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COAG Response to the COAG Review of Counter-Terrorism Legislation

Recommendations 1-7:Definition of a ‘terrorist act’ (Criminal Code 1995 (Cth) s 100.1)

Recommendation Response

Rec 1: ‘threat of action’

The Committee recommends that “threat of action” be removed from the definition and a separate offence of ‘threatening to commit a terrorist act’ be created.

Support in part

The COAG Review Committee endorsed the findings of previous independent reviews that the definition of a terrorist act in s 100.1 of the Criminal Code 1995 (Cth) is ambiguous as to the requisite causal nexus between threats of action and the form of harm or damage specified in s 100.1(2). In particular, the Review Committee observed that it is unclear whether the threat must, itself, cause a specified form of harm or damage; or whether the threat, if carried out, would cause such harm or damage.

Amendments are supported to remove the risk that any perceived ambiguity may result in the non-commencement or discontinuation of prosecutions under Part 5.3 of the Criminal Code 1995 (Cth) in relation to threats of action. However, a different form of amendment is preferred to a separate threat offence. Rather than removing threats of action from the definition of a terrorist act, the preferred approach is to clarify the relationship between threats and harm within the definition.

This recognises that serious and credible threats of action which satisfy the elements of the definition can be as culpable as, or comparably culpable to, actions constituting a terrorist act. In particular, this approach will ensure that all of the powers and offences in Part 5.3 of the Criminal Code 1995 (Cth), which are based on the concept of a terrorist act, are available in respect of threats of action.

Rec 2: hoax offence

The Committee recommends that an additional offence be inserted in Part 5.3, Criminal Code, to provide for a “hoax threat” to commit an act of terrorism.

SupportA terrorism-specific hoax offence would appropriately recognise and denounce the potential for such a hoax to cause significant alarm and serious disruption to the community, and to divert valuable law enforcement and emergency services.

Rec 3: meaning of ‘harm’ Support

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The Committee recommends that ‘harm’ in section 100.1(2) be amended to allow the harm contemplated by the Act to extend to psychological harm, together with any consequential amendment, for example, to section 100.1(3)(b)(i).

This proposal would align the definition with general principles of criminal responsibility in relation to harm. The general definition of ‘harm’ in the Criminal Code 1995 (Cth) includes harm to a person’s mental health, recognising that psychological harm can be equally damaging as physical harm and equally deserving of criminal sanction.

Given that a defining characteristic of terrorism is an intention to coerce, influence or intimidate, in furtherance of a political, religious or ideological cause, it is appropriate to recognise that the harm associated with a terrorist act can manifest beyond serious physical harm, and can include serious mental harm.

Rec 4: hostage taking

The Committee recommends that “hostage-taking” be included in section 100.1(2).

Not supportedThe definition of a terrorist act in s 100.1 of the Criminal Code 1995 (Cth) applies to actions and threats of action. It is intentionally non-prescriptive as to particular types of actions or threats. Accordingly, acts of hostage taking are covered by the definition, provided they are committed with the necessary intention under paragraphs (b) and (c) and cause the necessary harm under subsection (2).

Hostage taking is also covered under a range of other offences in Commonwealth, State and Territory criminal laws, including the Crimes (Hostages) Act 1989 (Cth), which implements Australia’s obligations under the International Convention Against the Taking of Hostages. State and Territory criminal laws also include offences in the nature of kidnapping.

Rec 5: coverage of United Nations bodies

The Committee recommends that section 100.1(1)(c)(i) extend to include reference to the United Nations, a body of the United Nations, or a specialised agency of the United Nations.

Support

It is appropriate to extend the coverage of Part 5.3 of the Criminal Code 1995 (Cth) to United Nations entities, so that they are afforded the same protection as Australian and foreign governments. (That is, recognising as terrorist acts those actions which are

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done, or threats which are made, with the intention of coercing or influencing by intimidation a UN entity.) Such recognition is appropriate, given the international governmental functions performed by these agencies, and evidence that UN agencies have been the target of terrorist acts abroad.

Rec 6: interaction with the law of armed conflict

The Committee recommends that consideration be given to incorporating in the legislation an amendment to the effect that Part 5.3 of the Criminal Code will not apply to acts committed by parties regulated by the law of armed conflict.

Not supported

An express exclusion of acts committed in an armed conflict governed by international law would introduce an inappropriate element of complexity in the conduct of prosecutions under Part 5.3 of the Criminal Code 1995 (Cth).

