House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)

GENERAL OUTLINE

1. The Counter-Terrorism Legislation Amendment Bill (No. 1) 2018 (Bill) extends the operation of a range of critical counter-terrorism provisions in the Criminal Code , the Crimes Act 1914 (Crimes Act) and the Australian Security Intelligence Organisation Act 1979 (ASIO Act) to ensure that law enforcement and security agencies continue to have access to these provisions to respond to the ongoing threat of terrorist activities in Australia.

2. The Bill will extend for a further three years the following regimes which are scheduled to sunset on 7 September 2018 (the counter-terrorism provisions):

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the control order regime in Division 104 of the Criminal Code

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the preventative detention order (PDO) regime in Division 105 of the Criminal Code

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the declared areas provisions in sections 119.2 and 119.3 of the Criminal Code , and

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the stop, search and seize powers in Division 3A of Part IAA of the Crimes Act.

3. In extending these critical counter-terrorism provisions, the Bill will also implement the Government's response to the recommendations of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) and the Independent National Security Legislation Monitor (INSLM) following their recent reviews of these provisions.

4. On 1 March 2018, the PJCIS tabled two separate reports into the counter-terrorism provisions: a review into police stop, search and seize powers, the control order regime and the PDO regime (PJCIS Powers Report), and a report into the declared areas provisions (PJCIS Declared Areas Report).

5. On 16 October 2017, three separate reports of the INSLM were tabled: the review of the declared areas provisions, the review of Divisions 104 and 105 of the Criminal Code (including the interoperability of the control order regime with the continuing detention order (CDO) regime in Division 105A of the Criminal Code ), and the review of Division 3A of Part IAA of the Crimes Act (2017 INSLM Review).

6. The Bill will also extend the operation of the Australian Security Intelligence Organisation's (ASIO) questioning, and questioning and detention powers in Division 3 of Part III of the ASIO Act for a further 12 months.

7. Finally, the Bill will make a minor amendment to Part 5.3 of the Criminal Code to reflect the new division of responsibilities between the Attorney-General and the Australian Federal Police (AFP) Minister (in practice, the Minister for Home Affairs) following the establishment of the new Home Affairs portfolio. The amendment will reflect the role of the Attorney-General and the AFP Minister in the protection of sensitive information under the CDO regime in Division 105A of the Criminal Code .

FINANCIAL IMPACT

8. The amendments in this Bill will have no financial impact on Government expenditure or revenue.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Counter-Terrorism Legislation Amendment Bill (No. 1) 2018

9. 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.

10. Below is a short summary of the changes to each of the relevant Acts.

Administrative Decisions (Judicial Review) Act 1977

11. The Bill amends the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to exclude from review under that Act the decision of a senior Australian Federal Police (AFP) member in relation to consent for the purposes of applications to vary interim control orders.

Criminal Code Act 1995

12. The amendments to the Criminal Code include:

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extending the operation of the control order regime in Division 104 for a further three years

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allowing an issuing court to vary an interim control order where there is agreement to a variation between the AFP and the subject of the control order (controlee)

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clarifying the evidential weight that the issuing court must give to an original request for an interim control order during the confirmation proceedings

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extending the minimum period between the date the interim control order is made, and the date of the confirmation proceedings, from 72 hours to seven days

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inserting a requirement that the issuing court cannot make cost orders against the controlee except in limited circumstances where the controlee has acted unreasonably in conducting the control order proceedings

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extending the operation of the preventative detention order (PDO) regime in Division 105 for a further three years

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introducing a requirement that a senior AFP member must notify the PJCIS, as soon as reasonably practicable, after an initial or continued PDO is made, and after a prohibited contact order (PCO) is made

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extending the operation of the declared areas provisions in sections 119.2 and 119.3 for a further three years

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creating an exception to the declared areas offence for individuals performing an official duty for the International Committee of the Red Cross (ICRC)

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amending the declared areas provisions to allow the Minister for Foreign Affairs to revoke a declaration at any time prior to the expiry of the declaration, when he or she considers the declaration is no longer necessary

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amending the declared areas provisions to allow the PJCIS to review a declaration at any time during which the declaration is in effect and to table a report in the Houses of Parliament following its review, and

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making minor amendments to the provisions related to the protection of sensitive information in continuing detention order (CDO) proceedings to reflect the division of responsibilities between the Attorney-General and the AFP Minister (in practice, the Minister for Home Affairs) following the establishment of the Home Affairs portfolio.

Crimes Act 1914

13. The amendments to the Crimes Act include:

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extending the operation of stop, search and seize powers in Division 3A of Part IAA for a further three years

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introducing a requirement that the Commissioner of the AFP must provide the Minister, the INSLM and the PJCIS with a copy of a report into the exercise of powers under Division 3A of Part IAA as soon as practicable after those powers are exercised, and

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introducing a requirement that the responsible Minister must report annually to Parliament on the exercise of any powers under Division 3A.

Australian Security Intelligence Organisation Act 1979

14. The Bill amends the ASIO Act to extend the operation of Division 3 of Part III to provide for the continuation of the questioning and questioning and detention warrant regime for a further 12 months.

Intelligence Services Act 2001

15. The amendments to the Intelligence Services Act 2001 (IS Act) include:

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inserting a requirement for the PJCIS to review the operation, effectiveness and implications of the control order regime, the PDO regime and the declared areas provisions in the Criminal Code, and the stop, search and seize powers in the Crimes Act ahead of their future sunset date, and

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introducing a new oversight role for the PJCIS to monitor and review the performance by the AFP of its functions under Division 3A of Part IAA of the Crimes Act, and the basis of the Minister's declaration of a prescribed security zone under section 3UJ of the Crimes Act.

Human rights implications

Measures that engage human rights

16. This Bill engages the following rights:

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

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the right to freedom of movement in Article 12 of the ICCPR

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

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the right to protection against arbitrary and unlawful interferences with one's privacy or home in Article 17 of the ICCPR

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

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

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the prohibition on cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR and Articles 2 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and

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the right of the child to have their best interests as a primary consideration by courts of law, administrative authorities or legislative bodies in Article 3 of the Convention on the Rights of the Child (CRC).

SCHEDULE 1-AMENDMENTS

Current threat environment

17. The current terrorism threat environment is highly relevant in considering the necessity and proportionality of the measures contained in this Bill.

18. In September 2014, Australia's National Terrorism Threat Level was raised to 'probable'. This means there is credible intelligence assessed by Australia's security agencies indicating that individuals and groups continue to possess the intent and capability to conduct a terrorist act in Australia.

19. Since the raising of the threat level in September 2014:

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85 people have been charged as a result of 37 counter-terrorism related operations around Australia

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there have been six attacks and 14 major counter-terrorism disruption operations in response to potential attack planning in Australia

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around 220 people in Australia are being investigated for actively providing support to terrorist groups involved in the Syria/Iraq conflict, including through funding and facilitation, or seeking to travel to join these groups

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around 110 Australians are currently in Syria and Iraq and have fought for or otherwise supported Islamic extremist groups

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at least 70, and possibly as many as 90 Australians have been killed as a result of their involvement in the conflict

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around 40 people have returned to Australia after traveling to Syria/Iraq and joining groups involved in the conflict, and

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since 2012, around 235 Australian passports have been cancelled or refused in relation to the Syria/Iraq conflict.

20. Following detailed consideration of the threat environment based on advice from law enforcement and security agencies, in the 2017 INSLM Review, the INSLM concluded that the threat of a terrorist act will remain a significant factor in the Australian security landscape for the foreseeable future.

Part 1-Control orders and preventative detention orders

Control Orders

21. The control order regime in Division 104 of the Criminal Code allows an issuing court (a Federal Circuit Court or a Federal Court) to impose obligations, prohibitions and restrictions on a person for the purposes of:

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protecting the public from a terrorist act

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preventing the provision of support for, or the facilitation of, a terrorist act, and

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preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country.

