New High Risk Offenders Bill Introduced and General Counter-Terrorism Bill Re-Introduced
Wednesday 21 September 2016 @ 2.21 p.m. | Crime | Legal Research | Immigration
On Thursday (15 September 2016) the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 was introduced into the Senate by the Attorney General Senator George Brandis, along with the re-introduction of the previously lapsed Counter-Terrorism Legislation Amendment Bill (No. 1) 2016 (Lapsed 17 April 2016 on prorogation of 44th Parliament). Both Bills are seen as important parts of the government's approach to terrorism and how to deal with its perpetrators.
The Re-Introduced Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
The Counter-Terrorism Legislation Amendment Bill (No. 1) 2016 (the Re-Introduced Bill) proposes, among other matters, to make amendments to the "control orders scheme", to apply it to young people from the age of 14 years, with some restrictions, and introduces a new offence of advocating genocide. A detailed overview of the Re-Introduced Bill can be found in our articles: Counter-Terrorism Legislation Amendment Bill (No. 1) 2015; the report from the Parliamentary Joint Committee is covered in PJCIS hands down Report on Counter-Terrorism Legislation Amendment Bill (No.1) 2015 and the article Federal Government Will Reintroduce Terrorism Control Order Bill And Discuss Indefinite Detention With States.
In a recent media release (15 September 2016), the Attorney General stated the need for the legislation as being as follows:
"Regrettably, children as young as 14 have been involved in terrorism-related activities. This Bill recognises this reality and the need for appropriate safeguards. It modernises the control order regime by:
- Reducing the age, from 16 to 14, at which a person of security concern can have a control order placed on them
- Creating new targeted physical search, telecommunications interception and surveillance device regimes to help monitor those subject to control orders, and
- Better protecting sensitive information in control order proceedings while ensuring appropriate safeguards, such as providing special advocates when needed.
To address the negative impacts of hate preachers, this Bill criminalises advocating genocide."
The Re-Introduced Bill, according to the Attorney Generals media release, also implements all 21 of the recommendations of the bipartisan Parliamentary Joint Committee on Intelligence and Security (the PJCIS), which reviewed an earlier version of the Re-Introduced Bill (as to which see our previous article). The Re-Introduced Bill and the powers it provides are now seen as even more important in the light of recent violent terrorist events.
The New High Risk Offenders Bill
Essentially, the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 (the High Risk Terrorist Offender Bill) will amend Chapter 5 Part 5.3 of the Criminal Code (Cth) (The Schedule to the Criminal Code Act 1995 (Cth), namely the part of the code which deals with terrorism to establish a scheme for the continuing detention of ". . . high risk terrorist offenders who pose an unacceptable risk to the community at the conclusion of their custodial sentence".
The new regime created by the proposed amendments will enable a State Supreme Court, upon application by the Attorney-General, to make an order for the ongoing detention of high risk terrorist offenders who are approaching the end of their custodial sentences and are about to be released into the community. In granting the order, the court must be satisfied: ". . . to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptably high risk of committing a serious terrorism offence if released".
In introducing the High Risk Terrorist Offender Bill, the Attorney General indicated that the proposed measures in the High Risk Terrorist Offender Bill ". . . incorporates an additional tool into Australia’s comprehensive national security framework and responds to the ongoing threat terrorism poses to Australia and its people".
In his media release of (15 September 2016), the Attorney General described the threat of re-offending posed by a convicted terrorist as being analogous to that posed by high risk sex offenders and violent offenders and therefore, requiring similar measures to deal with them:
"Since the national terrorism threat level was raised on 12 September 2014, 48 people have been charged as a result of 19 counter-terrorism operations around Australia. A critical part of our role is managing terrorist offenders serving custodial sentences who continue to pose an unacceptable risk to the community after they are released from prison. . . . Most states and territories have already enacted post-sentence preventative detention schemes for dealing with high risk sex or violent offenders, but until now, there has been no such scheme for convicted terrorist offenders."
The Attorney indicated in his media release that the High Risk Terrorist Offender Bill was a response arising from the Council of Australian Governments (the COAG) agreement in April 2016 that ". . . the Commonwealth should lead in creating this nationally consistent scheme" and that the State and Territory Attorneys-General had agreed in principle to the Commonwealth’s draft Bill on 5 August 2016, and continued to work with the Commonwealth on implementing the proposed changes. The Attorney General said further in his media release:
"The states and territories are our partners in tackling the threats of terrorism and I thank them for their cooperation and support. . . It is critical we work together to implement this scheme as early as possible."
Reaction and Next Steps
In general, reaction to the latest batch of counter-terrorism measures has been supportive, with the Law Council of Australia (the LCA) being reported as commending the government for taking a stronger stance on terrorism, even though it was with the proviso that ". . . further parliamentary scrutiny is necessary".
That further parliamentary scrutiny has already begun with the High Risk Terrorist Offenders Bill being referred to the PJCIS who have invited submissions and require indication of intention to make a submission by Friday 23 September 2016 and actual submissions no later than Wednesday, 12 October 2016. Public hearing are to be held on Friday, 14 October 2016 and the PJCIS been asked to report by 4 November 2016.
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Sources:
Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 and Counter-Terrorism Legislation Amendment Bill (No. 1) 2016 and explanatory material as reported in the TimeBase LawOne Service
Two bills to bolster the fight against terrorism (AG's Media Release)
Media release - High Risk Terrorist Offenders Bill under scrutiny (PJCIS Media Release)
