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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
Chapter 2
Commentary on ministerial responses
2.1 This chapter considers the responses of ministers to matters previously raised by the committee.
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Purpose
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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
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Portfolio
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Attorney-General
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Introduced
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Senate on 1 August 2019
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Bill status
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Before the Senate
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2.2 In Scrutiny Digest 5 of 2019 the committee requested the Attorney-General's advice as to the necessity and appropriateness of expanding the presumption against bail and parole, noting that it may apply in circumstances where a person has not been charged with, or ever previously convicted of, a terrorism offence.[2]
Attorney-General's response[3]
2.3 The Attorney-General advised:
In June 2017, the Council of Australian Governments (COAG) agreed to ensure there will be a presumption that neither bail nor parole will be granted to those persons who have demonstrated support for, or have links to, terrorist activity. In line with the COAG agreement, this Bill expands the existing presumption against bail to include those offenders who are the subject of a control order, or have links with, or have shown support for, terrorist activities. The new presumption against parole similarly covers all of these terrorism-related offenders.
As noted at the special meeting of the COAG on Counter Terrorism on 5 October 2017:
A nationally consistent approach to preventing and responding to terrorist threats underpins Australia's national security in a complex and evolving threat environment. Close cooperation and interoperability between Commonwealth and state agencies is critical to Australia's ability to counter terrorism. It is the bedrock of our national counter-terrorism effort. And by strengthening legal frameworks, implementing new practices and programs and improving information sharing, we are better equipping our security and law enforcement agencies, strengthening protections for public places, and preventing radicalisation and violent extremism.
The presumptions against bail and parole minor those arrangements now in place in most Australian states and territories. The presumptions are necessary legislative tools in support of the prevention and disruption of terrorism, a core element of Australia's national security strategy. It is essential that our laws continue to enable intervention and disruption at the early stages of preparations for a terrorist act. Decision makers at the key steps in the criminal justice process of bail and parole must be able to take into account a person's prior actions, where those actions indicate a terrorism-related risk to the community. The terrorism-related risk posed by these offenders needs to be taken into account regardless of the federal offence for which they are currently being prosecuted or imprisoned.
The presumptions against bail and parole are intended to operate broadly to ensure the community is protected from terrorism and terrorist threats. The presumptions against bail and parole are critical mechanisms to mitigate risks posed by terrorist offenders and other people who have expressed support for terrorism, or those individuals who have been identified by law enforcement as posing a risk to the community who are the subject of a control order. These strong measures will ensure that public safety is paramount when applications for bail and parole are being considered.
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. A person who is subject to a control order has been identified by law enforcement and the courts as posing a risk to society. In relation to such persons, as well as those who have shown support or advocated support for terrorist acts, restricting their freedom of movement through the rebuttable presumptions against bail and parole is a legitimate response to the need to protect the community and Australia's national security from the evolving nature of the threat posed by terrorism.
The Government is of the view that it is also appropriate that the presumption also apply to persons accused of offences against section 102.8 of the Criminal Code Act 1995 (associating with terrorist organisations). This measure reflects the serious threat posed to the Australian community by those individuals who adhere to extremist ideology, and ensures that these individuals can be appropriately managed and controlled within the criminal justice system. This measure, along with the other measures in the Bill, is necessary to fully implement the COAG Agreement of 9 June 2017.
The presumptions provide safeguards and facilitate the exercise of judicial discretion as bail may still be granted where there are 'exceptional circumstances'. The presumptions against bail and parole are not blanket bans on bail and parole for persons who have demonstrated support for, or have links to, terrorism. The presumptions preserve an appropriate degree of discretion as decision makers may grant bail or parole where there are exceptional circumstances to justify release.
Exceptional circumstances are not defined in the Crimes Act 1914 (Cth) (Crimes Act). This means that the courts (in relation to bail) and the Attorney-General (in relation to parole) have discretion to take into account all relevant information when determining whether exceptional circumstances exist to justify a terrorism-related offender's release into the community.
The defendant (and the Commonwealth Director of Public Prosecutions) also has the option to appeal the decision of the bail authority. This already exists under the current legislation and will continue to be available to the expanded class of offenders under the amended legislation.
In relation to parole, release on parole is already at the discretion of the Attorney-General for all federal offenders serving a non-parole period - the amendments merely set a higher threshold for these offenders who present the highest risk to the community. Further, the existing procedural fairness arrangements under Part IB of the Crimes Act will apply to this expanded class of offenders.
The presumptions are not insurmountable, but they do set an appropriately high threshold in order to protect the community from the threat posed by terrorism-related offenders.
