Senate

Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016

3. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

4. The Bill strengthens Australia's national security laws and counter-terrorism framework by ensuring that the Government has the means to protect the community from the risk of terrorist acts. It does so by enabling the continued detention of terrorist offenders serving custodial sentences who are assessed by a judge in civil proceedings to present an unacceptable risk to the community at the time their sentences finish.

5. A majority of States and Territories, as well as international counterparts, have enacted schemes which attempt to manage dangerous offenders through post-sentence controls including extended supervision or in some cases continuing detention. New South Wales and South Australia have schemes which cover both sex offenders and violent offenders, while Queensland, Victoria, Western Australia, and the Northern Territory have limited their schemes to only sex offenders. Tasmania and the Australian Capital Territory do not have post-sentence detention regimes for sex offenders or violent offenders.

6. Currently, where a terrorist offender continues to pose a risk to the community at the expiration of their custodial sentence, there are limited options to manage the risk that person may present to the community following their release from prison. While a preventative detention order or control order may be available in some circumstances to help manage the risk posed by terrorist offenders following their release from prison, the obligations, prohibitions or restrictions available under these measures and their duration are considered insufficient to address the assessed risk of a terrorist act occurring.

7. In the current security environment where attacks can be planned and carried out with great speed, ease and little engagement with other individuals, the risk to community safety may be too great to permit the release of some terrorist offenders who retain a strong motivation or intent to carry out terrorist acts within Australia.

8. Accordingly, a scheme that permits the continuing detention of terrorist offenders assessed to pose an unacceptable risk to community safety is required.

9. The Bill amends the Criminal Code. It also makes consequential amendments to the Surveillance Devices Act 2004 and the Telecommunications (Interception and Access) Act 1979.

Overview of measures

Schedule 1 - Amendments to the Criminal Code

10. The Bill establishes a scheme whereby the Attorney-General can apply to the Supreme Court of a State or Territory for a continuing detention order. The effect of a continuing detention order is to commit a 'terrorist offender' to detention in a prison for the period the order is in force, which can be up to three years. The scheme does not authorise detention by executive action or the detention of minors.

11. Section 105A.3 provides that a terrorist offender is a person convicted of a defined range of terrorism-related offences who is either serving a sentence for those offences or who is already detained under the scheme. The defined range of terrorism offences captures international terrorist activities using explosive or lethal devices; treason; foreign incursions and recruitment offences and a 'serious Part 5.3 offence'. A serious Part 5.3 offence is an offence against Part 5.3 of the Criminal Code (which contains terrorism-related offences) with a maximum penalty of 7 or more years of imprisonment.

12. The Court can only make a continuing detention order if satisfied of certain matters set out in the Bill at new subsection 105A.7(1):

i.

First, 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 Part 5.3 offence' if released into the community. The Court can appoint one or more suitably qualified experts with medical, psychiatric, psychological or other expertise to assess and report on the risk posed by the offender. A copy of the expert's report must be provided to the terrorist offender.

ii.

Second, the Court must also be satisfied that there are no other less restrictive means that would be effective in preventing the unacceptable risk.

13. The Attorney-General bears the onus of satisfying the Court of these matters.

14. Section 105A.7(5) provides that the period of detention ordered by the Court must not exceed three years and must be limited to the period reasonably necessary to prevent the unacceptable risk. Section 105A.7(6) provides that there is no limit on the number of continuing detention orders that can made.

15. If a continuing detention order application has been made, and the Court is satisfied that the offender will be released before the application for the continuing detention order has been determined, section 105A.9 provides that the Court may order an interim detention order committing the terrorist offender to detention for up to 28 days (or three months, if consecutive interim detention orders are applied for and granted).

