Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 [2020] AUSStaCSBSD 171 (16 October 2020)

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Purpose	This bill seeks to amend the Criminal Code Act 1995 to establish an extended supervision order scheme for high-risk terrorist offenders. It will enable Supreme Courts to make such an order to prevent the risk that a high-risk terrorist offender poses to the community at the end of their custodial sentence
Portfolio	Attorney-General
Introduced	House of Representatives on 3 September 2020

Trespass on personal rights and liberties—general comment^[24]

1.42 Schedule 1 to the bill seeks to amend the Criminal Code Act 1995 (Criminal Code) to establish an extended supervision order scheme for high-risk terrorist offenders. Is it proposed that the 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'.

1.43 Proposed section 105A.6A provides that, on application by the Australian Federal Police (AFP) Minister (or a legal representative of the minister), a State or Territory Supreme Court may make an extended supervision order, including as an alternative to a continuing detention order. Proposed subsection 105A.3(3) provides that the effect of an extended supervision order is to impose conditions on the person contravention of which is an offence punishable by imprisonment of up to five years.^[25] Conditions may be imposed on a person under an extended supervision order for a period of up to three years,^[26] although another extended supervision order can be made after the original three year period expires.^[27] In addition, if an application has been made for an extended supervision order, a court may also make an interim supervision order for a period of up to 28 days.^[28]

1.44 Proposed paragraph 105A.7A(1)(b) provides that a court may make an extended supervision order if the court is satisfied, on the balance of probabilities, that the offender poses an unacceptable risk of committing a serious Part 5.3 (terrorism) offence. Proposed subsection 105A.7B(1) provides that the conditions that a court may impose on a terrorist offender by an extended or interim supervision order are any conditions that 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 (terrorism) offence. Proposed subsection 105A.7B(3) sets out a non-exhaustive list of the conditions that a court may impose, including that the offender:

1.45 In 2016 the committee raised significant scrutiny concerns in relation to the continuing detention order scheme in Part 5.3 of the Criminal Code.^[29] The committee noted that while proceedings for a continuing detention order are characterised by the usual procedures and rules for civil proceedings, the scheme nevertheless fundamentally inverts basic assumptions of the criminal justice system. In this regard, 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. This undermines a fundamental postulate of our system of law—that persons should not be imprisoned or punished for crimes that may commit in the future.

1.46 In 2016 the committee acknowledged 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.^[30] 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 (or, as is proposed in this bill, the imposition of severe conditions) is triggered by past offending, then it can plausibly be characterised as retrospectively imposing additional punishment for that past offence. Even if the continuing detention (or imposition of severe conditions) is not conceptualised as imposing additional punishment and is instead rationalised on the basis of its protective purpose, the fact that the order is made on the basis of predicted future offending still inverts fundamental principles of the criminal justice system.

1.47 The committee acknowledges that the proposed extended supervision order scheme is less restrictive of liberty than the existing continuing detention order scheme. However, given the severity of conditions that may be imposed on a person subject to an extended supervision order, the committee considers that the extended supervision order scheme may still be characterised as fundamentally inverting basic assumptions of the criminal justice system, including that a person should only be punished for a crime which it has been proved beyond a reasonable doubt that they have committed, not the risk that they may in future commit a crime.

1.48 The committee draws its scrutiny concerns to the attention of senators and leaves the appropriateness of the proposed extended supervision order scheme to the consideration of the Senate as a whole.

Trespass on personal rights and liberties—standard of proof^[31]

1.49 As noted above, proposed paragraph 105A.7A(1)(b) provides that a court may make an extended supervision order if the court is satisfied, on the balance of probabilities, that the offender poses an unacceptable risk of committing a serious Part 5.3 (terrorism) offence. The committee notes that this significantly reduces the standard of proof in comparison with that required for making a continuing detention order, which requires a 'high degree of probability' standard. In relation to this, the explanatory memorandum states:

1.50 While the committee acknowledges this explanation, the committee notes that the Independent National Security Legislation Monitor (INSLM), when considering the implementation of an extended supervision order scheme, recommended that the same standard of proof ('high degree of probability') be applied as for the making of a continuing detention order.^[33] The committee notes that the explanatory materials do not address why a different standard of proof than that recommended by the INSLM has been applied.