22. The control order process consists of two stages: the interim control order and the confirmed control order.

23. Subject to the consent of the Minister for Home Affairs, a senior member of the AFP can apply to an issuing court for an interim control order. The issuing court may make the interim control order if it is satisfied 'on the balance of probabilities' that the requirements outlined in paragraphs 104.4(1)(a) to 104.4(1)(c) of the Criminal Code have been met and that each of the obligations, prohibitions and restrictions imposed by the control order are 'reasonably necessary, and reasonably appropriate and adapted' to meet the purposes set out above (paragraph 104.4(1)(d)).

24. The conditions that may be imposed on a controlee are outlined in subsection 104.5(3). These include a prohibition or restriction on the controlee being at specified areas or places, a prohibition or restriction on leaving Australia, a requirement that the controlee remain at specified premises between specified times of the day but no more than 12 hours within any 24 hours, a requirement that the person wear a tracking device, and a prohibition or restriction on the person accessing or using specified forms of telecommunication or other technology (including the internet).

25. An interim control order is subject to confirmation by the court as soon as practicable, but at least 72 hours after the interim control order is made (subsection 104.5(1B)). A confirmation hearing is a contested hearing where an issuing court considers the need for a control order and the conditions imposed by the order. In determining whether to confirm the interim control order, the issuing court must take into account the original request for the interim control order and the evidence adduced and submissions made by the parties to the proceeding. Following a confirmation hearing, the issuing court can confirm (with or without variation) the interim control order, revoke the interim control order, or declare the interim control order void.

26. A control order can last up to 12 months (or three months if the person is aged between 14 and 17) from the day after the interim control order is made, and successive orders may be issued. A control order cannot be made in relation to a person who is under the age of 14.

Extending the operation of the control order regime in Division 104

27. The control order regime in Division 104 of the Criminal Code sunsets on 7 September 2018. The Bill extends the operation of the control order regime by a further three years, until 7 September 2021. This implements Recommendation 5 of the PJCIS Powers Report. The control order regime is an important law enforcement power that continues to be vital in light of the enduring nature of the terrorist threat facing Australia.

28. The control order regime has been used judiciously to date - as at May 2018, only six control orders have been made since the introduction of the regime in 2005. As noted in the PJCIS Powers Report, 'rather than indicating that control orders are not necessary, the Committee considers that the limited use of the provisions reflects the AFP's position that, in circumstances where there is enough evidence to formally charge and prosecute a person, the AFP will take this approach over seeking the imposition of a control order'. ^[1]

29. The control order regime achieves the legitimate objective of preventing serious threats to Australia's national security interests, including in particular, preventing terrorist acts. In the current national security landscape, it is critical that law enforcement agencies have access to preventative powers such as control orders to proactively keep the Australian community safe. The control order regime contains numerous safeguards that ensure that the regime continues to be reasonable, necessary and proportionate. These safeguards include:

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the Minister for Home Affairs must consent to a senior AFP member making an interim control order application to an issuing court (section 104.2)

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a control order can only be made by an independent judicial authority (the Federal Circuit Court or the Federal Court)

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the issuing court must be satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions imposed on the controlee are reasonably necessary, and reasonably appropriate and adapted to achieving the purpose of the control order (paragraph 104.4(2)(d))

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when the issuing court is considering whether each of the obligations, prohibitions and restrictions are reasonably necessary, and reasonably appropriate and adapted, the issuing court must take into account the impact of the conditions on the person's circumstances (including the person's financial and personal circumstances) (paragraph 104.4(2)(c))

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where an issuing court is considering imposing obligations, prohibitions and restrictions on a young person between the age of 14 and 17, the issuing court must take into account as a primary consideration, the best interests of the young person, and as a paramount consideration, the objects of the control order regime, and the impact of the conditions on the young person's circumstances (including the young person's financial and personal circumstances) (subsection 104.4(2))

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the court must appoint a lawyer to act for a young person aged between the age of 14 and 17 in control order proceedings if the person does not have a lawyer acting for them, unless the proceedings are ex parte or if the person has previously refused a lawyer (subsections 104.28(4) and (5))

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the controlee has the ability to apply to have a control order varied, revoked or declared void as soon as the they are notified that an order is confirmed (section 104.18)

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a control order can only last up to 12 months from the day the interim control order is made, and only three months in the case of young persons between the age of 14 and 17, and

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annual reports must be tabled in Parliament on a range of matters relating to the operation of the regime, including outlining the number of control orders sought and the number of control orders made, confirmed, revoked and declared void (section 104.29).

30. Outlined below are the key rights that are likely to be engaged by the continuation of the control order regime. Any further rights that are engaged, and in any way limited, are in pursuit of the legitimate objective of protecting Australia's national security interests, including in particular, preventing terrorist acts, and represent reasonable, necessary and proportionate limitations on individual freedoms that are subject to the full suite of safeguards outlined in paragraph 29.

Freedom of movement in Article 12 of the ICCPR

31. Article 12 of the ICCPR provides that persons lawfully within the territory of a State shall have the right to freedom of movement within that State. The control order regime engages the right to freedom of movement as it allows a court to impose prohibitions and restrictions requiring that the controlee not be at specified areas or places (paragraph 104.5(3(a)), requiring that they not leave Australia, or requiring that they remain at specified premises between specified times each day, or on specified days, but for no more than 12 hours within any 24 hours.

32. The ICCPR permits limitations on the right to freedom of movement where restrictions are provided by law and are necessary to achieve a legitimate objective, such as the protection of national security. Consistent with Article 12, the control order regime is aimed at achieving the legitimate objective of preventing serious threats to Australia's national security interests, including in particular, preventing terrorist acts. The control order regime is also comprehensively prescribed by law. Division 104 outlines the process through which the AFP may seek a control order, the threshold that must be met before an issuing court can make a control order, and the process for contesting, varying and revoking a control order.

33. Any restrictions on the right to freedom of movement under a control order are reasonable, necessary and proportionate. This is guaranteed by the threshold that the issuing court must be satisfied is met before making a control order. For example, where the AFP seeks a control order because it may substantially assist in the prevention of a terrorist act, the issuing court must be satisfied on the balance of probabilities that the control order will achieve this objective, and that each of the obligations, prohibitions and restrictions imposed on the individual are reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act. The issuing court must also have regard to the impact of the obligations, prohibitions and restrictions on the person's circumstances (including the person's financial and personal circumstances). The controlee is also entitled to apply to the issuing court to vary or revoke the control order at any time after the confirmation of the interim control order. A control order can last for up to a maximum of 12 months, or three months in the case of young persons between the age of 14 and 17.

34. Accordingly, while the control order regime may restrict the right to freedom of movement, it does so to achieve the legitimate purpose of protecting Australia's national security, and does so in a manner that is reasonable and proportionate.

Freedom from arbitrary detention and arrest under Article 9 of the ICCPR

35. Article 9 of the ICCPR provides that no-one shall be subjected to arbitrary arrest or detention or deprived of their liberty except on such grounds and in accordance with such procedure as are established by law. One of the conditions that an issuing court may impose under the control order regime is the requirement that the person remain at specified premises between specified times each day, or on specified days, but for no more than 12 hours within any 24 hours (paragraph 104.5(3)(c)).

36. Article 9 regulates, rather than prohibits, detention. Only detention that is 'arbitrary' is prohibited. The United Nations Human Rights Committee has stated that 'arbitrariness' includes the elements of inappropriateness, injustice and a lack of predictability. Arrest or detention must be reasonable and necessary in all circumstances with reference to the recurrence of crime, interference with evidence or the prevention of flight. Detention is not considered arbitrary where it is reasonable, necessary and proportionate to achieving a legitimate objective. The legitimate objective of the control order regime is to protect Australia's national security interests, including in particular, preventing terrorist acts. The condition under paragraph 104.5(3)(c) is not arbitrary and is consistent with Article 9 because it is ordered by a court and justified on the basis of compelling reasons.

