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National Security Legislation Amendment Bill 2010 and Parliamentary Joint Committee on Law Enforcement Bill 2010

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National Security Legislation Amendment Bill 2010 and Parliamentary Joint
Committee on Law Enforcement Bill 2010

Australian Human Rights Commission Submission to the Senate Legal and
Constitutional Affairs Committee

6 May 2010

Table of Contents


1 Introduction

  1. The Australian Human Rights Commission (the Commission) makes this
    submission to the Senate Legal and Constitutional Affairs Committee in its
    Inquiry into the National Security Legislation Amendment Bill 2010 (the Bill)
    and the Parliamentary Joint Committee on Law Enforcement Bill 2010.

  2. The Commission is established by the Australian Human Rights Commission
    Act 1986     (Cth) and is Australia’s national human rights institution.

  3. Governments have an obligation to enact counter-terrorism measures to
    protect the community. However, where these measures impact upon human rights
    and fundamental freedoms, they must be necessary and proportionate to their
    goal.

  4. The Commission remains concerned that some provisions in the existing
    national security legislation regime undermine human rights. The Bill fails to
    deliver a comprehensive response to the following five separate parliamentary
    reviews of these provisions:

    • The inquiry of the Hon John Clarke QC into the case of Dr Mohamed Haneef
      (the Clarke Report);[1]

    • The Report of the Security Legislation Review Committee (the Sheller
      Report);[2]

    • The inquiry of the Parliamentary Joint Committee on Intelligence and
      Security into the proscription of ‘terrorist organisations’ (the
      PJCIS Proscription Report);[3]

    • The Parliamentary Joint Committee on Intelligence and Security review of
      security and counter-terrorism legislation (the PJCIS Review
      Report);[4] and

    • The Australian Law Reform Commission’s review of sedition laws in
      Australia (the ALRC Report).[5]

  5. While the Commission welcomed the opportunity to contribute to the
    Attorney-General’s Department 2009 National Security Legislation
    Discussion Paper (AGD discussion
    paper)[6], the Explanatory Memorandum
    to the Bill contains limited explanation for the legislative choices evident in
    the Bill. Further, there appears to be little movement from the position
    proposed in the AGD discussion paper despite the number of submissions
    received outlining concerns with the
    proposals.[7]

  6. The Commission therefore urges the Committee to seize this opportunity to
    ensure the Bill amends the national security legislation regime so that it is a
    more effective and proportionate response to the threat of terrorism in
    Australia.

  7. The Commission notes that the Bill has been referred to the Committee for
    inquiry because:

    A thorough examination is required of what
    adjustments have been made. The process of reviewing and amending these laws
    needs to contrast starkly with the undue haste with which the anti-terrorism
    laws were passed in the highly politically charged post-September 11
    environment. An inquiry into the changes offers an opportunity to examine if the
    laws remain necessary, effective and proportional to the extant
    threat.[8]

  8. While the Commission supports many of the Bill’s proposed amendments,
    in the Commission’s view the Bill does not go far enough to restore the
    balance between the protection of national security and the protection of basic
    human rights, such as liberty, which are fundamental to our democracy.

  9. Further, the Commission is particularly concerned that the Bill yet again
    increases the broad powers available to police to investigate terrorism
    offences.

2 Summary

  1. The Commission’s submission focuses on the human rights implications
    of the Bill’s proposals to:

    • Amend the pre-charge detention regime (sch 3 of the Bill);

    • Insert a right of appeal in the bail provisions (sch 6 of the Bill);

    • Broaden police search powers (sch 4 and 5 of the Bill);

    • Amend the treason & urging violence offences (sch 1 of the Bill);
      and

    • Amend the terrorism organisation offences (sch 2 of the
      Bill).

  2. The Commission also notes that many of the proposed amendments to the
    terrorist organisation offences discussed in the AGD discussion paper have not
    been included in the Bill.

  3. The submission therefore sets out the Commission’s concern that the
    terrorist organisation offences in the national security legislation regime
    remain problematic and in need of urgent reform.

  4. The submission also highlights:

    • Concerns in relation to the Parliamentary Joint Committee on Law Enforcement
      Bill 2010 establishing the Parliamentary Joint Committee on Law Enforcement;
      and

    • Significant aspects of the national security legislation regime that should
      be scheduled for urgent review.

