Counter-Terrorism and Other Legislation Amendment Bill 2023 [2023] AUSStaCSBSD 149 (6 September 2023)

1.1 The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests

Purpose	This bill seeks to extend, for three years, the following Australian Federal Police counter-terrorism powers that are scheduled to sunset on 7 December 2023: • the stop, search and seizure powers in Division 3A of Part IAA of the Crimes Act 1914; • the control order regime in Division 104 of the Criminal Code Act 1995; and • the preventative detention order regime in Division 105 of the Criminal Code Act 1995. The bill also seeks to extend by 12 months the operation of section 122.4 of the Criminal Code Act 1995, which makes it an offence for a current or former Commonwealth officer to disclose information without authorisation.
Portfolio	Attorney-General
Introduced	House of Representatives on 10 August 2023
Bill status	Before House of Representatives

1.2 Schedules 1 and 2 to the bill seek to extend, by three years, the operation of significant counter-terrorism measures that are due to sunset on 7 December 2023.

1.3 Specifically, the bill is seeking to extend the operation of the following measures:

1.4 These measures were first introduced in 2005, pursuant to the Anti-Terrorism Bill (No. 2) 2005, and their operation has been extended several times. The committee has previously raised scrutiny concerns regarding these broad coercive powers and the continued extension of these measures.^[6]

1.5 The committee has previously raised concerns 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 coercive. Once a prescribed security zone is declared, everyone in that zone is subject to stop, question, search and seizure powers, regardless of whether there are reasonable grounds to believe the person may be involved in the commission, or attempted commission, of a terrorist act.

1.6 The committee has also previously noted that the control order regime constitutes a substantial departure from the traditional approach to restraining and detaining persons on the basis of a criminal conviction.^[7] That traditional approach involves a number of steps: investigation, arrest, charge, remand in custody or bail, and then sentence on conviction. In contrast, control orders allow restraints to be placed on personal liberty without there being any criminal conviction, or without even a charge being laid. Protections of individual liberty, built into ordinary criminal processes, are necessarily compromised.

1.7 Similarly, preventative detention orders raise significant scrutiny concerns as they permit a person's detention by the executive without charge or arrest, and without even a necessary intention to charge the subject with an offence.

1.8 The committee notes that some measures have been introduced to provide limited safeguards to the extraordinary counter-terrorism powers. For example, the bill amends the Crimes Act 1914 (Crimes Act) to require the minister to consider particular matters before declaring a 'prescribed security zone'. This includes notification requirements of any declaration of a 'prescribed security zone' and requires the minister to provide a written statement of reasons in relation to such a declaration after it has been made.^[8] The bill also amends the Criminal Code Act 1995 (Criminal Code) to narrow the definition of 'issuing court' to restrict the issue of control and preventative detention orders to only the Federal Court of Australia (FCA) and limits the class of persons who may be appointed as an issuing authority for preventative detention orders to judges of the FCA or a State or Territory Supreme Court judge. It also requires the FCA to consider whether each of the conditions imposed, or the combined effect of conditions imposed, are reasonably necessary, appropriate and adapted for the purpose for which the order is issued.^[9]

1.9 While welcoming the inclusion of these safeguards, the committee notes that nevertheless the extraordinary nature of the regimes outlined above is recognised in the current legislation by the inclusion of a sunset period. The committee expects the explanatory memorandum for any bill deferring a sunsetting date for extraordinary or emergency measures to address why that deferral is necessary and appropriate. Where the relevant measures trespass in significant ways on personal rights and liberties, as in this case, the committee's expectations in this regard are even higher. The committee's expectations will also be higher where the sunsetting date has been repeatedly extended. The explanatory materials accompanying such a bill should provide a comprehensive justification for the continued need for extraordinary coercive powers, including outlining what exceptional circumstances justify the extension and whether those exceptional circumstances are expected to continue into the future.

1.10 In this case, the explanatory memorandum explains that these measures are extended in response to reviews by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) and the Independent National Security Legislation Monitor (INSLM):

Division 3A of Part IAA of the Crimes Act will sunset on 7 December 2023. The Bill would extend the operation of the Division by a further three years, until 7 December 2026.

In reviewing the operation, effectiveness and implications of Division 3A of Part IAA, the PJCIS found that these powers are an important part of Australia’s counter-terrorism response framework. The PJCIS recognised that although the Division 3A powers have not been used since their introduction, there is a continued need for the powers.