37. Each of the safeguards to the control order regime outlined in paragraph 27 above, are examples of features designed to ensure that the condition under paragraph 104.5(3)(c) is only applied where it is not arbitrary. In particular, the issuing court must be satisfied of specified criteria before making a control order, and approving each of the proposed obligations, prohibitions or restrictions. The issuing court must be satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed are reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act. In determining this, the court must have regard to the impact of the obligation, prohibition or restriction on the person's circumstances (including their financial and personal circumstances).

38. Accordingly, this condition does not constitute 'arbitrary' detention. It therefore complies with in Article 9 of the ICCPR.

Freedom of association in Article 22 of the ICCPR

39. Article 22 of the ICCPR provides that everyone shall have the right to freedom of association with others. The control order regime may limit this right where the issuing court imposes a condition that prohibits or restricts a controlee's communication or association with certain individuals (paragraph 104.5(3)(e)). Article 22(2) provides that there may be limitations placed on the right to freedom of association where those limitations are prescribed by law and are in the interests of national security.

40. A potential limitation on freedom of association under the control order regime is aimed at achieving the legitimate objective of preventing serious threats to Australia's national security interests, including in particular, preventing terrorist acts. An issuing court will only approve the imposition of a condition limiting a controlee's freedom of association if the prohibition or restriction on the controlee's communication with another specified individual would substantially assist in achieving the objects of the Division, including preventing a terrorist act. The limitation on the freedom of association under the control order regime is comprehensively prescribed by law. Division 104 outlines the process through which the AFP may seek a control order, the threshold that must be met before an issuing court can make a control order, and the process for contesting, varying and revoking a control order.

41. Any limitation of the right to freedom of association under a control order is reasonable, necessary and proportionate. The issuing court must be satisfied on the balance of probabilities that the restriction on association is reasonably necessary, and reasonably appropriate and adapted for the purpose of preventing a terrorist act. In determining this, the issuing court must also have regard to the impact of the condition on the controlee's circumstances, including their financial and personal circumstances. The controlee also has the ability to seek to remove or vary the condition even after the interim control order has been confirmed. Furthermore, a control order can only last for up to a maximum of 12 months, or three months in the case of young persons between the age of 14 and 17.

42. Accordingly, while the control order regime may limit the right to freedom of association, it is done for the legitimate purpose of protecting Australia's national security. The limitation is prescribed by law and represents a reasonable and proportionate means of achieving the legitimate objective.

Right of the child to have their best interests as a primary consideration by courts of law, administrative authorities or legislative bodies in Article 3 of the CRC

43. Article 3 of the CRC requires that the best interests of the child shall be a primary consideration in all actions concerning social welfare institutions, courts of law, administrative authorities or legislative bodies. The rights of the child before a court of law are engaged because a control order may be obtained in relation to persons as young as 14 years of age.

44. The imposition of a control order on a young person is expected to be used only in rare circumstances, when it is required to prevent a young person from being involved in a terrorist act. It is an unfortunate reality that children have been involved in terrorism incidents and convicted of terrorism offences in Australia.

45. Paragraph 104.4(1)(d) of the Criminal Code requires that before imposing a control on a person the court must be satisfied on the balance of probabilities that the control is reasonably necessary, and reasonably appropriate and adapted to protecting the public from a terrorist act. When considering whether a particular obligation, prohibition or restriction is reasonably necessary, and reasonably appropriate and adapted, the issuing court, in relation to young persons aged between 14 and 17, is required to consider the 'best interests' of the young person. In determining what is in a young person's 'best interest', subsection 104.4(2A) provides that the issuing court must take into account:

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the age, maturity, sex and background (including lifestyle, culture and traditions) of the person

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the physical and mental health of the person

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the benefit to the person of having a meaningful relationship with their family and friends

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the right of the person to receive an education

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the right of the person to practise their religion, and

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any other matter the court considers relevant.

46. Other rights in relation to the young person, as set out in the CRC, are expressly recognised by subsection 104.4(2A), including the right of the child to education (Article 28) and to practise their religion (Articles 14 and 30). Noting the open-ended nature of the matters the issuing court can consider, subsection 104.4(2A) can also allow the issuing court to consider other rights in the CRC, such as the right to health care (Article 24), and the right to not be separated from their parents against their will (Article 9).

47. The issuing court is required to consider the best interests of the young person as a 'primary consideration', but the 'paramount consideration' is achieving the objects of the control order regime, which is to ensure the safety and security of the community. Noting the significant consequences that can result from the commission of a terrorist act, it is appropriate that in the hierarchy of matters to be considered by the issuing court, the legitimate objective of protecting Australia's national security, including in particular, preventing terrorist acts, should be the 'paramount' consideration of the issuing court.

48. In addition to each of the safeguards outlined in paragraph 27, above, and the requirement to consider the 'best interests' of the young person as a 'primary consideration', the control order regime also includes the following safeguards targeted at ensuring the needs of a young person are met:

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reasonable steps must be taken to serve the interim control order, variations of a control order, a revocation of a control order or the confirmation of the interim control order on at least one parent or guardian of the young person, and

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if a young person does not have a lawyer to act for them in relation to a control order proceeding, the court must appoint a lawyer for the young person, unless where the proceedings are ex parte or the young person has previously refused a lawyer.

49. Accordingly, the control order regime protects the best interests of the child and complies with Article 3 of the CRC.

Extending the minimum duration of time between the interim control order and the confirmation proceeding

50. The Bill increases the minimum duration of time between the making of an interim control order, which is generally made on an ex parte basis, and the confirmation proceeding. Currently, when making an interim control order, the issuing court must specify the day on which the confirmation proceeding will occur (paragraph 104.5(1)(e)). Subsection 104.5(1A) provides that the date specified by the issuing court must be as soon as practicable, but at least 72 hours, after the interim control order is made. Current subsection 104.5(1B) enables the issuing court to take into consideration the time required by both parties to prepare when setting the date for the confirmation proceeding. The Bill amends subsection 104.5(1A) to extend the minimum duration of time between the making of the interim control order and the confirmation proceeding from 72 hours to seven days. This implements Recommendation 9 of the PJCIS Powers Report.

Procedural guarantees under Article 14 of the ICCPR

51. Article 14(3)(c) provides that everyone should be entitled to a trial without delay. While a control order proceeding is a civil proceeding, the requirements of Article 14 may apply because the breach of control order conditions can result in criminal sanctions. Accordingly, it is appropriate that the guarantees under Article 14 apply to control order proceedings. Extending the minimum duration of time between the making of an interim control order and the confirmation hearing from 72 hours to seven days may limit the controlee's right to contest their interim control order as soon as practicable.

52. The purpose of the extension of time is to enable both parties to have sufficient time to prepare for a confirmation proceeding. In practice, confirmation proceedings have occurred many months after the making of a control order. However, the possibility remains under subsection 104.5(1B) that the issuing court can set a confirmation proceeding 72 hours after the making of an interim control order.

53. To mitigate the risk of not being prepared for a confirmation proceeding, the AFP may delay obtaining an interim control order until such time as it is prepared for a confirmation proceeding immediately afterwards. This delay would undermine the preventative purpose of the control order regime and would increase the risk to the Australian community.

54. The potential limitation on a controlee's right to contest their interim control order as soon as possible is justified on the basis that the amendment seeks to achieve the legitimate objective of preventing serious threats to Australia's national security interests, including in particular, preventing terrorist acts. The amendment allows the AFP to seek an interim control order as soon as it is necessary, without the risk it will be unprepared for a confirmation proceeding 72 hours after the making of an interim control order. The extension of time may also allow the controlee greater time to prepare for the confirmation proceeding, which may be time consuming and highly complex.