3 Recommendations

The Commission recommends:

Recommendation 1:

  • Repeal proposed ss 23DB(9)(m) and as a consequence, also repeal ss 23DB(11),
    23DC and 23DD;
  • Repeal proposed s 23DB(9)(f), (g), (h), (i) and (k); and
  • Amend proposed s 23DF(7) so that the maximum time an investigation can be
    extended by is four days subject to any further time as required by the court to
    dispose of an application under ss 23DE, 23WU or 23XB.

Recommendation 2: Alternatively, if the Committee recommends
that s 23DB(9)(m) be repealed but s 23DB(9)(f), (g), (h), (i) and (k) be
retained, the maximum time for an extension of the investigation period under
proposed s 23DF(7) should be no more than three days.

Recommendation 3: Alternatively, if proposed s 23DB(9)(m) is retained,
it should be capped under proposed s 23DB(11) at no more than 48 hours.

Recommendation 4: Amend proposed ss 23DC(4) or 23DE(3) to include
as a requirement that an investigating official include a statement about the
steps taken to progress the investigation.

Recommendation 5: Delete proposed ss 23DC(5) and 23DE(4). The
Commission notes that to address any national security concerns, a Magistrate
could have the discretion to withhold any sensitive information identified in
these provisions from a detainee and their legal representative.

Recommendation 6: Delete proposed s 23DC(4)(e)(i) of the Crimes Act 1914 (Cth).

Recommendation 7: Amend s 23DB(2)(b) to refer to a ‘belief on
reasonable grounds’ and insert a clause that amends s 23C(2)(b) to also
refer to ‘belief on reasonable grounds’.

Recommendation 8: Repeal s 15AA of the Crimes Act 1914 (Cth) or define ‘exceptional circumstances’.

Recommendation 9: Amend proposed s 3UEA of the Crimes Act 1914 (Cth) as follows:

  • Change ‘suspects’ in sub-s (1) to ‘believes’;
  • Delete sub-ss (3) and (4); and
  • In sub-s (5):
    • Change ‘suspects’ to ‘believes’;
    • Insert the words ‘reasonably necessary’ after
      ‘anything’; and
    • Amend (a) to read ‘in order to protect a person from a
      serious and imminent threat to a person’s life, health and safety’.

Recommendation 10: Include an ex post facto
warrant procedure in proposed s 3UEA of the Crimes Act 1914 (Cth).

Recommendation 11: Amend s 3UF(3) of the Crimes Act 1914 (Cth) to ensure a seizure receipt includes a description of any items
taken from the premises (rather than from a person) or destroyed or damaged on
the premises where relevant to a particular search.

Recommendation 12: Amend proposed s 3UEA of the Crimes Act
1914 (Cth) to include a system of authorisation and supervision by police
officers with the rank of Superintendent or above.

Recommendation 13: Amend sch 5 of the Bill as follows:

  • Delete proposed s 3J(2)(aa) of the Bill.
  • In proposed s 3JA(c), change ‘12 hour period mentioned in paragraph
    3J(2)(aa)’ to ‘one hour period mentioned in 3J(2)(a)’.
  • Amend proposed s 3JA(3) so that it reads:

(3) If an application
mentioned in subsection (1) has been made, an issuing officer may extend the
period during which the executing officer and constables assisting may be away
from the premises

(a) for not more than 12 hours if there is an emergency situation and an
issuing officer is satisfied by information on oath or affirmation that because
of the emergency situation, the constables assisting will not be able to return
to the premises within 1 hour; or

(b), a period longer than 12 hours if there is an emergency situation and an
issuing officer is satisfied by information on oath or affirmation, that there
are exceptional circumstances that justify a period longer than 12 hours.

(4) an issuing officer can grant more than one application to extend the
period during which the executing officer and constables assisting may be away
from the premises under subsection (3) provided any one extension would not
result in the period ending after the expiry of the warrant.

Recommendation 14: Applications to the issuing officer under proposed
s 3JA(3) of the Crimes Act 1914 (Cth) should be kept in a register
and made available for inspection to the proposed Parliamentary Joint Committee
on Law Enforcement.

Recommendation 15: Insert a provision into the Bill or the
Parliamentary Joint Committee on Law Enforcement Bill 2010, which provides the
Parliamentary Joint Committee on Law Enforcement with a specific function to
review and report on the exercise of police powers under proposed ss 3UEA,
3J(2)(a) and 3JA of the Crimes Act 1914 (Cth).

