Government response to INSLM Reviews of Control Orders and Preventative Detention Orders; Declared Areas; and Stop, Search and Seize Powers

The Committee recommends that the stop, search and seizure powers provided for under Division 3A of Part IAA of the Crimes Act 1914 be continued.

The Government supports this recommendation.

The Committee recommends that the Australian Federal Police (AFP) be required to provide a report to the AFP Commissioner as soon as practicable after any powers under Division 3A of Part IAA of the Crimes Act 1914 are exercised. A copy of the report should be provided to the responsible minister, the Independent National Security Legislation Monitor and the Committee as soon as practicable. The AFP should brief the Committee when requested.

The Committee further recommends that the Australian Federal Police be required to report annually to the Parliament on the exercise of any powers under Division 3A.

The Government supports this recommendation.

The Committee recommends that the Intelligence Services Act 2001 be amended to enable the Parliamentary Joint Committee on Intelligence and Security to monitor and review the performance by the Australian Federal Police of its functions under Division 3A of Part IAA of the Crimes Act 1914 (the stop, search and seizure powers), including the basis of the Minister’s declaration of a prescribed security zone under section 3UJ. The Committee should be provided with sufficient operational information to enable it to perform this new function.

The Government supports this recommendation. The AFP will continue to provide operational information to the PJCIS on a voluntary basis to assist the PJCIS in the performance of its functions.

The Committee recommends that the Intelligence Services Act 2001 be amended to require the Committee to conduct a further review prior to the sunset date into the operation, effectiveness and implications of the stop, search and seizure powers under Division 3A of Part IAA of the Crimes Act 1914, with the provisions sun setting after three years.

The Government supports this recommendation.

The Committee recommends that the control order regime provided for under Division 104 of the Criminal Code be continued, with the provisions sun setting after three years.

The Government supports this recommendation.

The Committee recommends that the Intelligence Services Act 2001 be amended to require the Committee to conduct a further review into the operation, effectiveness and implications of the control order regime in Division 104 of the Criminal Code prior to the sunset date.

The Government supports this recommendation.

The Committee recommends that section 104.14 of the Criminal Code be amended to clarify the status of the original request for an interim control order during confirmation proceedings. This is in line with the Independent National Security Legislation Monitor’s recommendation at paragraph 8.61 of his 2017 review.

The Committee further recommends that the Attorney-General consider, in consultation with the Federal Circuit Court, the Federal Court, and appropriate legal stakeholders, what further improvements could be made to provide greater clarity around how civil procedure rules apply in control order proceedings, noting operational sensitivities.

The Government supports this recommendation.

The Committee recommends that Division 104 of the Criminal Code be amended to allow for either the controlee, or the Australian Federal Police, to apply to the issuing court to vary the terms of an interim control order under section 104.5. In making this recommendation, the Committee notes that restrictions will be required to ensure that the court is not burdened with an unreasonable number of applications for variation by the controlee.

The Government supports this recommendation.

The Committee recommends that the Government extend the minimum time period between an interim and a confirmation hearing for a control order under subsection 104.5(1A) of the Criminal Code to seven days, subject to legal advice regarding any constitutional concerns arising from this extension.

The Government supports this recommendation.

The Committee recommends that the Criminal Code be amended as required to implement an Extended Supervision Order (ESO) regime which would include any of the controls that can be imposed under a control order, similar review mechanisms, and other associated changes consistent with the model recommended by the Independent National Security Legislation Monitor at paragraphs 9.40 to 9.47 of his 2017 review. This will address interoperability issues between Division 104 and Division 105A.

The Government supports this recommendation.

The Committee recommends that the preventative detention order regime in Division 105 of the Criminal Code be continued, with the provisions sun setting after 3 years.

The Government supports this recommendation.

The Committee recommends that the Intelligence Services Act 2001 be amended to require the Committee to conduct a further review into the operation, effectiveness and implications of the preventative detention order regime in Division 105 of the Criminal Code prior to the sunset date.

The Government supports this recommendation.

The Committee recommends that the Australian Federal Police be required to notify the Committee as soon as practicable after a preventative detention order is made under Division 105 of the Criminal Code, and to brief the Committee if requested.

The Government supports this recommendation.

The Committee recommends that sections 119.2 and 119.3 of the Criminal Code, which establish the ‘declared area’ provisions, be continued for a further period of three years.

The Committee also recommends that the Intelligence Services Act 2001 be amended to require the Committee to commence a further review into the operation, effectiveness and implications of the provisions prior to the sunset date.

The Government supports this recommendation.

The Committee recommends that section 119.2(3) of the Criminal Code be amended to make clear that humanitarian work beyond direct aid, including compliance training on the laws of armed conflict, is considered to be a ‘legitimate purpose’ for entering, or remaining in, a declared area.

The Government supports this recommendation in principle.

The purpose of the declared area offence is to discourage individuals from entering or remaining in areas, without a legitimate purpose, where listed terrorist organisations are known to be engaging in hostile activities. The legitimate purposes are intentionally narrowly framed to ensure they do not undermine the effectiveness of the offence.