55. The PJCIS Powers Report considered that the extension of time between the making of an interim control order and confirmation proceeding from 72 hours to seven days was appropriate, and a reasonable and proportionate means of achieving the legitimate objective of protecting the community from a terrorist act. The extension of time balances appropriately the need of AFP to address threats to Australia's national security, while also ensuring that both parties are adequately prepared for a confirmation proceeding.

Varying the terms of an interim control order / exclusion from ADJR Act review

56. The Bill inserts new section 104.11A which enables the court to vary the terms of an interim control order where both the controlee and a senior AFP member consent to the variation. The issuing court may approve the variation if it considers the variation is appropriate in the circumstances. This amendment implements a recommendation of the 2017 INSLM Review, and Recommendation 8 of the PJCIS Powers Report.

57. This measure is an additional safeguard in the control order regime. It allows both parties to make minor and uncontroversial changes to the terms of an interim control order prior to a confirmation proceeding, such as amending a relevant condition to account for a change to the mobile phone number of the controlee, or a change in the controlee's residential or employment arrangements. New paragraph 104.11A(2)(b) does not allow a variation to include additional obligations, prohibitions or restrictions to the interim control order.

58. The Bill also amends the ADJR Act to make the decision of the senior AFP member in relation to consent for the purposes of applications for varying an interim control order exempt from review under the ADJR Act. This may engage the procedural guarantees under Article 14 of the ICCPR.

Procedural guarantees under Article 14 of the ICCPR

59. Article 14 provides that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Furthermore, Article 14(3)(c) provides that everyone should be entitled to a fair trial without delay. While the procedural guarantees under Article 14 arise in the context of criminal prosecutions, these rights may also be engaged in relation to civil matters such as control orders where criminal penalties may arise for breach of its conditions.

60. The exclusion of the decision of a senior AFP member from ADJR Act review is appropriate in the circumstances. In its 2012 report Federal Judicial Review in Australia , the Administrative Review Council outlined a number of justifications as to why exempting decisions from review under the ADJR Act may be appropriate. One such justification is that review under the ADJR Act has the potential to fragment or frustrate another legal process which is already under way. The prospect of ADJR Act review of the decision of a senior AFP member would fragment the confirmation proceeding, a date for which has already been set.

61. The purpose of the new variation to the interim control order provisions is to accommodate minor and uncontroversial changes to the interim control order. More substantive changes to the interim control order should be litigated at the confirmation proceeding. At the confirmation hearing, both parties can contest the necessity of the control order, as well as the need for each of the obligations, prohibitions and restrictions.

62. The exclusion of the decision of a senior AFP member from review under the ADJR Act does not prevent the decision being judicially reviewed under paragraph 75(v) of the Constitution. Accordingly, while the Bill excludes the decision of a senior AFP member from ADJR Act review, the procedural guarantees provided under Article 14 are not restricted as the controlee can contest the need for a control order and its conditions during the confirmation proceeding, and seek review of the decision of a senior AFP member under section 75(v) of the Constitution.

Preventative detention orders

63. A PDO under Division 105 of the Criminal Code allows a person to be taken into custody for up to 48 hours for the purposes of either preventing a terrorist attack that is capable of being carried out, and could occur within the next 14 days, or preserving evidence of, or relating to, a recent terrorist act. There are two types of PDOs: initial PDOs, which can last up to 24 hours, and continued PDOs, which can extend detention by a further 24 hours.

64. An 'issuing authority' for the purposes of an initial PDO is a senior AFP member. Issuing authorities for the purposes of a continued PDO are outlined in section 105.2, and include a judge of a state or territory Supreme Court and a judge of the Federal Court or Federal Circuit Court, acting in their personal capacity.

65. The key elements of the PDO regime are:

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the AFP applicant and the issuing authority must be satisfied of three matters: the terrorist act is capable of being carried out and could occur within the next 14 days, the making of the order would substantially assist in preventing a terrorist act occurring, and detaining a person is reasonably necessary to prevent a terrorist act occurring

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there is a limited duration for which a PDO operates, being a maximum of 48 hours with the requirement to seek the approval of an issuing authority for an extension beyond the initial 24 hours

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where a PDO is made on an evidence preservation basis, the AFP member and issuing authority must be satisfied that a terrorist act has occurred within the last 28 days, that it is necessary to detain the person to preserve evidence of, or relating to the terrorist act, and that detention is a reasonably necessary step in achieving this outcome

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an AFP member may apply to an issuing authority for a continued PDO. The issuing authority may authorise a continued PDO after considering afresh the merits of any application and whether the statutory criteria for the order being made is satisfied

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a prohibited contact order (PCO) may be sought where it is reasonably necessary to prevent serious harm to a person, to avoid a risk of action being taken to prevent the occurrence of a terrorist act, or to avoid other specified risks outlined in subsection 105.14A(4), and

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the key review mechanisms include: the detainee's right to apply, on expiration of the order, to the Security Appeals Divisions of the Administrative Appeals Tribunal (AAT) to seek merits review of the decision to make or extend an order, and the detainee's right to bring proceedings in a court on expiration of the order relating to the issuing of the order or their treatment in detention.

Extending the operation of the PDO regime

66. The PDO regime in Division 105 of the Criminal Code sunsets on 7 September 2018. The Bill extends the operation of the PDO regime by a further three years, until 7 September 2021. This implements Recommendation 11 of the PJCIS Powers Review.

67. The PDO regime supports the legitimate objective of preventing serious threats to Australia's national security and, in particular, preventing terrorist acts. In recent years, there has been an increase in the threat of smaller-scale, opportunistic attacks by lone actors. Law enforcement agencies have had less time to respond to these kinds of attacks than other terrorist plots. In these circumstances, PDOs are a proportionate and necessary measure that enable police to disrupt terrorist activity at an early stage.

68. To date, no Commonwealth PDOs have been issued since the commencement of the regime in 2005. This reflects the policy intent that these orders should be invoked only in limited circumstances where traditional investigative powers available to law enforcement agencies are inadequate to respond to a terrorist threat.

69. In his 2017 Review, the INSLM concluded that 'in view of the nature and extent of current terrorist threats, I find that a preventative detention regime in terms of div 105 is necessary and proportionate to that threat. There is also adequate protection of individual rights'. ^[2] The PJCIS Powers Report also concluded that in the current threat environment, the PDO regime should be continued to ensure that the AFP is empowered to respond to a range of possible threats to the community. ^[3]

70. The Bill also introduces additional reporting requirements under the PDO regime to increase transparency and independent oversight of the regime. The Bill inserts new requirements in subsections 105.8(8) and 105.12(8) which require a senior AFP member to notify the PJCIS in writing as soon as practicable after the making of an initial and continued PDO. This implements Recommendation 13 of the PJCIS Powers Report. The Bill also inserts new requirements in subsections 105.15(6) and 105.16(6) which require a senior AFP member to notify the PJCIS in writing as soon as practicable after the making of a PCO.

71. These measures increase PJCIS oversight of the PDO regime as a whole, and adds to the existing function of the PJCIS to monitor and review the performance by the AFP of its functions under Part 5.3 of the Criminal Code (paragraph 29(1)(baa) of the IS Act).

72. Outlined below are the rights that are likely to be engaged by extending the operation of the PDO regime.

Freedom from arbitrary arrest or detention in Article 9(1) of the ICCPR

73. Article 9(1) of the ICCPR provides that no one shall be subjected to arbitrary arrest or detention, or be deprived of their liberty except on such grounds and in accordance with such procedures as are established by law. The PDO regime engages these rights as it authorises the detention of an individual for up to 48 hours without charge.

74. The United Nations Human Rights Committee has stated that 'arbitrariness' includes the elements of inappropriateness, injustice and a lack of predictability. Arrest or detention must be reasonable and necessary in all circumstances with reference to the recurrence of crime, interference with evidence or the prevention of flight. Detention will not be arbitrary where, in all the circumstances, it is appropriate, justifiable, reasonable, necessary and proportionate to a legitimate end. As set out above, the PDO regime supports the legitimate objective of preventing serious threats to Australia's national security, including preventing imminent terrorist acts.

75. The deprivation of liberty, and the arrest and detention of a person who is the subject of a PDO, are not 'arbitrary', as it operates in accordance with such procedures as established in Division 105, and its application is clear and predictable. The PDO regime contains numerous features, which are outlined in paragraph 65, to ensure that a PDO is only authorised where it is not arbitrary.

76. For example, when applying for a PDO, the AFP member must suspect on reasonable grounds that the person will engage in a terrorist act, possess a thing connected with the preparation for, or engagement of a person in, a terrorist act, or that the person has done an act in preparation for, or planning, a terrorist act. The issuing authority must be satisfied that there are reasonable grounds to suspect one or more of these matters. In this context, a 'terrorist act' must be one that is capable of being carried out, and could occur, within the next 14 days (subsection 105.4(5)). Both the AFP member and the issuing authority must also be satisfied that the making of the PDO would substantially assist in preventing a terrorist act occurring, and that detaining the person for a specified time under the order is reasonably necessary to prevent a terrorist act. This sets a high threshold for obtaining a PDO and is one that is inextricably linked to preventing an imminent terrorist incident.

77. In light of the processes and safeguards outlined above, detention under the PDO regime is not 'arbitrary' and complies with Article 9 of the ICCPR.

Procedural guarantees under Article 14 of the ICCPR

78. Article 14 of the ICCPR provides fair trial rights and minimum guarantees in criminal proceedings. These rights may also be engaged in relation to civil matters such as PDOs where criminal penalties may arise for breach of its conditions.

79. The PDO regime upholds Article 14 as it requires AFP members to advise the subject of a PDO of particular matters, including their right to make representations to the senior AFP member in relation to the PDO with a view to having the order revoked, the right to contact a lawyer or a family member, and the right to make complaints to the Commonwealth Ombudsman. Following the expiration of a PDO, the individual may also seek a remedy from a federal court in relation to the PDO, or in relation to their treatment whilst under custody (subsection 105.51(1)). The individual may also apply to the Security Appeals Division of the AAT for a review of the decision to make an initial or continued PDO (subsection 105.51(5)).

80. Furthermore, section 105.5A provides that where the PDO subject has inadequate knowledge of the English language or a disability, a police officer must arrange for the assistance of an interpreter, and must provide the person reasonable assistance to choose a lawyer and to contact the lawyer.

81. The safeguards contained in the PDO regime uphold the minimum procedural safeguards guaranteed under Article 14 of the ICCPR.

Freedom from arbitrary and unlawful interference with privacy in Article 17 of the ICCPR

82. Article 17 of the ICCPR provides that no-one shall be subject to arbitrary or unlawful interference with their privacy. Under section 105.43 of the Criminal Code, a police officer may use such force as is necessary and reasonable in the circumstances to take identification material from a person if the police officer believes on reasonable grounds that it is necessary to do so for the purpose of confirming the person's identity as the person specified in the PDO. However, the limited interference with privacy is not 'arbitrary' as the process for obtaining identification material is established by law in a process clearly articulated in section 105.43.

83. Furthermore, this limited interference with privacy achieves the legitimate objective of ensuring that the individual is the person specified under the PDO. Failure to properly identify the intended subject of the PDO could result in the wrong individual being subject to detention, and the intended subject of the PDO remaining at large in the community. This risk can be reasonably mitigated by limited interference with the person's right to privacy. In addition, any material obtained must be destroyed within a period of 12 months after the material was obtained (so long as any proceedings in respect of the PDO, or the treatment of a person under a PDO, have not been brought or have concluded).

Freedom of expression in Article 19 of the ICCPR

84. Article 19 of the ICCPR provides that everyone shall have the right to freedom of expression, including the right to seek, receive, and impart information and ideas of all kind. This right may be restricted where a PCO is made under sections 105.15 (in relation to a person against whom a PDO is being sought) and 105.16 (in relation to a person against whom a PDO is already in force).

85. The purpose of a PCO is to prevent an individual from communicating with specified individuals. The criteria for obtaining a PCO are clearly outlined in section 105.14. A PCO can be made where it is reasonably necessary for the purposes of achieving specified objectives, including:

•

to avoid a risk to action being taken to prevent a terrorist act occurring

•

to prevent serious harm to a person

•

to preserve evidence of, or relating to, a terrorist act

•

to prevent interference with the gathering of information about a terrorist act or the preparation for or the planning of, a terrorist act, or

•

to avoid risk to the arrest of a person suspected of having committed an offence under Part 5.3 of the Criminal Code , taking into custody a person in relation to whom a PDO is in force, or in relation to whom a PDO is likely to be made, or the service on a person of a control order.

86. The threshold for making a PCO is targeted towards ensuring the PCO achieves the legitimate objective of protecting Australia's national security interests, including in particular, preventing terrorist acts. A threshold for making a PCO is high and is only likely to be met in scenarios where the failure to restrict communication could result in critical preventative action not being taken.

87. Accordingly, the making of a PCO does not limit the right to freedom of expression in Article 19 of the ICCPR, except to the extent that it is reasonable, necessary and proportionate to achieving the legitimate objective identified above.

Prohibition on cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR and Articles 2 and 16 of the CAT

88. Article 7 of the ICCPR and Articles 2 and 16 of the CAT provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. This right is expressly protected under section 105.33 which states that an individual taken into custody, or being detained, must be treated with humanity and with respect for human dignity, and must not be subjected to cruel, inhuman or degrading treatment. Furthermore, the questioning of a person detained under a PDO is strictly prohibited, except in limited circumstances, including to ensure the safety and wellbeing of the person being detained (section 105.42). Accordingly, the PDO regime preserves the right of a PDO subject to be treated with humanity and dignity under Article 7 of the ICCPR and Articles 2 and 16 of the CAT.

Part 2- Foreign Incursions and recruitment: declared areas

89. Section 119.2 of the Criminal Code makes it an offence to enter or remain in an area declared by the Minister for Foreign Affairs. The offence carries a penalty of up to ten years imprisonment.

90. An individual will not contravene the declared areas offence if he or she has entered or remained in the declared area solely for one or more of the following legitimate purposes, as set out in subsection 119.2(3):

•

providing aid of a humanitarian nature

•

satisfying an obligation to appear before a court or other body exercising judicial power

•

performing an official duty for the Commonwealth, a State or a Territory

•

performing an official duty for the government of a foreign country or the government of part of a foreign country (including service in the armed forces of the government of a foreign country), where that performance would not be a violation of the law of the Commonwealth, a State or a Territory

•

performing an official duty for the United Nations or an agency of the United Nations

•

making a news report of events in the area, where the person is working in a professional capacity as a journalist or is assisting another person working in a professional capacity as a journalist

•

making a bona fide visit to a family member, and

•

any other purpose prescribed by the regulations.

91. The declared areas provisions support the legitimate objectives of protecting Australia's national security interests, deterring Australians from travelling to dangerous conflict areas where listed terrorist organisations are engaged in hostile activity, and protecting children by discouraging their parents and guardians from taking them to declared areas. There are two pressing and substantial concerns with Australians travelling to these conflicts areas. The first concern is that Australians who enter or remain in conflict areas put their own lives at risk. This concern also extends to children who have been taken to declared areas by their parents or guardians. The second is that foreign conflicts provide a significant opportunity for Australians to develop the necessary capability and ambition to undertake terrorist attacks.