16. Sections 105A.10 and 105A.11 provide that a continuing detention order must be reviewed by the Court annually, or sooner if the terrorist offender applies for a review and the Court is satisfied that new facts or circumstances, or the interests of justice, justify the review. Section 105A.12 provides that the Court can affirm, revoke or vary the continuing detention order by shortening the period it is in force. The Court must revoke the continuing detention order unless satisfied that the terrorist offender continues to pose an unacceptable risk and that there are no less restrictive measures that would be effective in preventing the unacceptable risk. The Attorney-General bears the onus of satisfying the Court of these matters. As with proceedings to determine an application for a continuing detention order, the Court can appoint one or more suitably qualified experts to assess and report on the risk posed by the offender.

17. The provisions in subdivision E ensure procedural protections are applicable in proceedings determining an application for a continuing detention order or an interim detention order and in proceedings to review a continuing detention order: the Court must apply the rules of evidence and procedure applicable to civil matters; the parties (including the terrorist offender) can adduce evidence and make submissions; reasons for decisions must be given; and decisions can be appealed.

18. Subsection 105A.4(1) provides that a person detained under a continuing detention order or an interim detention order in a prison must be treated in a way that is appropriate to their status as a person who is not serving a sentence of imprisonment. This requirement is subject to any reasonable requirements necessary to maintain the management, security or good order of the prison; the safe custody or welfare of the offender or prisoners; and the safety or protection of the community.

19. Subsection 105A.4(2) provides that persons detained under a continuing detention order or an interim detention order in a prison must not be accommodated or detained in the same area or unit of a prison as persons serving ordinary sentences of imprisonment unless to do so is reasonably necessary for the purposes of rehabilitation, treatment, work, education, general socialisation or other group activities; is necessary for the security or good order of the prison or the safe custody or welfare of the offender or prisoners or is necessary for the safety and protection of the community. This requirement can also be departed from if the offender elects to be accommodated or detained in an area or unit of the prison that includes persons serving ordinary sentences of imprisonment.

20. The Attorney-General must report annually to the Parliament about the operation of the scheme.

Schedule 2 - Consequential amendments

21. The Bill will amend the Surveillance Devices Act 2004 (the SD Act) and Telecommunications (Interception and Access) Act 1979 (the TIA Act) to allow Commonwealth, State and Territory agencies to admit information obtained under a warrant or authorisation pursuant to the SD Act and TIA Act into evidence in proceedings relating to those continuing detention and interim detention orders. It will also allow Commonwealth, State and Territory agencies to use, record, communicate or publish such information in connection with this purpose.

22. Importantly, the amendments only apply to information that has already been lawfully obtained under the Surveillance Devices Act 2004 and Telecommunications (Interception and Access) Act 1979. The amendments do not provide Commonwealth, State and Territory police with a further purpose to collect covert information.

Amendments to the Surveillance Devices Act 2004 (SD Act)

23. The SD Act regulates the use of surveillance devices by law enforcement agencies for federal law enforcement purposes. Information obtained under a surveillance device warrant can only be used, recorded, communicated, published or admitted into evidence for a limited set of purposes. Information of this kind is defined as 'protected information'.

24. The SD Act maintains strict controls on dealing with protected information, including criminal liability for persons who contravene the prohibition on disclosure of protected information. Additional safeguards include robust record-keeping and reporting requirements and independent oversight by the Commonwealth Ombudsman.

25. The amendments to the SD Act will enable law enforcement agencies to use, communicate or give in evidence protected information for the purpose of a proceeding related to a continuing detention order or interim detention order under Division 105A of the Criminal Code. The amendments relate only to the use and disclosure of protected information once it has been gathered in an investigation, and does not modify thresholds for the issuing of a surveillance device warrant.

Amendments to the Telecommunications (Interception and Access) Act 1979 (TIA Act)

26. The TIA Act protects the privacy of Australians by prohibiting the interception of communications and restricting access to the content and telecommunications data of communications not obtained in accordance with the legislation. The TIA Act also restricts dealing with information obtained under the Act. The Act strictly controls the purposes for which information obtained under a telecommunications interception warrant, a stored communications warrant or a data authorisation may be used or disclosed.

27. The prohibition on dealing with information is maintained through robust protections, including criminal liability. The Act includes additional safeguards including the threshold for issuing warrants, ministerial and other reporting requirements, and independent oversight of the Commonwealth Ombudsman.

28. The amendments to the TIA Act will enable law enforcement agencies to use, communicate or give in evidence information obtained under the Act for purposes related to continuing detention orders and interim detention orders in Division 105A of the Criminal Code. The amendments relate only to the use and disclosure of information once it has been gathered in an investigation and does not modify thresholds for the issuing of a telecommunications interception warrant, a stored communications warrant or the making of an authorisation for access to telecommunications data.

Human rights implications

29. This Bill engages:

•

the right to freedom from arbitrary detention and the right to liberty of the person in Article 9 of the International Covenant on Civil and Political Rights (ICCPR)

•

the right of persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person in Article 10 of the ICCPR

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the right to procedural guarantees in Article 14 of the ICCPR, and

•

the right to freedom from arbitrary or unlawful interference with privacy in Article 17 of the ICCPR.

Schedule 1 - Amendments to the Criminal Code Act 1995

Continuing Detention Orders and Interim Detention Orders

30. The effect of a continuing detention order or an interim detention order is to commit the person the subject of the order to detention in a prison for the period the order is in force.

The right not to be deprived of liberty except on such grounds and in accordance with such procedures as are established by law in Article 9(1) of the ICCPR

31. Article 9(1) of the ICCPR provides that no-one shall be deprived of their liberty except on such grounds and in accordance with such procedures as are established by law. Continuing detention orders and interim detention orders engage this right because they authorise detention.

32. Detention under a continuing detention order or an interim detention order is authorised by and operates in accordance with the procedures prescribed in Division 105A.

33. Accordingly, detention under a continuing detention order and an interim detention order complies with the requirement in Article 9(1) that deprivation of liberty not occur except in accordance with grounds and procedures prescribed by law.

The right to freedom from arbitrary detention in Article 9(1) of the ICCPR

34. Article 9(1) of the ICCPR provides that no-one shall be subjected to arbitrary arrest or detention. Continuing detention orders and interim detention orders engage the right to freedom from arbitrary detention because they authorise detention.

35. Article 9 regulates, rather than prohibits, detention-it is only 'arbitrary' detention that is prohibited. Arbitrariness includes the elements of inappropriateness, injustice and a lack of predictability. Detention will not be arbitrary where, in all the circumstances, it is appropriate, justifiable, reasonable, necessary and proportionate to a legitimate end. Detention may be arbitrary where there are less restrictive alternatives available. Preventative detention is not arbitrary per se and may be consistent with Article 9 if it is ordered by a court and is limited to a period during which it is justified by compelling reasons that are reviewable by a judicial authority.

36. The preventative detention authorised by a continuing detention order or an interim detention order cannot be described as 'arbitrary'. The objective of the scheme (to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious terrorism offences) is legitimate and consistent with the purposes of the ICCPR. By continuing to detain terrorist offenders who pose an unacceptable risk of committing serious terrorism offences, the scheme protects and promotes the rights of people in the community whose life, liberty and property would be imperilled by the commission of serious terrorism offences.

37. The scheme includes numerous features designed to ensure that detention is only authorised where it is non-arbitrary:

•

only a limited class of persons can be subject to the scheme and the characteristic used to define that class (imprisonment for a terrorism-related offence) is rationally connected with the scheme's protective purpose

•

only the Attorney-General, or their legal representative, can apply for a continuing detention order or interim detention order

•

the terrorist offender must be provided with certain documents to enable him or her to prepare for the Court's hearing of an application for a continuing detention order

•

the power to make a continuing detention order or interim detention order lies with an independent judicial authority (the Supreme Court of the relevant State or Territory) bound to apply the rules of evidence and procedure applicable in civil matters

•

the terrorist offender can adduce evidence and make submissions in court proceedings

•

when deciding an application for, or reviewing, a continuing detention order the Court must have regard to a range of matters rationally connected with the level of risk posed by the terrorist offender (for example, their degree of participation in rehabilitation programs), including the evidence of an independent expert competent to assess the risk posed by the terrorist offender

•

the threshold for making a continuing detention order is high: the Court must be 'satisfied to a high degree of probability, on the basis of admissible evidence' that the terrorist offender poses an 'unacceptable risk' of committing a serious terrorism offence with a maximum penalty of seven years or more imprisonment

•

the Court will not make a continuing detention order if other less restrictive measures would be effective in preventing the unacceptable risk

•

the Attorney-General bears the onus of satisfying the Court that a continuing detention order should be made and, if reviewed, that a continuing detention order should be affirmed

•

the period of detention authorised by a continuing detention order must be limited to a period that is reasonably necessary to prevent the unacceptable risk, and not exceed three years

•

the period of detention authorised by an interim detention order must be limited to a period that is reasonably necessary to determine the application for a continuing detention order and not exceed 28 days and the total period of detention authorised by consecutive interim detention orders must not exceed 3 months

•

detention under a continuing detention order is subject to review by the Court annually, or sooner if the terrorist offender applies for a review and the Court is satisfied that new facts or circumstances, or the interests of justice, justify the review

•

the Court must provide reasons for decisions in an application for a continuing detention order or interim detention order, or in a review of a continuing detention order, and these decisions can be appealed.

38. Accordingly, detention under the scheme is not arbitrary and the scheme therefore complies with the right to freedom from arbitrary detention in Article 9(1).

Procedural guarantees under Article 14 of the ICCPR

39. Article 14(1) of the ICCPR provides that, in the determination of a person's rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The continuing detention scheme engages this right as continuing detention order proceedings involve the determination of a terrorist offender's rights and obligations.

40. The provisions in new subdivision E require continuing detention order proceedings to be heard by the Supreme Court of a State or Territory and for the Court to apply the rules of evidence and procedure applicable in civil proceedings. The terrorist offender must be provided with certain documents (the application for a continuing detention order, including the report of a relevant expert-subsection 105A.5(4)-and the reasons for a decision in a continuing detention order proceeding-paragraph 105A.16(c)) to enable him or her to prepare for and respond to court rulings. The terrorist offender can adduce evidence and make submissions. The terrorist offender has the benefit of provisions at subsections 105A.7(3) and 105A.12(6), which put the onus on the Attorney-General to satisfy the Court that the relevant threshold for the grant of a continuing detention order is met, and provisions at paragraphs 105A.7(1)(c) and 105A.12(4)(b), that there are no less restrictive alternatives available.

41. Section 105A.16 requires that if a Court makes a continuing detention order decision, the Court must state the reason for its decision and cause those reasons to be entered in the records of the Court-this accords with the requirement in Article 14(1) that any judgement rendered in a suit at law shall be made public.

42. Consequently, subject to the limitations permitted under Article 4(1), the provisions of the Bill protect the rights of terrorist offenders to a fair and public hearing by a competent, independent and impartial tribunal established by law.

43. Articles 14(2) and (3) set out a number of procedural protections that must be observed in the determination of a criminal charge. These protections are not relevant to continuing detention order proceedings, which do not involve the determination of a criminal charge, being civil, rather than criminal, in nature.

44. Article 14(7) provides that no one shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted in accordance with the law and penal procedure of the country.

45. This right is not engaged by the Bill as the continued detention of a terrorist offender under the scheme does not constitute additional punishment for their prior offending - the continued detention is protective rather than punitive or retributive.

46. As well as being defined explicitly in Subdivision A, the scheme's protective purpose is reflected in numerous features of the scheme including the grounds on which a continuing detention order may be made or affirmed; the matters to which the Court must have regard when making or reviewing a continuing detention order; the requirement to consider less restrictive measures and the requirement that the period of detention authorised by a continuing detention order be limited to a period that is reasonably necessary to prevent the unacceptable risk.

47. The fact that the effect of a continuing detention order or interim detention order is to commit the terrorist offender to detention in a prison does not render the detention punitive. The Bill nominates these facilities as the place of detention because they have the infrastructure necessary to appropriately manage terrorist offenders who pose an unacceptable risk of committing serious terrorism offence if released into the community. Further, the scheme provides that, subject to certain exceptions (related to the management of the prison, the safety of others and the offender's preferences), terrorist offenders detained in a prison under a continuing detention order or interim detention order must be treated in a way that is appropriate to their status as persons who are not serving a sentence of imprisonment and must not be accommodated or detained in the same area or unit of a prison as persons serving sentences of imprisonment.

48. Accordingly, the detention scheme does not further punish those convicted of terrorism offences and Article 14(7) of the ICCPR is not engaged.

Prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR

49. Article 15 of the ICCPR provides that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time it was committed. The article also prohibits the imposition of a heavier penalty than the one that was applicable at the time when the criminal offence was committed.

50. The scheme is applicable to terrorist offenders, defined to include persons serving sentences of imprisonment for terrorism-related offences. The scheme will therefore apply to persons convicted of terrorism offences prior to the enactment of the scheme.

51. As outlined in the above discussion of Article 14, detention under a continuing detention order or interim detention order does not constitute punishment. The continued detention of terrorist offenders does not, therefore, constitute a prohibited form of retrospective punishment or the imposition of a penalty for an offence heavier than that which was applicable at the time the offence was committed.

Conditions of detention

52. The Bill at subsection 105A.4(1) provides that, subject to certain exceptions, a terrorist offender detained in a prison under a continuing detention order or an interim detention order must be 'treated in a way that is appropriate to his or her status as a person who is not serving a sentence of imprisonment'. This standard of treatment is mandated 'subject to any reasonable requirements necessary to maintain' 'the management, security or good order of the prison', the 'safe custody or welfare of the offender or any prisoners' and 'the safety or protection of the community'.

53. Subsection 105A.4(2) also requires that the terrorist offender be accommodated or detained in a different area or unit of the prison from persons serving sentences of imprisonment unless the contrary 'is reasonably necessary for the purposes of rehabilitation, treatment, work, education, general socialisation or other group activities', 'is necessary for the security or good order of the prison or the safe custody or welfare of the offender or prisoners', 'is necessary for the safety and protection of the community' or 'the offender elects to be so accommodated or detained'.

The right to be treated with humanity and dignity in Article 10 of the ICCPR

54. Article 10(1) of the ICCPR provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. The continuing detention scheme may be considered to engage this obligation as it involves detention.

55. Article 10(2)(a) provides that 'accused persons' must, save in exceptional circumstances, be segregated from convicted persons and be subject to separate treatment appropriate to their status as unconvicted persons. These obligations do not apply to the continuing detention scheme directly as the scheme does not involve the detention of 'accused persons'. The grounds for detention under a continuing detention order or interim detention order are not connected with the laying of or determination of a criminal charge.

56. By mandating appropriate standards of treatment and accommodation arrangements, the Bill promotes the rights of terrorist offenders detained under the scheme to be treated with humanity and respect for the inherent dignity of the human person. While the Bill permits deviation from these standards, it does so only where necessary to protect the safety or rights of others, or to reflect the terrorist offender's wishes. To the extent that the scheme permits limitations on the rights of terrorist offenders under Article 10(1) the limitations are reasonable, necessary and proportionate to achieve legitimate objectives of the scheme.

Obligation to attend assessment

57. When hearing an application for, or reviewing, a continuing detention order the Court has the power to appoint one or more experts to assess the risk of the terrorist offender committing a serious Part 5.3 offence if released into the community. Where an expert is appointed, the offender is required to attend the expert's assessment. The Court is required to explain to the offender the effect of this requirement, and in deciding whether to make or affirm a continuing detention order, the Court will have regard to the expert's report and the level of the offender's participation in the assessment by the expert.

