Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable Michaelia Cash)

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021

5. 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

6. The ESO scheme as introduced by this Bill strengthens Australia's counter-terrorism framework by ensuring that the Government has the means to protect the community from the risk that high risk terrorist offenders may pose at the end of their custodial sentence. The ESO scheme will form part of the High Risk Terrorist Offenders (HRTO) regime in Part 5.3 of the Criminal Code, and complement the existing CDO scheme. The Bill introduces the ESO scheme by amending Division 105A in Part 5.3 of the Criminal Code, which is the division that currently provides for CDOs. The amended Division 105A will deal with 'post-sentence orders' (PSOs), which is defined to mean both ESOs and CDOs.

7. The Bill is intended to broaden the range of tools available to protect the community from the high level of risk that convicted terrorist offenders may pose once they are released. Currently, where a terrorist offender continues to pose a risk to the community at the expiration of their custodial sentence, the primary option for managing this risk is through seeking a CDO, that is, to seek a court order to commit a terrorist offender to detention in a prison for the period the order is in force.

8. ESOs would present a less restrictive measure to manage the risk posed by an offender, where a court is not satisfied that continued detention is necessary to prevent that risk.

9. Under an ESO, the Court may impose any conditions (prohibitions, restrictions or obligations) that it is satisfied are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence. The standard of proof that must be satisfied in making an ESO is 'the balance of probabilities', rather than the higher standard of 'to a high degree of probability', which is the standard that applies to the making of a CDO. This reflects the less restrictive nature of ESOs as an alternative to CDOs.

10. The Bill is also intended to address the current lack of interoperability between CDOs and control orders in the Criminal Code due to the different courts from which these orders may be sought. Currently under Division 105A of the Criminal Code, a State or Territory Supreme Court may impose a CDO for up to three years if 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. The Court cannot make a CDO if a less restrictive measure, for example a control order, would be effective in preventing the unacceptable risk. However, a Supreme Court cannot make a control order - only the Federal Court or the Federal Circuit Court can make such an order.

11. The ESO scheme addresses this gap, as ESOs will be incorporated into Division 105A of the Criminal Code and can be considered by a Supreme Court as an alternative to a CDO when determining a CDO application.

12. The Bill also addresses potential issues which may arise in the practical application of orders made under Part 5.3. In particular, the Bill will:

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provide that ESOs and control orders can commence where a person is in non-prison custody, including immigration detention, and that the conditions of these orders would remain enforceable against an offender who is detained in any form of non-prison custody.

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provide that orders under Part 5.3, such as ESOs and control orders, are the only measures that may be considered by a State or Territory Supreme Court when deciding whether there is a 'less restrictive measure' to a CDO that would be effective in preventing the offender's unacceptable risk of committing a serious Part 5.3 offence.

13. Both the Independent National Security Legislation Monitor (INSLM) and the PJCIS have recommended the creation of an ESO scheme, primarily to address the lack of interoperability between CDOs and control orders. The INSLM found the CDO and control order regimes give rise to the need for different applicants to make separate applications in different courts, seeking to satisfy different tests, for the same offender. The INSLM noted this is not in the interests of the applicants, the courts or the offender. The PJCIS similarly noted that the CDO and control order regime creates duplication in effort and noted the financial and time cost in running two separate proceedings. This Bill takes into account recommendations made in the INSLM's 2017 Report, Review of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detentions Orders, and the PJCIS' 2018 Report, Review of Police Stop, Search and Seize Powers, the Control Order Regime, and the Preventative Detention Order Regime. It also draws on the experience of states which have comparable regimes, including the Terrorism (High Risk Offenders) Act 2017 (NSW) and the Serious Offenders Act 2018 (Vic).

14. Following introduction on 3 September 2020, the Bill was reviewed by the PJCIS, which provided a report on 16 September 2021. The Government agreed to majority of the recommendations made by the PJCIS, which is reflected through Government amendments to the Bill.

15. In the current security environment, having a range of tools to combat the evolving nature of the threat posed by terrorism is vital. Experience overseas has demonstrated the continuing threat posed by extremists, including those who have served sentences for terrorism offences. The 2019 London Bridge attack and 2020 Streatham attacks in the UK were carried out by convicted terrorist offenders, highlighting the continued need for effective prevention and risk management measures to protect the community. ESOs will further strengthen Australia's counter-terrorism framework by enabling State and Territory Supreme Courts to impose a range of conditions on an offender to mitigate the risk they pose to the community.

16. The Bill amends the Criminal Code, the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act), the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), the Australian Security Intelligence Organisation Act 1979 (ASIO Act), the Crimes Act 1914 (Crimes Act), the Surveillance Devices Act 2004 (SD Act), the Telecommunications (Interception and Access) Act 1979 (TIA Act), and the Intelligence Services Act 2001.

Overview of measures

Amendments to the Criminal Code

Establishment of an ESO scheme

17. The Bill establishes a scheme whereby a State or Territory Supreme Court may make an ESO in relation to an eligible offender, if it is satisfied of the relevant thresholds, where the Australian Federal Police Minister (AFP Minister), or a legal representative of the AFP Minister, has either applied for an ESO, or applied for a CDO but the Court is not satisfied that less restrictive measures would not be effective in preventing the risk posed by the offender. Under an ESO, a court may impose on an offender any conditions (prohibitions, restrictions or obligations) that it is satisfied on the balance of probabilities are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.

18. Section 105A.3 provides that an offender is a person convicted of an offence specified in paragraph 105A.3(1)(a), where the individual is at least 18 years old at the time the sentence ends. Eligibility for an ESO is based on being convicted of, and serving a custodial sentence for, the same terrorism offences specified in paragraph 105A.3(1)(a) (the specified terrorism offences) that would make an offender eligible for a CDO. Consistent with the provisions that currently apply to CDOs, the Bill preserves an offender's eligibility for further CDOs or ESOs.

19. Accordingly, the Bill provides that an offender is eligible for either a CDO or an ESO in the following instances:

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they are serving a custodial sentence for a specified terrorism offence (section 105A.3A(1))

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they are detained in custody pursuant to a CDO or an interim detention order (IDO) (section 105A.3A(2))

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they are serving a custodial sentence for an offence other than a specified terrorism offence, and they have been continuously detained in custody since being convicted of a specified terrorism offence, or since a CDO or IDO was in force in relation to the offender (section 105A.3A(3))

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they are serving a custodial sentence for breaching an ESO, and the Court is satisfied that the offender poses an unacceptable risk of committing a serious Part 5.3 offence as a result of the breach of the ESO or ISO (section 105A.3A(4)), or

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they are serving a custodial sentence for breaching a control order, where the process for seeking a control order commenced before the offender was released from prison after serving a sentence for a specified terrorism offence. The Court must be satisfied that the offender poses an unacceptable risk of committing a serious Part 5.3 offence as a result of the breach of the control order (section 105A.3A(5)).

20. An offender is eligible for an ESO only in the following instances:

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they are currently subject to an ESO or ISO that is in force (section 105A.3A(6))

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they are serving a custodial sentence for an offence other than a specified terrorism offence, and they have been continuously detained in custody since they were subject to an ESO or ISO (section 105A.3A(7)), or

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they are currently subject to a control order, and the process for obtaining that control order commenced before the sentence of imprisonment for a specified terrorism offence ended, and before the ESO scheme commenced (section 105A.3A(8)).

21. The Court can only make an ESO if satisfied of certain matters set out in the Bill at the new subsection 105A.7A(1):

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First, the Court must be satisfied on the balance of probabilities, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence. 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 offender.

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Second, the Court must be satisfied on the balance of probabilities that each of the conditions and the combined effect of all of the conditions to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence.

22. The AFP Minister bears the onus of satisfying the Court of these matters.

23. When considering whether the offender poses an unacceptable risk of committing a serious Part 5.3 offence, the Court must have regard to whether the offender is subject to a State or Territory PSO, and if so, the conditions of that order. The Court must also consider any conditions of a State or Territory PSO to which the offender is subject, when determining whether conditions under an ESO or ISO are reasonably necessary, and reasonably appropriate and adapted to address the risk posed by the person.

24. Subsection 105A.7A(5) provides that the period during which the ESO is to be in force must not exceed three years and must be limited to the period reasonably necessary to prevent the unacceptable risk. Subsection 105A.7A(6) provides that there is no limit on the number of ESOs that can be made, consistent with the approach to CDOs in the current subsection 105A.7(6) of the Criminal Code.

25. The Bill also amends the 'less restrictive measures' limb of the CDO threshold in paragraph 105A.7(1)(c) of the Criminal Code. ESOs and control orders are the only measures that may be considered by a Supreme Court when deciding whether there is a 'less restrictive measure' than a CDO that would be effective in preventing the offender's unacceptable risk of committing a serious Part 5.3 offence. The conditions of such orders can be tailored to meet the specific risks posed by an individual offender and are subject to the safeguard that the Court must be satisfied that each condition is reasonably necessary, and reasonably appropriate and adapted, for the protective purpose of the relevant order.

26. In line with the INSLM's 2017 Report, the conditions that may be imposed under an ESO include all those that may be imposed under a control order under Division 104 of the Criminal Code. In addition, under section 105A.7B, the Court may impose any conditions (prohibitions, restrictions or obligations) that it is satisfied are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence. The Bill also specifies, without limiting, a number of monitoring and enforcement conditions that may be imposed under an ESO in subsection 105A.7B(3). These conditions enable police officers and other authorities specified in an order to effectively exercise powers (such as entry, search and seizure), where it is reasonably necessary to do so to give effect to the order or to ensure the safety and protection of the community. The Bill provides at subsection 105A.7B(2A) that the Court cannot impose a condition on an offender requiring them to remain at a specified premises for more than 12 hours in a 24 hour period. This is to ensure that an ESO or ISO cannot impose conditions akin to detention.

27. The Court may also specify 'exemption conditions' under section 105A.7C, for which the offender may apply to a specified authority for an exemption. A specified authority is defined in the Bill to include a police officer or any other person that the Court is satisfied is appropriate in relation to a particular condition. This is intended to provide more flexibility to support the day to day management of the offender subject to the ESO.

28. Under section 105A.9A, the Court may make an interim supervision order (ISO) pending the determination of an ESO application, or as an alternative to an IDO in connection with a CDO proceeding. The period of an ISO should be the period, of no more than 28 days, that the Court is satisfied is reasonably necessary to determine the application for the ESO or CDO. Consecutive ISOs may be made, but the total period of all ISOs must be less than three months, unless exceptional circumstances apply.

29. Under subsection 105A.15A, the Court may make an order to stay proceedings or order the Commonwealth to pay all or part of the reasonable costs of legal representation of an offender, where an offender would be otherwise unrepresented in ESO or ISO proceedings.

30. Sections 105A.9B and 105A.9C provide that the offender or the AFP Minister may apply to vary an ESO or ISO at any time. The Court can vary an ESO or ISO by adding, varying or removing conditions. Subsection 105A.9B(1A) also provides that the AFP Minister must make an application to the Court to remove or vary an ESO condition if they are satisfied that the condition is no longer reasonably necessary, or reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.

