The declassified 191 page Annual Report [
PDF] to December 2012 of Australia's Independent National Security Legislation Monitor
reviews the appropriateness and effectiveness of Australia's national security legislation, focusing on the legal definition of terrorism and on controversial powers such as control orders, preventative detention and coercive questioning.
Key findings are -
- control orders [CO] in their present form are not effective, not appropriate and not necessary. It suggests that they may be effective, would be appropriate and might be regarded as necessary in the case of persons already convicted of terrorist offences whose dangerousness at the expiry of their sentences of imprisonment can be shown.
Chapter II
- the preventative detention orders are not effective, not appropriate and not necessary. They should simply be abolished.
Chapter III
- questioning warrants [QW] are sufficiently effective to be appropriate, and in a relevant sense necessary. They might be more readily available than the legislation currently provides. The Monitor rejects the criticism that questioning warrants are an unjustified infringement of liberty.
Chapter IV
- questioning and detention warrants are an unnecessary extension of questioning warrants. But the reasoning for that conclusion does not suggest detention for the purposes of questioning is wrong. Rather, it is appropriately and proportionately comprehended within the counter-terrorism laws provisions for questioning warrants.
Chapter V
- Chapter VI proposes improvements to Australia’s definition of terrorism. The current requirement for the separate proof of a political, religious or ideological motivation in order that a person be guilty of a terrorist offence is not effective, not appropriate and not necessary. Indeed, it may be counter-productive.
Specific recommendations are
R II/1: If COs are to be retained in general, the onus of showing
that grounds exist and, if challenged, that they existed when a CO was first made,
should clearly be imposed on the authorities applying for confirmation of an
interim CO.
R II/2: If COs are to be retained in general, the prerequisites for
making an interim CO, including on an urgent basis, should include satisfaction
that proceeding ex parte is reasonably necessary in order to avoid an unacceptable
risk of a terrorist offence being committed were the respondent to be notified
before a CO is granted.
R II/3: If COs are to be retained in general, the provisions
governing confirmation hearings should expressly impose, perhaps by a
presumption, the onus on the AFP to show the CO should continue in force.
R II/4: The provisions of Div 104 of Part 5.3 of the Code should
be repealed. Consideration should be given to replacing them with Fardon type
provisions authorizing COs against terrorist convicts who are shown to have been
unsatisfactory with respect to rehabilitation and continued dangerousness.
III/1: If PDOs are to be retained in general, the threshold tests
for them should require both the AFP applicant and issuing authority to hold an
actual belief as to the prerequisite matters as well as the grounds for that belief
being reasonable.
R III/2: If PDOs are to be retained in general, the imminence test
should be replaced with a requirement that the AFP applicant and issuing authority
are each satisfied that there is a sufficient possibility of the terrorist act occurring
sufficiently soon so as to justify the restraints imposed by the PDO.
R III/3: If PDOs are to be retained in general, the necessity
requirement in para 105.4(6)(b) should be amended to require that it be
“reasonably necessary to detain the subject to preserve evidence of, or relating to,
the terrorist act”.
R III/4: The provisions of Div 105 of Part 5.3 of the Code should
be repealed.
R IV/1: The issuing authority as well as the Attorney-General
should be required to consider all the prerequisites for the issue of QWs, rather
than the issuing authority taking the consent of the Attorney-General as conclusive
of some of them.
R IV/2: The QW provisions should be amended to include a
requirement that the prescribed authority must be satisfied on reasonable grounds
that any extension of time granted on account of the use of an interpreter is no
more than could reasonably be attributable to the use of the interpreter during
questioning given the circumstances of the individual case.
R IV/3: The requirement in subpara 34V(3)(b)(ii) of the ASIO
Act that there be no alternative way of taking a person into custody should be
removed.
R IV/4: The length of imprisonment for offences of deliberate
contravention of safeguards in relation to QWs should be amended to be at
parity with the length of imprisonment for offences against secrecy obligations in
relation to QWs.
R IV/5: The length of imprisonment for offences against secrecy
obligations in relation to QWs should be reduced to 2 years.
R IV/6: The offence of failing to produce a record or thing
should be amended to include the wilful destruction of a record or thing as well
as tampering with a record or thing with the intent to prevent it from being
produced, or from being produced in a legible form.