Extending the operation of the declared areas provisions

92. The declared areas provisions in section 119.2 expire on 7 September 2018. The Bill extends the operation of section 119.2 by a further three years, until 7 September 2021. This implements Recommendation 1 of the PJCIS Declared Areas Report. In the PJCIS Declared Areas Report, the Committee expressed full support for measures 'that are taken to prevent Australians from joining overseas conflicts and to enable strong action to be taken against such persons who return in order to appropriately manage the threat to the Australian community.' ^[4] The PJCIS Declared Areas Report concluded that the declared areas provisions remain necessary and are a proportionate response to the current terrorist threat. ^[5]

93. The 2017 INSLM Review also recommended the extension of the declared areas provisions. In reviewing the declared areas provisions, the 2017 INSLM Review concluded that the declared areas provisions are consistent with Australia's human rights, counter-terrorism and international security obligations; contain appropriate safeguards for protecting the rights of individuals; are proportionate to the current threats of terrorism and to national security, and are necessary. ^[6]

94. In March 2015, the Minister for Foreign Affairs made declarations in respect of al-Raqqa province in Syria and Mosul district, Ninewa Province in Iraq. The declaration in respect of al-Raqqa was revoked on 27 November 2017. The Mosul district was re-declared in March 2018.

95. Outlined below are the rights that are likely to be engaged by extending the operation of the declared areas provisions.

Freedom of movement in Article 12 of the ICCPR

96. Article 12 of the ICCPR provides that persons lawfully within the territory of a State shall have the right to freedom of movement within that State. Section 119.2 restricts this right by making it an offence to enter or remain in a declared area without a legitimate purpose.

97. The ICCPR permits limitations on the right to freedom of movement where restrictions are provided by law and are necessary to achieve a legitimate objective, such as the protection of national security. Consistent with Article 12, the declared areas offence limits the right to freedom of movement to achieve the legitimate objective of discouraging travel to areas in which terrorist organisations are known to be engaging in hostile activities. Individuals travelling to these locations may return to Australia with increased capabilities to commit terrorist acts domestically, and inspire others to do the same.

98. There are a number of safeguards and procedures which ensure that any limitation on the right to freedom of movement is reasonable, necessary and proportionate to the aim of supporting this legitimate objective identified above.

99. Firstly, the legitimate purpose exceptions in subsection 119.2(3) ensure that individuals are permitted to enter, or remain, in declared areas in specified circumstances. The legitimate purpose exceptions encompass common purposes for wanting to travel to a declared area, such as providing aid of a humanitarian nature, undertaking official duties for the Government or the United Nations, making news reports in the area while working in a professional capacity as a journalist, and visiting a family member. Further legitimate purposes can be prescribed by regulation if required.

100. The Bill introduces an additional legitimate purpose for travel to conflict zones, being for the purpose of performing official duties for the International Committee of the Red Cross (ICRC). This recognises the enshrined role of the ICRC in international law and the unique, independent and neutral role they play in conflict zones to provide humanitarian protection and assistance for victims of armed conflict. This implements in principle Recommendation 2 of the PJCIS Declared Areas Report.

101. Secondly, the Bill will also amend section 119.3 to provide that the Minister for Foreign Affairs may revoke a declaration at any time prior to the expiry of the declaration, when he or she considers that the declaration is no longer necessary or desirable. This may arise in circumstances where, for example, the Minister is still satisfied that a listed terrorist organisation is engaging in hostile activity in a declared area, but the extent of hostile activity has significantly reduced. This new provision ensures that limitations on the right to freedom of movement are proportionate and operate for no longer than necessary in order to achieve the legitimate objective of preventing Australians from travelling to conflict zones where listed terrorist organisations are known to be engaging in hostile activities.

102. Finally, the Bill enhances PJCIS oversight of the declared areas provisions. Currently, subsection 119.3(7) provides that the PJCIS may review a declaration before the end of the period during which the declaration may be disallowed under section 42 of the Legislation Act 2003. In accordance with the 2017 INSLM Review, and Recommendation 5 of the PJCIS Declared Areas Report, the Bill inserts new subsection 119.3(8) which allows the PJCIS to also review a declaration at any time during which the declaration is in effect, and report the Committee's comments and recommendations to each House of the Parliament. The PJCIS's ability to monitor a declaration on an ongoing basis ensures that the declaration, and therefore any limitation on the freedom of movement, is reasonable, necessary and proportionate.

103. Accordingly, the continuation of the declared areas provisions for a further three years does not limit the right to freedom of movement in Article 12 of the ICCPR, except to the extent that it is reasonable, necessary and proportionate to achieving the legitimate objectives identified above. The amendments to these provisions contained in the Bill also provide additional safeguards and oversight measures to ensure that there is an appropriate balance between individual rights and freedoms, and the need to protect Australia from threats of terrorism.

Procedural guarantees under Article 14 of the ICCPR

104. Article 14 protects a person's right to a fair and public hearing by a competent, independent and impartial tribunal established by law, and the right to be presumed innocent until proved guilty according to law. The declared areas provisions engage this right by providing that a defendant bears an evidential burden should they wish to rely on any exception listed in section 119.2(3) above.

105. The operation of the declared areas offence is such that the defendant bears no burden of proof unless they seek to raise facts constituting a defence. Should the defendant choose to rely on the any of the exceptions in subsection 119.2(3), they bear an evidential burden to adduce or point to evidence that suggests a reasonable possibility that their travel was for a legitimate purpose or purposes. The prosecution retains the legal burden and must disprove any legitimate purpose defence raised beyond a reasonable doubt, in addition to proving elements of the offence. It is appropriate for an evidential burden of proof to be placed on a defendant where the facts in relation to the defence, being their individual motivation for entering or remaining in a declared area, are peculiarly within their knowledge.

106. The declared areas offence does not reverse the onus of proof or limit the presumption of innocence. To the extent that there is a limitation on Article 14 of the ICCPR, that limitation is reasonable, necessary and proportionate to achieve the legitimate objective of protecting Australia's national security, including discouraging Australians from travelling to conflict zones, and countering the threat of foreign fighters returning to Australia from areas where the Minister for Foreign Affairs is satisfied that a listed terrorist organisation is engaging in hostile activities. The 2017 INSLM Review also considered that the declared area offence is not inconsistent with the rights protected under Article 14 of the ICCPR.

Part 3-Stop, search and seize powers

Crimes Act 1914

107. Division 3A of Part IAA of the Crimes Act allows a police officer to stop, question and search persons, and seize items, in a Commonwealth place (such as an airport). These powers are exercised without a warrant. However, in order to exercise these powers, the police officer must suspect on reasonable grounds that the person may have just committed, might be committing, or might be about to commit, a terrorist act (paragraph 3UB(1)(a)).

108. A police officer may also exercise these powers in a prescribed security zone, without requiring any suspicion on reasonable grounds that the person may have just committed, might be committing, or might be about to commit, a terrorist act (paragraph 3UB(1)(b)). The Minister can declare a Commonwealth place to be a prescribed security zone if he or she considers that the declaration would assist in preventing a terrorist act occurring, or in responding to a terrorist act (subsection 3UJ(1)).

109. Section 3UEA in Division 3A allows a police officer to enter premises if the police officer suspects on reasonable grounds that:

•

it is necessary to search the premises for a thing and to seize the thing if he or she finds it there, in order to prevent a thing that is on the premise from being used in connection with a terrorism offence, and

•

it is necessary to exercise the power without the authority of a search warrant because there is a serious and imminent threat to a person's life, health or safety.