Committee comment
2.4 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that the presumption against bail and parole are intended to operate broadly to ensure that the community is protected from terrorism and terrorist threats. The committee also notes the advice that the presumptions against bail and parole are critical mechanisms to mitigate risks posed by terrorist offenders and other people who have expressed support for terrorism, or those individuals who have been identified by law enforcement as posing a risk to the community who are the subject of a control order.
2.5 The committee reiterates that it is a cornerstone of the criminal justice system that a person is presumed innocent until proven guilty, and presumption against bail (which denies a person their liberty before they have been convicted) tests this presumption. The committee expects any limitation of this fundamental right to be soundly justified.
2.6 The committee also notes the Attorney-General's advice that the terrorism-related risk posed by these offenders needs to be taken into account regardless of the federal offence for which they are currently being prosecuted or imprisoned. However it remains unclear to the committee that this is something that is currently not being taken into account by courts when exercising their discretion to grant bail.
2.7 The committee further notes the Attorney-General's advice 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. However, the Attorney-General's response does not address why or how a person who has been previously charged with a terrorism offence, but not necessarily convicted of that offence, is a risk to the community. The committee reiterates that, under this bill, a person may have been previously charged with a terrorism offence but the charges were later dropped or they may have been acquitted of that offence, yet a presumption against bail would exist in relation to them if they are 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 remains unclear 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 the presumption.
2.8 The committee notes the Attorney-General's advice that a person who is subject to a control order has been identified by law enforcement and the courts as posing a risk to society. The committee further notes the advice that, in relation to such persons, as well as those who have shown support or advocated support for terrorist acts, restricting their freedom of movement through the rebuttable presumptions against bail and parole is a legitimate response to the need to protect the community and Australia's national security from the evolving nature of the threat posed by terrorism.
2.9 While the committee acknowledges this advice, the committee notes that control orders may be issued by a court without any criminal conviction or even a charge being laid. The committee also reiterates its concerns 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. From a scrutiny perspective, the committee does not consider that the advice provided by the Attorney-General sufficiently justifies expanding the presumption against bail to these categories of persons.
2.10 In relation to presumption against parole, the committee notes the Attorney-General's advice that release on parole is already at the discretion of the Attorney-General for all federal offenders serving a non-parole period and that the amendments merely set a higher threshold for those offenders who present the highest risk to the community. While noting this advice, the committee notes that the presumption against parole will apply to persons who have not been convicted of a terrorism offence. From a scrutiny perspective, the committee does not consider that the Attorney-General's advice has adequately justified a need for expanding the presumption against parole.
2.11 In addition, the committee reiterates that while the presumption against parole will not technically have 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.
2.12 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of broadly expanding the presumptions against bail and parole, noting that it may apply in circumstances where a person has not been charged with, or ever previously convicted of, a terrorism offence.
2.13 In Scrutiny Digest 5 of 2019 the committee requested the Attorney-General's advice as to why it is considered appropriate to expand the continuing detention scheme for high risk terrorist offenders after their sentences for imprisonment have been served. [5]
Attorney-General's response
2.14 The Attorney-General advised:
Concurrent and cumulative sentences
The proposed amendments in Part 1 of Schedule 2 are appropriate to ensure that the community can be protected from dangerous terrorist offenders who continue to pose an unacceptable risk of committing a serious terrorism offence upon release.
Currently, the HRTO scheme does not apply to terrorist offenders who are in prison for multiple offences where their sentence for the terrorism offence ends before that of any other offence. In such circumstances, the Minister for Home Affairs (Minister) cannot consider whether a continuing detention order (CDO) is appropriate, even if the sentence for any other offence expires only a short period after the sentence for the eligible terrorism offence. This undermines the policy intention of the original HRTO scheme, which is to continue the detention of high-risk terrorist offenders serving a custodial sentence who pose an unacceptable risk to the community. The fact that a terrorist offender has also been imprisoned for other offences, in addition to an eligible terrorism offence, does not mean that the offender is any less likely to pose a threat to the community of committing a serious Part 5.3 offence.
This gap in the current legislation could also lead to perverse outcomes which have the potential to diminish the effectiveness of the HRTO scheme. For example, offenders currently serving a sentence for a terrorism offence may be rendered ineligible for consideration under the HRTO scheme if they commit a further offence whilst in prison (e.g. assaulting another inmate or corrections staff), and subsequently serve a sentence for that offence which ends after the sentence for their terrorism offence.