R IV/7: The QW provisions should be amended to make clear
that a person who has been charged with a criminal offence cannot be subject to
questioning until the end of their criminal trial.
R IV/8: ASIO should provide additional guidance and information
to those officers involved in the preparation of QW reports to ensure the reports
include a full assessment of the overall intelligence value of the information
obtained through the use of QWs.
R V/1: The provisions of Subdiv C in Div 3 of Part III of the ASIO
Act should be repealed.
R V/2: The QW provisions should be amended to permit arrest
if the police officer serving the warrant believes on reasonable grounds from
anything said or done by the person served that there is a serious possibility
that he or she intends not to comply with the warrant, and also to permit the
prescribed authority to direct detention after service of a QW but before the time
specified in it for attendance if it appears on reasonable grounds that there is an
unacceptable risk of the person tipping off another involved in terrorism, failing to
attend or destroying or tampering with evidence.
R VI/1: Motivation should be removed as an element of the
defined term “terrorist act” in the Code.
R VI/2: Hostage taking should be expressly included in Australia’s
definition of “terrorist act” in the Code.
R VI.3: Acts committed during an armed conflict governed by
international law should be excluded from the definition of “terrorist act” in the
Code.
The 218 page final report of the Council of Australian Governments (COAG) review of Counter-Terrorism Legislation meanwhile recommends
R 1: Criminal Code – Section 100.1 – Definition of a terrorist act –
‘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.
R 2: Criminal Code – Section 100.1 – Definition of a terrorist act –
‘hoax threat’
The Committee recommends that an additional offence be inserted into Part 5.3 of the Criminal
Code to provide for a ‘hoax threat’ to commit an act of terrorism.
R 3: Criminal Code – Section 100.1 – Definition of a terrorist act –
meaning of ‘harm’
The Committee recommends that ‘harm’ in subsection 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 subsection 100.1(3)(b)(i).
R 4: Criminal Code – Section 100.1 – Definition of a terrorist act –
‘hostage taking’
The Committee recommends that ‘hostage-taking’ be included in subsection 100.1(2).
R 5: Criminal Code – Section 100.1 – Definition of a terrorist act –
United Nations and its agencies
The Committee recommends that subsection 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.
R 6: Criminal Code – Section 100.1 – Definition of a terrorist act –
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.
R 7: Criminal Code – Section 100.1 – Definition of a terrorist act –
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.
R 8: Criminal Code – Section 101.2 – Providing or receiving training
connected with terrorist acts
The Committee does not recommend any change to this section.
R 9: Criminal Code – Section 101.4 – Possessing things connected with
terrorist acts
The Committee recommends that section 101.4 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.
R 10: Criminal Code – Section 101.5 – Collecting or making documents
The Committee recommends that section 101.5 be amended to make it 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.
R 11: Criminal Code – Section 101.6 – Doing an act in preparation for,
or planning, a terrorist act
The Committee does not recommend any change to this section.
R 12: Criminal Code – Section 102.1 – Proscription of terrorist
organisations
The Committee does not recommend that the present method of proscription of a terrorist
organisation be changed.
R 13: Criminal Code – Subsection 102.1(1A) – Definition of ‘advocates’
The Committee recommends that subsection 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.
R 14: Criminal Code – Section 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.
R 15: Criminal Code – Communication of proscription decisions
The Committee recommends that the Attorney-General’s Department should consider whether it
is able to enhance its communication methods to ensure that communities are more effectively
notified when an organisation has been proscribed. Such methods should be effectively responsive
and personal to the specific information needs of ethnic and religious communities.
R 16: Criminal Code – Section 102.5 – Training unconnected with
terrorist activities
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 a terrorist act.
R 17: Criminal Code – Section 102.5 – ‘Participation’ in training
The Committee recommends the offence in section 102.5 be amended to include
‘participation’ in training.
R 18: Criminal Code – Section 102.5 – Strict liability in respect of
proscribed terrorist organisations
The Committee recommends the repeal of subsections 102.5(2) – (4).
R 19: Criminal Code – Subsection 102.6(3) – Reduction of the burden
on the defendant
The Committee recommends that the legal burden in the note in subsection 102.6(3) be reduced to
an evidential one.
