with the spread of communicable disease does not threaten these basic assumptions of our criminal law. However, where the trigger for the assessment of whether or not a person poses an unacceptable risk to the community is prior conviction for an offence, the protective purpose cannot be clearly separated from the functioning of the criminal justice system. If the continuing detention is triggered by past offending, then it can plausibly be characterised as retrospectively imposing additional punishment for that offence. If the continuing detention is not conceptualised as imposing additional punishment, then the fact that it is triggered by past offending on the basis of predicted future offending necessarily compromises the principles identified above.

1.156 The committee reiterates these significant scrutiny concerns in relation to the proposed expansion of the continuing detention order scheme. The committee does not consider that the explanatory materials have adequately justified the need for this expansion. While the explanatory materials extensively discuss the operation of the scheme in general, the explanatory materials do not indicate why it is necessary to expand the scheme beyond stating that 'expanding the eligibility criteria for the [scheme] is consistent with the overall objective of the [scheme]'.^[117]

1.157 The committee notes its significant scrutiny concerns regarding the expansion of the continuing detention of high risk terrorist offenders after their sentences for imprisonment have been served. The committee considers that the explanatory materials do not adequately address these concerns and draws this matter to the attention of the Senate.

Procedural fairness^[118]

1.158 Schedule 2 of the bill also seeks to make amendments to how information regarding an application for a continuing detention order will be provided to an offender. Currently, section 105A.5 of the Criminal Code Act 1995 provides that a terrorist offender who is the subject of a continuing detention order application must be given a 'complete copy' of that application. It provides that sensitive information can be withheld from the offender for a period of time but ultimately requires all information in the application to be given to the offender. Item 16 of the bill seeks to repeal the current requirement to provide a complete copy of the application with a requirement that the offender only receive a complete copy subject to any court orders or protective orders made relating to the protection of information in the application. These protective orders can limit the information provided to the offender, including by providing a summary or statement of facts instead of the complete information.

1.159 Paragraph 105A.5(3)(aa) currently provides that an application for a continuing detention order must include materials and a statement of facts that would reasonably be regarded as supporting a finding that the order should not be made (exculpatory information). Item 14 of Schedule 2 would also allow the AFP Minister to redact or withhold information, material or facts, provided in relation to exculpatory material, which is likely to be protected by public interest immunity.

1.160 In Alert Digest 7 of 2016, the committee raised concerns that the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 did not allow for the provision of sufficient information to offenders prior to the hearing of an application for a continuing detention order. In response to the committee's concerns, the Attorney-General advised that amendments would be made to ensure that an offender would be provided with a complete copy of the application within a reasonable period before the preliminary hearing.^[119]

1.161 In relation to the current requirement to provide a complete copy of an application to an offender, the explanatory memorandum states that this 'places unique obligations on the AFP Minister that go beyond the ordinary information disclosure requirements that operate in other contexts, such as in criminal prosecutions'.^[120] This justification is also used in relation to the ability to remove information on the basis of public interest immunity.^[121] The committee has generally not accepted the existence of similar provisions in other Acts to be an adequate justification and notes that the proposed amendments may limit an offender's right to a fair hearing as the offender may not have access to all of the relevant information on which the application for the order is made. These concerns are heightened given the serious consequences for the right to liberty that may flow from the making of a continuing detention order.

1.162 The committee notes its scrutiny concerns regarding the limitation of an offender's right to receive a complete copy of the application for a continuing detention order. The committee considers that the explanatory materials do not adequately address these concerns and draws this matter to the attention of the Senate.

[104] Schedule 1. The committee draws senators’ attention to this Schedule pursuant to Senate Standing Order 24(1)(a)(i).

[109] See Senate Legal and Constitutional Legislation Committee, Provisions of the Anti-terrorism Bill (No. 2) 2004, August 2004, recommendation 4, p. 34.

[112] See Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2018, pp. 13-16 and Alert Digest No. 7 of 2016 and Report No. 8 of 2016.

[115] Schedule 2. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[116] See Senate Standing Committee for the Scrutiny of Bills, Report 10 of 2016, pp. 631-643 and Alert Digest No. 7 of 2016.

[118] Schedule 2. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).

[119] Senate Standing Committee for the Scrutiny of Bills, Report 10 of 2016, p. 640.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests