Revised Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)GENERAL OUTLINE
1. The Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019 (Bill) contains a range of amendments to strengthen Australia's counter-terrorism legislative framework. The measures in the Bill fall into two broad categories - amendments relating to restrictions on bail and parole under the Crimes Act 1914 (Crimes Act), and amendments relating to the continuing detention order (CDO) scheme in Division 105A of the Commonwealth Criminal Code Act 1995 (Cth).
Schedule 1 - Restrictions on bail and parole
2. In response to the terrorist incident that occurred on 5 June 2017 in Brighton, Victoria, the Council of Australian Governments (COAG) met on 9 June 2017 to consider reforms to Australia's bail and parole regimes. During the Brighton incident, Yacub Khayre shot and killed a man and held a woman hostage before being fatally shot by Victorian Police. Mr Khayre, who was on parole for Victorian offences, had a long history of violence and was previously acquitted of a terrorism offence.
3. At the COAG meeting, First Ministers agreed that there should be a presumption against bail and parole for persons who have demonstrated support for, or have links to, terrorist activity. At the special meeting of COAG on counter-terrorism on 5 October 2017, it was further agreed that these presumptions would be underpinned by nationally consistent principles to ensure there is a presumption against bail and parole in agreed circumstances across Australia.
4. Section 15AA of the Crimes Act already provides for a presumption against bail for persons being considered for bail as a result of a charge or conviction for a terrorism offence. The amendments to the Crimes Act in this Bill are necessary to give effect to the COAG decision, by expanding the application of section 15AA, and introducing a presumption against parole for a broader group of offenders, namely:
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- persons charged with or convicted of a terrorism offence, including persons who might have been previously charged with or convicted of one of the offences listed in section 15AA, but are currently being considered for bail for a further federal offence
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- persons who are the subject of a control order within the meaning of Part 5.3 of the Criminal Code, and
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- persons who have made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of Part 5.3 of the Criminal Code.
5. Additionally, the Bill responds to issues raised during the Independent National Security Legislation Monitor (INSLM) inquiry and report into the prosecution and sentencing of children for Commonwealth terrorist offences, namely the application to children of the existing presumption against bail, and, the minimum non-parole period for terrorist offenders under section 19AG of the Crimes Act.
6. The amendments make it explicit that the best interests of the child are a primary consideration, with the protection of the community the paramount consideration, for a bail authority when determining whether exceptional circumstances exist to rebut the presumption against bail where the person is under the age of 18 years. This implements recommendation 2a of the INSLM's report. Further, the amendments make it clear that these same factors are to be considered by:
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- the sentencing court when determining whether exceptional circumstances exist to justify a departure from the minimum non-parole period for a terrorism offence, where the offender is under the age of 18 years, and
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- the Attorney-General when determining whether exceptional circumstances exist to justify the release of a terrorist offender or terrorism-related offender on parole.
Schedule 2 - Amendments relating to continuing detention orders
7. The Bill will amend the CDO scheme in Division 105A of the Criminal Code for high risk terrorist offenders by:
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- expanding eligibility for the scheme by ensuring that terrorist offenders who are currently serving a period of imprisonment for a terrorism offence and another offence remain eligible for consideration for a CDO at the conclusion of their term of imprisonment, and
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- amending the information disclosure obligations in respect of CDO applications to better align the protections available for sensitive national security information with those available in other contexts, such as criminal proceedings.
8. Expanding the eligibility criteria for the CDO scheme is consistent with the overall objective of the CDO scheme, which is to ensure the safety and protection of the community from terrorist offenders who pose an unacceptable risk of committing a serious Part 5.3 offence if released at the expiry of their custodial sentence. The amendments ensure that a terrorist offender continues to be eligible for a CDO irrespective of whether the final sentence from which the offender is released is a terrorism sentence, or another sentence that is served concurrently or cumulatively with their terrorism sentence.
9. Amending the information disclosure obligations in relation to sensitive national security information in CDO applications will enhance the effectiveness of the CDO scheme. The amendments will bring the information protections available in respect of CDO applications in line with the protections available in other contexts, such as criminal prosecutions. These amendments will not affect the existing requirement that all the material that the Australian Federal Police Minister (AFP Minister) wishes to rely on for the making of a CDO application must be provided to the terrorist offender.
FINANCIAL IMPACT
10. The financial impact of this Bill is limited to the costs associated with housing federal prisoners on remand and sentence.
11. The Commonwealth does not own or operate any prisons and federal prisoners are housed in state and territory prisons. Convicted federal offenders comprise approximately three per cent of Australia's total prison population. As such, the overall financial impact on states and territories will be negligible.