R 20: Criminal Code – Subsection 102.6(3) – Exception for lawyers’
receipt of funds from a terrorist organisation
(i) The Committee recommends subsection 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 in
connection with criminal proceedings or proceedings relating to criminal proceedings (including
possible criminal proceedings in the future) and in connection with civil proceedings of the
following kind:
(ii) Proceedings relating to whether the organisation in question is a terrorist organisation,
including the proscription of an organisation, a review of any proscription, or the de-listing of an
organisation; or
(iii) A decision made or proposed to be made under Division 3 of Part III of the Australian
Security Intelligence Organisation Act 1979 (Cth), or proceedings relating to such a decision or
proposed decision; or
(iv) A listing or proposed listing under section 15 of the Charter of the United Nations Act 1945
(Cth) 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
(v) Proceedings conducted by a military commission of the United States of America or any
proceedings relating to or arising from such a proceeding; or
(vi) 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 a passport or other
travel document that was, or would have been, issued by or on behalf of the government of a
foreign country).
R 21: Criminal Code – Section 102.6 – Penalty for knowingly funding a
terrorist organisation
The Committee recommends that the penalty for an offence under subsection 102.6(1) be reduced
to 15 years.
R 22: Criminal Code – Section 102.6 – Penalty for recklessly funding a
terrorist organisation
The Committee recommends that the penalty for an offence under subsection 102.6(2) be reduced
to 10 years.
R 23: Criminal Code – Section 102.8 – Associating with terrorist
organisations
The Committee, by majority, recommends the repeal of this section.
R 24: Criminal Code – Section 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:
(i) Providing or collecting 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 or collecting funds reckless to their use in facilitating or allowing engagement
in a terrorist act. ‘Recklessness’ for this purpose is defined in section 5.4 of the Criminal Code.
The Committee recommends this offence attract a maximum penalty of 25 years.
R 25: Criminal Code – Section 103.2 – Financing a terrorist
The Committee recommends that consideration be given to the repeal of this section.
R 26: Criminal Code – Retention of control orders
The Committee considers that the control order regime should be retained with additional
safeguards and protections included.
R 27: Criminal Code – Control orders – Basis for seeking
Attorney-General’s consent
The Committee recommends the amendment of subsection 104.2(2) (b) to require that the second
basis on which a senior member of the Australian Federal Police 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”.
R 28: Criminal Code – Control orders – 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’.
R 29: Criminal Code – Control orders as a last resort – Cooperation and
information sharing between the Australian Federal Police and the Commonwealth Director
of Public Prosecutions
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.
R 30: Criminal Code – Control orders – Special Advocates
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.
R 31: Criminal Code – Control orders – Minimum standard of
disclosure of information to controllee
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.
R 32: Criminal Code – Control orders – 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.
R 33: Criminal Code – Control orders – Relocation condition
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.
R 34: Criminal Code – Control orders – Curfew condition
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.
R 35: Criminal Code – Control orders – Communication restrictions
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.
R 36: Criminal Code – Control orders – Limit on duration
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.
R 37: Criminal Code – Control orders – Terms of an interim control order
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.
R 38: Criminal Code – Control orders – Oversight by the
Commonwealth Ombudsman
The Committee recommends that the Commonwealth Ombudsman be empowered specifically to
provide general oversight of interim and confirmed control orders.
R 39: Criminal Code – Preventative Detention
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, may further
reduce its operational effectiveness.
R 40: Administrative Decisions (Judicial Review) Act 1977 – Schedule 1
Exemptions from review
The Committee recommends that paragraph (dab) be retained. If preventative detention remains,
the Committee recommends that paragraph (dac) be removed.
R 41: Section 6 Crimes (Foreign Incursions and Recruitment) Act 1978 –
Hostile activities in foreign States
The Committee recommends an amendment to subsection 6(1)(a) to remove the need to prove an
intention to engage in hostile activity in a particular foreign State.
R 42: Section 16 Financial Transaction Reports Act 1988
The Committee does not recommend any change to this provision.
R 43: Crimes Act 1914 – Federal stop, search and seizure powers –
Emergency entry without a warrant
The Committee recommends that the legislation be amended to require the police authorities
exercising power under section 3UEA to report annually to the Commonwealth Parliament on the
use of this power.
