House of Representatives

Second Reading Speech

Mr DREYFUS (Isaacs - Attorney-General and Cabinet Secretary)

I move:

That this bill be now read a second time.

This bill supports Australia's robust and mature counterterrorism framework by implementing key recommendations of the Parliamentary Joint Committee on Intelligence and Security's (the Intelligence and Security Committee) 2021 review of police powers in relation to terrorism, the control order, preventative detention order regime and the continuing detention order regime, known as the AFP powers review.

The bill would extend the sunset dates in respect of key counterterrorism powers, including the stop, search and seizure powers in the Crimes Act 1914; and the control order and preventative detention order regimes in the Criminal Code Act 1995. This bill would also bolster safeguards and oversight mechanisms for these powers, providing checks and balances which promote the rule of law and procedural fairness.

In October 2022, this parliament passed the Counter-Terrorism Legislation Amendment (AFP Powers and Other Measures) Act, which extended the sunset dates for these powers by 12 months. This provided the government with sufficient time to consider the Intelligence and Security Committee's recommendations, to develop this bill and to consult and secure approvals from states and territories to further amend part 5.3 of the Criminal Code.

Stop, search and seizure powers - Crimes Act 1914

The emergency stop, search and seizure powers in the Crimes Act ensure that law enforcement agencies are able to respond effectively to a terrorist incident or threat. The powers allow police to stop, question and search persons, and seize items in a Commonwealth place, in prescribed circumstances.

Consistent with recommendation 3 of the Intelligence and Security Committee's AFP powers review, the bill would extend the operation of these powers for three years to 7 December 2026. This would ensure that these powers remain available to police to prevent and respond to terrorist acts, while also ensuring that the provisions are reviewed again within an appropriate period so that the parliament and the Australian people can determine whether they continue to be fit for purpose. While the Intelligence and Security Committee recommended this power be extended to 7 December 2025, that recommendation was made almost two years ago. The extension of the sunset date to 7 December 2026 is consistent with the intent of the Intelligence and Security Committee's recommendation, which was to extend the sunset date by three years.

In accordance with recommendations 1 and 2 of the Intelligence and Security Committee's AFP powers review, the bill would enhance safeguards that apply to the declaration of a Commonwealth place as a prescribed security zone for the purposes of preventing or responding to a terrorist act. The bill would introduce new requirements for the minister, before declaring a prescribed security zone, to consider specific matters including the reasonableness of this course of action and whether other, less invasive powers are available to prevent or respond to the terrorist act. Given the impacts of such a declaration on the rights and freedoms of individuals, this requirement will ensure the power is only exercised as absolutely necessary.

The bill would impose a requirement on the Australian Federal Police Commissioner to notify specified oversight bodies within 72 hours of the declaration of a prescribed security zone and a requirement on the minister to provide reasons for making that declaration. It would also require a police officer who has exercised stop and search powers for a terrorism related item to inform the person who has been stopped and searched of their right to make a complaint to an oversight body. These measures will assist oversight bodies in performing their important functions in investigating and reviewing the exercise of counterterrorism powers, and empower affected individuals to seek an independent review if they believe their rights have been infringed.

Control order regime

The control order regime in division 104 of the Criminal Code allows federal courts to impose an order that places certain conditions on an individual reasonably suspected of being involved in terrorism activity. Law enforcement agencies continue to rely on control orders as a critical measure to protect the community. As at 6 August 2023, there have been 28 control orders made against 21 individuals since these powers were first introduced.

The bill would extend the operation of the control order regime to 7 December 2026. As with the three-year extension to the sunset date for the stop, search and seizure powers, this is consistent with the intent of recommendation 7 of the Intelligence and Security Committee's AFP powers review to allow a three-year extension.

In accordance with recommendation 8of the Intelligence and Security Committee's AFP powers review, the bill would limit the power to issue control orders to the Federal Court of Australia. This is appropriate given the extraordinary nature of the power and the Federal Court's experience of considering matters involving significant volumes of evidence.

The bill would also allow the court to impose any condition it considers appropriate as part of a control order - in the same way that the court can currently do as part of an extended supervision order. This would implement recommendation 10 of the Intelligence and Security Committee's AFP powers review and would provide the court with the discretion to tailor control order conditions appropriately.

The bill would allow control orders to include conditions from which the controlee may apply for a temporary exemption. This would alleviate the burden on police to enforce contraventions of a control order that are reasonable and foreseeable and can therefore be excused in advance.

