PJCIS hands down Report on Counter-Terrorism Legislation Amendment Bill (No.1) 2015

Tuesday 16 February 2016 @ 1.34 p.m. | Crime | Legal Research

Yesterday (15 February 2016), the Parliamentary Joint Committee on Intelligence and Security (PJCIS) released their report on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 (the Bill). The report makes 21 recommendations, some of which are discussed below.

Terms of Reference of the Inquiry

 The inquiry was to consider the Counter-Terrorism Legislation Amendment Bill (No.1) 2015, specifically focusing on measures within the bill which:

  • allow a control order to be imposed on persons 14 years and older, with appropriate safeguards;
  • require a person subject to a requirement to wear a tracking device under a control order to take reasonable and specified steps to ensure the tracking device is operational;
  • make less complex the monitoring of individuals subject to control orders through enhanced search, telecommunications interception and surveillance device regimes;
  • provide greater protection to sensitive information in control order proceedings by allowing the court to consider evidence that is not disclosed to the respondent or their legal representative;
  • expand the defence for receiving funds for legal advice and legal representation where there is a question as to whether the organisation is a terrorist organisation;
  • clarify the test for obtaining a preventative detention order;
  • prohibit the advocating of genocide;
  • authorise the disclosure of taxation information to an Australian government agency for the purposes of preventing, detecting, disrupting or investigating conduct related to a matter of security (as defined in the Australian Security Intelligence Organisation Act 1979);
  • enable ASIO to furnish security assessments directly to states and territories; and
  • update the definition of 'advocacy' in the Classification (Publications, Films and Computer Games) Act 1995 to bring it into line with the 2014 (updated) definition of 'advocates' in Part 5.3 of the Criminal Code.

Contents of the Final Report

The Final Report made 21 recommendations with the following being covered:

  • Applying for Control Orders - Recommendations 1-7;
  • Monitoring of persons subject to Control Orders - Recommendations 8-14;
  • Other amendments to the Criminal Code - Recommendations 15-18; and
  • Amendments to other legislation - Recommendations 19-21.

As stated by the Law Council of Australia, in their media release, the recommendations cover varying topics such as:

  • clarifying that the best interests of the young person are to be a ‘primary’ consideration in determining the terms of the control order;
  • clarifying that the parents or guardian of a child are also to be notified of control order applications or variations;
  • expressly providing that a young person has the right to legal representation in control order proceedings;
  • introducing a system of special advocates to represent control order subjects who do not have access to information withheld from them;
  • requiring a minimum standard of information to be disclosed to a control order subject to allow effective instructions to be given in relation to allegations;
  • requiring issuing officers for monitoring powers to have regard to whether the measures constitute the least interference with the liberty or privacy of any person that is necessary in all the circumstances;
  • an additional ‘reckless’ threshold for the offence of advocating genocide and to remove the requirement of ‘public’ advocacy; and
  • enhanced reporting requirements.

Comments on Report Recommendations

 Law Council of Australia President-elect Fiona McLeod SC said issues remained with the legislation:

“The proposed monitoring control order regime would involve significant intrusions into the privacy of individuals, potentially unrelated to the subject of a control order. For example, it may impact on monitoring computers in educational institutions where the privacy of many students may be affected.”

Ms McLeod also highlighted the proposed system of ‘special advocates’ under which a panel of security-cleared barristers and solicitors could act on the subject’s behalf in closed material proceedings: 

“The appointment of the special advocate should be a last resort, where the trial judge is satisfied that no other alternative will adequately meet the interests of fairness to the affected individual. Special advocates must also be appointed under a process that is subject to the full and free discretion of the court.” 

There have also been problems with the validity of the legal advice received in the construction of the bill, and this is highlighted by The Conversation:

"There’s a strong public interest in parliament having access to the government’s legal advice in at least two circumstances. The first is where parliament is asked to pass bills that are of uncertain constitutional validity. Whether a piece of legislation is constitutionally valid or not is ultimately a question for the courts...The second instance where parliament may need access to the government’s legal advice is where it’s exercising its constitutional function of holding the government to account."

It will be interesting to see how the Federal Parliament reacts to these recommendations as they continue to sit during this week.

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