The Government considers that the performance of official duties of the International Committee of the Red Cross (ICRC) should be recognised as a ‘legitimate purpose’ for entering, or remaining in, a declared area. The ICRC has specific standing in international law and its role includes the provision of training on the laws of armed conflict.

The Committee recommends that the key non-legislative factors that are considered by ASIO to guide and prioritise the selection of areas in foreign countries for consideration be specifically addressed in the unclassified Statement of Reasons that is provided to the Minister and made publicly available in relation to each declared area. These factors include:

• links to Australia and Australians
• threats to Australian interests including the role of a particular area in the radicalisation of Australians and likely repercussions in Australia
• the enduring nature of the listed terrorist organisation’s hostile activity in the area
• the operational benefit of declaring the area
• factors relevant to Australia’s international relations, including bilateral relations with countries including those in which an area may be declared, and engagement with international organisations such as the United Nations
• the listed terrorist organisation’s ideology
• links to other terrorist groups, and
• engagement in peace or mediation processes.

The Government supports this recommendation in principle.

The Government supports the provision of comprehensive, publicly available information about the factors considered by the Government when determining whether to declare an area in a foreign country.

However, some of the factors listed in Recommendation 3 would not be appropriate for inclusion in a publicly available, unclassified statement of reasons due to their potential impact on Australia’s foreign relations and reference to sensitive national security considerations.

The Government will review the unclassified Statement of Reasons and the Protocol to determine what additional information could be included in it without compromising national security interests or foreign relations.

The Committee recommends that section 119.3 of the Criminal Code be amended to provide that the Minister for Foreign Affairs may revoke a declaration at any time. This should include circumstances where the legislative test for the declaration continues to be met, but where changes in non-legislative factors suggest that the declaration is no longer necessary or desirable, taking into account security advice from relevant agencies.

The Government supports this recommendation.

The Committee recommends that the Government implement the Independent National Security Legislation Monitor’s recommendation to empower the Committee to review and report back to the Parliament on any declaration made under section 119.3 of the Criminal Code at its discretion ‘at any time prior to the declaration ceasing to have effect or being revoked by the Minister’.

The Government supports this recommendation.

Australian intelligence agencies continuously monitor the necessity for a declaration. The Government welcomes ongoing engagement with the Committee to ensure any review it undertakes would be timed to maximise its value and complement parallel review processes.

If the INLSM’s other recommendations in respect of Division 104 are accepted, Division 104 should be continued for a further period of five years.

The Government supports the continuation of the provisions for a further three years, in accordance with the PJCIS recommendation.

Section 104.14 should be amended to clarify that:

• the original request for an interim control order need not be tendered as evidence of the proof of its contents, and
• the issuing court may take judicial notice of the fact that an original request in particular terms was made, but it is only to act on evidence received in accordance with the Evidence Act 1995 (Cth).

The Government supports this recommendation.

Division 104 should be amended so that:

• the controlee may apply to vary an interim control order prior to confirmation of the control order
• the court has power to amend an interim control order if the AFP Commissioner and controlee agree.

The Government supports this recommendation.

Division 104 should provide that there is to be no order as to costs made by the issuing court in confirmation proceedings.

The Government supports this recommendation in principle.

The Government considers it appropriate that a respondent should not be put to expense for exercising their right to contest a control order. However, where a respondent has acted unreasonably, then it may be reasonable for the Commonwealth to seek costs, only to the extent of the unreasonableness.

The Attorney-General should give consideration to the adequacy of legal aid for controlees in control order proceedings.

The Government supports this recommendation.

The Attorney-General will further consider this recommendation.

The second INSLM made a number of observations and recommendations about the control order regime that are relevant to the present review. For the purposes of this review, I [INSLM] have not reconsidered the issues to which the observations and recommendations relate. Insofar as the government has not yet responded to them, these observations and recommendations stand as the views of my office. Specifically:

• accepted recommendation 28 of the COAG Review Committee that only the Federal Court have jurisdiction to make control orders, but recommended in turn that it be given the power to remit a request for a control order to the Federal Circuit Court
• supported recommendation 33 of the COAG Review Committee that s 104.5(3)(a) be amended to ensure that a control imposed by a control order not constitute a relocation order, noting that the current wording ‘would literally permit de facto relocation by excluding the place of residence of the controlee’
• recommended early consideration to including an overnight residence requirement, similar to that provided for in the United Kingdom (see sch 1 pt 1 to the Terrorism Prevention and Investigation Measures Act 2011 (UK))
• supported a variation of recommendation 37 of the COAG Review Committee (advocating a least interference test) to the effect that the issuing court be required to consider ‘whether the combined effect of all of the proposed restrictions is proportionate to the risk being guarded against’ in addition to the existing requirement to assess each restriction individually and
• recommended that withholding national security information from the controlee be dealt with only by the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act), and that Division 104 be amended accordingly.

There are no legislative amendments required to give effect to the Government response to the former INSLM’s reports into Control Order Safeguards (attached)

State and territory supreme courts should be authorised to make an ESO which would include any of the controls that can be imposed by a control order under Division 104.