Recommendation 16: Insert a clause similar to proposed
s 80.1AA(1)(f) and (4)(e) into s 80.1 of the Criminal Code.

Recommendation 17: Insert a new sub-s (2A) into s 80.1AA of
the Criminal Code (Cth) that requires an announcement in all national
media outlets that a proclamation referred to in s 80.1AA(2) has been made
as soon as reasonably practicable after a proclamation has been made.

Recommendation 18: Relocate proposed ss 80.2A(2) and 80.2B(2) into ch
9 of the Criminal Code, entitled ‘Dangers to the Community’.

Recommendation 19: Replace the term ‘urges’ in proposed ss
80.2A(2) and 80.2B(2) of the Criminal Code (Cth) with
‘incites’.

Recommendation 20: Amend ss 80.2A(2) and 80.2B(2) of the Criminal
Code (Cth) to replace the element that ‘the first person does so
intending that force or violence will occur’ with the element ‘that
the force or violence is reasonably likely in the circumstances’.

The Commission notes that this recommendation could be applied to s 80.2 as
well as proposed ss 80.2A(1) and 80.2B(1).

Recommendation 21: Implement recommendation 12-2 of the ALRC Report by
either:

a) inserting new ss 80.2A(6) and 80.2B(4A) into the Criminal Code (Cth) as follows:

When determining whether a person intentionally urges another person or group
to use force or violence against a group, the court may have regard to any
relevant matter, including whether the acts were done

(a) in the development, performance, exhibition or distribution of an
artistic work; or

(b) in the course of any statement, publication, discussion or debate made or
held for any genuine academic, artistic or scientific purpose or any other
genuine purpose in the public interest; or

(c) in the dissemination of news or current affairs.

The Commission notes that the same provision could be used for determining
whether a person ‘intends force or violence to occur’.

b) Alternatively, if the Committee recommends including an element that
‘the force or violence is reasonably likely to occur in the
circumstances’ in ss 80.2A and 80.2B of the Criminal Code, then
including the following paragraph:

These circumstances may include:

(a) whether the acts were done in the development, performance, exhibition or
distribution of an artistic work; or

(b) whether the acts were done in the course of any statement, publication,
discussion or debate made or held for any genuine academic, artistic or
scientific purpose or any other genuine purpose in the public interest; or

(c) whether the acts were done in the dissemination of news or current
affairs.

These recommendations could also be applied to s 80.2 as well as proposed
ss 80.2A(1) and 80.2B(1).

Recommendation 22: If Recommendation 21 is accepted, proposed s
80.3(3) of the Criminal Code (Cth) should not apply to proposed
ss 80.2, 80.2A and 80.2B of the Criminal Code.

Recommendation 23: Delete proposed ss 80.2A(1) and 80.2B(1) of the Criminal Code (Cth).

Recommendation 24: Remove from the Bill proposed s 102.1.3 of the
Criminal Code. Amend s 15A of the Charter of the United Nations Act 1945 (Cth) to provide for a two year review. Allow both of these decisions to be
reviewable under the Administrative Appeals Tribunal Act 1975 (Cth).

Recommendation 25: Remove the term ‘indirectly’ from
s 102.1(1A)(a) and (b) of the Criminal Code.

Recommendation 26: Insert a definition into the Criminal Code (Cth) that defines when an organisation and not just one of its members is
‘advocating’.

Recommendation 27: Insert a subsection that states an organisation
advocates the doing of a terrorist act only if it does one of the acts in
s 102.1(1A) (a) or (b) intending its advocacy to persuade others to do
terrorist acts.

Recommendation 28: Repeal s 102.1(1A)(c) of the Criminal Code.

Recommendation 29: Remove the term ‘indirectly’ from
s 9A(2) and repeal s 9A(2)(c) from the Classification
(Publications, Films and Computer Games) Act 1995 (Cth).

Recommendation 30: Remove ‘threat of action’ from the
definition of ‘terrorist act’ in s 100.1 of the Criminal
Code.