In particular, the prosecution would be required to establish, as an element of each offence charged, that the relevant conduct was not governed by the law of armed conflict. Rather than creating a clear separation of the law of armed conflict and domestic counter-terrorism laws, this recommendation may require courts to determine the content and application of international law as a matter of course in counter-terrorism prosecutions.

It is preferable that the Commonwealth continues to monitor relevant international developments on this issue and re-assess this position if necessary.

Rec 7: exemption for Australian forces

The Committee recommends that consideration be given to excluding from the definition an act done by a person in the course of, and as part of, his or her service in any capacity with the Australian armed forces.

Support

While conduct as part of a person’s service with the Australian Defence Force (ADF) could be material to a defence of lawful authority under s 10.5 of the Criminal Code 1995 (Cth), the inclusion of an exemption along the lines of recommendation 7 would remove the possibility that such matters could be referred for prosecution. This would ensure that ADF personnel are not exposed to a terrorism prosecution in relation to their service to the defence of Australia.

Such an exemption would be consistent with similar provisions in other Commonwealth laws implementing sectoral anti-terrorism conventions to which Australia is a party. For example, s 38A of the

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Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth) and s 72.2 of the Criminal Code 1995 (Cth).

Recommendations 8-11:Preparatory offences (Criminal Code 1995 (Cth), Div 101)


Rec 8: s 101.2 – Providing or receiving training connected with terrorist acts

The Committee does not recommend any change to this section.

Support

The Review Committee confirmed that these preparatory offences are operating in the manner intended, and that completed prosecutions have demonstrated their necessity and effectiveness.

Rec 9: s 101.4 – Possessing things connected with terrorist acts

The Committee recommends that section 101.4(1)(a) be amended to make it clear that “a thing”, by its very nature, is capable of being connected with preparation for, the engagement of a person in, or assistance in a terrorist act.

Support

The existence of the requisite connection between a ‘thing’ and preparatory conduct is a decision for the court in individual cases, based on the evidence before it. Recommendation 9 would provide statutory guidance in the making of such decisions. It would confirm the policy intention that it should be open to a court to find that a thing is, by its very nature, capable of being connected with the commission of a terrorist act or preparatory conduct. Recommendation 9 would further confirm the policy intention that s 101.4 be interpreted consistently with the reasoning of the High Court in R v Khazaal in respect of s 101.5.

Rec 10: s 101.5 – Collecting or making documents

The Committee recommends that section 101.5 be amended to make clear that a ‘document’ by its very nature is capable of being connected with preparation for, the engagement of a person in, or assistance in a terrorist act.

Support

Recommendation 10 would give statutory expression to the decision and reasoning of the High Court in R v Khazaal that it is open to a court to find that a document is, by its very nature, capable of being connected with the commission of a terrorist act or preparatory conduct. This position reflects the policy intent in respect of s 101.5.

Rec 11: s 101.6 – Doing an act in preparation for, or planning, a terrorist act

The Committee does not recommend any change to this section.

Support

Per response to recommendation 8.

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Recommendations 12-23:Terrorist organisations (Criminal Code 1995 (Cth), Div 102)


Rec 12: s 102.1 – Proscription of terrorist organisations

The Committee does not recommend that the present method of proscription of a terrorist organisation be changed.

Support

The Review Committee recognised that the executive, operating under Parliamentary oversight, is best placed to make listing decisions given the security nature of the considerations involved.

Rec 13: s 102.1(1A) – Definition of ‘advocates’

The Committee recommends that section 102.1(1A) be amended to omit (c). This subsection deals with a situation where an organisation directly praises the doing of a terrorist act.

Not supported

The ‘praise’ component of the definition of ‘advocacy’ in s 102.1(1A)(c) recognises that such communication and conduct is inherently dangerous because it could inspire a person to cause serious harm to the community. Removing this ground would create an unacceptable gap in the listing regime, in relation to organisations which engage in this conduct.

This ground is also subject to considerable safeguards in s 102.1(1A), including the high risk threshold in relation to praise. (That is, the praise must carry a substantial risk of leading a person to engage in a terrorist act). In addition, the praise must be made by a terrorist organisation. (That is, a person who is capable of committing the organisation to a position.)

Rec 14: s 102.1A – Commencement of listing a terrorist organisation

The Committee recommends that the Government give consideration to postponing commencement of a listing until after the Parliamentary disallowance period has expired.

Support in principle

This approach is currently adopted as a matter of practice. The Commonwealth Government presently considers delaying the commencement of new listings on a case-by-case basis. This is consistent with a recommendation of the Parliamentary Joint Committee on Intelligence and Security in its 2007 inquiry into the listing regime in Division 102 of the Criminal Code 1995 (Cth).

A case-by-case approach is preferable to a statutory rule, as security considerations may require individual listings to commence immediately.

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Rec 15: Communication of proscription decisions

The Committee recommends that the Attorney-General’s Department should adopt improved communication methods to ensure that communities are more effectively notified when an organisation has been proscribed. Such methods should be more effectively responsive and personal to the specific information needs of ethnic and religious communities.


Governments are committed to the continuous improvement of communications and community outreach strategies in respect of listing decisions.

The Commonwealth Government has taken a number of steps to raise awareness of the terrorist organisation offences and the listing process. Following the listing of a terrorist organisation, the Attorney-General issues a media release, attaching a statement of reasons for the listing. This is disseminated to all major media outlets and is published on the Australian Government national security website, www.nationalsecurity.gov.au.

In specific instances, a more targeted public information campaign may be undertaken if the listing has particularly serious implications for a sector of the community. For example, the Commonwealth Attorney-General’s Department, in collaboration with the Australia-New Zealand Counter-Terrorism Committee, has developed fact sheets to provide communities with information about the conflict in Syria.

The Commonwealth Attorney-General’s Department has also published broader material on counter-terrorism laws, including a pamphlet printed in eight different languages. This is distributed by Departmental officers at forums they attend and is available online, including through the Department’s Living Safe Together website, www.livingsafetogether.gov.au, which supports communities in understanding and tackling violent extremism. In 2009, the Department published specific guidance for non-profit organisations, which includes guidance on the listing process and conducting due diligence in relation to listed organisations. The Parliamentary Joint Committee on Intelligence and Security also publicly advertises its inquiries into listing decisions, and calls for submissions from community members.

Rec 16: s 102.5 – Training unconnected with terrorist activities

Not supported

This recommendation is contrary to the policy intention underlying s 102.5, and Division 102 of

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http://www.livingsafetogether.gov.au/

http://www.nationalsecurity.gov.au/

The Committee recommends that section 102.5 be amended to include specific exemptions for providing training to or receiving training from a terrorist organisation for purposes unconnected with the commission of terrorist acts.

the Criminal Code 1995 (Cth) more broadly, to eradicate terrorist organisations by isolating them. The terrorist organisation offences in Division 102 are intended to create an incentive for members of the community to cease, or avoid in future, any affiliation with such organisations.

It is not appropriate to introduce a statutory distinction between related and unrelated activities, given that apparently innocuous activities such as teaching English or financial literacy skills can be used by the recipients of such training to advance the cause of a terrorist organisation. While training provided in the context of humanitarian activities raises unique policy considerations, the practical difficulties of implementing a wholesale exemption in favour of such aid remain significant.

Rec 17: s 102.5 – ‘Participation’ in training

The Committee recommends the offence in section 102.5 be amended to include ‘participation’ in training.

Support

Extending s 102.5 to cover participation in training would prevent unintended gaps arising in the coverage of these offences, which could occur if there are no formally defined teaching and learning roles in a training session.

Rec 18: s 102.5 – Strict liability in respect of proscribed terrorist organisations

The Committee recommends the repeal of sections 102.5(2) – (4).

Support the need for clarification

Jurisdictions acknowledge the remarks of the COAG Review Committee on the complexity of the interaction of the strict liability and recklessness elements of the offence of providing training to, or receiving training from, a listed terrorist organisation in ss 102.5(2)-(4). Jurisdictions agree that there is a need to clarify the elements of the offence. The Commonwealth will consult States and Territories on a suggested form of amendment, in accordance with the Intergovernmental Agreement on Counter-Terrorism Laws 2004.

Jurisdictions note that the Commonwealth supports the retention of a training offence applying specifically to listed terrorist organisations, in addition to the offence in ss102.5(1) which applies to both listed and non-listed terrorist organisations. This is considered to give effect to the policy intention that the listing mechanism in Division 102

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of the Criminal Code 1995 (Cth) should notify the community as to the terrorist status of an organisation, and the criminal consequences that may follow from interacting with a listed organisation.

Rec 19: s 102.6(3) – Reduction of the burden on the defendant

The Committee recommends that the legal burden in the note in section 102.6(3) be reduced to an evidential one.

Not supported

A legal burden is considered appropriate in respect of s 102.6(3). The purpose for which the funds were received is a matter peculiarly within the knowledge of the defendant legal advisor. Consistent with Commonwealth criminal law policy, it is appropriate to impose a legal burden in these circumstances.

A legal burden is not considered to make the offences in ss 102.6(1) and (2) unfairly easy of proof, including by reason of client legal privilege applying to potentially exculpatory evidence. As the majority of States and Territories have adopted the uniform evidence law, provisions corresponding to s 123 of the Evidence Act 1995 (Cth) apply in most jurisdictions to abrogate privilege where a defendant legal advisor seeks to adduce evidence for the purpose of s 102.6(3). (Section 123 of the Evidence Act provides that a defendant in criminal proceedings is not prevented from adducing evidence otherwise subject to client legal privilege, unless the relevant confidential communication or document pertains to an associated defendant, such as a co-defendant.) In some circumstances, non-privileged evidence such as court transcripts may also be available to a defendant legal advisor.

Rec 20: s 102.6(3) – Exemption for lawyers’ receipt of funds from a terrorist organisation

The Committee recommends section 102.6(3)(a) be amended to exempt the receipt of funds from a terrorist organisation for the purpose of legal advice or legal representation for a person in connection with: Criminal proceedings or proceedings relating to

criminal proceedings (including possible criminal proceedings in the future);

Proceedings relating to whether the organisation in

Support in part

Recommendation 20 proposes that the exemptions to the offence of associating with a terrorist organisation in s 102.8(4)(d) of the Criminal Code 1995 should apply to the exemptions to the offence of receiving funds from a terrorist organisation in s 102.6(3)(a).

To the extent that s 102.8(4)(d)(ii) exempts the provision of legal assistance in matters involving the question of whether an entity is a terrorist

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question is a terrorist organisation; or

A decision made or proposed to be made under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979, or proceedings relating to such a decision or proposed decision; or

A listing or proposed listing under section 15 of the Charter of the United Nations Act 1945 or an application or proposed application to revoke such a listing, or proceedings relating to such a listing or application or proposed listing or application; or

Proceedings conducted by a military commission of the United States of America or any proceedings relating to or arising from such a proceeding; or

Proceedings for a review of a decision relating to a passport or other travel document or to a failure to issue such a passport or other travel document (including foreign travel documents).

organisation, it is appropriate that an exemption along these lines is incorporated in s 102.6(3)(a).

Such an exemption would ensure that an entity that has been determined, or is alleged, to be a terrorist organisation under s 102.1 of the Criminal Code is afforded an opportunity to expend its funds on legal assistance to contest that determination or allegation. It would continue to exclude expenditure on legal services that could allow the organisation to flourish (such as general commercial or civil transactional work, or proceedings unrelated to the status of an entity as a terrorist organisation). It would also ensure that lawyers who are retained in such matters are not exposed to a criminal penalty of up to 25 years’ imprisonment under s 102.6 for merely receiving payment of their fees in these circumstances.

Consistent with the intergovernmental agreement on counter-terrorism laws, the Commonwealth will consult with States and Territories on the text of a provision giving effect to this position.

Rec 21: s 102.6 – Penalty for knowingly funding a terrorist organisation

The Committee recommends that the penalty for an offence under section 102.6(1) be reduced to 15 years.

Not supported

This proposal would represent a 10-year reduction in the maximum penalty for offences concerning the intentional receipt or collection of funds from or for an organisation known to the defendant as a terrorist organisation (currently 25 years). Such a substantial reduction is inconsistent with the gravity of this offence and would send an incorrect signal to sentencing courts about the policy intent.

Rec 22: s 102.6 - Penalty for recklessly funding a terrorist organisation

The Committee recommends that the penalty for an offence under section 102.6(2) be reduced to 10 years.

Not supported

This proposal would represent a five year reduction in the maximum sentence for offences concerning the intentional receipt or collection of funds from or for an organisation, where the defendant is reckless as to its status as a terrorist organisation (currently 15 years). Such a substantial reduction is inconsistent with the gravity of this offence, further noting the high threshold imposed by the fault element of recklessness under s 5.4 of the Criminal Code 1995 (Cth). As such, it would send an

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incorrect signal to sentencing courts about the policy intent.

Rec 23: s 102.8 – Associating with terrorist organisations

The Committee recommends the repeal of this section.

Not supported

The offence of associating with a terrorist organisation in s 102.8 remains necessary. It acknowledges that, because membership of terrorist organisations is illegal, playing a role in supporting the existence or expansion of an illegal organisation should also be criminalised.

Section 102.8 is based on offences of consorting under the organised crime laws of several States and Territories. Such offences also have an extensive history in common law jurisdictions. Just as consorting offences may be used to break up criminal gangs, s 102.8 can be used to help eradicate terrorist organisations by isolating them from the community. This original policy justification for the enactment of s 102.8 is considered to remain sound.