In accordance with recommendation 12 of the Intelligence and Security Committee's AFP powers review, the bill would enable the AFP or controlee to apply to a court to vary a control order by consent. This will allow greater flexibility in ensuring that control order conditions remain appropriate if the controlee's circumstances change. Importantly, where the controlee is a minor, the bill would require the court to consider the best interests of the controlee in determining whether the variation is appropriate.

Preventative detention order regime

Preventative detention orders under division 105 of the Criminal Code allow a person to be detained without charge. These extraordinary powers can only be used where the AFP reasonably suspects an attack could occur within 14 days, or in the aftermath of a terrorist attack to preserve vital evidence. No preventative detention orders have been issued to date.

The bill would extend the sunset date in relation to preventative detention orders to 7 December 2026. This aligns with the intent of recommendation 14 of the Intelligence and Security Committee's AFP powers review to allow a three-year extension.

The bill would also limit the classes of persons who may be appointed as an issuing authority for preventative detention orders to superior court judges only. This reflects the serious and extraordinary nature of the orders, consistent with recommendation 15of the Intelligence and Security Committee's AFP powers review.

Reporting requirements for post-sentence orders

The bill would expand the public reporting requirements in relation to the operation of the post-sentence order scheme in division 105A of the Criminal Code. In line with recommendation 19 of the Intelligence and Security Committee's AFP powers review, the bill would require the minister's annual report to include information about the detention arrangements that applied to offenders subject to a continuing detention order, rehabilitation or treatment programs made available to offenders under the scheme, and funding for the administration of the scheme during the year. This will improve transparency in relation to the management of terrorist offenders subject to post-sentence orders.

Recognising that states and territories hold much of the information that would be relevant to the new reporting requirements, the bill would require the express consent of the relevant state or territory before the Commonwealth could include any information in the report provided by the relevant jurisdiction. This will safeguard against the release of information that could compromise state and territory security arrangements, or the safety of individuals.

The government acknowledges the report by the Independent National Security Legislation Monitor, Mr Grant Donaldson SC, on division 105A of the Criminal Code which was tabled in this parliament on 30 March 2023. The Intelligence and Security Committee has since commenced its own review into the operation, effectiveness and implications of division 105A. The government is carefully considering Mr Donaldson's recommendations, and will do the same with the Intelligence and Security Committee's report before developing government responses to both reviews.

While the government accepts, and is committed to implementing, recommendation 6 of the Intelligence and Security Committee's AFP powers review, this bill would not implement that recommendation at this time. A mechanism by which an ex post facto assessment is undertaken to consider whether a police officer who entered premises in accordance with section 3UEA did so properly, and in accordance with the law, would provide assurance that the emergency powers have been exercised only in response to extraordinary circumstances and would enhance independent oversight of these powers. The complexity and significance of this matter warrants further consideration and consultation to develop an appropriate policy response. This includes having regard to the consequences that should flow from an assessment that the powers were not exercised appropriately; including in relation to the admissibility of any evidence gathered in purported exercise of the powers in subsequent criminal proceedings.

Extension of sunsetting date of section 122.4 of the Criminal Code

The bill would also extend the sunsetting date of section 122.4 of the Criminal Code by 12 months to 29 December 2024. Section 122.4 imposes criminal liability on current and former Commonwealth officers for breaches of approximately 296 non-disclosure duties in Commonwealth laws. It was enacted in 2018 to preserve criminal liability for breaches of these non-disclosure duties until each duty could be reviewed to determine whether it should be converted into a standalone specific secrecy offence or that criminal liability is no longer required.

On 22 December 2022, I announced the government had commenced a comprehensive review of Commonwealth secrecy offences to address concerns raised by multiple reviews about the number, inconsistency, appropriateness and complexity of Commonwealth secrecy offences. This review is considering whether each non-disclosure duty should be converted into a standalone offence or criminal liability be removed. The review is undertaking broad consultations and will deliver a final report to government by 31 August 2023. A 12-month extension to the sunsetting date of section 122.4 is required until the review is finalised, and the government can consider the final report.

Conclusion

The bill would provide for the continuation and enhancement of important counterterrorism powers that contribute to the safety and security of all Australians. It strikes a balance between ensuring our law enforcement agencies have the powers they need to manage the threat of terrorism, while protecting the rights of individuals through stronger oversight and safeguards. The government thanks the Intelligence and Security Committee for its review and will table the government response to the report shortly.

I commend the bill to the House.

Debate adjourned.