110. Section 3UEA is not limited in its application to only Commonwealth places or prescribed security zones.

111. Police powers under Division 3A of Part IAA achieve the legitimate purpose of protecting Australia's national security, including in particular, preventing and responding to terrorist acts. As at May 2018, police powers under Division 3A of Part IAA have not been used.

Extending the operation of Division 3A of Part IAA

112. Division 3A of Part IAA will expire on 7 September 2018. The Bill extends the operation of Division 3A of Part IAA for a further three years, until 7 September 2021. This implements Recommendation 1 of the PJCIS Powers Report. The PJCIS Powers Report noted these powers are expected to be only exercised in 'rare and exceptional circumstances' and remain necessary, particularly in light of the number of threats against Commonwealth places that have been disrupted in recent years. ^[7]

113. In his 2017 Review, the INSLM also supported the ongoing utility and importance of the powers under Division 3A of Part IAA despite their limited use. The INSLM 2017 Review ultimately concluded that the stop, search and seize powers in Division 3A of Part IAA are consistent with Australia's human rights, counter-terrorism and international security obligations; contain appropriate safeguards for protecting the rights of individuals; are proportionate to the current threats of terrorism and to national security, and are necessary.

114. Outlined below are the rights that are likely to be engaged by extending the operation of the declared areas provisions.

Freedom from arbitrary or unlawful interference with one's privacy or home in Article 17

115. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy or home. The ability of police to search and seize property from an individual (sections 3UD and 3UE), and from premises (section 3UE), without a warrant, may limit an individual's right to freedom from arbitrary or unlawful interference with their privacy or home.

116. However, the exercise of these police powers cannot be considered arbitrary because they are reasonable, necessary and proportionate to achieving the legitimate objective of protecting Australia's national security, including in particular, preventing and responding to terrorist acts. Division 3A contains several features to ensure that police can only exercise these powers where it is not arbitrary:

•

with the exception of section 3UEA, the powers in Division 3A can only be exercised in the narrow geographical area of a Commonwealth place

•

a police officer may only exercise the stop, search and seize powers in a Commonwealth place where the officer suspects on reasonable grounds that the person might have just committed, might be committing or might be about to commit a terrorist act (section 3UB), or where the Minister has made a prescribed security zone declaration under section 3UJ

•

the power to enter premises without a warrant can only be exercised where there is a serious and imminent threat to a person's life, health or safety (section 3UEA), and

•

the exercise of the AFP's powers is subject to review by the Commonwealth Ombudsman.

117. The Bill will also insert additional reporting responsibilities on the AFP's exercise of these powers. The Bill introduces new section 3UJA which provides that, as soon as practicable after the AFP exercises powers under Division 3A, the Commissioner of the AFP must provide a report on the exercise of those powers to the Minister, the INSLM and the PJCIS. The report must include, in relation to an incident, the number of instances when an AFP police officer exercised a power under sections 3UE (seizure of terrorism related items and serious offence related items), 3UEA (emergency entry to premises without a warrant) and 3UF (issuing of seizure notices), and the circumstances in which an AFP officer exercised powers under sections 3UC (requirement to provide a name etc.) and 3UD (stopping and searching an individual).

118. Furthermore, the Bill inserts new section 3UJB which requires the tabling of an annual report on the exercise of Division 3A powers in Parliament. The annual report must outline the number of instances when AFP officers exercised powers under sections 3UE, 3UEA and 3UF, and the number of incidents when AFP officers exercised powers under sections 3UC and 3UD. The annual report will also outline the number of applications made under section 3UI for declarations of a prescribed security zones, and the number of declarations made under section 3UJ by the Minister.

119. These new reporting requirements implement Recommendation 2 of the PJCIS Powers Report.

120. The Bill also enables the PJCIS to monitor and review the performance by the AFP of its functions under Division 3A of Part IAA, and the basis of the Minister's declaration of a prescribed section zone under 3UJ. This implements Recommendation 3 of the PJCIS Powers Report.

121. Accordingly, the exercise of police powers under Division 3A of Part IAA does not constitute 'arbitrary' or 'unlawful' interference with an individual's privacy or home. Furthermore, in light of the safeguards identified above, any interference with a person's privacy is proportionate and limited to achieving the legitimate purpose of protecting Australia's national security, including in particular, preventing and responding to terrorist acts.

Freedom from cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR and Articles 2 and 16 of the CAT

122. Article 7 of the ICCPR and the Articles 2 and 16 of the CAT guarantees that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The exercise of police powers under Division 3A of Part IAA does not subject an individual to any treatment contrary to Article 7. Subsection 3UD(2) provides that when conducting a search under section 3UD, a police officer must not use more force, or subject the person to greater indignity, than is reasonable and necessary in order to conduct the search (subsection 3UD(2)). Division 3A of Part IAA therefore complies with Article 7 of the ICCPR and Articles 2 and 16 of the CAT.

Part 4-Special powers relating to terrorism offences

Australian Security Intelligence Organisation Act 1979

Extending the operation of Division 3 of Part III

123. Currently, section 34ZZ provides that Division 3 of Part III will cease to have effect on 7 September 2018. The Bill amends this section to provide for the continuation of the Division for a further 12 months, until 7 September 2019.

124. Division 3 contains ASIO's special powers relating to terrorism offences and, in particular, ASIO's questioning and questioning and detention powers (the Division 3 powers).

125. Subdivision B of Division 3 sets out the process by which ASIO can obtain a questioning warrant. A questioning warrant requires a specified person to appear before a prescribed authority for questioning under the warrant immediately after the person is notified of the issue of the warrant, or at a time specified in the warrant.

126. Subdivision C of Division 3 sets out the process by which ASIO can obtain a questioning and detention warrant. This warrant authorises a person to be taken into custody immediately by a police officer and be brought before a prescribed authority immediately for questioning under the warrant for a period of time described in subsection 34G(4).

127. The Division 3 powers support the legitimate objective of countering serious threats to Australia's national security interests and, in particular, preventing terrorist acts. Extending the operation of the Division 3 powers ensures Australia's counter-terrorism capabilities are maintained pending consideration of the PJCIS report reviewing the operation, effectiveness and implications of Division 3. The PJCIS completed its review on 1 March 2018.

128. The Division 3 powers were originally introduced following the 11 September 2001 terrorist attacks in the United States to improve the capacity of intelligence agencies to identify and counter threats of terrorism in Australia. The current threat environment has evolved considerably since 11 September 2001 and is steadily worsening. Accordingly, it is critical that these powers remain available to ASIO, beyond 7 September 2018, pending consideration of the PJCIS review and 2016 INSLM Report into Certain Questioning and Detention Powers in Relation to Terrorism.

129. The Parliamentary Joint Committee on Human Rights (PJCHR) has previously stated that, in the absence of a PJCIS review, it would be unable to conclude the Division 3 powers are compatible with human rights (19th report of the 44th Parliament, March 2015). The PJCHR has also stated that such a review would assist it in establishing that the Division 3 powers are rationally connected to a legitimate objective (14th report of the 44th Parliament, October 2014).

Freedom of movement in Article 12 of the ICCPR

130. Article 12 of the ICCPR provides that everyone lawfully within the territory of a State shall, within the territory, have the right to liberty of movement. A questioning warrant restricts this right to the extent that the issuing of such a warrant requires a specified person to appear before a prescribed authority for questioning immediately after the person is notified of the issue of the warrant or at a time specified by the warrant.

131. The limitation on the right to freedom of movement achieves the legitimate objective of protecting Australia's national security interests, including in particular, preventing terrorist acts. This is inherent in the requirement for issuing a questioning warrant. In consenting to a request for the issuing of a warrant, the Attorney-General must be satisfied that the warrant will 'substantially assist in the collection of intelligence that is important in relation to a terrorism offence' (paragraph 34E(1)(b)).