Recommendation 31:

(a) Scrutinise the Government’s position in relation to not being able
to amend s 102.7 of the Criminal Code (Cth) without the States amending
their referral legislation;

(b) If the Committee is satisfied that an amendment to the States referral
legislation is not required, the Committee recommend that s 102.7 of the Criminal Code (Cth) be amended as follows:

    • Clarify that the support provided must be ‘material’ and that
      the material support must be provided by the person with the ‘intention
      that the support helps the organisation engage in a terrorist act’.
    • Define the term ‘support’ to exclude the publication of views
      that appear to be favourable to a terrorist organisation and its stated
      objectives.

Recommendation 32: Amend s 102.5 of the Criminal Code (Cth) in accordance with the recommendations of the Sheller
Committee and the PJCIS Review:

  • Define ‘training’ to mean training that is connected with a
    terrorist act or that training that could reasonably prepare the organisation or
    person receiving the training, to engage in, or assist with, a terrorist act;
    and
  • Repeal the element of strict liability in sub-s
    (3).

Recommendation 33: Repeal ss 102.5(1)(c) and (4) of
the Criminal Code (Cth) and replace them with the following:

At the time of providing the training:

  • the person has knowledge that the organisation is a terrorist
    organisation; and
  • either the person providing the training intends that the person
    receiving the training will commit a terrorist act; or the person receiving the
    training intends to commit a terrorist act.

Recommendation 34: Refer the offences of membership, funding and financing of terrorist
organisations to the Legislation Monitor for review as a matter of urgency.

Recommendation 35: Amend proposed s 7 of the Parliamentary Joint
Committee on Law Enforcement Bill 2010 to include the specific function of
monitoring and reporting on how the exercise of any national security
legislation powers interferes with human rights.

Recommendation 36: Repeal ss 8(2)-(6) and 9(2)-(6) of the
Parliamentary Joint Committee on Law Enforcement Bill 2010 and replace with
provisions that penalise members and staff of the PJC Committee for disclosing
any sensitive information.

Recommendation 37: Remove subs-s (h) and (k) from the definition of
‘sensitive information’ in proposed s 3 of the Parliamentary Joint
Committee on Law Enforcement Bill 2010.

Recommendation 38: Insert a provision into the Bill that refers the
below provisions to the Legislation Monitor for review:

  • Preventative detention orders – proposed to be reviewed by the Council
    of Australian Governments
    (COAG);[9]
  • Control orders - proposed to be reviewed by
    COAG;[10]
  • Police powers to stop, search and seize in ‘prescribed security
    zones’ and Commonwealth places - proposed to be reviewed by
    COAG;[11] and
  • Proscription of terrorist organisations – proposed to be reviewed by
    COAG.

4 Pre-Charge
detention

4.1 Time limits

(a) The current regime

  1. As highlighted by the Clarke Report, pt IC of the Crimes Act 1914 (Cth) (Crimes Act) currently provides the Australian Federal Police
    (AFP) with the power to arrest and detain a person, without a warrant, for an
    indefinite period of time, while the AFP investigates whether the person
    committed a terrorism offence.

  2. Under this regime, Dr Haneef was detained for 12 days without
    charge.[12]

  3. The current regime operates by providing that a person can be arrested for a
    terrorism offence until the ‘investigation period’
    expires.[13] The default
    investigation period for terrorism offences is 4
    hours.[14]

  4. There are two separate mechanisms for extending the ‘investigation
    period’.

  5. The first mechanism is the ‘extension of investigation
    mechanism’. Under this mechanism, applications can be made to a judicial
    officer to extend the investigation period, any number of times, to a total
    period of 20 hours.[15]

  6. The second mechanism is the ‘disregarded time mechanism’. This
    second mechanism allows for both:

    • Certain specified time to be disregarded when calculating the investigation
      period[16] (specified disregarded
      time); and

    • Applications to be made to a judicial officer to authorise further time that
      may be disregarded from the investigation
      period[17] (unspecified disregarded
      time).

  7. There is currently no limit to the amount of time which can be disregarded
    from the investigation period nor is there any limit on the number of times an
    application to disregard time from the investigation period can be made.

  8. The current regime in pt IC, div 2 of the Crimes Act is complex and, as
    demonstrated by the Clarke Report’s findings, causes police officers
    considerable practical
    difficulties.[18]

(b) Changes proposed by
the Bill

  1. Item 16 of schedule 3 of the Bill proposes to insert s 23DB(11) into the
    Crimes Act. This proposed subsection will cap at 7 days the period that may be
    authorised under the unspecified disregarded time mechanism in proposed
    s 23DB(9)(m).