1.51 The committee therefore requests the Attorney-General's advice as to whether proposed paragraph 105A.7A(1)(b) can be amended to require the court be satisfied to a 'high degree of probability' (rather than on the 'balance of probabilities') that an offender poses an unacceptable risk of committing a serious Part 5.3 offence before the court may make an extended supervision order.

Procedural fairness—right to a fair hearing^[34]

1.52 Proposed section 105A.14A requires the AFP minister (or their legal representative) to provide offenders and their legal representatives with a copy of the application for a post-sentence order, and additional materials the court seeks from the AFP minister. However, proposed sections 105A.14B–105A.14D provide that the AFP minister may exclude sensitive information from applications or materials where the information is national security information, subject to a claim of public interest immunity, or is terrorism material.

1.53 Relatedly, the bill also seeks to amend the National Security Information (Criminal and Civil Proceedings) Act 2004 (the National Security Information Act) to expand the availability of special court orders that are currently only available in control order proceedings, to extended supervision order proceedings.^[35] These orders would allow the court to consider and rely on national security information which is not disclosed to the offender or their legal representative. Existing paragraph 38J(1)(c) provides that, in determining whether to make such an order, the court must be satisfied that the offender has been given sufficient information about the allegations on which the application for an extended supervision order is based to enable effective instructions to be given in relation to the allegations. In addition, existing subsection 38J(5) provides that the court must also take into account the risk of prejudice to national security if the order were not made, whether the order would have a substantive adverse effect on the substantive hearing, and any other matter the court considers relevant.

General comment

1.54 The committee has previously raised significant scrutiny concerns in relation to the restriction of access to information to offenders on the basis of national security. In the committee's Eighth Report of 2016, in relation to the provisions which currently only apply to control order proceedings, the committee noted that the provisions clearly undermine the fundamental principle of natural justice which includes a fair hearing.^[36] In judicial proceedings a fair hearing traditionally includes not only the right of a person to contest any charges against them but also to test any evidence upon which any allegations are based. In many instances it may not be possible, in practice, to contest the case for the imposition of extended supervision order without access to the evidence on which the case is built.

1.55 In 2016 the committee also noted that courts are not well placed to second-guess evaluations by the executive of national security risk, which means that it may be particularly challenging for courts to protect an individual's interest in a fair hearing. The fact that the court has discretion as to how to draw the balance between national security and any adverse effect on the substantive hearing cannot be said to guarantee procedural fairness. In considering the extent to which judges will be able, in the exercise of their discretionary powers, to resist executive claims that a non-disclosure order should be made, it should be noted that judges routinely accept that the courts are 'are ill-equipped to evaluate intelligence'^[37] and the possibility that the executive may be wrong in their national security assessments. For this reason, the fact that national security information is read by judges does not mean that they will be well placed to draw a different balance between security risk and fairness than is drawn by the executive.

Special advocates

1.56 Existing section 38I of the National Security Information Act provides that where a non-disclosure order is made the offender and their legal representative may be excluded from hearings where the information which the offender has been excluded from seeing is being considered by the court. In such instances, under existing sections 38PA and 38PB, the court may appoint a 'special advocate' to represent the interests of the offender by making oral and written submissions, adducing evidence and cross-examining witnesses. Unless the court otherwise orders, under existing section 38PD offenders are free to communicate with the special advocate before national security information has been disclosed to the advocate. However, under existing section 38PF after national security information has been disclosed to the advocate, communication between the offender and the special advocate is heavily restricted.