31. If a person under an ESO becomes subject to non-prison custody, such as immigration detention, and because of that change in the person's circumstances the Minister is satisfied that certain conditions under the ESO are no longer reasonably necessary, or reasonably appropriate and adapted, the Minister is obliged to apply to the Court to vary or remove the relevant condition.

32. Sections 105A.10 and 105A.11 provide that an ESO must be reviewed by the Court annually, or sooner if the offender or the AFP Minister applies for a review and the Court is satisfied that new facts or circumstances, or the interests of justice, justify the review. Section 105A.12A provides that the Court may vary an ESO after a review, including by adding, varying or removing conditions or by reducing the length of the ESO.

33. The provisions in Subdivision E ensure procedural protections are applicable in proceedings determining an application for an ESO or an ISO, and in proceedings to review an ESO or vary conditions. The Court must apply the rules of evidence and procedure applicable to civil matters; the parties (including the offender) can adduce evidence and make submissions; reasons for decisions must be given; and decisions can be appealed.

34. Under section 105A.14A, when the AFP Minister, or a legal representative of the AFP Minister, applies for a PSO, a variation of an ESO or ISO, or a review of a PSO, they must give a copy of the application to the offender personally, and to the offender's legal representative within two business days. Sections 105A.14B and 105A.14C outline certain information that may be excluded from the application or material given to the offender, namely:

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information where a Minister is likely to take any actions in relation to the information under the NSI Act, or seek an order of a court preventing or limiting disclosure of the information ('national security information'), and

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information excluded on the basis of public interest immunity ('PII information').

35. Section 105A.14D also allows the AFP Minister or their legal representative to seek orders in relation to the manner in which material that advocates support for engaging in terrorist acts, relates to planning or preparing for, or engaging in, terrorist acts, or advocates joining or associating with a terrorist organisation ('terrorism material') is to be dealt with.

36. Section 105A.15A provides that in relation to ESO or ISO proceedings the Court may stay proceedings or make an order requiring the Commonwealth to bear all or part of the reasonable costs and expenses of the offender's legal representation for the proceeding, if an offender is otherwise unable to engage legal representation due to circumstances beyond their control.

37. Existing judicial safeguards around the use of PII and the NSI Act will apply, which will ensure that offenders always know the case against them and will be able to contest claims for PII and orders sought under the NSI Act in accordance with existing practice. Courts will retain the power to determine these orders, and may exercise their inherent jurisdiction to stay proceedings entirely if satisfied that withholding information would involve unacceptable injustice or unfairness.

38. Section 105A.18A makes it an offence to breach the conditions of an ESO or ISO. Section 105A.18B makes it an offence to interfere with a monitoring device that has been imposed as a condition of an ESO. These offences carry a maximum penalty of five years' imprisonment.

39. The Bill extends provisions that currently apply to CDO applications regarding court-appointed experts to also apply to ESO applications. The Bill also introduces a new section 105A.18D, which permits the AFP Minister to direct persons who are eligible for an ESO or CDO, or presently subject to a CDO or an ESO, to be subject to an expert assessment of the risk of the offender committing a serious Part 5.3 offence. If an offender is directed to attend an assessment under section 105A.18D, they must attend. The expert's report is then provided to the AFP Minister, and the offender must be provided with a copy if it is subsequently used in an application against them. Under subsection 105A.6(5A) and 105A.18D(5), information or answers given by the offender at an assessment by a court-appointed or AFP Minister-appointed expert are not admissible in evidence against the offender in criminal proceedings, except any proceedings in relation to sentencing for an offence against Divisions 104 or 105A, or civil proceedings, except proceedings under Divisions 104 or 105A (including appeals in relation to those proceedings).

40. Consistent with the approach for CDOs, under the amended section 105A.22, the AFP Minister must report annually to the Parliament about the operation of the ESO scheme.

Interaction between control orders/ESOs and non-prison custody

41. The Bill also provides that ESOs and control orders in relation to a person can commence where the person is in non-prison custody, and the conditions of these orders would remain enforceable against the person while in non-prison custody. The Bill amends section 100.1 to create new definitions of detained in custody , detained in custody in a prison and detained in non-prison custody, namely:

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A person is detained in custody if the person is detained in custody under a law of the Commonwealth, a State or a Territory (this broader concept would encompass both prison and non-prison custody, as defined below).

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A person is detained in custody in a prison if the person is detained in custody in a gaol, lock-up or remand centre, including under a CDO or IDO. However, a person is not detained in custody in a prison if the person is in immigration detention in a gaol, lock-up or remand centre.

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A person is detained in non-prison custody if the person is detained in custody, but is not detained in custody in a prison.

42. These definitions have been applied across existing provisions in Part 5.3 of the Criminal Code, as well as the new provisions of the Bill, to ensure that:

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ESOs and control orders can commence where a person is in non-prison custody, and

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the conditions of these orders would remain enforceable against an offender who is in non-prison custody.

43. Non-prison custody is different to forms of custody in a prison. As an example, immigration detention is administrative rather than punitive in purpose. Immigration detention facilities are generally less restrictive than prison facilities and could afford a person access to technology and the ability to associate with others that may be inconsistent with the purpose of a Part 5.3 order.

44. If a terrorist offender holds a visa, they may be subject to visa cancellation. There are circumstances where the cancellation of a person's visa would be mandatory under subsection 501(3A) of the Migration Act 1958. This would include if they have been sentenced to imprisonment for life, or 12 months or more, for a Commonwealth, State or Territory offence, and are serving that sentence on a full-time basis in a custodial institution.

45. If an offender is not an Australian citizen and does not hold a valid visa, the Migration Act 1958 imposes an obligation on officers (as defined under section 5 of that Act) to detain that offender as an unlawful non-citizen. In practice, an offender may be transported directly from prison to immigration detention once their sentence has concluded. Under current paragraph 104.5(1)(d) of the Criminal Code, an interim control order (ICO) does not commence until the individual subject to the control order is 'released from custody'.

46. As currently drafted, the legislation does not make it clear that a control order can commence in a circumstance where an offender is transported directly to non-prison custody at the conclusion of their custodial sentence.

47. The Bill ensures that ESOs and control orders can commence, and be enforceable against a person in immigration detention and other forms of non-prison custody.

48. This is necessary to ensure that the risk posed by terrorist offenders on their release from their custodial sentence can be effectively managed. This includes the risk that the offender may pose to others in non-prison custody, as well as the broader risk to the community (for example, through inspiring or directing others to engage in terrorist acts).

49. The Bill also provides that an offender who is unable to comply with a condition of their control order or ESO, due to the fact that they are detained in non-prison custody (such as immigration detention), does not commit an offence under section 104.27 or section 105A.18A for breach of an ESO or control order.

50. This may arise where an order requires a person to reside at a certain address, or physically present to a certain location periodically, but the offender is unable to do so because they are being held in non-prison custody. This ensures that an offender is not subject to criminal liability for breaching an order where compliance with an imposed condition is not possible because the person is in non-prison custody.

Amendments to the National Security Information (Criminal and Civil Proceedings) Act 2004

51. The NSI Act provides for court-only evidence in limited circumstances, which means that the offender and their representative would be excluded from the proceedings while the Court considers highly sensitive information. The NSI Act permits court-only evidence in control order proceedings. The Bill amends the NSI Act to extend the court-only evidence provisions which apply in control order proceedings to ESO proceedings. The availability of court-only evidence would be limited to ESO proceedings where a court is:

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considering an application to make or vary an ESO or ISO

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reviewing an ESO or ISO, and

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where the AFP Minister applied for a CDO but the Court is not satisfied of the requisite threshold for the CDO and instead considers an ESO (in these circumstances, court-only evidence would only be available after the Court had decided it was not satisfied of the CDO threshold, and could only be considered in the ESO decision).

52. The Bill expressly prohibits the Court considering court-only evidence in determining whether to make a CDO.

53. Consistent with the INSLM's recommendations, the Bill also provides that special advocates, which are available where court-only evidence is considered in control order proceedings under the NSI Act, will also be available where court-only evidence is considered in ESO proceedings. This is important to ensure the offender receives a fair hearing by enabling a special advocate to be appointed to represent the offender's interests during the parts of a hearing in which the offender and their ordinary legal representative are excluded when the Court agrees to consider highly sensitive court-only evidence.

Amendments to the Administrative Decisions (Judicial Review) Act 1977

54. The Bill amends Schedule 1 of the ADJR Act to exempt decisions made by the AFP Minister under Division 105A of the Criminal Code as decisions to which the ADJR Act does not apply. Judicial review under the ADJR Act will not be available for decisions made by the AFP Minister under Division 105A.

Amendments to the Australian Security Intelligence Organisation Act 1979

55. The Bill amends the ASIO Act to apply to ESOs and ISOs under Division 105A of the Criminal Code, to put beyond doubt that a condition imposed on an offender by an ESO or ISO (including electronic monitoring action authorised by the conditions of the ESO or ISO) is not prescribed administrative action for the purpose of Part IV of the ASIO Act.

56. The purpose of this amendment is that ASIO would not pass relevant information to the AFP for the purpose of the ESO or ISO provisions in the form of security assessments under Part IV of that Act. This relevant information may still be communicated under the existing provisions of the ASIO Act, including under subsection 18(3) of the ASIO Act if the Director-General is satisfied that such communication is required.

Amendments to the monitoring powers under the Crimes Act 1914 , Surveillance Devices Act 2004 , and Telecommunications (Interception and Access) Act 1979

57. The Bill contains amendments to these Acts to extend the surveillance and monitoring powers which broadly apply to Division 104 of the Criminal Code to apply to orders made under Division 105A of the Criminal Code. This will enhance the ability for law enforcement to monitor a person's compliance with or suitability for PSOs. Specifically, the Bill amends these Acts to extend the:

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'monitoring warrant' regime in Part IAAB of the Crimes Act

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surveillance device warrants, surveillance device powers without a warrant and computer access warrants in the SD Act, and

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telecommunications service warrant and named person warrant framework under the TIA Act.

58. The Bill will also amend the international production order (IPO) regime introduced by the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 (IPO Bill) which inserts new Schedule 1 into the TIA Act.

Crimes Act 1914

59. The powers in the monitoring warrant regime in Part IAAB of the Crimes Act that will be extended to apply to ESOs and ISOs include searching premises; inspecting, examining, measuring or testing things on the premises; inspecting or copying documents; and operating electronic equipment to put data into documentary form or to transfer data to a disk, tape or other storage device. The regime also contains powers to ask the occupier to answer questions and produce any document relevant to determining compliance with the conditions of a relevant order. The powers available under the monitoring warrant regime are distinguished by whether the power is authorised by warrant or by the subject's consent.

Surveillance Devices Act 2004

60. The SD Act regulates the use of surveillance devices and establishes procedures for law enforcement officers to obtain surveillance device warrants for certain purposes. The surveillance and monitoring powers that will be extended to apply to PSOs include surveillance device warrants and computer access warrants. Less intrusive surveillance devices that may be used without a warrant will only be extended in relation to ESOs and ISOs.