  2. This will set the limit on the maximum length of detention at 8
    days[19] plus any further time
    disregarded under the specified disregarded time mechanism in proposed s
    23DB(9)(a)-(l) of the Crimes Act.

(c) Human rights
concerns

  1. The Commission recognises that the Government has created counter- terrorism
    offences in furtherance of its duty to protect citizens from violence and to
    protect citizens’ right to
    security.[20]

  2. The Commission also acknowledges that investigation of terrorism offences
    may raise particularly complex issues as well as practical difficulties, such as
    where events are international in their scope.

  3. However, where measures adopted by Governments to pursue a legitimate public
    purpose or to protect rights interfere with other rights, there must be careful
    scrutiny of the measures to ensure they are proportionate, justified and the
    least restrictive on these other human rights.

  4. Of particular concern in relation to the power to detain a person prior to
    being charged is the right not to be arbitrarily detained under art 9(1) of the International Covenant on Civil and Political Rights (ICCPR).[21] In order to avoid a
    violation of this right, the length of time for which a person can be detained
    must be necessary, limited and
    proportionate.[22]

  5. Further, art 9(3) of the ICCPR specifically provides:

    Anyone
    arrested or detained on a criminal charge shall be brought promptly before a
    judge or other officer authorized by law to exercise judicial power and shall be
    entitled to trial within a reasonable time or to release.

  6. The Human Rights Committee has commented:

    Paragraph 3 of article
    9 requires that in criminal cases any person arrested or detained has to be
    brought ‘promptly’ before a judge or other officer authorized by law
    to exercise judicial power. More precise time-limits are fixed by law in most
    States parties and, in the view of the Committee, delays must not exceed a few
    days.[23]

  7. Pre-trial detention should be an exception and as brief as possible. While
    each case will ultimately depend on its particular facts, a delay of more than a
    few days in bringing a person before a judge or other judicial officer is likely
    to breach art 9(3) of the ICCPR unless the detention can be justified as
    necessary.[24]

  8. Article 5.3 of the European Convention on Human Rights (ECHR)
    protects liberty in similar terms to art 9(3) of the ICCPR. It
    provides:

    Everyone arrested or detained in accordance with the
    provisions of paragraph 1.c of this Article shall be brought promptly before a
    judge or other officer authorised by law to exercise judicial power.

  9. The ECHR authorities establish that in order to fulfil a State’s
    obligation to bring a detainee promptly before a judge or judicial officer, that
    judge or judicial officer must review the lawfulness of the
    detention.[25]

  10. In Ipek and Others v
    Turkey    ,[26] the Court observed
    that art 5.3 requires

    that an arrested individual be brought
    promptly before a judge or judicial officer, to allow detection of any
    ill-treatment and to keep to a minimum any unjustified interference with
    individual liberty.

    While promptness has to be assessed in each case according to its special
    features, the strict time constraint imposed by this requirement of Article 5.3
    leaves little flexibility in interpretation, otherwise there would be a serious
    weakening of a procedural guarantee to the detriment of the individual, and the
    risk of impairing the very essence of the right protected by this
    provision.[27]

  11. In Ipek, the Court commented that even though the investigation of
    terrorism offences undoubtedly presents authorities with particular problems,
    this does not mean that investigating authorities have carte blanche whenever they choose to assert that terrorism is
    involved.[28] The Court also stated
    that while each case is determined on its facts, it has held on many occasions
    that the prima facie strict time limit constraint imposed for detention without
    judicial control is a maximum of four
    days.[29]

  12. In the case of Brogan v United
    Kingdom    ,[30] the Court held that
    the detention of a terrorist suspect which lasted for 4 days and 6 hours,
    without judicial control, breached the requirement for ‘promptness’
    in art 5.3 of the ECHR. The Court emphasised

    that the significance
    to be attached to the special features of a case can never be taken to the point
    of impairing the very essence of the right guaranteed by Article 5.3, that is to
    the point of effectively negativing the State’s obligation to ensure a
    prompt release or a prompt appearance before a judicial
    authority.[31]

  13. In particular, the Court noted that the ‘undoubted fact that the
    arrest and detention of the applicants were inspired by the legitimate aim of
    protecting the community as a whole from terrorism is not on its own sufficient
    to ensure compliance with the specific requirements of Article
    5.3’.[32]

  14. Therefore, by ensuring that the pre-charge detention of persons suspected of
    terrorism offences is necessary and for a limited and proportionate period of
    time, the Government is able to balance its obligations to protect both the
    right to security and the right to liberty under the ICCPR.