1.57 As noted above, existing paragraph 38J(1)(c) provides that, in determining whether to make such a non-disclosure order, the court must be satisfied that the offender has been given sufficient information about the allegations on which the application for an extended supervision order is based to enable effective instructions to be given in relation to the allegations. Noting that communication between an offender and the special advocate is heavily restricted after national security information has been disclosed to the advocate, the committee considers that if an offender is only given 'sufficient information' about the allegations against them after restrictions are placed on communication with the special advocate, there will be limited opportunity for proper instructions to be given to the special advocate. The committee considers that this would appear to severely limit the effectiveness of the special advocate scheme in protecting an offender's right to procedural fairness.

1.58 Furthermore, the committee is concerned that, under existing section 38PA, the court is not required to appoint a special advocate. If a special advocate is not appointed in all cases where the court is relying on secret evidence, the offender may be left with no mechanism to challenge the evidence against them. The committee therefore considers that this also significantly diminishes the effectiveness of the special advocate scheme.

Conclusion

1.59 The committee expects that any restriction on a person's right to a fair hearing to be extensively justified in the explanatory memorandum. In this instance, the explanatory materials highlight the potential national security implications of providing offenders with all relevant information:

1.60 While the committee acknowledges and understands this rationale, from a scrutiny perspective, the committee remains concerned about the impact of the bill on offender's right to procedural fairness, particularly noting the potential limitations on the effectiveness of the special advocate scheme outlined above.

1.61 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of:

1.62 The committee considers that these provisions may negatively impact an offender's ability to effectively contest an application for an extended supervision order that is made against them.

Trespass on personal rights and liberties—expansion of monitoring and surveillance powers^[39]

1.63 Part 2 of Schedule 1 to the bill seeks to extend significant monitoring and surveillance powers to the proposed extended (and interim) supervision order scheme, and to decisions concerning the making of a continuing detention order. These powers include monitoring warrants under Part IAAB of the Crimes Act 1914,^[40] surveillance device warrants, surveillance device powers without a warrant and computer access warrants under the Surveillance Device Act 2004,^[41] and telecommunications service warrants and named person warrants under the Telecommunications (Interception and Access) Act 1979.^[42]

1.64 In addition, the bill seeks to extend the operation of the proposed international production order (IPO) regime. IPOs 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 held in Australia.

1.65 The committee has generally had significant scrutiny concerns regarding bills which allow for the extensive use of significant monitoring and surveillance powers. The committee generally expects that provisions allowing for the use of such intrusive powers should be sufficiently justified in the explanatory materials and that appropriate safeguards should be in place to protect the rights and liberties of affected persons. In this instance, the statement of compatibility states:

1.66 While noting the explanation provided and acknowledging the need to monitor a person's compliance with the conditions of their extended supervision order, the committee retains scrutiny concerns about the proposed extension of significant monitoring and surveillance powers to the extended (and interim) supervision order scheme. In this respect, the committee is not satisfied that appropriate safeguards exist in the existing legislation to protect the personal rights and liberties of persons subject to an extended supervision order. For example, the committee notes that warrants authorising the use of many of the monitoring and surveillance powers may be issued by members of the Administrative Appeals Tribunal. The committee has a long-standing scrutiny view that the power to issue warrants or orders relating to the use of intrusive powers should only be conferred on judicial officers.

1.67 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of extending significant monitoring and surveillance powers under a number of Acts to persons subject to an extended supervision order, noting that these powers may trespass on a person's rights and liberties.

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

[29] For details of the committee's scrutiny concerns in relation to the continuing detention order scheme, see the committee's comments on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 in Senate Standing Committee for the Scrutiny of Bills, Report 10 of 2016, pp. 631-643.

[30] For example, detention on the basis of risks associated with the spread of communicable disease do not threaten these basic assumptions of our criminal law.

[31] Schedule 1, item 87, proposed paragraph 105A.7A(1)(b). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[33] Independent National Security Monitor, Review of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detentions Orders, September 2017, p. 76.

[34] Schedule 1, item 120, proposed sections 105A.14B-105A.14D and items 189-210. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iii).

[36] Senate Standing Committee for the Scrutiny of Bills, Eighth Report of 2016, pp. 472-483.

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

[40] These powers include the power 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.

[41] These powers include 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. The warrants 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.

[42] These warrants 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.

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