The proposed amendments are a minor adjustment to the eligibility criteria of the HRTO scheme. They address this gap by ensuring that terrorist offenders are not rendered ineligible simply because they are serving a sentence of imprisonment for an additional offence that ends after their sentence of imprisonment for an eligible terrorism offence. Under the proposed amendments, the Minister will be able to seek a CDO irrespective of whether the terrorist offender's final day in prison is for the eligible terrorism offence or another offence, provided that they have been detained continuously since being convicted of the eligible terrorism offence.
There will be no impact on the safeguards already guaranteed under Division 105A, which include:
• the court must be satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious terrorism offence if released into the community;
• the court must be satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk before making a CDO;
• a CDO is appealable as of right within 28 days of the decision, and by leave, within such further time as the court of appeal allows;
• the making of a CDO is a judicial process subject to civil rules of evidence and procedure; and
• a CDO is subject to annual review, and the terrorist offender can seek review of a CDO sooner where new facts or circumstances justify reviewing the order, or where it is in the interests of justice to review the order.
In assessing whether an offender continues to pose an unacceptable risk to the community of committing a further terrorism offence, the court may also consider any matter it considers relevant, including the time between the completion of the offender's terrorism sentence and their potential release from prison.
Committee comment
2.15 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that currently the minister cannot consider whether a continuing detention order is appropriate, even if the sentence for any other offence expires only a short period after the sentence for the eligible terrorism offence. The committee also notes the Attorney-General's advice that this gap in the current legislation could also lead to perverse outcomes which have the potential to diminish the effectiveness of the HRTO scheme, including in circumstances where a person commits a further offence while imprisoned.
2.16 However, the committee reiterates its significant scrutiny concerns in relation to the high risk terrorist offenders scheme. The committee reiterates 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. The committee notes that 'offenders' in our system of law may only be punished on the basis of offences which have been proven beyond a reasonable doubt, whereas the scheme detains 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.
2.17 The committee acknowledges 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.
2.18 Noting these significant scrutiny concerns regarding the operation of the scheme, the committee considers that any expansion of the scheme needs to be soundly justified. While the committee notes the Attorney-General's advice, from a scrutiny perspective, the committee continues to have concerns regarding the potential for the underlying scheme to trespass on personal rights and liberties.
2.19 The committee requests that the key information provided by the Attorney-General be included in the explanatory memorandum, noting the importance of this document 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).
2.20 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of expanding the continuing detention scheme for high risk terrorist offenders after their sentences for imprisonment have been served.
2.21 In Scrutiny Digest 5 of 2019 the committee requested the Attorney-General's advice as to why it is considered necessary and appropriate to remove an offender's right to receive a complete copy of any continuing detention order (CDO) application made against them.[7]
Attorney-General's response
2.22 The Attorney-General advised:
Information protections
When making a CDO application under the existing legislation, the 'complete copy' requirement requires the Minister to include all inculpatory information that the Minister seeks to rely upon to support the application, as well as all exculpatory information that the Minister is aware of which would support a finding that the CDO should not be made, regardless of the sensitivity or probative value of that exculpatory information.
The current requirement to provide all exculpatory material to the terrorist offender, without the ability to protect that material where it contains sensitive national security information, is problematic, as it may prejudice national security or ongoing law enforcement or intelligence operations. For example, it may require the Minister to provide the terrorist offender with material in the CDO application that discloses sensitive sources and capabilities, with severe consequences for the safety of human sources, the integrity of law enforcement and security operations, and ultimately, public safety. In deciding whether to make a CDO application, this could also put the Minister in a difficult position where the consequences of revealing sensitive national security information are significant and the terrorist offender poses an unacceptable risk of committing a serious terrorism offence when released into the community. In some circumstances, the consequences of compromising sensitive national security information may be so great that this risk outweighs the Minister making a CDO application. This ultimately undermines the preventative purpose of the CDO scheme.
The proposed amendments will overcome this problem by bringing the options for protecting sensitive national security information contained in an application for a CDO into line with the protections available in other proceedings, whether criminal or civil. The Bill will achieve this by providing that the information that must be given to a terrorist offender in a CDO application is subject to any protective orders made by a court. Under the proposed amendments, the Commonwealth can seek protective orders over sensitive inculpatory and exculpatory material to allow it not to be provided to the terrorist offender, or provided in a redacted or summarised form. This will enhance the ability of the Minister to properly consider offenders for CDO applications in circumstances where sensitive national security information is involved.