In his 2017 Review of Division 3A of Part IAA of the Crimes Act 1914: Stop, Search and Seize Powers (2017 Review), the then INSLM, Dr James Renwick SC, also supported the ongoing utility and importance of these powers. The INSLM’s 2017 Review concluded that the police powers are consistent with Australia’s human rights, counter-terrorism and international security obligations, contain appropriate safeguards for protecting the rights of individuals, are proportionate to the current threats of terrorism and to national security, and are necessary.

The control order regime in Division 104 of the Criminal Code will sunset on 7 December 2023. The Bill would extend the operation of the Division by a further three years, until 7 December 2026. This would ensure these powers do not sunset, in line with the recommendations of the PJCIS’s AFP Powers Review.

The PDO regime in Division 105 of the Criminal Code will sunset on 7 December 2023. The Bill extends the operation of the Division by a further three years, until 7 December 2026, in line with the recommendation of the PJCIS’s AFP Powers Review. The PJCIS concluded that in light of the current national security threat environment the PDO powers should be extended, noting that non-use of the powers does not indicate a lack of usefulness.^[10]

1.11 While the committee acknowledges this explanation, it is unclear whether these measures are sufficiently justified given that they displace the careful balance between the rights of accused and the public interest represented by the operation of the ordinary criminal law process. Prior to the introduction of this bill, Australia's National Terrorism Threat Level (threat level) was downgraded for the first time since 2014. From 2014 to November 2022, Australia's threat level was rated as 'probable', meaning there was 'credible intelligence assessed by Australia’s security agencies indicating that individuals and groups have the intent and capability to conduct a terrorist act in Australia'^[11]. This threat level was in place when the operation of these measures was last extended by the Counter-Terrorism Legislation Amendment (AFP Powers and Other Matters) Bill 2022. It was also Australia's threat level when the PJCIS last reviewed these powers in 2021.^[12]

1.12 However, on 28 November 2022, the Australian Security Intelligence Organisation (ASIO) reduced Australia's threat level to 'possible'. This threat level indicates that 'there is credible intelligence that, whilst Australia is a possible target of terrorists, there is limited intention or capability to conduct an attack'^[13].

1.13 The explanatory memorandum states that, in announcing this change, the Director-General of ASIO had noted that lowering the threat level does not mean that the threat of terrorism is extinguished, and that terrorism 'is an enduring and evolving threat'^[14]. The explanatory memorandum further notes Australia's current threat level, and states that the proposed amendments:

...would support Australia’s counter-terrorism framework, ensuring that the Government and agencies continue to have appropriate tools to protect the community from the risk of terrorism, and improve the operational effectiveness of, and safeguards that apply in relation to the use of, those tools.^[15]

1.14 However, no specific information is provided to demonstrate the continuing need for these powers despite this reduction in the terrorism threat level in the intervening period. While the explanatory memorandum states that the threat of terrorism is not extinguished, it is doubtful that the threat of terrorism could ever be said to be entirely extinguished. Further, the committee notes that the stop, search and seizure powers in Division 3A of the Crimes Act, and the preventative detention order powers in the Criminal Code, have never been used since their introduction, notwithstanding the elevated threat levels throughout that period.^[16]

1.15 The PJCIS considered it was necessary to evaluate the ESO scheme before determining that the control order scheme was no longer necessary.^[17] The PJCIS is currently undertaking a review of the operation and effectiveness of post-sentence terrorism orders in Division 105A of the Criminal Code (including ESOs).^[18] It is unclear to the committee why it is necessary to extend the control order regime for three years, given that a relevant review of related powers is currently underway.

1.16 Noting that some of these measure have been in effect for nearly 20 years the committee reiterates its previous concern 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.^[19] 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. In particular, the committee is concerned that several of the measures give the power to detain and restrain persons who may not have been convicted of, or even charged with, a criminal offence. The committee remains concerned that these measures are no longer adequately justified as extraordinary and temporary given their continued renewal and the acknowledged reduction in the level of threat of terrorist offences being committed.

1.17 In light of the above concerns, the committee requests the Attorney-General's detailed advice as to why it is considered necessary and appropriate to extend, by a further three years, the operation of broad coercive powers within the Crimes Act 1914 and the Criminal Code Act 1995.