Telecommunications (Interception and Access) Act 1979

61. The Bill will extend the telecommunication interception warrant regime contained within the TIA Act, currently available to monitor compliance with a control order, to also monitor the compliance of individuals who are subject to an ISO or ESO. The Bill enables a Part 5.3 warrant agency to seek a telecommunications service warrant, or telecommunications named person warrant. This will enable relevant law enforcement agencies to target the person subject to the Part 5.3 supervisory order, or alternatively where certain conditions are met, to target B-parties (other persons who are likely communicating with the person subject to the Part 5.3 supervisory order). The Bill also extends the application of telecommunications service warrants, and telecommunications named person warrants to be used for the purpose of informing a decision whether to apply for a PSO.

62. Schedule 2 of the Bill are amendments contingent on the passage of the IPO Bill. The purpose of these amendments is to extend the application of international production orders that may be obtained under Part 3 of Item 43 of the IPO Bill (international production orders relating to control orders) to also include ESOs and ISOs.

Amendments to the Intelligence Services Act 2001

63. The Bill amends the Intelligence Services Act 2001 to provide that the PJCIS may commence an inquiry into Division 105A of the Criminal Code within 12 months of the INSLM's report being completed.

Human rights implications

64. This Bill engages the following rights:

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the right to life in Article 6 of the International Covenant on Civil and Political Rights (ICCPR)

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the right to freedom from arbitrary detention and the right to liberty and security of the person in Article 9 of the ICCPR

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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 freedom of movement under Article 12 of the ICCPR

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the right to a fair trial and fair hearing, and minimum guarantees in criminal proceedings, under Article 14 of the ICCPR

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

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the right to freedom of expression in Article 19 of the ICCPR

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the right to freedom of association in Article 22 of the ICCPR, and

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the right to work under Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

65. The Bill may be perceived to engage, or be said to indirectly engage, the prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR.

The right to life in Article 6 of the ICCPR

66. The right to life in Article 6 of the ICCPR places a positive obligation on States to protect individuals from unwarranted actions by private persons. 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.

67. The Bill promotes the right to life by providing an additional tool to manage the risk posed by terrorist offenders post-sentence, including those in non-prison custody. The ESO scheme is targeted at offenders who have been assessed by a court to pose an unacceptable risk of committing a serious Part 5.3 offence, which includes offences causing death and serious harm. The Bill also enhances the capabilities of law enforcement agencies to respond to a heightened terrorist threat. The Bill, through the amendments to the Crimes Act, SD Act and the TIA Act, extends the ability for law enforcement agencies to detect, monitor and investigate potential terrorist threats posed by an offender subject to an ESO or an ISO. The amendments to the SD Act and the TIA Act also extend the availability of surveillance device warrants and computer access warrants, and telecommunication service warrants and named person warrants, for information gathering purposes in relation to PSOs, allowing agencies to identify the level of risk the offender poses early and intervene through seeking a court order to prevent an act of terrorism. By providing that offenders who pose an unacceptable risk of committing a serious Part 5.3 offence may be subject to an ESO, the scheme promotes the right to life by providing a tool for managing offenders who pose a risk of carrying out actions that are inconsistent with the right to life, and equipping law enforcement agencies with the power to monitor compliance.

The right to security of the person in Article 9 of the ICCPR

68. 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, particularly where the Government knows or ought to know of the existence of a real and imminent risk. The Bill promotes the right to security of the person by protecting the community from serious Part 5.3 offences (offences related to terrorism which are punishable by seven or more years' imprisonment). The Bill is aimed at a cohort of persons, post-sentence offenders, who in overseas contexts have been proven to pose a risk to the security of persons by carrying out acts of violence. The introduction of an ESO scheme provides the option for a court to impose a supervisory order which is tailored to the specific threat of terrorism posed by a particular individual once they are released after serving a sentence for an eligible offence, including where the individual is in non-prison custody. A court can impose on an offender any conditions that the Court is satisfied are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of an offender committing a serious Part 5.3 offence.

69. The Bill also enhances the capabilities of law enforcement agencies to respond to a heightened terrorist threat. The Bill, through the amendments to the Crimes Act, SD Act and the TIA Act, extends the ability for law enforcement agencies to detect, monitor and investigate potential terrorist threats posed by an offender subject to an ESO or ISO. In providing that offenders who pose an unacceptable risk of committing a serious Part 5.3 offence can be made the subject of an ESO, and in providing tools for law enforcement agencies to monitor an offender's compliance with such an order, the Bill provides a tool for mitigating risks to the security of the person and therefore promotes the security of the person.

The right to freedom from arbitrary detention and the right to liberty of the person in Article 9 of the ICCPR

70. The right to personal liberty and freedom from arbitrary detention is protected in Article 9 of the ICCPR. Article 9 regulates, rather than prohibits, detention - it is only 'arbitrary' detention that is prohibited. It requires that persons not be subject to arrest and detention except as provided for by law, and provided that neither the arrest nor the detention is arbitrary. Detention is not arbitrary where, in all the circumstances, it is reasonable, necessary and proportionate to achieving a legitimate objective.

71. The Bill amends the existing CDO scheme, including by providing that an offender may be eligible for a CDO where they commit an offence relating to a control order or an ESO (such as breach of an order, or interference with electronic monitoring equipment). The Bill also makes other amendments which affect CDO proceedings, such as the new provision allowing for an appointed expert to inform the Minister's decision as to whether to make an application for a PSO. As the Bill affects the existing CDO scheme (including to expand eligibility as noted above), it therefore engages Article 9 as the effect of a CDO or IDO is to commit the person subject to the order to detention in a prison for the period the order is in force.

72. The Bill also ensures that ESOs and control orders may commence and be enforced while a person is in non-prison custody. The conditions of these orders will enable appropriate supervision of an offender who poses an unacceptable risk of committing a serious Part 5.3 offence. Due to the nature of non-prison custody (including immigration detention), which may be administrative and less restrictive than custody in a prison, it is necessary to ensure that the conditions of an ESO or control order remain in force to address the risk of that individual causing serious harm to the community.

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

73. Article 9(1) of the ICCPR provides that a person is not to be deprived of liberty except on such grounds and in accordance with such procedures as are established by law. In relation to the CDO scheme, detention under a CDO or an IDO is authorised by, and operates in accordance with, the procedures prescribed in Division 105A. Accordingly, it complies with the requirement in Article 9(1) that deprivation of liberty not occur except in accordance with grounds and procedures prescribed by law.

74. Further, in relation to ESOs and control orders being in force whilst a person is in non-prison custody, orders are authorised by, and operate in accordance with, the procedures prescribed in Division 105A and as determined by a Court. Accordingly, the amendments comply 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

75. In considering the appropriateness of post-sentence preventative detention regimes, the United Nations Human Rights Committee has stated that:

...to avoid arbitrariness, the additional detention must be justified by compelling reasons arising from the gravity of the crimes committed and the likelihood of the detainee's committing similar crimes in the future. States should only use such detention as a last resort and regular periodic reviews by an independent body must be assured to decide whether continued detention is justified. State parties must exercise caution and provide appropriate guarantees in evaluating future dangers. The conditions in such detention must be distinct from the conditions for convicted prisoners serving a punitive sentence and must be aimed at the detainee's rehabilitation and integration into society. ^[1]

76. The preventative detention authorised by a CDO or an IDO therefore cannot be described as 'arbitrary'. The objective of the scheme (to protect the community from serious Part 5.3 offences) is legitimate and consistent with the purposes of the ICCPR. By continuing to detain 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. The risk posed by terrorism in Australia is real, as evidenced by the number of attacks and foiled attempts in recent years, and the assessment of agencies that the threat is enduring and evolving.

77. The CDO scheme is reasonably necessary and proportionate to achieving this outcome of protecting the Australian community from terrorist attacks. The scheme provides that detention of an offender is a last resort where no less restrictive measure (defined by the Bill to mean Part 5.3 orders, such as control orders or ESOs) would be sufficient to manage the risk posed by a high risk terrorist offender at the completion of their sentence for a specified terrorism offence. This is reflected in the stringent thresholds of which a court must be satisfied before it may impose a CDO, as discussed further below.

78. The CDO scheme includes numerous features designed to ensure that detention is not arbitrary, including additional safeguards that were added during parliamentary consideration of the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, which introduced the scheme. These address the considerations set out by the United Nations Human Rights Committee by:

•

Establishing processes by which a court, when deciding an application for or reviewing a CDO, must have regard to a range of matters which are rationally connected with the level of risk posed by the 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 offender (section 105A.6A).

•

Providing that, for an offender to be subject to a CDO, 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 the offender is released into the community (paragraph 105A.7(1)(b)). To assist the Court in making this decision, the Court may appoint a relevant expert or experts to conduct an assessment of the risk of the offender committing a serious terrorism offence if they were released into the community (section 105A.6). Both the offender and the AFP Minister (or their respective legal representative) may nominate a relevant expert or experts for the Court's consideration (subsection 105A.6(3A)). An example of an expert who may be appointed by the Court could be a person with expertise in forensic psychology or psychiatry (and, in particular, recidivism) coupled with specific expertise on terrorism, radicalisation to violent extremism and countering violent extremism. The Court must have regard to the expert's opinion when making its decision (paragraph 105A.8(1)(b)).

•

Requiring that a court can only make a CDO if satisfied that there is no less restrictive measure that would be effective in preventing the unacceptable risk posed by the offender (paragraph 105A.7(1)(c)). The Bill provides that, in considering less restrictive measures, the Court is only to consider Part 5.3 orders, such as ESOs. An ESO may require an offender to participate in specified rehabilitation or intervention programs or activities, or undertake counselling, subject to their consent (paragraph 105A.7B(2)(o)). Further, a court must have regard to any treatment or rehabilitation program in which the offender has had an opportunity to participate (paragraph 105A.8(1)(e)).

•

Providing for annual review by requiring the AFP Minister to apply to the Supreme Court for a review of a CDO (at the end of the period of 12 months after the order began to be in force, or 12 months after the most recent review ended) (section 105A.10). Failure to make this application will mean that the CDO ceases to be in force.

•

Recognising that the offender is not serving a sentence of imprisonment by providing that, when subject to a CDO, he or she be housed separately from persons who are in prison for the purposes of serving a sentence of imprisonment, except in certain circumstances such as where the offender's treatment or accommodation arrangements could compromise the management, security and good order of the prison, for rehabilitation purposes or for the safety and protection of the community (section 105A.4).

