Commonwealth Introduces Counter-Terrorism Legislation

On Thursday (24 May 2018) Mr Porter, the Commonwealth Attorney-General ("the AG"), introduced the  Counter-Terrorism Legislation Amendment Bill (No. 1) 2018 (Cth) ("the Bill") in the House of Representatives. In his second reading speech, the Attorney-General indicated that the Australian government was committed to ensuring the safety and protection of the Australian community and that for this to be achieved law enforcement and security agencies had to have access to the "tools and capabilities that they need to manage the ever-evolving terrorist threat" and that:

About the Bill

Generally, the Bill extends the operation of a range of critical counter-terrorism provisions in the Criminal Code Act 1995 (Cth) ("the Criminal Code"), the Crimes Act 1914 (Cth) ("the Crimes Act") and the Australian Security Intelligence Organisation Act 1979 (Cth) ("the ASIO Act") to ensure that law enforcement and security agencies continue to have access to these provisions to respond to the ongoing threat of terrorist activities in Australia.

The Bill proposes to extend for a further three years the following regimes which are scheduled to sunset on 7 September 2018 (the counter-terrorism provisions):

• the control order regime in Division 104 of the Criminal Code
• the preventative detention order (PDO) regime in Division 105 of the Criminal Code
• the declared areas provisions in sections 119.2 and 119.3 of the Criminal Code, and
• the stop, search and seize powers in Division 3A of Part IAA of the Crimes Act.

As part of the extension of these counter-terrorism provisions, the Bill also follows up on recent reviews of the provisions and implements the Government’s response to the recommendations of these reviews carried out by the Parliamentary Joint Committee on Intelligence and Security ("PJCIS") and the Independent National Security Legislation Monitor ("INSLM").

The Bill makes a minor amendment to Part 5.3 of the Criminal Code to reflect the new division of responsibilities between the Attorney-General and the Minister Australian Federal Police (AFP) (namely, the Minister for Home Affairs following on the establishment of the new Home Affairs portfolio). The amendment deals with the role of the AG and the AFP Minister in the protection of sensitive information under the CDO regime in Division 105A of the Criminal Code.

Key Amendments to Specific Acts

Following are the key changes to relevant Acts:

The Administrative Decisions (Judicial Review) Act 1977 is amended to exclude from review under that Act, the decision of a senior Australian Federal Police ("AFP") member in relation to consent for the purposes of applications to vary interim control orders.

The Criminal Code Act 1995 is amended to:

• extend the operation of the control order regime in Division 104 for a further three years
• allow an issuing court to vary an interim control order where there is agreement to a variation between the AFP and the subject of the control order ("controlee")
• clarify the evidential weight that the issuing court must give to an original request for an interim control order during the confirmation proceedings
• extend the minimum period between the date the interim control order is made, and the date of the confirmation proceedings, from 72 hours to seven days
• insert a requirement that the issuing court cannot make cost orders against the subject of a a controlee except in limited circumstances where  the controlee has acted unreasonably in conducting the control order proceedings
• extend the operation of the preventative detention order (PDO) regime in Division 105 for a further three years
• introduce a requirement that a senior AFP member must notify the PJCIS, as soon as reasonably practicable, after an initial or continued PDO is made, and after a prohibited contact order (PCO) is made;
• extend the operation of the declared areas provisions in sections 119.2 and 119.3 for a further three years
• create an exception to the declared areas offence for individuals performing an official duty for the International Committee of   the Red Cross (ICRC)
• amend the declared areas provisions to allow the Minister for Foreign Affairs to revoke a declaration at any time prior to the expiry of the declaration, when he or she considers the declaration is no longer necessary
• amending the declared areas provisions to allow the PJCIS to review a declaration at any time during which the declaration is in   effect and to table a report in the Houses of Parliament following its review.

The Crimes Act 1914 is amended to:

• extend the operation of stop, search and seize powers in Division 3A of Part IAA for a further three years;
• introduce a requirement that the Commissioner of the AFP must provide the Minister, the INSLM and the PJCIS with a copy of a report into the exercise of powers under Division 3A of Part IAA as soon as practicable after those powers are exercised, and
• introduce a requirement that the responsible Minister must report annually to Parliament on the exercise of any powers under Division 3A.

The Australian Security Intelligence Organisation Act 1979 is amended to extend the operation of Division 3 of Part III to provide for the continuation of the questioning and questioning and detention warrant regime for a further 12 months.

The Intelligence Services Act 2001 is amended to:

• insert a requirement for the PJCIS to review the operation, effectiveness and implications of the control order regime, the PDO regime and the declared areas provisions in the Criminal Code, and the stop, search and seize powers in the Crimes Act ahead of their future sunset date, and
• introduce a new oversight role for the PJCIS to monitor and review the performance by the AFP of its functions under Division 3A of Part IAA of the Crimes Act, and the basis of the Minister’s declaration of a prescribed security zone under section 3UJ of the Crimes Act.  

Status

The Bill is currently being debated in the House of Representatives.

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Counter-Terrorism Legislation Amendment Bill (No. 1) 2018 (Cth) and supporting explanatory materials as reported in the TimeBase LawOne Service.