Counter Terrorism Legislation Amendment (AFP Powers and Other Matters) Bill 2022- Commentary on Ministerial Responses [2022] AUSStaCSBSD 89 (26 October 2022)

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Purpose	This bill seeks to amend the Crimes Act 1914 and the Criminal Code Act 1995 to extend for 12 months (until 7 December 2023) the sunsetting dates for stop, search and seizure powers, control orders and preventative detention orders.
Portfolio	Attorney-General
Introduced	House of Representatives on 8 September 2022
Bill status	Before the Senate

Coercive powers
Deferral of sunsetting^[7]

2.12 Items 1, 2 and 3 of Schedule 1 to the bill seek to extend the operation of significant counter-terrorism measures that are currently due to sunset on 7 December 2022.

2.13 In Scrutiny Digest 5 of 2022 the committee requested the Attorney-General's advice as to why it is considered necessary and appropriate to extend, by a further twelve months, the operation of broad coercive powers within the Crimes Act 1914 and the Criminal Code Act 1995, noting that the explanatory memorandum contained no explanation or justification for the extension.^[8]

2.14 The Attorney-General advised that the Parliamentary Joint Committee on Intelligence and Security (PJCIS) conducted a statutory review of the powers commented upon by the committee. This review supported the extension of the powers, subject to certain amendments including the introduction of additional safeguards.

2.15 The Attorney-General advised that extending the operation of the powers is appropriate to ensure that there is sufficient time to consult on, and implement, the government's response to PJCIS' recommendations. The Attorney-General advised that this consultation and implementation work will take place over the coming months.

2.16 Finally, the Attorney-General advised that extending the powers by 12 months strikes an appropriate balance between ensuring that agencies continue to have access to the powers, while responding in a considered and appropriate manner to the recommendations of the PJCIS for more robust safeguards.

2.18 The committee notes that this advice would have been helpful had it been included in the explanatory memorandum to the bill.

2.19 While acknowledging the need to ensure an appropriate amount of time to respond to the recommendations of the PJCIS, the committee notes that the sunsetting dates of the measures have already been extended on a number of occasions. The committee reiterates its previous concerns that 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.^[10] The committee considers the measures being extended by this bill raise significant scrutiny concerns and may unduly trespass on personal rights and liberties.

2.20 The committee reiterates its expectation that the explanatory materials accompanying a bill which proposes to extend the sunsetting date of significant coercive powers should provide a comprehensive justification for the continued need for the powers, including outlining what exceptional circumstances justify the extension, whether those exceptional circumstances are expected to continue into the future and what alternative scrutiny mechanisms are available to Parliament.

2.21 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the Attorney-General 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).

2.22 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 twelve months, the operation of a number of broad coercive powers which raise significant scrutiny concerns.

[7] Schedule 1, items 1, 2 and 3. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i) and (v).

[9] The Attorney-General responded to the committee's comments in a letter dated 12 October 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 6 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest .

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