79. Additional safeguards contained in the provisions provide that:

•

only a limited class of persons can be subject to the CDO 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 AFP Minister, or their legal representative, can apply for a CDO

•

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

•

the power to make a CDO lies with an independent judicial authority (the Supreme Court of the relevant State or Territory) which will apply the rules of evidence and procedure applicable in civil matters

•

the offender can adduce evidence and make submissions in court proceedings

•

the AFP Minister bears the onus of satisfying the Court that a CDO should be made and, if reviewed, that a CDO should be affirmed

•

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

•

the period of detention authorised by an IDO must be limited to a period that is reasonably necessary to determine the application for a CDO and not exceed 28 days and the total period of detention authorised by consecutive IDOs must not exceed three months, and

•

the Court must provide reasons for its decisions in an application for a CDO or in a review of a CDO, and these decisions can be appealed.

80. The Bill extends eligibility for CDOs to offenders who are convicted of breaching an ESO or ISO, breaching a control order imposed after a sentence for a Part 5.3 offence, or interfering with their own tracking device imposed under an order. The underlying eligibility criteria, that offenders must have been convicted of, and served a sentence for, a specified terrorism offence, continues to apply. In addition, in order to make a CDO the Court must be satisfied that as a result of the conduct constituting the breach, the offender poses an unacceptable risk of committing a serious Part 5.3 offence. This is a higher threshold than ordinarily applies for making a CDO, and links the conduct while on an ESO, ISO or control order to the risk from which the community is being protected. Accordingly, the extension of eligibility for CDOs to offenders who have breached an ISO or an ESO condition, or who have interfered with their own tracking device, or who have committed an offence relating to control orders, is not arbitrary. To the extent that these measures engage the right to freedom from arbitrary detention in Article 9(1) of the ICCPR they are consistent with it.

81. The Bill also includes safeguards to ensure that an offender cannot be subject to conditions under an ESO that are akin to detention. Subsection 105A.7B(2A) provides that a condition imposed on an offender as part of an ESO or ISO cannot require an individual to remain at a specified premises for more than 12 hours in a 24 hour period. Further, paragraph 105A.7A(1)(c) provides that a Court must consider each individual condition of an ESO as well as the combined effect of all proposed conditions of the ESO to ensure the necessity and proportionality of those conditions. These provisions ensure that conditions under an ESO are appropriate in response to the offender's risk, and do not impinge on the right to freedom from arbitrary detention.

The right to take proceedings before a court, in order that the court may decide without delay on the lawfulness of detention in Article 9(4) of the ICCPR

82. Article 9(4) of the ICCPR provides that persons deprived of their liberty must be able to challenge the legality of their detention in court. This includes an implied requirement that an offender be provided with information sufficient to enable them to know the nature of, and lead evidence to refute, the case against them.

83. The Bill engages this right by providing that when the AFP Minister, or a legal representative of the AFP Minister, applies for a PSO or IPSO, or a review of a PSO, certain information may be excluded from the copy of the application or material provided to an offender. Sections 105A.14B to 105A.14C provide that the offender need not be given any national security information or any PII information as part of the information included in the application against them. Section 105A.14D allows a court to make orders concerning access to terrorism material.

84. These measures seek to achieve the legitimate objective of protecting Australia's national security, and, in the case of terrorism material, to limit the unnecessary exposure of the extremist material to an offender. The inappropriate disclosure of national security information has the potential to prejudice Australia's national security and the security of all Australians. Information relevant to CDO proceedings may disclose sensitive sources and capabilities employed by security agencies to lawfully obtain information about terrorist activities. Revealing this information to the offender risks jeopardising ongoing counter-terrorism and national security investigations and has consequences for the safety of human sources. In relation to terrorism material which forms part of an application, the Bill will allow a court to make orders about the offender's access to that material. This is limited to material that advocates support for or relates to planning, preparing for or engaging in terrorist acts or violent extremism, or advocates joining or associating with a terrorist organisation. These orders are intended to prevent copies of such material from being made available to the offender, particularly while in prison, where it may be distributed and have an adverse effect on efforts to curb radicalisation.

85. The extent to which information may be excluded, or the offender's access to that information controlled, is limited to the extent necessary to achieve the outcome discussed above, and is to be ultimately decided on by the Court. There are also mechanisms to ensure a fair hearing in the exceptional circumstances where the offender is not able to receive certain highly sensitive information, such as through the appointment by a court of a special advocate. Accordingly, the measures in the Bill to improve the protection of sensitive information in CDO proceedings are necessary to achieve this legitimate objective.

86. Accordingly, to the extent that the amendments permit limitations on the rights of offenders under Article 9(4), the limitations are reasonable, necessary and proportionate to achieve the legitimate objective of protecting sensitive information, the disclosure of which would adversely affect national security, and limiting access to terrorism material that may undermine efforts to curb radicalisation.

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

87. As noted above, the Bill expands eligibility for the CDO scheme by providing that CDOs may be made in relation to an offender who breaches an ISO or an ESO condition, who interferes with their own tracking device, or who commits an offence relating to control orders.

88. 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 CDO scheme may be considered to engage this obligation as it involves detention.

89. 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 CDO scheme directly as the scheme does not involve the detention of 'accused persons'. The grounds for detention under a CDO are not connected with the laying of or determination of a criminal charge.

90. Despite these obligations not applying to the CDO scheme, section 105A.4 sets out the minimum standards of treatment that must be afforded to an offender who is detained under a CDO. This includes that the offender 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 (subsection 105A.4(1)) and that, subject to certain exceptions, the offender must not be accommodated or detained in the same area or unit of the prison as persons who are in prison for the purpose of serving sentences of imprisonment (subsection 105A.4(2)).

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

92. The Bill may also be considered to engage Article 10(1) as it provides that ESOs and control orders can commence where a person is in non-prison custody, which may result in additional restrictions being placed upon a person who is already detained in non-prison custody. ^[2] The Bill is consistent with this right, as the conditions which would be imposed on an offender would be those that the Court considers are reasonably necessary, appropriate and adapted to ensure the safety and protection of the community. The conditions a Court may impose will be appropriate to the circumstances and risk of each terrorist offender. This may include, for example, conditions being placed on an offender within immigration detention that ensure the safety of both the wider Australian community and those within the immigration detention facility. To the extent that ESOs and control orders engage rights under Article 10(1), these limitations are reasonable, necessary and proportionate to protect the community from serious Part 5.3 offences.

The right to freedom of movement under Article 12 of the ICCPR

93. The right to freedom of movement is protected in Article 12 of the ICCPR. One component of this right is that people must be able to move freely and choose a place of residence within a country. This right may be limited for the purpose of protecting national security, public order, public health or morals or the rights and freedoms of others, as permitted by Article 12(3).

94. Subsections 105A.7B(2) and (3) outline a number of conditions that the Court may impose as part of an ESO or an ISO which may restrict the movement of a person. Potential conditions include requiring an offender to provide their passport (or passports) to a specified authority, requiring an offender to reside at a specified premises, or requiring that the offender not leave Australia, or the State or Territory in which the offender's residence is located. A court may also impose a condition that an offender remain at a specified premises between specified times each day, or specified days, or a condition that an offender not be present at specified areas or places, or specified classes of areas or places.

95. The imposition of any of the above conditions would restrict an offender's freedom of movement, however, such restrictions are necessary to protect Australia's national security. Under the proposed ESO scheme, a court would decide which conditions are appropriate to address the risk posed by a particular offender. Before imposing any condition as part of an ESO or ISO, the Court must be satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence. The offender (or their legal representative) will be able to make submissions to the Court in relation to the proposed conditions. The AFP Minister will be required to make an application to vary an ESO where a condition is no longer reasonably necessary, or reasonably appropriate and adapted, for the purpose of protecting the community.

96. These safeguards, particularly the independent role of the judiciary, will ensure that any conditions which affect a person's freedom of movement will be imposed consistently with Article 12 of the ICCPR, on the grounds of national security. This is further enforced through the requirement for the Court to assess the combined effect of all the proposed conditions of the ESO (paragraph 105A.7A(1)(c)), and the restriction on ordering an offender to remain at a specified premises for no more than 12 hours in a 24 hour period (subsection 105A.7B(2A)).

The right to a fair trial and fair hearing under Article 14 of the ICCPR

97. Article 14(1) of the ICCPR provides that, in the determination of a person's rights and obligations in a suit at law and in cases of a criminal charge, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The fair trial rights provided for in Article 14(1) include the privilege against self-incrimination. Article 14(2)-(7) provides the minimum guarantees which apply to criminal proceedings only. Article 14(3)(g) of the ICCPR provides that, in the determination of any criminal charges, everyone shall be entitled not to testify against themselves or confess guilt. The prohibition against self-incrimination, together with the right to be presumed innocent, also provides for a right to silence during investigations or in pre-trial questioning as well as at trial.

98. The Bill engages this right as PSO proceedings involve the determination of an offender's rights and obligations.

99. There are a range of provisions which uphold an individual's right to a fair trial and fair hearing.

Criminal Code

100. The provisions in Division 105A require PSO 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 offender can adduce evidence and make submissions, and he or she must be provided with certain documents, including the application for a PSO and the reasons for a decision in a PSO proceeding, to enable him or her to prepare for proceedings. The offender has the same ability as the Minister to seek a variation of an ESO or ISO or review of a PSO, and can appeal decisions made by the Court.

101. Subsection 105A.5(2A) provides the Minister must ensure that reasonable inquiries are made to ascertain any facts known to a Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that a PSO should not be made. Paragraph 105A.5(3)(aa) provides that the application by the AFP Minister for a CDO must also include any material in the applicant's possession and any statement of facts that the applicant is aware of that would reasonably be regarded as supporting a finding that the order should not be made, subject to any claims of PII (see below). These requirements also apply when a PSO is periodically reviewed.

102. When hearing an application for, or reviewing, a PSO, the Court has the power to appoint one or more experts to assess the risk of the offender committing a serious Part 5.3 offence. In addition, under the new section 105A.18D, the AFP Minister may direct persons who are eligible for an ESO or CDO, or presently subject to an ESO or CDO, to be subject to an expert assessment of the risk of the offender committing a serious Part 5.3 offence. The offender is required to attend both types of assessment, and the Court is to have regard to the expert's report and the level of the offender's participation in the assessment when making an ESO or CDO. Information or answers given by the offender at an assessment are not admissible in evidence against the offender in criminal or civil proceedings, except any proceedings in relation to sentencing for an offence against Divisions 104 or 105A, once the offender has been convicted of an offence, and civil proceedings under Divisions 104 or 105A (including appeals in relation to those proceedings). The prohibitions on the use of the report avoid the offender having to decide between participating in the assessment but potentially disclosing self-incriminating information, and not participating in the assessment at all.

103. The Bill preserves an offender's right to access legal representation. Subsection 105A.7B(6) provides that the Court's ability to impose conditions by an ESO or ISO does not affect an offender's right to contact, communicate or associate with the offender's lawyer, unless the offender's lawyer is prescribed as a prohibited contact. In that case, the offender may contact, communicate or associate with any other lawyer of their choosing. The Bill also ensures that any lawyer representing the offender is able to access copies of ESOs or ISOs made against the offender, so that they can provide advice to, and represent the interests of, the offender as they relate to an ESO or ISO. Under section 105A.15A, the Court may stay proceedings or make an order requiring the Commonwealth to bear all or part of the reasonable costs and expenses of the offender's legal representation for an ESO proceeding, if the offender is otherwise unable to engage a legal representative due to circumstances beyond their control.

