Government response to INSLM Report into Control Order Safeguards

COAG review recommendation

The Committee recommends that the Government give consideration to amending the legislation to provide for the introduction of a nationwide system of ‘Special Advocates’ to participate in control order proceedings. The system could allow each State and Territory to have a panel of security-cleared barristers and solicitors who may participate in closed material procedures whenever necessary including, but not limited to, any proposed confirmation of a control order, any revocation or variation application, or in any appeal or review application to a superior court relating to or concerning a control order.

INSLM recommendation

Recommendation 1

That the recommendation of the COAG Review as to the introduction of a system of special advocates into the control order regime be accepted and implemented, if proposed s 38J of the NSI Act in Schedule 15 of the 2015 Bill is to become law.

Recommendation 2

That proposed s 38J of the NSI Act in Schedule 15 of the 2015 Bill should not come into force until Recommendation 1 has been implemented.

Government response to INSLM recommendation

Supported

The Government supports the INSLM’s recommendation and will incorporate provisions in the CTLA Bill 2016 to create a special advocate role when sensitive national security information is withheld in control order proceedings.

Support in principle

The Government supports the intent of the INSLM’s recommendation. The Government will incorporate provisions in the CTLA Bill 2016 to create a special advocates role. These provisions will have a delayed commencement to enable administrative arrangements to be put in place so the regime can be practically implemented. The Government will work swiftly to ensure these arrangements are completed as soon as possible. Recognising that the court can continue to exercise its inherent powers to appoint a special advocate if appropriate, the Government considers (in line with PJCIS Recommendation 5) that it is important not to delay the commencement of proposed section 38J of the NSI Act in Schedule 15 of the CTLA Bill.

COAG review recommendation

The Committee recommends that the definition of ‘issuing court’ in section 100.1 be amended to read ‘the Federal Court of Australia’.

INSLM recommendation

The best solution is to accept recommendation 28 but to give the Federal Court the power to remit an application to the Federal Circuit Court.

Government response to INSLM recommendation

Not supported

The Government favours an approach that provides clarity about whether or not the Federal Circuit Court is an ‘issuing court’ for control order purposes. The INSLM’s recommendation makes the jurisdiction of the Federal Circuit Court unclear and dependent on the decision of the Federal Court.

The Government notes that all control orders to date have been issued by the Federal Circuit Court (and the Federal Magistrates Court, as it was formerly known). The Government will work collaboratively with the Federal Circuit Court to resolve any concerns they may have in hearing control order applications.

COAG review recommendation

The Committee recommends that investigating agencies, prior to the Australian Federal Police requesting consent from the Attorney-General to seek an interim control order, should provide the Commonwealth Director of Public Prosecutions with the material in their possession so that the Director may, in light of the Prosecution Policy of the Commonwealth, consider or reconsider the question of prosecution in the criminal courts. This recommendation does not necessarily require that it be incorporated in the legislation at this stage. It does, however, emphasise that criminal prosecution is the preferable approach. Control orders should always be sought as a last resort.

INSLM recommendation

No further action is required as to recommendation 29.

Government response to INSLM recommendation

Supported

The Government supports the INSLM’s recommendation.

In practice, there is appropriate consultation and cooperation between the Australian Federal Police and the Commonwealth Director of Public Prosecutions when control orders are under consideration.

COAG review recommendation

The Committee recommends that the Government give consideration to amending the legislation to provide for the introduction of a nationwide system of ‘Special Advocates’ to participate in control order proceedings. The system could allow each State and Territory to have a panel of security-cleared barristers and solicitors who may participate in closed material procedures whenever necessary including, but not limited to, any proposed confirmation of a control order, any revocation or variation application, or in any appeal or review application to a superior court relating to or concerning a control order.

INSLM recommendation

Recommendation 30 is supported in principle. Division 4 of pt 5.3 of the Criminal Code should be amended as proposed.

The INSLM recommended that:

• Division 104 should be amended to ensure that the withholding of national security information from a controlee is dealt with only by the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act) as it is to be amended.

Government response to INSLM recommendation

Supported in principle

The Government supports the INSLM’s recommendation in principle.

The Government will incorporate provisions in the CTLA Bill 2016 to create a special advocate role when sensitive national security information is withheld in control order proceedings.

The Government does not support the proposed amendment to Division 104. The statutory provisions contained in the control order regime for the disclosure of information operate in addition to any other applicable procedural rights in federal civil proceedings, such as normal processes of discovery, in which a party to a proceeding is entitled to obtain much of the material relied upon by the other party.

COAG review recommendation

The Committee recommends that the legislation provide for a minimum standard concerning the extent of the information to be given to a person the subject of an application for the confirmation of a control order, or an application for a variation or revocation of a control order. This requirement is quite separate from the Special Advocates system. It is intended to enable the person and his or her ordinary legal representatives of choice to insist on a minimum level of disclosure to them. The minimum standard should be: “the applicant must be given sufficient information about the allegations against him or her to enable effective instructions to be given in relation to those allegations.” This protection should be enshrined in Division 104 wherever necessary.