Further, the amendments in the Bill will provide a mechanism through which public interest immunity (PII) may operate to prevent the disclosure of highly sensitive information to the terrorist offender. In so doing, the amendments do not purport to modify or qualify the ordinary application of the doctrine of PII. Rather, they provide a mechanism whereby that doctrine may be engaged to enable a court to consider whether to make protective orders in relation to the disclosure of information to a terrorist offender. Where the Commonwealth withholds sensitive exculpatory material on the basis of PII, the terrorist offender must be notified and may choose to contest the claim. If contested, it will be a matter for a court to determine a PII claim taking into account the right to a fair hearing and ensuring appropriate protections for highly sensitive national security information.
The Bill qualifies the 'complete copy' requirement where the Minister is likely to seek an order of the court preventing or limiting disclosure of the information (either through protective orders or PII). It will ultimately be a matter for the court to determine any protective orders, balancing the competing interests of providing the terrorist offender with material relevant to the proceedings, with the prejudice to national security that may result from the disclosure of that material.
The proposed amendments will not affect the existing requirement that all information that the Minister relies on for the making of a CDO must be provided to the terrorist offender to ensure their right to a fair hearing. Neither the Minister nor the court may rely on information that is not provided to the terrorist offender. If the court orders that information be withheld from a terrorist offender in its entirety, it will not form part of the proceedings. If the court orders that a summary or statement of facts will stand in place of the source document, the court will only be able to consider the summary or statement of facts for the purposes of the CDO proceeding.
Further, the terrorist offender will always be able to contest the withholding of sensitive exculpatory information. Where the Minister withholds any exculpatory material from an application on the basis of a planned PII claim, the Minister would be required to notify the terrorist offender of that fact in writing. The terrorist offender would then be able to seek disclosure of that information. The Minister, or a relevant operational agency, would then be required to formally resist disclosure of the sensitive material by making a PII claim to the court. There would be no onus on the terrorist offender to disprove the PII claim. The Commonwealth would have to demonstrate to the court the public interest arguments in favour of withholding the sensitive material outweigh the public interest in disclosure to the terrorist offender. It will be up to the court to determine whether the balance of the public interest lies in favour of protecting that information (in full or in part), or in ensuring the terrorist has complete access to the material. This is consistent with the operation of information protections in other contexts, whether criminal or civil.
The court always retains ultimate discretion as to whether to grant a PII claim, or grant any orders sought under the National Security Information (Criminal and Civil Proceedings) Act 2004, balancing competing public interests to determine the appropriate orders. Importantly, the proposed amendments in the Bill do not preclude the court from exercising its inherent powers to stay proceedings if it considers that the terrorist offender cannot receive a fair hearing. For example, the court may uphold a PII claim to withhold sensitive exculpatory material on the basis that the public interest in not prejudicing national security outweighs the public interest in disclosing that material to the terrorist offender for the purposes of ensuring a fair hearing. However, the court may decide to stay the CDO proceeding on the basis that it would not be in the interests of justice to proceed with a hearing in which the terrorist offender had been denied relevant and important exculpatory material.
Committee comment
2.23 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that the current requirement to provide all exculpatory material to the terrorist offender, without the ability to protect that material where it contains sensitive national security information, is problematic, as it may prejudice national security or ongoing law enforcement or intelligence operations.
2.24 The committee also notes the Attorney-General's advice that the proposed amendments will not affect the existing requirement that all information that the minister relies on for the making of a CDO must be provided to the terrorist offender to ensure their right to a fair hearing. The committee also notes that if the court orders that a summary or statement of facts will stand in place of the source document, the court will only be able to consider the summary or statement of facts for the purposes of the CDO proceeding.
2.25 However, from a scrutiny perspective, the committee remains concerned 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 a continuing detention order is made. The committee's concerns in this regard are heightened given the serious consequences for the right to liberty that may flow from the making of a continuing detention order.
2.26 The committee requests that the key information provided by the Attorney-General be included in the explanatory memorandum, noting the importance of this document 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).
2.27 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of limiting the right of an offender to receive a complete copy of any application for a continuing detention order made against them.
[1] Schedule 1. The committee draws senators’ attention to this Schedule pursuant to Senate Standing Order 24(1)(a)(i).
[2] Senate Scrutiny of Bills Committee, Scrutiny Digest 5 of 2019, pp. 1-5.
[3] The minister responded to the committee's comments in a letter dated 1 October 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 7 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest
[4] Schedule 2. The committee draws senators’ attention to this Schedule pursuant to Senate Standing Order 24(1)(a)(i).
[5] Senate Scrutiny of Bills Committee, Scrutiny Digest 5 of 2019, pp. 5-6.
[6] Schedule 2. The committee draws senators’ attention to this Schedule pursuant to Senate Standing Order 24(1)(a)(iii).
[7] Senate Scrutiny of Bills Committee, Scrutiny Digest 5 of 2019, pp. 6-7.
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