The right to be free from arbitrary or unlawful interference with privacy in Article 17(1) of the ICCPR

58. Article 17(1) provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy.

59. The requirement that the terrorist offender attend an assessment does not engage this right. The terrorist offender is under no obligation to participate in the assessment or to disclose any private information. The fact that the Court must consider the level of the terrorist offender's participation in the expert's assessment does not create a de facto obligation to participate. Participation in the expert's assessment is not the only means by which the terrorist offender can seek to influence the outcome of the Court's consideration of an application for, or review of, a continuing detention order; the terrorist offender can adduce his or her own evidence and make submissions.

60. The requirement that the terrorist offender attend an assessment with the expert does not engage Article 17(1).

Schedule 2 - Consequential amendments

61. The Bill amends

•

the SD Act to permit the use of 'protected information' (defined in section 44 of the SD Act to include information obtained from the use of a surveillance device) in continuing detention order proceedings, and in appeals from such proceedings

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Chapter 3 of the TIA Act to enable authorised persons to deal with information obtained under a stored communications warrant for purposes relating to a continuing detention order, and

•

Chapters 2 and 4 of the TIA Act to allow Commonwealth, State and Territory agencies to admit evidence obtained under telecommunications warrants, stored communications warrants and data authorisations in continuing detention order proceedings, and to use, record or communicate information in connection with that purpose.

The right to life and security of the person in Articles 6 and 9 of the ICCPR

62. The right to security of the person in Article 9 of the ICCPR requires states to provide reasonable and appropriate measures to protect a person's physical security. The right to life also places a positive obligation on states to protect individuals from unwarranted actions by private persons, such as acts of terrorism. The obligation to protect life requires the state to take preventative operational measures to protect individuals whose safety may be compromised in particular circumstances, such as by a terrorist act. This includes enhancing the capabilities of law enforcement agencies to respond to a heightened terrorist threat.

63. The Bill promotes the right to life and the right to security of the person by enhancing the capabilities of law enforcement agencies to respond to a heightened terrorist threat. The amendments to the SD and TIA Acts enable pertinent information to be used and disclosed in proceedings against persons who may pose a significant terrorist threat. This allows both the agencies and the Court to make a more informed assessment on the risks to public safety that a high risk terrorist offender may pose.

The right to be free from arbitrary or unlawful interference with privacy in Article 17(1) of the ICCPR

64. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence. This right may be subject to permissible limitations where those limitations are provided by law and non-arbitrary. In order for limitations not to be arbitrary, they must be aimed at a legitimate objective and be reasonable, necessary and proportionate to that objective.

65. The amendments in Schedule 2 engage Article 17(1) because they permit interference with the privacy of those whose information (that has been previously obtained under a surveillance device or under telecommunications interception warrants, stored communications warrants and data authorisations) can be further used for the purposes of continuing detention and interim detention orders.

66. To justify a limitation of human rights, a legitimate objective must address a pressing or substantial concern and not simply seek an outcome that is desirable or convenient. The amendments to the SD and TIA Acts are intended to make available pertinent evidence where a terrorist offender poses an unacceptable risk of committing a serious terrorism offence if released into the community.

67. Terrorism is a significant threat to national security and public safety. Politically motivated violent acts can indiscriminately threaten the lives and physical safety of Australian citizens. This can perpetuate a climate of fear which is socially divisive, threatening the cohesiveness of Australian society.

68. Proceedings under the new continuing detention order and interim detention order provisions are intended to mitigate the threat of terrorism. Information obtained from a surveillance device or under the TIA Act can be important in applications for such orders and the amendments ensure that covertly collected information can be used in continuing detention order and interim detention order proceedings.

69. Significant safeguards apply to dealing with this information and persons who use information unlawfully are subject to criminal liability.

70. In light of the risk posed by terrorism, interference with the privacy of persons against whom these orders are made is legitimate and proportionate to the objective of protecting the broader community from terrorism.

Conclusion

71. While the Bill engages a range of human rights, it is compatible with human rights because it promotes some rights, and to the extent that it limits some rights, those limitations are reasonable, necessary and proportionate in achieving a legitimate objective.