INSLM recommendation

The substance of recommendation 31 is adequately reflected in Schedule 15 to the 2015 Bill if a system of special advocates is introduced and the withholding of national security information in control order proceedings is governed by the NSI Act and not the Criminal Code.

Government response to INSLM recommendation

Supported

The Government considers that, in addition to creating a system of special advocates, there is merit in clearly expressing the extent of the Commonwealth’s disclosure obligations under the proposed amendments contained in Schedule 15 of the CTLA Bill 2016.

Accordingly, the Government will amend Schedule 15 of the CTLA Bill 2016 to reflect the intent of the COAG recommendation and give effect to Recommendation 4 of the PJCIS Advisory Report into the CTLA Bill 2015.

COAG review recommendation

The Committee recommends that section 104.12 should be amended to provide that the information to be given to a person the subject of an interim control order include information as to all appeal and review rights available to that person or to the applicant in the event that an interim order is confirmed, varied or revoked.

INSLM recommendation

Recommendation 32 has been implemented.

Government response to INSLM recommendation

Supported

The Government implemented this recommendation in the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, which added subparagraphs 104.12(1)(b)(iv) to (ix) (in relation to interim control orders) and 104.17(1)(b)(i) to (iii) (in relation to confirmed control orders) to the Criminal Code. Those provisions set out the various rights the person must be informed of when the AFP serves an interim or confirmed control order on the person.

COAG review recommendation

The Committee recommends that subsection 104.5(3)(a) be amended to ensure that a prohibition or restriction not constitute – in any circumstances – a relocation order.

INSLM recommendation

Recommendation 33 is supported.

Government response to INSLM recommendation

Not supported

Subsection 104.5(3)(a) is not sufficiently broad to allow for a relocation order. At present, there is no express power that would allow for the relocation of a control order subject. The proposed amendment is therefore not necessary.

COAG review recommendation

The Committee recommends that a prohibition or restriction under subsection 104.5(3)(c) – a curfew order – be generally no greater in any case than 10 hours in one day.

INSLM recommendation

Recommendation 34 need not be pursued but early consideration should be given to including an overnight residence requirement.

Government response to INSLM recommendation

Not supported

The Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 amended paragraph 104.5(3)(c) to provide that the maximum period a curfew may last is 12 hours within any 24 hours.

At present, the Government does not see the need to pursue an ‘overnight residence’ requirement. The current provisions allow sufficient flexibility to tailor control order conditions to the circumstances of the control order subject.

The Government does not consider that, under some circumstances, control order conditions may be ‘close to home detention’. Such an outcome would not satisfy the test in subsection 104.4(2) that the issuing court, when determining whether each obligation, prohibition and restriction is ‘reasonably necessary, and reasonably appropriate and adapted’, must also consider the person’s circumstances (including their financial and personal circumstances)

COAG review recommendation

The Committee recommends that, other than in any exceptional case, the prohibitions or restrictions under subsection 104.5(3)(f) permit the controlled person to have access to one mobile phone, one landline, and one computer with access to the internet.

INSLM recommendation

Recommendation 35 is not supported.

Government response to INSLM recommendation

Supported

The Government supports the INSLM’s recommendation to not amend subsection 104.5(3)(f) as the COAG Review recommendation would substantially remove the necessary flexibility to tailor conditions of control orders to the particular terrorist threat presented by the subject of a proposed control order.

COAG review recommendation

The Committee recommends that, for the present time, there be no change to the maximum duration of a control order, namely a period of 12 months.

INSLM recommendation

Recommendation 36 has been accepted and no action is required.

Government response to INSLM recommendation

Supported

The Government has previously agreed to the COAG Review recommendation and there is no evidence to suggest that a 12-month maximum duration is excessive.

COAG review recommendation

The Committee recommends that section 104.5 should be amended to ensure that, whenever a control order is imposed, any obligations, prohibitions and restrictions to be imposed constitute the least interference with the person’s liberty, privacy or freedom of movement that is necessary in all the circumstances.

INSLM recommendation

A variation of recommendation 37 is supported in principle.

Government response to INSLM recommendation

Not supported

The issuing court, when deciding what controls to place on the subject of a control order, must determine whether each of the obligations, prohibitions and restrictions imposed on the subject of a control order is ‘reasonably appropriate and adapted’ for the purpose of protecting the public from a terrorist act. In making this decision, the court must also consider the impact of each obligation, prohibition and restriction on the person’s circumstances. That is, the court has to have a positive finding of proportionality. The INSLM noted that the proposed formula in the COAG Review recommendation is not obviously preferable to the existing requirements and that the two formulae are different ways of achieving the same result. The INSLM noted there is a case for having the court consider whether the combined effect of all of the proposed restrictions is proportionate to the risk being guarded against in addition to looking at each restriction as now required. However, this would add complexity to the control order provisions.

COAG review recommendation

The Committee recommends that the Commonwealth Ombudsman be empowered specifically to provide general oversight of interim and confirmed control orders.

INSLM recommendation

Recommendation 38 is not necessary.

Government response to INSLM recommendation

Not supported

The Government supports the INSLM’s recommendation on the basis that the Ombudsman’s general powers of oversight and inquiry already extend to the AFP’s actions in the implementation and enforcement of control orders.