1.18 Item 2 of Schedule 1 to the bill seeks to insert proposed subsections 3UD(1A) and (1B) into the Crimes Act. Proposed subsection 3UD(1A) provides that a police officer who stops and detains a person under section 3UD of the Crimes Act (relating to powers to stop and search a person for a terrorism related item) must inform the person of any right they have to make a complaint to the Commonwealth Ombudsman or a State or Territory policy oversight body about the conduct of the police officer in exercising the powers conferred by this section. Proposed subsection 3UD(1B) provides that the obligation to inform a person of a right to make a complaint under proposed subsection 3UD(1A) does not require a police officer to inform a person of a right if it is not reasonably practicable to do so due to urgency.

1.19 Where a bill empowers a decision-maker to make decisions which have the capacity to affect rights, liberties or obligations, those decisions should ordinarily be subject to independent merits review and procedural fairness. In this case, an individual has a right to make a complaint regardless of whether the police notify the individual of this right. While the proposed requirement for a police officer to inform an individual of their right is welcomed, it is concerning that the obligation to inform a person of their right to complain does not apply in circumstances of urgency. The explanatory memorandum explains:

New subsection 3UD(1B) would provide that new subsection 3UD(1A) does not require a police officer to inform a person of a right if it is not reasonably practicable to do so because of circumstances of urgency. The phrase ‘circumstances of urgency’ is intended to take the same meaning in new subsection 3UD(1B) as it carries in section 19AU – that is, that there is a need for immediate action. An exemption to the obligation to inform the person of their right to complain is appropriate in circumstances of urgency. The use of the powers under section 3UD may be exercised in time-sensitive situations, where, for instance a terrorist act may be imminent. In these circumstances, police should not be delayed in efforts to prevent an imminent terrorist offence by an obligation to provide this information.

A person would still have a right to complain to the Commonwealth Ombudsman or applicable State or Territory police oversight body about the conduct of a police officer exercising Division 3A powers even if the police officer did not advise them of this right due to circumstances of urgency. This would ensure that a person does not forfeit their right to make a complaint due to the police officer failing to notify the person of this right.^[21]

1.20 While the committee acknowledges this explanation and notes it is likely not reasonable to require a police officer to inform a person of their right to complain in circumstances of urgency, the committee considers it may nevertheless be appropriate to provide that a person be told of their right as soon as is practicable after the event. Given the extraordinary powers in section 3UD, the committee would welcome this safeguard to ensure that individuals are informed of their right to complain to appropriate bodies.

1.21 The committee requests the Attorney-General's detailed advice as to whether the bill could be amended to the effect that it requires a person be told of their right to make a complaint as soon as it is practicable in circumstances of urgency under proposed subsection 3UD(1B) of the Crimes Act 1914.

[2] Schedules 1 and 2. The committee draws senators' attention to these provisions pursuant to Senate standing orders 24(1)(a)(i), (ii) and (v).

[3] In Part 1AA, Division 3A of the Crimes Act 1914. Item 9 of Schedule 1 to the bill seeks to extend the operation of this measure.

[4] In Part 3, Division 104 of Schedule 1 to the Criminal Code Act 1995 (the Criminal Code). Item 42 of Schedule 2 to the bill seeks to extend the operation of this measure.

[5] In Division 105 of the Criminal Code. Item 51 of Schedule 2 to the bill seeks to extend the operation of this measure.

[7] Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 7 of 2016 (12 October 2016) p. 20; Senate Standing Committee for the Scrutiny of Bills, Report No. 8 of 2016 (9 November 2016).

[11] Australia's National Terrorism Threat Level is a five-level scale advising as to the likelihood of an act of terrorism in Australia consisting of: certain; expected; probable; possible; and not expected. See, www.nationalsecurity.gov.au.

[12] See, explanatory memorandum accompanying the Counter-Terrorism Legislation Amendment (AFP Powers and Other Matters) Bill 2022, p. 3. See also, Parliamentary Joint Committee on Intelligence and Security, Review of police powers in relation to terrorism, the control order regime, the preventative detention order regime and the continuing detention order regime (October 2021), [2.56].

[19] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2018, 20 June 2018, pp. 13–16; Scrutiny Digest 12 of 2021, 11 August 2021, pp. 1–4.

[20] Schedule 1, item 2, proposed subsections 3UD(1A) and (1B). The committee draws senators' attention to this provision pursuant to Senate standing order 24(1)(a)(i).

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

Counter-Terrorism and Other Legislation Amendment Bill 2023 [2023] AUSStaCSBSD 149 (6 September 2023)