104. Subsection 104.5(1C) contains a further safeguard that promotes the right to a fair trial and fair hearing, by providing that a person who is detained in custody has the right to attend court on the day a Court decides an application for a control order.

105. Under section 105A.16, when the Court makes a PSO 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.

106. These provisions ensure that the offender, and the Court, have access to the information needed in determining an application for a PSO or IPSO. Consequently, subject to the limitations permitted under Article 14(1), the provisions of the Bill protect the rights of offenders to a fair and public hearing by a competent, independent and impartial tribunal established by law.

107. 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 CDO or ESO proceedings, which do not involve the determination of a criminal charge, being civil, rather than criminal, in nature.

108. 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. The Bill does not engage this right because the imposition of a PSO on an offender does not constitute additional punishment for their prior offending - the PSO is protective rather than punitive or retributive in nature. While prior commission of serious terrorism offences make an offender eligible for the PSO regime, whether an order will be imposed depends on the Court making an assessment that the offender poses an unacceptable risk of committing further serious terrorism offences.

109. As well as being defined explicitly in section 105A.1, the scheme's protective purpose is reflected in numerous features of the scheme including the grounds on which an ESO or CDO may be made or affirmed; the matters to which the Court must have regard when making or reviewing an ESO or CDO; and the requirement that conditions under an ESO may only be imposed for a period that is reasonably necessary to prevent the unacceptable risk. The PSO scheme therefore does not further punish those convicted of terrorism offences and Article 14(7) of the ICCPR is not engaged.

110. The Bill also ensures the personal service of people in custody. Section 104.28B (for control orders) and section 105A.15 (for ESOs) provide that a document can be taken to have been served on an offender if it is given to either their legal representative or the head of the facility where they are being detained, such as the head of an immigration detention facility. The provisions require the recipient of the document to provide it to the offender as soon as reasonably practicable. This ensures that all offenders, including those in non-prison custody, have access to any information relating to an application made in relation to them.

111. The UN Human Rights Committee provides that access to administration of justice must effectively be guaranteed in all such cases to ensure that no individual is deprived, in procedural terms, of their right to claim justice. This right is not limited to citizens and extends regardless of status of nationality or statelessness. ^[3]

112. Non-prison custody includes immigration detention facilities. The immigration detention network has long-established processes for detainees to request and access legal assistance. The Department of Home Affairs is committed to ensuring detainees have access to a variety of communication avenues to maintain contact with their support networks and legal representation and facilitates a wide range of communication options including computers, internet, landline and mobile phones, meeting rooms, writing material and fax machines. A detainee is able to contact and appoint a legal representative at any time to assist on their behalf. If a detainee and legal representative wish to meet in person, there are documented procedures in place to facilitate such visits.

Protection of sensitive information

113. Article 14 also provides for the concept of 'equality of arms' in proceedings, which requires that all parties to a proceeding have a reasonable opportunity to present their case under conditions that do not disadvantage them as against other parties in the proceedings.

114. The Bill engages this right as, as outlined above in relation to Article 9(4), certain information - that is, national security information, PII information, and terrorism material - may be excluded from the copy of the application or material provided to an offender when a CDO application is made against them. These information exclusion provisions also apply to ESO and ISO applications, applications for a variation of an ESO or ISO order under section 105A.9B, and applications for a review of an ESO or ISO.

115. The mechanisms through which the information may be protected are overseen by the courts. Neither claims of PII nor the orders available under the NSI Act for CDO proceedings allow for the Court to take into account evidence that has not also been given to the offender. Instead, these mechanisms allow the Court to consider the sensitive information and the potential harm from its disclosure and weigh that against the public interest in the offender receiving all relevant material. After making this assessment, the Court may make orders providing for the redaction of sensitive material, the summarising of information to remove sensitivities or that the material be disclosed to the offender. This means that the AFP Minister will not be able to rely on evidence that is not put to the offender in relation to CDO applications. It will be open to a court to stay proceedings entirely if it is satisfied that withholding the information in question would involve unacceptable injustice or unfairness.

Use of court-only evidence

116. The Bill extends the existing provisions in the NSI Act that allow for court-only evidence in control order proceedings to apply to ESO and ISO proceedings. This is appropriate given the similarities between control orders and ESOs, in that both allow for supervision (rather than detention) of the subjects of those orders. By giving the Court the power to make an order that the offender or their legal representative not be present during any part of the hearing where information may be disclosed and that disclosure would be likely to prejudice national security, these measures engage Article 14. There will be no circumstances in which the Court is able to consider court-only evidence in deciding whether to make a CDO.

117. The NSI Act balances the need to protect national security information with the principle of open justice. The Bill enables court-only evidence to be considered in ESO proceedings to ensure that the process of applying for an ESO, which seeks to protect the Australian community from the unacceptable risk of a serious terrorism offence, does not itself damage national security. Wherever possible proceedings will be held in open court.

118. These measures seek to achieve the legitimate objective of protecting Australia's national security. As noted above, the inappropriate disclosure of national security information has the potential to prejudice Australia's national security and the security of all Australians. Information relevant to ESO proceedings may disclosure sensitive sources, methodologies and capabilities employed by security agencies to lawfully obtain information about terrorist activities. Revealing this information to the offender risks jeopardising ongoing counter-terrorism and national security investigations and has consequences for the safety of human sources. Accordingly, the measures in the Bill that protect sensitive information in ESO proceedings are necessary to achieve this legitimate objective.

119. Further, the NSI Act provides a number of safeguards which ensure the offender receives a fair hearing. For example, the Bill ensures procedural fairness by extending the special advocate scheme that is available in control order proceedings to ESO proceedings. Where information is withheld from the offender and their legal representative, or where they are not permitted to be present during part of a hearing, the Court may appoint a person as a special advocate to represent the interests of the offender. The special advocate represents the interest of the offender by:

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making submissions to the Court at any part of a hearing in the proceeding during which the offender and the offender's legal representative are not entitled to be present

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adducing evidence and cross-examining witnesses at such a part of a hearing in the proceeding, and

•

making written submissions to the Court.

120. The special advocate is able to make arguments querying the need to withhold information from the offender, and can challenge the relevance, reliability and weight accorded to that information. The appointment of a special advocate ensures that the offender will have a reasonable opportunity to present their case, under conditions which do not disadvantage them as against other parties in the proceedings.

121. The NSI Act also provides other safeguards. For example, in determining whether to make an order permitting court-only evidence in ESO proceedings, the Court must:

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be satisfied that the offender has been given sufficient information about the allegations on which the request for an order was based to enable effective instructions to be given in relation to those allegations, and

•

have regard to:

o

the potential prejudice to national security in not making the order

o

whether the making of the order would have a substantial adverse effect on the substantive hearing in the proceeding (which ensures the Court expressly contemplates the effect on a party's ability to receive a fair hearing), and

o

any other matter the Court considers relevant.

122. The NSI Act also ensures procedural fairness by preserving the discretion of the Court. The NSI Act does not require the Court to make any orders permitting court-only evidence. The Court may decline to make such an order, or where it does make an order, the Court may determine what form such an order takes (for example, whether redactions should be applied or summaries of the information should be provided). Further, subsection 19(3) preserves the power of the Court to control the conduct of civil proceedings, in particular with respect to abuse of process. This enables the Court to assess at each stage of the ESO proceeding whether the offender has been afforded procedural fairness.

Crimes Act

123. The monitoring warrant regime in Part IAAB of the Crimes Act ensures that, even where a monitoring warrant is in place, the person has the right not to answer questions or produce documents if the answers or documents might tend to incriminate them (or if they can claim legal professional privilege). The regime provides that before a constable asks or requires a person to answer a question or produce a document they must explain to the person their rights concerning legal professional privilege and privilege against self-incrimination. Further, the regime provides that, should a constable fail to explain to the person their rights in relation to answering a question or producing a document, any answer given or document produced will not be admissible as evidence against the person in a criminal proceeding. The Bill ensures that the express protection of the right against self-incrimination under Article 14(3)(g) is extended to apply to warrants issued to monitor compliance with ESOs and ISOs.

ADJR Act

124. The Bill amends Schedule 1 of the ADJR Act to exempt decisions made under Division 105A of the Criminal Code from review under the ADJR Act. This would apply to two types of decision - decisions of the AFP Minister to apply to the Court for a PSO under Division 105A (including a decision to seek review or variation of an order), and decisions of the AFP Minister to direct an offender to participate in an assessment under section 105A.18D.

125. Division 105A contains a number of measures that protect the offender's rights and interests in relation to a direction to attend an expert assessment, including:

•

the offender is not required to answer any questions. Any answers or information given at the assessment are not admissible in evidence against the offender in any civil or criminal proceedings, other than civil proceedings under Division 104 (control orders) or Division 105A, or sentencing proceedings in relation to Divisions 104 or 105A,

•

should the offender participate, any exculpatory information produced as a consequence of the Minister's decision to direct the offender must be summarised and included as part of any application made under Division 105A (see paragraph 105A.5(3)(aa)),

•

the offender (or the offender's legal representatives) will have the opportunity to present submissions to the relevant Supreme Court on the veracity of the expert report. While the grounds on which the Minister's decision would not encompass the broad grounds of review under the ADJR Act, the offender will be able to present submissions on whether the report was lawfully obtained. The Court must have regard to the report in deciding whether to make a PSO (subparagraph 105A.6B(1)(b)(ii)), and will have the final determination as to the weight to be assigned to it. It is appropriate for the Court to consider challenges to the report in this context, including in relation to the Minister's decision to make the direction to attend the assessment.

126. Judicial review of these decisions will remain available under section 39B of the Judiciary Act 1903 and section 75(v) of the Constitution. Accordingly, while the Bill excludes the decision of the AFP Minister from ADJR Act review, the procedural guarantees provided under Article 14 are not restricted as the offender can contest the contents of any report prepared as a result of the proceedings in the application, variation or review proceedings in a Supreme Court, and can seek review of the AFP Minister's decision under section 75(v) of the Constitution.

127. To the extent that the Bill limits the rights of offenders under Article 14 of the ICCPR, the limitations are reasonable, necessary and proportionate to achieve the legitimate objective of protecting sensitive information.

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

128. 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 are 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.

Conditions of ESOs and control orders

129. There are a range of possible conditions which a court may impose as part of an ESO that would engage with the right to privacy, including that the offender be subject to electronic monitoring, provide information to specific authorities, submit to drug and/or alcohol testing, allow himself or herself to be photographed, allow fingerprints to be taken, report to specified authorities at specified times and places, allow visits to confirm compliance with a curfew condition, and allow a police offer to search them or their premises and seize items found. The Bill also expands the electronic monitoring conditions in control orders to align them with the provisions in the ESO scheme.

130. 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.

