Counter-Terrorism Legislation Amendment (High-Risk Terrorist Offenders) Bill 2020 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 12 (29 January 2021)

• Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020
• Procedural fairness—right to a fair hearing8

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Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020

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
Bill status	Before the House of Representatives

Procedural fairness—right to a fair hearing^[8]

2.26 The committee initially scrutinised this bill in Scrutiny Digest 14 of 2020 and requested the Attorney-General's advice.^[9] The committee considered the Attorney-General's response in Scrutiny Digest 16 of 2020 and requested the Attorney-General's further advice as to whether the bill can be amended to provide high level guidance that the court-only evidence provisions in items 189–210 of Schedule 1 may only be used in exceptional circumstances, where it is absolutely necessary to present highly sensitive information to a court to support an application.^[10]

Attorney-General's response^[11]

2.27 The Attorney-General advised:

I am of the view that it is not necessary to amend the Bill to provide guidance of that kind. Doing so would not result in any change to the effect and operation of the provisions under the National Security Information (Criminal and Civil Proceedings) Act 2004, which already stipulate the circumstances in which orders may be sought.
Wherever possible, proceedings for extended supervision orders will be held in open court. The court-only evidence provisions would only be used in circumstances where it is necessary to protect highly sensitive information where disclosure may be likely to prejudice national security. It would ultimately be a matter for the court to determine if, and how, information is to be protected in proceedings, balancing the need to protect highly sensitive national security information with the offender's right to a fair hearing. The court may also appoint a special advocate to represent the interests of the offender if the court makes an order that the offender and/or their legal representatives are not entitled to be present at any part of a hearing in the proceeding.

Committee comment

2.28 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that it is not necessary to amend the bill to provide that the court-only evidence provisions in items 189–210 of Schedule 1 may only be used in exceptional circumstances. The Attorney-General’s view is that such an amendment would not affect the operation of the provisions under the National Security Information (Criminal and Civil Proceedings) Act 2004. The Attorney-General also advised that court-only evidence provisions would only be used where necessary to protect highly sensitive information and that it would ultimately be a matter for the court to determine if, and how, information is to be protected in proceedings, balancing the need to protect highly sensitive national security information with the offender's right to a fair hearing.

2.29 While noting this advice, from a scrutiny perspective, the committee remains of the view that it would be appropriate to amend the bill to provide high-level guidance that the court-only evidence provisions in items 189–210 of Schedule 1 may only be used in exceptional circumstances, where it is absolutely necessary to present highly sensitive information to a court to support an application.

2.30 In the absence of such an amendment to the text of the bill, the committee requests that an addendum to the explanatory memorandum containing the key information provided by the Attorney-General in relation to this matter be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.31 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of the court-only evidence provisions of the bill.

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[8] 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).

[9] Senate Scrutiny of Bills Committee, Scrutiny Digest 14 of 2020, pp. 15-18.

[10] Senate Scrutiny of Bills Committee, Scrutiny Digest 16 of 2020, pp. 34-38.

[11] The Attorney-General responded to the committee's comments in a letter dated 3 December 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.