In addition, the offence does not criminalise “mere association” in the abstract. Rather, it targets association which is intended to help the organisation expand or continue to exist, and which is undertaken with knowledge that the associate is a member of the organisation, and that the organisation is a terrorist organisation.

Section 102.8 also contains significant safeguards in the form of exceptions to preserve freedom of association and ensure consistency with the constitutionally implied freedom of political communication: ss 102.8(4) and 102.8(6).

Recommendations 24-25:Terrorist financing (Criminal Code 1995 (Cth), Div 103)


Rec 24: s 103.1– Financing terrorism

The Committee recommends that this section be repealed and replaced by a graded continuum of offences, capturing both higher and lower culpability situations. The gradation should be:


There is scope to clarify the elements of s 103.1, including the form of amendment proposed in recommendation 24. Implementation of this proposal will be considered in light of any relevant

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(i) Providing funds with the intention or knowledge that they be used to facilitate or to allow engagement in a terrorist act. The Committee recommends this offence attract a maximum penalty of life imprisonment.

(ii) Providing funds reckless to their use in facilitating or allowing engagement in a terrorist act.

“Recklessness” for this purpose is defined in section 5.4, Criminal Code.The Committee recommends this offence attract a maximum penalty of 25 years.

outcomes of the Financial Action Task Force (FATF) second mutual evaluation of Australia’s anti-money laundering and counter-terrorism financing legislation (currently in progress). This will ensure that any amendments are compliant with Australia’s international obligations.

Rec 25: s 103.2 – Financing a terrorist

The Committee recommends that consideration be given to the repeal of this section.

Not supported

Section 103.2 was enacted in 2005 in response to a recommendation of the Financial Action Task Force (FATF) in its evaluation of Australia’s anti-money laundering and counter-terrorism financing legislation.

Recommendations 26-38:Control orders (Criminal Code 1995 (Cth), Div 104)


Rec 26: Retention of control ordersThe Committee considers that the control order regime should be retained with additional safeguards and protections included.


Control orders play an important role in protecting the public from terrorist threats. They ensure that law enforcement agencies have a legal basis on which to take action to prevent a terrorist threat from eventuating where an arrest or a prosecution is not open, but a person nonetheless presents a credible risk to public safety. This is particularly relevant in respect of emerging threats presented by Australians returning from conflict zones overseas.

Consequently, the renewal of Division 104 of the Criminal Code 1995 (Cth) is supported for a further period of 10 years from 15 December 2015. Although control orders have been used judiciously and appropriately, a further sunsetting period will provide Parliament with a further opportunity to

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evaluate the provisions.

Rec 27: basis for seeking Attorney-General’s consent to apply for an interim control orderThe Committee recommends the amendment of section 104.2(2)(b) to require that the second basis on which a senior member of the AFP seeks the Attorney-General’s written consent to request an interim control order be that he or she “considers on reasonable grounds that the person has provided training, or received training from, a listed terrorist organisation”.

Not supported

There is merit in ensuring consistency across the bases on which a senior member of the AFP seeks the Attorney-General’s written consent to request an interim control order. However, both bases for seeking the Attorney-General’s consent should require the AFP member to ‘suspect’ rather than ‘consider’ on reasonable grounds that that the order in the terms requested would substantially assist in preventing a terrorist act.

Rec 28: definition of “issuing court”The Committee recommends that the definition of “issuing court” in section 100.1 be amended to read “the Federal Court of Australia”.

Support in part

The Federal Court is currently an issuing court for the purpose of Division 104 of the Criminal Code 1995 (Cth), in addition to the Family Court and the Federal Circuit Court (per s 100.1).

It is appropriate to amend the definition of “issuing court” to read “the Federal Court of Australia and the Federal Circuit Court”.

A role for the Family Court in the administration of the terrorism control order regime under the Criminal Code 1995 (Cth) is anomalous compared with its areas of jurisdiction. While the Family Court is a superior court of record, it is a specialist family law court and does not exercise powers which are similar to those relevant under the control order regime. In contrast, as the Federal Court of Australia and the Federal Circuit Court of Australia have broad general federal law jurisdictions, these courts are more familiar with the type of processes and powers required to administer the regime. As there have been only a very small number of control orders ever issued, the operation of the scheme would not be expected to be impacted if the scope of ‘issuing courts’ was more confined, nor would there be expected to be significant workload implications for the remaining courts.

Rec 29: control orders as a last resort Support in principle

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The Committee recommends that investigating agencies, prior to the AFP 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 its prosecution policy, 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.