131. The measures in the Bill, including the proposed ESO and control order conditions, are intended to protect the Australian community from the risk of an offender committing further terrorism offences. Terrorism remains 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. Accordingly, the measures are seeking to achieve a legitimate objective.

132. The measures are also proportionate to achieving that outcome. The conditions which may be imposed by a court are intended to be tailored to address the specific risk the individual poses of committing further terrorism offences. Under subsection 105A.7B(1), before imposing a condition which may restrict an offender's privacy under an ESO, ISO or control order, the Court must be satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence. The protection of the community from serious terrorism offences is the paramount consideration for the Court in determining what conditions to impose in an ESO or ISO. This does not preclude the Court taking other factors, such as the level of interference with the offender's privacy, caring responsibilities, or the offender's propensity to engage in criminal behaviour when affected by illicit substances, into account, provided the protection of the community is the paramount consideration. When determining what obligations, prohibitions or restrictions to include in a control order, in addition to taking the objects of Division 104 into account as the paramount consideration, the Court must also consider the impact of the obligation, prohibition or restriction on the person's circumstances. This reflects the fact that control orders may be imposed on persons who are already in the community without conditions.

133. There are also appropriate safeguards on the extent to which a specified authority may exercise powers or otherwise do things in relation to ESO conditions, including the threshold in section 105A.7B(4) which provides that monitoring and compliance powers may only be used where it is reasonably necessary to do so in order to give effect to the order or to facilitate or monitor compliance with the order. There are also safeguards in the use and treatment of photographs and fingerprints, which are limited to the purpose of ensuring compliance with an ESO or ISO in section 105A.7D. The Bill also requires the AFP Minister to make an application to vary an ESO where a condition is no longer reasonably necessary, or reasonably appropriate and adapted, for the purpose of protecting the community.

134. These safeguards and the tailored approach to setting conditions, which can only be made by a court, ensure that any engagement of the right to privacy is consistent with Article 17 of the ICCPR.

Expert assessments

135. When hearing an application for, or reviewing, a PSO, the Court has the power to appoint one or more experts to assess the risk of the offender committing a serious Part 5.3 offence. In addition, under the new section 105A.18D, the AFP Minister may direct persons who are eligible for an ESO or CDO, or presently subject to an ESO or CDO, to be subject to an expert assessment of the risk of the offender committing a serious Part 5.3 offence.

136. In relation to both types of expert assessment, the offender is required to attend the assessment but is under no obligation to answer questions or to disclose any information. The effect of this requirement is to be explained to the offender by either the Court or the Minister (or his/her representative). In deciding whether to make or affirm a PSO, the Court is to have regard to the expert's report and the level of the offender's participation in the assessment. The fact that the Court must consider the level of the offender's participation in the expert's assessment does not create a de facto obligation to participate. The Court may choose to place whatever weighting on this consideration as it sees fit. There are a range of other ways by which the offender can seek to influence the outcome of the Court's consideration of an application for, or review of, a PSO, including by adducing evidence and making submissions.

137. The same limitations on admissibility of information or answers given at the assessment apply to both court-appointed and Minister-appointed experts. Under subsections 105A.6(5A) and 105A.18D(5), information or answers given by the offender at an assessment are not admissible in evidence against the offender in criminal or civil proceedings, except any proceedings in relation to sentencing for an offence against Divisions 104 or 105A, once the offender has been convicted of an offence, and civil proceedings under Divisions 104 or 105A (including appeals in relation to those proceedings). This is appropriate to ensure that the Court has all relevant materials available for its consideration when sentencing an offender for a breach of a control order or ESO, while balancing this against the need to ensure that information provided by the offender during the relevant expert's assessment cannot be used as a basis for a conviction.

138. Given that an offender is not compelled to answer questions as part of an expert assessment, the requirement that the offender attend an assessment does not engage Article 17(1) of the ICCPR.

Sharing of information

139. The Bill extends information sharing provisions that apply for CDOs to apply to ESOs. Section 105A.19 provides that the AFP Minister may request information from prescribed persons which the Minister reasonably believes to be relevant information to the administration or execution of Division 105A. Subsection 105A.19(2A) provides that such information can be provided to the Minister despite any law of the Commonwealth or a State or Territory. The Bill also provides that information may be shared between the AFP and electronic monitoring service providers in relation to offenders who are subject to a control order or ESO electronic monitoring condition. The Bill also includes provisions to facilitate the disclosure, to a specified authority, of information obtained as part of an offender's attendance and participation in treatment, rehabilitation or intervention programs or activities, psychological or psychiatric assessment or counselling, and interviews and assessments. As these provisions would allow the sharing of personal information, they engage Article 17 of the ICCPR.

140. These provisions seek to achieve a legitimate objective, as the disclosure of information is necessary to facilitate the electronic monitoring of offenders - thereby protecting the safety and security of the Australian community. The disclosure of personal information would be limited to a select class of persons, and only for the purposes of monitoring offenders. As such, these provisions are proportionate and do not constitute an arbitrary interference with the right to privacy.

Monitoring warrants

141. The former INSLM noted in his 2012 Annual Report that the efficacy of a control order depends largely upon the subject's willingness to respect a court order when there is an absence of the ability to effectively monitor a person's compliance with the terms of a control order. Without the ability to effectively monitor this compliance, there is no guarantee that a person will not breach the order or go on to commit a terrorist offence. This is a position that applies equally to ESOs and ISOs.

142. Importantly, these monitoring powers do not require the issuing authority to be satisfied that an offence has occurred or is going to be committed. If warrants were only available once law enforcement had a suspicion that an offence had already occurred, an offender subject to an ESO or ISO may have already breached their order and may have been able to provide support for terrorist activity or take preparatory steps for a terrorist act. If an offender were able to perform these kinds of actions before law enforcement agencies could take action, the preventative and protective purposes of the orders would be undermined. Consequently, these monitoring powers adopt a threshold appropriate to the monitoring of an offender who has already met the relevant threshold for the making of an ESO or ISO and who is therefore of security concern.

143. It is imperative that our law enforcement agencies have adequate powers to monitor an offender's compliance with the conditions of an ESO or ISO. Without sufficient powers to monitor compliance, community safety may be put at risk if the offender does not choose to comply with the conditions of the order and breaches go undetected. Furthermore, the knowledge that law enforcement is able to use its powers to actively monitor compliance with an order provides a strong disincentive to an offender to breach the conditions of their order. This enhances the effectiveness of the ESO or ISO.

144. Certain surveillance powers will also be extended to apply to PSOs. In this context, surveillance powers may be used to gather information which would be likely to assist in determining whether to make an application for a PSO. The ability to obtain information that would likely assist in determining whether to make an application under Division 105A of the Criminal Code will broaden the information available to the Minister. In consideration that information gathering of this nature would be in relation to an offender who is in custody, the information obtained is likely to be more contemporary, relevant and in admissible form, as compared to other types of information. It is intended that these measures will strengthen the evidence available to the Minister in determining whether it is appropriate to make an application in all the relevant circumstances.

145. Finally, the overarching obligation on the Minister to disclose exculpatory information in a PSO application means that the information obtained under all surveillance and monitoring powers will assist the Court's consideration of whether to make a PSO and may be relied upon in favour of the offender. This obligation further strengthens the reasonableness of these measures.

Crimes Act

146. The amendments to the Crimes Act will provide for two types of entry and search - by consent, and under a monitoring warrant.

147. Entry to and search of a person's home by consent will engage, but will not limit, the protection from arbitrary and unlawful interference with privacy in Article 17. The Bill extends the safeguard that a person will not be compelled to answer questions or produce documents when requested by police to apply in relation to ESOs and ISOs. Entry and search are only authorised if consent is informed and voluntary, limiting the impact on privacy.

148. The Bill extends in relation to ESOs and ISOs the protection against arbitrary abuses of power as the entry, monitoring, search and information gathering powers are conditional upon consent by the occupier of the premises, with seizure only possible by prior judicial authorisation. Where entry is based on the occupier's consent, the consent must be informed and voluntary and the occupier can restrict entry for a particular period. Authorised persons and any persons assisting them must leave the premises if the occupier withdraws consent.

149. Third parties present at premises may be questioned regardless of whether the premises are entered on the basis of consent or a monitoring warrant. Third parties are under no obligation to provide information or documents unless a monitoring warrant in relation to premises is in force. Furthermore, whether or not a warrant is in force, questioning or requests for documents can only occur where the purpose relates to either the prescribed purpose of achieving a Part 5.3 object or determining compliance with the relevant order.

150. Entry to and search of a person's home under a monitoring warrant (and without consent) will engage, and limit, the protection from arbitrary and unlawful interference with privacy in Article 17. The person is compelled to answer questions and produce documents as required by police unless doing so might tend to incriminate them or if they can claim legal professional privilege. Entry and search under a monitoring warrant affects the person's privacy.

151. Safeguards exist where entry and search is under a monitoring warrant. They include a requirement that the monitoring warrant issuing officer is satisfied on the balance of probabilities that, where a search is to be conducted of the premises or vehicle owned or occupied by or in the possession of the offender who is the subject of an ESO or ISO, the search is reasonably necessary and reasonably appropriate and adapted to the purpose of achieving a Part 5.3 object or determining compliance with the relevant order.

152. Furthermore, the Bill extends in relation to ESOs and ISOs the positive obligation on an issuing officer to have regard to whether allowing one or more constables to exercise the monitoring warrant powers would be likely to have the least interference with any person's liberty and privacy that is necessary in the circumstances. This requirement acknowledges the infringement of these powers on a person's privacy by striking an appropriate balance between the objectives of the regime in mitigating risk and protecting the public, against the right to privacy of the subject of the ESO or ISO.

153. Third parties present at premises may be questioned and obligated to provide information or documents if a monitoring warrant in relation to premises is in force. However, even where a warrant is in force, questioning or requests for documents can only occur where the purpose relates to either the prescribed purpose of achieving a Part 5.3 object or determining compliance with the relevant order.

154. The Bill extends in relation to ESOs and ISOs the requirement that an issuing officer of a warrant to enter premises for the purpose of monitoring must be a judicial officer. In addition, an authorised person cannot enter premises unless their identity card is shown to the occupier of the premises. Where entry is authorised by warrant, the authorised person must also provide a copy of the warrant to the occupier. This provides for the transparent use of the relevant powers and mitigates the risk of abuse or arbitrary use of the powers.

155. The Bill extends in relation to ESOs and ISOs a number of other safeguards and accountability mechanisms, record keeping and reporting requirements, and independent oversight by the Commonwealth Ombudsman. The regime provides that the AFP Commissioner must keep a record of each monitoring warrant issued, each instrument revoking a monitoring warrant and any order granting an extension to a monitoring warrant period. The AFP Commissioner must also notify the Commonwealth Ombudsman that a warrant has been issued, provide a copy of the warrant and notify the Ombudsman of any contravention of a provision of Part IAAB by an AFP member. Furthermore, the Ombudsman must report annually to the AFP Minister on the compliance of members of the AFP with Part IAAB. The AFP Minister must report to the Parliament on the operation of the regime, including the number of warrants issued and executed and must also include, in full, the Ombudsman's report on the AFP's compliance with the regime.