132. Questioning warrants significantly enhance ASIO's ability to carry out its function to 'obtain, correlate and evaluate intelligence relevant to security' (subsection 17(1)). Moreover, terrorism offences constitute serious threats to Australia and its national security interests.

133. The limitation on the right to freedom of movement is reasonable, necessary and proportionate. This is based on the safeguards already built into the questioning warrant framework. The Guidelines issued to the Director-General of ASIO under subsections 8A(1) and 8A(2) of the ASIO Act provide a safeguard for the appropriate use of ASIO's powers, including its Division 3 powers. The Guidelines require ASIO to consider the intrusiveness and proportionality of its avenues for obtaining information:

•

any method for obtaining information must be proportionate to the gravity of the threat posed and the probability of its occurrence

•

inquiries and investigations should be undertaken using as little intrusion into a person's privacy as is possible, and

•

wherever possible the least intrusive techniques of information gathering should be used before resort to the more intrusive techniques (where a threat is assessed as likely to develop quickly, a greater degree of intrusion may be justified).

134. Under paragraph 34D(4)(c), before issuing a questioning warrant the Attorney-General must be satisfied that there is in force a written statement of procedures to be observed in the execution of warrants issued under Division 3 of Part III of the ASIO Act. Such a statement of procedures was originally tabled in Parliament on 12 August 2003. An updated version of those procedures, dated 16 October 2006, is currently in effect. This is a legislative instrument and is publicly available.

135. The statement of procedures sets out procedures to be observed by ASIO and law enforcement agencies in record-keeping (including video recordings of any questioning), transport and questioning logistics, health and welfare of a subject of a warrant and options for that subject to make contact with representatives or make complaints about the process.

136. Section 34D sets out the process by which the Director-General of ASIO can seek the Attorney-General's consent to request the issue of a questioning warrant. The Director-General must provide the Attorney-General with a request that includes a draft of the warrant to be requested, a statement of facts and grounds on which the Director-General considers it is necessary that the warrant be issued, a statement of particulars and outcome of all previous requests for the issue of a warrant and details about any previous warrants issued in respect of the subject of the warrant under Division 3.

137. The Attorney-General may only consent to the issuing of a questioning warrant where he or she is satisfied that there are reasonable grounds for believing that the warrant will substantially assist in the collection of intelligence that is important in relation to a terrorism offence.

138. The INSLM observed of the Guidelines and statement of procedures that they 'constitute formidable and reassuring prerequisites for the issue and control of the execution of a [questioning warrant]'. ^[8]

139. To the extent that questioning warrants restrict the right to freedom of movement, the restriction is reasonable, necessary and proportionate to achieving the legitimate objective of gathering important intelligence in relation to terrorism offences.

Freedom from arbitrary detention in Article 9 of the ICCPR

140. Article 9 of the ICCPR provides that no-one shall be subjected to arbitrary arrest or detention or deprived of their liberty except on such grounds and in accordance with such procedures as are established by law. The United Nations Human Rights Committee has stated that 'arbitrariness' includes the elements of inappropriateness, injustice and a lack of predictability. Arrest or detention must be reasonable and necessary in all circumstances with reference to the recurrence of crime, interference with evidence or the prevention of flight. A questioning and detention warrant may be considered to engage the right to freedom from arbitrary detention because it allows an individual to be taken into custody by a police officer and brought before a prescribed authority immediately for questioning for a specific period of time.

141. While the protection from arbitrary detention is engaged by the Division 3 powers, the detention permitted under the questioning and detention regime is not 'arbitrary'. It is governed by the procedures described in Subdivision C of Division 3. The Subdivision sets out the threshold requirements for applying for and issuing a questioning and detention warrant, and contains safeguards to ensure that its application is not subject to excessive discretion or capriciousness by decision-makers.

142. The Director-General may seek the Attorney-General's consent to request the issue of a questioning and detention warrant. Before the Attorney-General consents to the making of a request by the Director-General for the issue of a questioning and detention warrant, the Attorney-General must be satisfied that:

•

there are reasonable grounds for believing that issuing the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence

•

that relying on other methods of collecting the intelligence would be ineffective

•

there is a written statement of procedures in force to be followed in the exercise of authority under the warrant, and

•

there are reasonable grounds for believing that, if the person is not immediately taken into custody and detained, the person:

-

may alert a person involved in a terrorism offence that the offence is being investigated

-

may not appear before the prescribed authority, or

-

may destroy, damage or alter a record or thing the person may be requested in accordance with the warrant to produce.

143. In addition, where the person has already been detained under Division 3 in connection with one or more warrants, the Attorney-General must:

•

take account of those facts in deciding whether to consent, and

•

be satisfied that the issue of the warrant is justified by information that is additional to or materially different from that known to the Director-General at the time the Attorney-General's consent to request the last of the previous Division 3 warrants was sought.

144. After receiving such a request from the Director-General, the issuing authority may issue a questioning and detention warrant if satisfied that there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence. The issuing authority must also consider additional requirements where the person has already been detained under Division 3 in connection with one or more warrants (s 34G(2)(a)-(b)).

145. In addition to meeting the threshold requirements for a questioning and detention warrant, Subdivision C contains additional safeguards for questioning and detention warrants, commensurate with the additional impact on personal liberty (see paragraph 143).

146. Section 34B of the ASIO Act provides for the appointment of prescribed authorities. Prescribed authorities supervise the execution of a questioning or questioning and detention warrant and inform the subject of his or her rights under the warrant. They play a critical role in ensuring that questioning is conducted fairly and with respect for the subject's human rights. The prescribed authority may also make directions about the execution of a warrant and ensures compliance with its terms and with the law.

147. To be eligible for appointment as a prescribed authority, a person must have served as a judge in one or more superior courts (the High Court, Federal Court, Family Court, or a State or Territory Supreme or District Court) for a period of at least 5 years, and no longer hold a commission as a judge of a superior court. In certain circumstances, a current judge of a State or Territory Supreme Court or District Court, or a President or Deputy President of the Administrative Appeals Tribunal, may be appointed.

148. Section 34R of the ASIO Act regulates questioning time. Under section 34R, a warrant may allow for up to 24 hours of questioning in eight hour blocks. Initial questioning under a warrant is for eight hours, and this period can be extended twice. Any extension of the questioning period must be permitted by the prescribed authority. The prescribed authority must be satisfied that there are reasonable grounds to believe that continuing the questioning would substantially assist the collection of intelligence and that the questioning is being conducted appropriately. The prescribed authority may revoke this permission at any time.

149. Section 34G(4) of the ASIO Act regulates detention time. The period of detention starts when the person is first brought before a prescribed authority under the warrant and ends at the first time one of the following events happens:

•

someone exercising authority under the warrant informs the prescribed authority before whom the person is appearing for questioning that ASIO does not have any further request to make of the person

•

section 34R prohibits anyone exercising authority under the warrant from questioning the person under the warrant, or

•

the passage of 168 hours.

150. Section 34S of the ASIO Act further provides that Division 3 of Part III does not authorise a person to be detained for a continuous period of more than 168 hours (7 days).

Freedom from cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR and Articles 2 and 16 of the CAT

151. In light of the human rights implications of the Division 3 powers, there are explicit human rights protections included in the Act. Section 34T provides that a person subject to a warrant issued under Division 3 must be treated with humanity and respect for human dignity, and must not be subjected to cruel, inhuman or degrading treatment, by anyone exercising authority under a warrant or enforcing the direction.

152. Accordingly, the continuation of the questioning and questioning and detention regime for a further 12 months does not result in a diminishing of an individual's right to freedom from arbitrary detention. The detention regime is clearly articulated in the ASIO Act and is a reasonable, necessary and proportionate measure in order to protect Australia's national security interests, including in particular, preventing terrorist acts.

Conclusion

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