In practice, there is appropriate consultation and cooperation between the AFP and the CDPP when control orders are under consideration. Retaining this approach as a matter of practice, rather than as a statutory obligation, ensures appropriate flexibility and discretion in individual cases.

Rec 30: Special AdvocatesThe 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 relating 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.

Not supported

Jurisdictions note that the Commonwealth has significant reservations about introducing a regime of special advocates in respect of national security litigation, including a scheme of the kind in recommendation 30 which would apply specifically to control order proceedings.

In addition, the majority of jurisdictions consider that the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act) is the preferable means of protecting national security information in federal judicial proceedings, including those in relation to control orders.

It is also noted that a court may, under either the NSI Act or inherent jurisdiction, appoint a special counsel if considered necessary to ensure the proper administration of justice in proceedings involving sensitive evidence such as national security information.

Rec 31: Minimum standard of disclosure of information to controlleeThe 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

Not supported

The existing disclosure requirements in Division 104 are considered by a majority of jurisdictions to be sufficient and appropriate. The AFP is required to personally serve and explain the effect of an

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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.

interim order on the person, ensuring that he or she understands the substance of the order (s 104.12). In electing to confirm an order, the AFP applicant is required to provide further information including any “details required to enable the person to understand and respond to the substance of the facts, matters and circumstances which will form the basis of the confirmation of the order” (s 104.12A(2)).

The proposed new minimum requirement of providing “sufficient information … to enable effective instructions” imports an inappropriately broad and subjective standard in relation to the ‘sufficiency’ of information disclosed, the application of which may delay the hearing of confirmation applications and prejudice security interests. Caution is also necessary in relation to any proposed wholesale incorporation of European Court of Human Rights jurisprudence into Australian laws, recognising that such jurisprudence can embody different legal and constitutional standards and practices to those of Australia.

Rec 32: Information concerning appeal rights

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.

Support

While the existence of general rights of appeal could reasonably be expected to be within the knowledge of a person’s legal representative, an express requirement would ensure that this matter is brought to the attention of the subject of an interim order.

Rec 33: Relocation conditionThe Committee recommends that section 104.5(3)(a) be amended to ensure that a prohibition or restriction not constitute – in any circumstances – a relocation order.

Support

Section 104.5(3)(a) is not intended to cover mandatory relocation. Recommendation 33 would ensure that this intention is recorded expressly in Part 5.3 of the Criminal Code 1995 (Cth).

Rec 34: Curfew condition

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

Support in part

Section 104.5(3)(c) is intended to place restrictions on a person’s movement for part of a day, rather than authorising a form of home detention. This

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hours in one day. reflects the ordinary meaning of the term ‘curfew’.

Specifying an indicative maximum curfew period would provide an additional safeguard by making clear the above intention, while retaining appropriate flexibility to tailor the conditions of orders to the circumstances of individual cases. An indicative maximum curfew of 12 hours within a 24-hour period is supported. This is based on a maximum curfew duration prescribed in the bail, sentencing and dangerous sexual offenders legislation of some States.

Rec 35: Communication restrictions

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

Not supported

This proposal would substantially remove the necessary flexibility to tailor conditions of control orders to the particular terrorist threat presented by the subject of a proposed order.

Rec 36: Limit on duration

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

Support

As the Review Committee identified, there is no evidence to suggest that a 12-month maximum duration is excessive.

Rec 37: terms of an interim control order

The Committee recommends that s 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.

Not supported

The issuing criteria in s 104.4 require that each proposed condition of a control order must be reasonably necessary, and reasonably appropriate and adapted, to the purpose of protecting the public from the threat of a terrorist act. In making this assessment, the issuing court is required to have regard to the personal circumstances of the subject of the proposed order.

Consistent with the preventive and non-punitive function of these orders, it is appropriate that the issuing criteria focus primarily on public protection. This ensures that orders contain conditions which are directed only to this purpose, and are not issued with conditions that are least restrictive on the personal liberty of an individual, but may be less

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than what is reasonably necessary for public protection.

Rec 38: Oversight by Ombudsman

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

Not supported

The Ombudsman’s general powers of oversight and inquiry already extend to the AFP’s actions in the implementation and enforcement of control orders.

Recommendation 39: Preventative detention orders(Criminal Code 1995 (Cth), Div 105; State and Territory legislation)


Rec 39: repeal preventative detention orders

The Committee recommends, by majority, that the Commonwealth, State and Territory “preventative detention” legislation be repealed. If any form of preventive detention were to be retained, it would require a complete restructuring of the legislation at Commonwealth and State/Territory level, a process which, in the view of the majority of the Committee, would be likely to further reduce its operational effectiveness.