156. To the extent that the Crimes Act monitoring warrants interfere with the right to privacy it is proportionate and limited to ensuring that an offender who is subject to an ESO or ISO is prevented from breaching that order, which in turn may prevent the offender from engaging in terrorism-related activities or terrorism offences. The monitoring warrant powers are subject to safeguards which ensure that the use of power is reasonable and necessary. These measures require the monitoring warrant issuing officer to be satisfied of thresholds (such as being satisfied that it is reasonably necessary to use the power for the purpose of, for example, the protection of the public from a terrorist attack) that mean that the powers cannot be used in an arbitrary fashion and that the level of intrusiveness is no more than is reasonably necessary to achieve a legitimate objective. This legitimate objective is to assist law enforcement officers to prevent serious threats to community safety. The intrusive nature of the powers is balanced by their use solely in respect of terrorism, which constitutes a threat to the safety and security of the community.

157. The Crimes Act monitoring warrant provisions do not constitute an arbitrary or unlawful interference with a person's right to privacy. To the extent that there is a limitation on an individual's right to privacy, a number of important protections are built into the regime to ensure any interference is reasonable, necessary and proportionate to achieve a legitimate objective - the effective operation of ESOs and ISOs for the purpose of maintaining community safety.

SD Act

158. To the extent that there is a legitimate limitation of the right to privacy under the proposed amendments to the monitoring warrant regime in the Crimes Act, the same justifications apply with regard to the use of surveillance device warrants for monitoring compliance with ESOs and ISOs. In essence, to the extent that there is a limitation on an individual's right to privacy, a number of important protections are built into the regime to ensure any interference is reasonable, necessary and proportionate to achieve a legitimate objective - the effective operation of the ESO or ISO for the purpose of maintaining community safety. Safeguards and limitations on the use of regulatory powers ensure that such lawful interferences with a person's privacy are not arbitrary or at risk of abuse.

159. Law enforcement officers are required to apply to an eligible Judge or nominated AAT member for a warrant authorising the use or installation of a surveillance device. The SD Act only allows the use of optical surveillance, listening and tracking devices without a warrant in circumstances which do not involve covert entry onto premises or interference with a vehicle. Independent oversight prior to the use of a privacy-intrusive surveillance device requires law enforcement agencies to demonstrate the necessity and proportionality of surveillance to an independent party. Law enforcement officers are not automatically entitled to receive the warrant in relation to persons subject to an ESO or ISO. Before issuing a surveillance device warrant, the independent issuing authority must be satisfied inter alia that the use of a surveillance device would be likely to substantially assist in achieving a Part 5.3 object or determining compliance with the relevant order. Even where the issuing authority is satisfied that the use of a surveillance device would be likely to substantially assist in either of the above purposes, the issuing authority is not required to issue the warrant.

160. The provisions relating to computer access warrants issued on the basis of determining compliance with an ESO or ISO closely mirror the requirements and safeguards that are present in relation to surveillance device warrants as described above. Similarly, a law enforcement officer must apply to an eligible Judge or AAT member for the computer access warrant, and can only do so for strictly limited purposes. Importantly, agencies are not automatically entitled to warrants, and the eligible Judge or AAT member must be satisfied that the use of the computer access warrant would be for the relevant purpose. Even if satisfied, the eligible judge or AAT member retains the discretion to issue or not issue the warrant and may have regard to a number of public interests.

161. The provisions relating to surveillance device warrants and computer access warrants issued on the basis of assisting in determining whether to make a PSO application have strict limitations. A law enforcement officer is required to apply to an eligible Judge or nominated AAT member, and can only do so in relation to an offender who is eligible for a PSO. Importantly, agencies are not automatically entitled to warrants, and the eligible Judge or AAT member must be satisfied that the use of the warrant would be for the relevant purpose, that being assisting in the decision of whether to apply for a PSO in relation to the person. Even if satisfied, the eligible Judge or AAT member maintains discretion to issue or not issue the warrant and may have regard to a number of public interests.

162. The interference with the right to privacy is proportionate and limited to ensuring that, where an offender who is eligible for a PSO poses an unacceptable risk of committing a serious Part 5.3 offence, they are made subject to a PSO, which in turn may prevent the offender from engaging in terrorism-related activities or terrorism offences. This legitimate objective is to assist law enforcement officers to prevent serious threats to community safety. The intrusive nature of the powers is balanced by their use solely in respect of convicted terrorist offenders, who constitute a grave threat to the safety of Australians.

163. Strict limitations upon when surveillance devices and computer access warrants can be used in relation to PSOs ensures that they are only used where they are necessary, reasonable and proportionate to the legitimate objective. The Bill extends the safeguard which compels the immediate revocation of a warrant issued on the basis of an ESO or ISO being in force and discontinuance of surveillance if it is no longer necessary for the relevant purpose, or where the order is no longer in force.

164. A law enforcement officer can apply for a surveillance device warrant or computer access warrant after the ESO or ISO has been made but before it has begun. Likewise, the warrant can be issued during this period. This is intended to ensure:

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the devices may be installed covertly to avoid any risks associated with the offender witnessing the installation process, as there are often limited opportunities to do so, and

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the device is able to be installed immediately after the order is made, and is able to be used from the moment the order comes into force.

165. The purposes for which information obtained by way of a surveillance device or computer access warrant during this intervening period may be used are strictly limited, and can only be used if the chief officer of the agency is satisfied that the information obtained is likely to assist in connection with achieving a Part 5.3 object. If this is not the case, the information must be destroyed as soon as practicable. The ability to use information obtained prior to the beginning of an ESO or ISO in these circumstances is a legitimate and proportionate use of surveillance in light of the gravity of the terrorist threat.

166. The amendments extend deferred reporting arrangements for all surveillance device warrants and computer access warrants, which currently permits the chief officer of an agency to delay public reporting on the use of a warrants in relation to a control order in certain circumstances. Due to the small number of control orders which are issued, immediate reporting of any warrants or authorisations of surveillance devices may enable an individual to determine whether they are the subject of surveillance. This position equally applies to PSOs. If an offender knows, or suspects that there is a surveillance device warrant in place, they are more likely to be able to modify their behaviour to defeat those lawful surveillance efforts. Also, if an offender knows or suspects that a surveillance device warrant is not in force, the deterrence value of the order is limited to the extent that the offender believes they can engage in proscribed activity without risk of detection. Deferred reporting balances the public interest in timely and transparent reporting with the need to preserve the effectiveness of orders to prevent individuals from breaching their order or modifying their behaviour to defeat the purpose of the warrant.

167. Timely and transparent reporting is an important safeguard against arbitrary interference with privacy and therefore strict controls on the decision to defer public reporting reflect this significant public interest in transparency in relation to the use of exceptional, covert powers. The controls include:

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The decision to defer public reporting may only be made by the Minister, on the advice of the chief officer of the relevant agency.

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The chief officer and the Minister must each be satisfied that publicly reporting particular information could be reasonably expected to enable a reasonable person to determine that particular surveillance measures are likely to be, or not to be, in force at the time they make their decision (which will generally be at different times, given the time taken to prepare the Minister's report based on all agencies' input).

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Where public reporting is deferred in relation to particular information, the chief officer of the relevant agency will be required to reconsider his or her decision each year.

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Documentary records must be kept in relation to each such decision.

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Each such decision is subject to independent oversight by the Commonwealth Ombudsman.

168. The Bill amends the SD Act to extend the circumstances in which an officer may be authorised to use an optical surveillance, listening or tracking device without a warrant to include where it is for the purpose of achieving a Part 5.3 object or determining compliance with an ESO or ISO. Importantly, the SD Act only allows the use of optical surveillance, listening and tracking devices without a warrant in circumstances which do not involve covert entry onto premises or interference with a vehicle. For instance, an officer may use an optical surveillance device in a public place without a warrant. There is a lower threshold for the use of these devices in a public place because they are less privacy-intrusive than circumstances where the use of the device requires entry into an individual's premises or vehicle without permission. The use of optical surveillance, listening or tracking devices without a warrant is necessary to ensure law enforcement agencies can, for example, record publicly occurring conversations using a 'wire'. To the extent that the use of these surveillance devices without a warrant limits a person's right to privacy, public surveillance of a person is legitimate and proportionate in light of the gravity of the terrorist threat. In addition, the appropriate authorising officer who has given their permission for the use of a surveillance device without a warrant must also make a written record of giving the authorisation as soon as practicable after giving the authorisation.

169. The Bill extends important record-keeping measures in relation to surveillance device warrants and use of optical surveillance, listening or tracking devices without a warrant which enhances oversight of the regime. The chief officer of each law enforcement agency is required to report to the Minister on the benefits of surveillance device warrants issued to monitor compliance with an ESO or ISO or made in relation to a PSO. The Minister must also cause an annual report to be laid before each house of Parliament on the use of surveillance devices authorised by warrant and without a warrant. These reporting measure are designed to encourage transparency, by revealing the purposes for which surveillance devices are used and detailing their contribution to the prevention of terrorist acts.

170. The Bill also extends the authority for the use, recording, communication or publication, or admission into evidence of protected information (which is broadly information obtained under SD Act warrants or surveillance devices used without a warrant) for the purposes of proceedings arising under, or in relation to a PSO. These amendments are intended to clarify that protected information can be used in such proceedings, including applications for, appeals against, and civil proceedings in relation to an order. This recognises the importance of protected information to applications for such orders and ensures that covertly collected information can be used in related proceedings. However, the prohibited use of protected information outside of circumstances specified in the Act ensures that surveillance devices are used, and confined to, their intended purpose of achieving a Part 5.3 object or determining compliance with the relevant order. To the extent that the use of protected information in legal proceedings limits a person's right to privacy, the use is legitimate and proportionate in light of the legitimate objective to protect the public from the threat posed by a terrorist offender.

171. The extension of the surveillance device warrant and computer access warrant powers in the SD Act to PSOs does not constitute an arbitrary or unlawful interference with a person's right to privacy. To the extent that there is a limitation on an individual's right to privacy, a number of important protections are built into the regime to ensure any interference is reasonable, necessary and proportionate to achieve a legitimate objective - the effective operation of PSOs for the purpose of maintaining community safety.

TIA Act

172. The Bill will extend the interception warrant regime under the TIA Act that is currently available to monitor compliance with a control order, to monitor the compliance of individuals who are subject to an ISO or ESO, by enabling a Part 5.3 warrant agency to seek a telecommunications service warrant, or telecommunications named person warrant. The Bill also extends the application of telecommunications service warrants and telecommunications named person warrants to be used for the purpose of informing a decision of whether to apply for a PSO.

173. Schedule 2 of the Bill are amendments as a result of the passage of the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 (IPO Bill). The purpose of these amendments is to extend the application of international production orders that may be obtained under Part 3 of Item 43 of the IPO Bill (international production orders relating to control orders) to also include ESOs and ISOs. Monitoring powers such as these represent a significant interference with a persons' privacy. However, such monitoring powers are subject to strict safeguards, limitations and protections and go to achieving a legitimate objective of keeping the public safe from terrorism and other terrorism related activity.