The Government supports this recommendation.

If an ESO regime were incorporated into Division 105A, the conditions to which such an order may be subject should be the same as the terms of subsection 104.5(3).

The Government supports this recommendation.

Division 105A should be amended to allow the state and territory supreme courts, on the application of the Commonwealth Attorney-General, to make either a Continuing Detention Order (CDO) or an ESO for a period of up to three years (at a time) if satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community without either of those orders being made. The court should only make a CDO if satisfied that an ESO would not be effective in preventing the identified risk.

The Government supports this recommendation.

It is recommended that:

• the Commonwealth Attorney-General also be the applicant for an ESO
• there be no new pre-conditions before the Attorney-General commences div 105A proceedings for an ESO
• an application may be made for an ESO in relation to a person who is already the subject of a CDO or ESO
• the same controls and monitoring regime be available for an ESO made under div 105A as a control order made under div 104, and
• the government consider making the special advocates regime available for applications under div 105A.

The Government supports the features of the ESO scheme recommended by the INSLM and will consider whether to make the special advocate regime available for applications under Division 105A.

It is recommended that:

• the Attorney-General be unable to give consent under s 104.2 while div 105A proceedings are pending
• in requesting an interim control order in relation to a person, the senior AFP member be required to give the issuing court a copy of any div 105A application made in relation to that person, and any order (including reasons) of the relevant court in respect of that application, and
• no control order may be in force in relation to a person while a CDO or ESO is in force in relation to that person.

The Government supports these recommendations.

Division 105 should be continued for a further period of five years, subject to the implementation of a national investigative detention regime.

The Government supports the continuation of the provisions for a further three years, in accordance with the PJCIS recommendation.

At the Special Meeting of the Council of Australian Governments on Counter-Terrorism, held on 5 October 2017, the Government agreed to enhancement the existing pre-charge detention regime under Part IC of the Crimes Act 1914. These enhancements will support the continued use of Part IC nationally in the investigation of Commonwealth terrorism offences.

Provided the review provision is amended as recommended, the laws should be continued for a further period of five years.

The Government supports the continuation of the provisions for a further three years, in accordance with the PJCIS recommendation.

The provisions should be continued, subject to any declaration being reviewable by the PJCIS at their discretion at any time prior to the declaration ceasing to have effect or being revoked by the Minister.

Increasing the role of the PJCIS will assist in ensuring that the process for declaring areas under s 119.3 is judiciously applied and the situation in declared areas is monitored closely by the government with a view to the possible cessation of a declaration.

The Government supports this recommendation.

Australian intelligence agencies continuously monitor the necessity for a declaration. The Government welcomes ongoing engagement with the Committee to ensure any review it undertakes would be timed to maximise its value and complement parallel review processes

Consideration should be given to making a regulation under, or an amendment to, these provisions to allow an individual to seek permission from the Foreign Affairs Minister (following advice from the Attorney‐General) to enter into and remain in a declared area for such period and on such conditions as the Minister may choose to impose.

The Government does not support this recommendation.

The Government considers that an authorisation scheme could not be effectively implemented and monitored. There may be little information at the Government’s disposal to assist it to assess whether an applicant would be travelling for a bona fide reason, and to gather such information would require diversion of significant security and intelligence resources from other priorities to support such assessments.

Declared areas are also ‘do not travel’ destinations. Permitting travel to a ‘do not travel’ destination would be contrary to the Australian Government’s own travel advice and there would be significant practical difficulty in monitoring compliance with any conditions imposed on an authorisation for travel to conflict zones.

The laws ought to be continued, subject to the addition of new safeguards in the form of reporting requirements (akin to the existing requirements for delayed notification search warrants) to the relevant minister, the Ombudsman, the PJCIS and my Office so that each such body can review, in accordance with their own powers and procedures, any exercise of div 3A powers, including the making of a ministerial declaration.

Provided those safeguards are implemented, the laws should be continued for a further period of five years. This is because, as to matters in paragraph 6(1)(a) of the INSLM Act, the laws have the capacity to be effective (noting that the laws have not operated in that they have not been used) and are laws are truly ‘emergency’ powers.

The Government supports the continuation of the provisions for a further three years, in accordance with the PJCIS recommendation.

The Government supports the introduction of reporting requirements in accordance with the PJCIS recommendation.

The Government supports the introduction of reporting requirements but consider that the existing reporting requirements for delayed notification search warrants in section 3ZZFA of the Crimes Act 1914 are not the most suitable to use as a model as they relate to the covert use of police powers.

The Government supports the PJCIS’s recommendation that the AFP report to the responsible minister, the Independent National Security Legislation Monitor and the PJCIS as soon as practicable after the AFP exercises any powers under Division 3A of Part IAA of the Crimes Act 1914.

The Government further supports the PJCIS’s recommendation that the AFP be required to report annually to the Parliament on the exercise of any powers under Division 3A.

Read the Response to INSLM Report into Control Order Safeguards.

Contains:

• Control Order Safeguards – Part 1 – Special Advocates and the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
• Control Order Safeguards – Part 2