Not supported

Preventative detention orders are an important component of the counter-terrorism legislation of the Commonwealth, States and Territories. Their availability ensures that law enforcement agencies have a legal basis on which to take action to prevent a terrorist threat from eventuating, or to preserve evidence in the immediate aftermath of a terrorist act, where an arrest or a prosecution is not considered to be open, but a person nonetheless presents a credible risk to public safety in relation to an imminent terrorist act (or in the immediate aftermath of a terrorist act in relation to the preservation of evidence). The non-use of preventative detention powers to date reflects the policy intent that they are extraordinary measures which are to be used sparingly.

As such, the renewal of Division 105 of the Criminal Code 1995 (Cth) is supported for a further 10 years from 15 December 2015. This is consistent with the timeframes for the proposed renewal of control orders (in response to recommendation 26) and certain terrorism-specific police powers (in response to recommendation 44).

In recognition of submissions made to the COAG Review, and some recommendations of the Independent National Security Legislation Monitor, which identified potential limitations in the utility

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of preventative detention orders, the proposed renewed scheme in Division 105 of the Criminal Code 1995 (Cth) will include some procedural and technical amendments to the provisions governing the issuing criteria, issuing process and execution of orders. The Commonwealth will consult with the States and Territories on any proposed amendments in accordance with the Intergovernmental Agreement on Counter-Terrorism Laws 2004. Any proposed amendments will also be subject to a rigorous assessment of their human rights compliance, including the preparation of a statement of compatibility under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

Consistent with the 2005 COAG agreement to establish a national scheme of preventative detention orders, jurisdictions also recognise the importance of maintaining national consistency of their preventative detention legislation. States and Territories will similarly consider the inclusion of the above measures in their respective legislation.

Jurisdictions will also work collaboratively, via the Australia-New Zealand Counter-Terrorism Committee, to further investigate operational arrangements supporting the exercise of preventative detention powers, including mechanisms for the removal of a person from preventative detention in order to participate in questioning.

Recommendation 40:Administrative Decisions (Judicial Review) Act 1977 (Cth)


Rec 40: preventative detention decisions Schedule 1, (dab) and (dac)

The Committee recommends that paragraph (dab) of Schedule 1 be retained. If preventative detention remains, the Committee recommends that paragraph (dac) of Schedule 1 be removed.1

Not supported

The existing rights of review conferred by Division 105 of the Criminal Code 1995 (Cth) strike an appropriate balance between procedural fairness and security interests, having regard to the time critical and emergency circumstances in which

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preventative detention orders are issued, and their limited maximum duration of 48 hours.

A person who is the subject of a preventative detention order may seek judicial review of the issuing decision in the Federal Court or in the original jurisdiction of the High Court. Division 105 also contains a merits review provision (s 105.51) and a provision for the statutory judicial review of a Commonwealth order by a State or Territory court, where an order under State or Territory legislation is also in force (s 105.52). These administrative review avenues are additional to a person’s rights to pursue any allegations of wrongful detention in a civil action, and to make complaints to standing oversight and accountability bodies including the Ombudsman and the Inspector-General of Intelligence and Security.

Recommendation 41:Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)


Rec 41: hostile activities in foreign States, s 6The Committee recommends an amendment to section 6(1)(a) to remove the need to prove an intention to engage in hostile activity in a particular foreign State.2

Support

This recommendation would enhance the capability of law enforcement agencies in relation to the investigation and prosecution of Australian persons who are suspected of participating in foreign conflicts overseas, who may have travelled to the conflict zone via one or more other countries.

Recommendation 41 is consistent with the object of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) to prevent Australian citizens or residents from engaging in hostile activities against

1 Schedule 1 to the Administrative Decisions (Judicial Review) Act 1977 (Cth) lists administrative decisions which are exempt from statutory judicial review. Paragraph (dab) concerns the Attorney-General’s decision to consent to the AFP making application for an interim control order under s 104.2 of the Criminal Code 1995 (Cth). Paragraph (dac) exempts all administrative decisions made under Division 105 of the Criminal Code 1995 (Cth) (preventative detention orders).

2 Section 6(1)(a) of the Crimes (Foreign Incursions and Recruitment Act) 1978 (Cth) creates an offence in respect of entering a foreign state with intent to engage in a hostile activity in that foreign state.

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the governments of foreign States.

Recommendation 42:Financial Transactions Reports Act 1988 (Cth)


Rec 42: s 16, Financial Transaction Reports Act 1988 (Cth)The Committee does not recommend any change to this provision.3

Support

The reporting requirements in s 16 of the Financial Transactions Reports Act 1988 (Cth) have established an important mechanism for the gathering and sharing of evidence relevant to terrorist financing investigations. The Committee did not receive any evidence or submissions suggesting any shortcomings or other limitations in its operation.