Interception

174. Provisions in the Part 2 amendments will allow Part 5.3 warrant agencies to apply for a telecommunications service warrant or a named person warrant relating to Part 5.3 supervisory orders or PSOs, seeking the interception of communications during a specified period. A Part 5.3 warrant agency may also apply for an IPO relating to a Part 5.3 supervisory order. Only an eligible Judge or nominated AAT member may issue a warrant or IPO for the interception of communications resulting from such an application.

175. The eligible Judge or nominated AAT member may only issue a warrant or IPO for the interception of communications where they are satisfied on reasonable grounds of a variety of matters that vary according to whether the instrument relates to a Part 5.3 supervisory order or a PSO. Broadly, the eligible Judge or nominated AAT member must be satisfied a particular person is using or is likely to use the communications service. They must also be satisfied the extent to which information gathered under the warrant or IPO would be likely to substantially assist in achieving a Part 5.3 object when assessing an application with respect to a Part 5.3 supervisory order, and that there is an appreciable risk of the person committing a serious Part 5.3 offence when assessing an application with respect to an ISO.

176. The duration of a warrant or IPO issued for interception remains unchanged by the Bill and may be for a period no longer than 90 days.

177. In deciding whether to issue a warrant or IPO for the interception of communications, the eligible Judge or nominated AAT member must have regard to several matters including how much the privacy of any person or persons would likely be interfered with. They must also take into account the availability and use of other means to achieve the objectives of the warrant or IPO, including how much the use of such methods would assist with or be likely to prejudice the investigation (e.g. by a delay).

178. This means that where there are other methods to access the necessary information that would be less intrusive on the privacy of the person, the relevant agency may be required to turn to those means instead of seeking the interception warrant or IPO for interception.

179. In addition, there are other considerations the eligible Judge or nominated AAT member must take into account, which vary according to whether the warrant or IPO relates to a Part 5.3 supervisory order or a PSO. Broadly, the decision maker must consider to what degree the interception warrant or IPO will assist in the detection, prevention, investigation or prosecution of the offence, and any submissions made by Public Interest Monitors currently operating in Queensland and Victoria.

180. Specifically for Part 5.3 supervisory orders, the eligible Judge or nominated AAT member must consider whether intercepting communications would be the method that is likely to have the least interference with any person's privacy. This requirement was inserted into the Bill (and forms part of the existing domestic regime) on the basis that additional protection is considered appropriate noting a warrant or IPO can be issued for purposes in connection with the monitoring of a person subject to a Part 5.3 supervisory order rather than in connection with an investigation into a particular offence.

181. Interception warrants and IPOs for the monitoring of Part 5.3 supervisory orders may be targeted at B-Party services in limited and controlled circumstances. B-Party interception involves the interception of a communications service of a person who is not a person subject to the Part 5.3 supervisory order (the B-Party). Such a warrant or IPO may only be obtained where the eligible Judge or nominated AAT member has reasonable grounds for suspecting the person subject to the Part 5.3 supervisory order is likely to communicate using the particular communications service of the B-Party. The matters which the decision maker must consider and be satisfied of when assessing an application for a B-Party warrant or IPO are largely similar to the criteria when assessing a non B-Party application. Of chief importance, the eligible Judge or nominated AAT member is restricted from issuing a warrant or IPO seeking B-Party interception unless they are satisfied the Part 5.3 warrant agency has exhausted all other practicable methods of identifying the telecommunications services used by the person subject to the Part 5.3 supervisory order, or it is not otherwise possible to intercept the telecommunications used by the person subject to the Part 5.3 supervisory order. The duration of a B-Party warrant or IPO remains unchanged by the Bill and may be for a period no longer than 45 days.

Stored communications and telecommunications data

182. An IPO may also be obtained for the purpose of seeking stored communications data with respect to a Part 5.3 supervisory order. Part 5.3 warrant agencies may make an application to an issuing authority for such an IPO. Only an issuing authority may issue an IPO relating to stored communications or telecommunications data in response to an application made by a 'Part 5.3 IPO agency'.

183. In deciding whether to issue an IPO relating to stored communications or telecommunications data, the decision maker must have regard to several matters including relevantly, how much the privacy of any person or persons would be likely to be interfered with. Each of the factors that a decision maker must have regard to ensures that actions under the IPO, including the necessary interference with a person's privacy, are proportionate to the relevant conduct.

Summary

184. When either an interception warrant or IPO is sought by a Part 5.3 warrant agency, the decision maker must evaluate the individual circumstances of each application. They must balance the interests of the agency applying for the warrant or IPO, as well as wider public interests, such as the impact on privacy.

185. Therefore, the amendments do not constitute arbitrary or unlawful interference with a person's privacy. To the extent that there is a limitation on the protection against arbitrary or unlawful interference with a person's privacy, statutory safeguards ensure any interference is reasonable, necessary and proportionate.

The right to freedom of expression under Article 19 of the ICCPR

186. Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, in writing or in print, in the form of art, or through any other media of the person's choice. Article 19(3) provides that this right may be subject to certain restrictions, but only such as are provided by law and are necessary for respect of the right or reputations or others, for the protection of national security or of public order, or of public health and morals.

187. The Bill engages this right as, under section 105A.7B, the Court may impose conditions that limit the individuals or classes of individuals with whom an offender may communicate, or proscribe the means by which an offender may communicate (for instance, through limiting or prohibiting the use of social media or certain forms of communication). This limitation of the right to freedom of expression in this context seeks to protect the Australian community from the risk of the person who is subject to the order committing a serious offence, and is therefore necessary for the protection of national security. A person who is subject to an ESO or ISO has been assessed by law enforcement and the Court as posing an unacceptable risk to public safety if controls are not put in place.

188. Before imposing a condition restricting an offender's freedom of expression under an ESO or ISO, the Court must be satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk that the offender poses of committing a serious terrorism offence. The Bill also requires the AFP Minister to make an application to vary an ESO where a condition is no longer reasonably necessary, or reasonably appropriate and adapted, for the purpose of protecting the community. These are important safeguards which ensure conditions will be imposed consistently with Article 19 of the ICCPR.

189. The Bill also indirectly engages the right to freedom of expression, to the extent that individuals subject to a PSO may suspect that their communications are being monitored under the Crimes Act, SD Act or TIA Act. This suspicion may cause them to restrict their communications, both in terms of content and audience.

190. An individual subject to a PSO is a convicted terrorist offender who has been assessed as posing an unacceptable risk of committing a serious terrorism offence. The nature of the terrorism threat is evolving, with rapid radicalisation and low sophistication attacks resulting in shorter timeframes for agencies to detect and disrupt attacks. This heightened risk justifies this limited indirect limitation on freedom of expression for a limited number of specific convicted individuals subject to PSOs in order to protect national security and public order.

191. As such, any limitation or restriction of an individual's right to freedom of expression under the Bill is consistent with Article 19.

The right to freedom of association under Article 22 of the ICCPR

192. Article 22 of the ICCPR provides that everyone shall have the right to freedom of association with others. This right may be limited when prescribed by law and when necessary in the interests of national security, public safety and public order, or for the protection of public health, morals or the rights and freedoms of others, as permitted by Article 22(2).

193. The Bill engages this right as under paragraph 105A.7B(2)(h), as part of an ESO or ISO, a court may impose a condition that an offender not communicate or associate with specified individuals or classes of individuals. However, this limitation of the right to freedom of association is necessary in the interests of national security and public safety.

194. An offender who is subject to an ESO or ISO has been assessed by a court as posing an unacceptable risk of committing a serious Part 5.3 offence, meaning the offender has been assessed as a risk to national security and public safety. Accordingly, the restriction of an offender's freedom of association is for a legitimate purpose.

195. Further, before imposing a condition restricting an offender's freedom of association under an ESO or ISO, the Court must be satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence. The Bill also requires the AFP Minister to make an application to vary an ESO where a condition is no longer reasonably necessary, or reasonably appropriate and adapted, for the purpose of protecting the community. These are important safeguards which ensure conditions will be imposed consistently with Article 22 of the ICCPR.

196. The Bill also indirectly engages the right to freedom of association, to the extent that individuals subject to a PSO may suspect that their communications are being monitored under the Crimes Act, SD Act or TIA Act. This suspicion may cause them to restrict their communication or associations.

197. An individual subject to a PSO is a convicted terrorist offender who has been assessed as posing an unacceptable risk of committing a serious terrorism offence. The nature of the terrorism threat is evolving, with rapid radicalisation and low sophistication attacks resulting in shorter timeframes for agencies to detect and disrupt attacks. This heightened risk justifies this limited indirect limitation on freedom of association for a limited number of specific convicted individuals subject to PSOs in order to protect national security and public order.

The right to work under Article 6 of the ICESCR

198. Article 6 of the ICESCR provides that everyone has the right to gain their living by work which they freely chose or accept. To the extent that the conditions a court may impose as part of an ESO or ISO under section 105A.7B limit the type of work that an offender may engage in, or limit the type of training or education that an offender may access, the Bill engages Article 6.

199. Article 4 of the ICESCR provides that States may subject economic, social and cultural rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society. Such limitations must be proportional, and must be the least restrictive alternative where several types of limitations are available. Where such limitations are permitted, they should be of limited duration and subject to review.

200. An offender who is subject to an ESO or ISO has been assessed by a Court as posing an unacceptable risk of committing a serious Part 5.3 offence, meaning the offender is a risk to national security and public safety. Limiting the type of work that an offender may engage in, or limiting the type or training or education they may access, is therefore necessary for the promotion of the general welfare of the Australian public.

201. Further, conditions imposed are restricted to the period of time during which an order is in force, and are subject to review. The length of an ESO is limited to the period, of no more than three years, that the Court is satisfied is reasonably necessary to prevent the unacceptable risk of the offender committing a serious Part 5.3 offence. In addition, under subsection 105A.7B(1), before imposing a condition restricting an offender's right to work, the Court must be satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence.

202. These safeguards ensure that, to the extent that the Bill engages Article 6 of the ICESCR, it is consistent with it and the limitations are reasonable, necessary and proportionate in achieving a legitimate objective.

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

203. 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.

204. To be eligible for an ESO, a person must be a terrorist offender, that is, they must have been convicted of a specified terrorism offence. The scheme will therefore apply to offender convicted of terrorism offences prior to the enactment of the scheme.

205. The imposition of an ESO is not a penalty for criminal offending, as the purpose of an ESO is protective rather than punitive or retributive. While an offender must have been convicted of a specified terrorism offence in order to be eligible for an ESO, the decision of a court to impose an ESO is based on an assessment of future risk rather than as punishment for past conduct. As such, the imposition of an ESO does not 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. Accordingly, the Bill does not engage the prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR.

Conclusion

While the Bill engages a range of human rights, it is compatible with human rights in that 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.