  15. It is in this context that the Commission makes the following submissions on
    the proposals in sch 3 of the Bill that will, if passed, amend pt 1C, div 2 of
    the Crimes Act.

(d) Amendments
required to achieve an appropriate balance

  1. The Commission supports the capping of the investigation period in Part 1C
    of the Crimes Act.

  2. However, the Commission submits that the Bill’s proposal to limit the
    maximum length of detention at eight days plus any further time to be
    disregarded under the specified disregarded time mechanism remains too high.

  3. Further, the Bill leaves in place the complex and overlapping dual
    mechanisms for extending the investigation period and does not restrict the
    categories of specified disregarded time. In the Commission’s view the
    overlap and complexity in the two mechanisms reduces the possibility for
    effective oversight.

  4. The Commission is therefore concerned that there is still scope for a person
    to be detained for an unjustified and disproportionate period of time under the
    new scheme proposed by the amendments in sch 3 of the Bill.

  5. The Clarke Report highlights the need to remedy the deficiencies in pt 1C of
    the Crimes Act ‘not only to limit the length of detention but also to
    ensure that an investigation is carried out expeditiously and with a sense of
    the need to act with
    urgency’.[33]

  6. The Commission therefore proposes amendments to the Bill that strike a
    better balance between the AFP’s investigation needs in terrorism cases
    and an individual’s right to liberty.

(i) Remove mechanism to
disregard further time under proposed ss 23DB(9)(m) of the Crimes Act

  1. The Commission submits that proposed ss 23DB(9)(m) and 23DC of the Crimes
    Act be removed from the Bill.

  2. Proposed s 23DB(9)(m) replicates s 23CA(8)(m) of the Crimes Act and provides
    for a Magistrate to authorise further time that may be disregarded when
    calculating the investigation period.

  3. In the Commission’s view, this mechanism overlaps with the mechanism
    to extend the period of investigation time provided for in proposed ss 23DE and
    23DF of the Crimes Act. This view is supported by the Clarke
    Report:

    It is not accurate to describe the s 23CA(8)(m) dead time as
    dead time. Rather it is additional investigation time, and the only reason
    questioning is suspended during that time is because the section so
    permits.[34]

  4. Having two separate mechanisms that in substance both deal with extensions
    of investigation time increases the complexity of the scheme. This additional
    complexity reduces the possibility of effective oversight.

  5. In the Commission’s view, all applications to extend the investigation
    time should be dealt with under a single legislative mechanism.

  6. A single mechanism to extend investigation time would reduce the complexity
    of these provisions considerably, simplify and streamline the application
    process for the AFP and would probably reduce the amount of time lost to making
    and disposing of applications during crucial investigation time.

  7. This approach is supported by the Clarke Report:

    It follows, in
    my opinion, that there is a strong argument that ss 23CA(8)(m) and 23CB should
    be removed from the Crimes Act: in lieu thereof all applications for extended
    time would be made under s 23DA, with a reconsideration of the time
    limit.[35]

    ...

    Section [23CA(8)(m)] is quite out of place in the dead-time provisions and is
    better positioned for consideration as investigation time in s 23DA or
    reinstated as originally proposed in the
    Bill.[36]

  8. The Commission shares Clarke’s view that ‘provisions allowing
    for further investigation time beyond the statutory four hours should be made as
    simple as possible in order to limit the risk of police being distracted from
    the investigative
    process’.[37]

  9. The Commission therefore recommends that proposed ss 23DB(9)(m) of the
    Crimes Act be removed from the Bill.

(ii) Remove procedural
aspects of the specified disregarded time mechanism under
s 23DB(9)(f),(g),(h),(i) and (k)

  1. The Commission is also of the view that the acts listed in proposed
    s 23DB(9)(f),(g),(h),(i) and (k) are so closely connected with
    investigation time that they should also be dealt with under the mechanism to
    extend investigation time in proposed ss 23DE and 23DF.