Recommendations 43-44:Federal stop, search and seizure powers -- Crimes Act 1914 (Cth)


Rec 43: emergency entry without a warrant

The Committee recommends that the legislation be amended to require the police authorities exercising power under s 3UEA to report annually to the Commonwealth Parliament on the use of this power.

Not supported

There are sufficient safeguards and accountability mechanisms in relation to AFP actions. An annual reporting function is not required.

Rec 44: sunset provisionIf the search and seizure powers in the Crimes Act 1914 (Cth) are renewed in 2016, the Committee recommends amending s 3UK to provide that the relevant provisions should cease to exist as at the expiry date, which will be a 5–year period. 4

Not supported

Division 3A of Part IAA of the Crimes Act 1914 (Cth) is intended to cease to have effect at the end of 10 years (on 15 December 2015). However, there is a need for some machinery type provisions to continue in force beyond the sunsetting date. (These are the powers and duties in relation to dealing with seized items – for example, the powers in s 3UF in

3 This provision places an obligation on cash dealers to report suspicious transactions to the Australian Transactions Reporting Centre (AUSTRAC). ‘Suspicious transactions’ are defined as including terrorist financing offences (per s 102.6 and Division 103 of the Criminal Code 1995 (Cth)).

4 Section 3UK of the Crimes Act 1914 (Cth) provides that a police officer must not exercise powers under Division 3A (powers in relation to terrorist acts and terrorism offences) after 10 years from commencement. (The sunset date for the exercise of these powers is 15 December 2015.)

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relation to seizure notices and the forfeiture of seized things). Accordingly, the sunset clause in s 3UK applies to the exercise of powers under Division 3A rather than the operation of the Division itself.

The renewal of the powers in Division 3A is supported for a further term of 10 years, consistent with the responses to recommendations 26 and 39 in relation to the renewal of control orders and preventative detention orders.

Recommendations 45-47:State and Territory police powers of search, entry and seizure


Rec 45: Judicial authorisation

The Committee recommends that the various jurisdictions amend their legislation to reflect a greater degree of judicial oversight. The legislation in each State or Territory should be based on the current ACT, Tasmanian or Victorian model, requiring authorisation or final authorisation by a judge of the State or Territory Supreme Court.

Noted – this is a matter for individual State and Territory governments to consider as appropriate

Consistent with the 2005 COAG agreement on the strengthening of national counter-terrorism legislation, jurisdictions recognise the importance of adopting appropriate procedural safeguards in relation to their terrorism-specific police powers. This includes authorisation and oversight mechanisms which ensure that security interests and procedural fairness are maintained.

States and Territories are of the view that this outcome can be achieved by either judicial or executive authorisation, in accordance with their local practices and policies. As such, States and Territories are satisfied that their respective forms of authorisation are effective and appropriate in achieving their objectives.

Rec 46: Privative clauses

The Committee recommends that the various privative clauses in the current legislation be removed.

Support consideration of this recommendation by individual State and Territory governments as they consider appropriate.

Several States and Territories have included privative clauses in their respective legislation (New South Wales, Victoria, Western Australia, South Australia, Tasmania and the Northern Territory). These clauses vary in their scope, and have been developed in

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accordance with the local policies and practices governing the use of these clauses in each jurisdiction at the time of drafting. As such, any reconsideration of those policies, including in light of recent developments in administrative law jurisprudence is a matter for each jurisdiction to consider (including as part of individual jurisdictions’ statutory reviews of their police powers legislation). States and Territories note that the aim of the legislation should be to strike an appropriate balance between maintaining security interests in circumstances of emergency and ensuring procedural fairness.

Rec 47: Reporting

The Committee recommends that there should be a regular reporting function incorporated into each “special powers” statute.

Supported

This recommendation reflects current practice. All State and Territory legislation contains regular reporting requirements in relation to the exercise of police powers. These include Ministerial reporting requirements on a ‘per use’ basis (in New South Wales, Queensland, Western Australia, South Australia, Northern Territory and Australian Capital Territory). Other jurisdictions have adopted annual reporting requirements, which are in some instances additional to ‘per use’ reporting requirements (Victoria, Western Australia and Tasmania). Reports are also required to be tabled in Parliament in most jurisdictions. States and Territories are satisfied that their respective requirements are adequate to ensure that appropriate notifications are provided in relation to the use of emergency police powers.

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