  2. The procedural investigation acts in proposed s 23DB(9) are:

    • (f) – to allow for an identification parade to be arranged and
      conducted;

    • (g) – to allow for the making of an application under s 3ZQB or
      the carrying out of a prescribed procedure to determine a person’s
      age;

    • (h) – to allow the making and disposing of an application under ss
      23DC (disregard time), 23DE (extend investigation time), 23WU (carry out a
      forensic procedure) or 23XB (apply for an interim order to carry out a forensic
      procedure without delay);

    • (i) – to allow a constable to inform the person of matters specified
      in s 23WJ (information relevant to consent to a forensic procedure); and

    • (k) – to allow a forensic procedure to be carried out on the person by
      order of a Magistrate under div 5 of pt ID.

  3. Some of these activities could authorise significant extensions of the
    investigation period. For example, the Clarke Report found that in the case of
    Dr Haneef, it was thought that a further 48 hours could technically be
    disregarded from the investigation period for the purpose of allowing the
    Magistrate to dispose of one of the AFP’s applications to disregard
    time.[38]

  4. Proposed s 23DB(10) expressly permits questioning, where possible,
    during periods that might otherwise be disregarded, however, time may still be
    disregarded when it is reasonable for questioning to be suspended or delayed.

  5. While it is possible for a detainee to challenge the reasonableness of any
    delay, in the Commission’s view, this is not an adequate safeguard because
    it is only available after a person may have been unreasonably detained.

  6. Dealing with the procedural aspects of any investigation as part of the
    extension of investigation mechanism would mean that all acts that relate to the
    investigation would be dealt with under the same legislative mechanism. The
    disregarded time mechanism would then only apply to time spent while the
    detainee accesses his or her rights, such as waiting for a lawyer to arrive or
    while resting.

  7. The Explanatory Memorandum cites the following as reasons for retaining the
    procedural aspects of the investigation under sub-ss (f), (g),(h),(i) and (k) in
    the disregarded time mechanism in proposed s 23DB(9) of the Crimes Act:

    • To prevent a situation where the investigation period runs out while a
      judicial officer is considering whether to grant an extension of the
      investigation period; or

    • Where it may be impractical to question a person during the time that is
      spent arranging and conducting an investigation
      parade.[39]

  8. In relation to proposed s 23DB(9)(h), the Commission notes that the Clarke
    Report states:

    Ideally, an application should be disposed of
    promptly, after any representations have been made by the investigating official
    and the arrested person. It should be in exceptional circumstances only that a
    magistrate or other issuing official should reserve their decision on the
    application or adjourn the application for any lengthy
    period.[40]

  9. The Commission is of the view that a preferable way to deal with these
    exceptional circumstances is to provide for this possibility in the extension of
    investigation procedure in proposed ss 23DE and 23DF of the Crimes Act.

  10. In relation to the possible delay due to sub-ss (f), (g), (i) and (k),
    (including while arranging and conducting an identification parade), the
    Commission is of the view that a single mechanism dealing with both the
    procedural and substantive aspects of the investigation will be simpler for the
    AFP to use. The increased simplicity in the scheme will reduce the likelihood of
    confusion and provide greater judicial oversight over the whole investigation
    period.

  11. The Commission considers that the same amendments should be applied to the
    provisions dealing with non-terrorism offences in proposed s 23C(7) of the
    Crimes Act.

(iii) Cap on time to be
disregarded under s 23DB(11) of the Crimes Act

  1. As discussed above, the Bill’s proposal to introduce s 23DB(11) into
    the Crimes Act, will cap the unspecified category of time that may be
    disregarded when calculating the investigation period at seven days.

  2. The period of seven days appears to be linked to Clarke’s comment
    that:

    if pressed – and having regard to Dr Haneef’s
    detention in circumstances where the overseas involvement created time problems
    generally for the investigation – I would tend to say the cap should be no
    more than seven days.[41]

  3. The Commission notes the very tentative nature of this comment. Indeed,
    Clarke stated that he did not understand his task as requiring him ‘to put
    forward a specific recommendation as to the allowable
    time’.[42]

  4. Having regard to the international case law cited above, the findings of the
    Clarke Report and the particular legislative scheme provided for in the Crimes
    Act, the Commission is of the view that the maximum length of pre-charge
    detention should be capped at four days plus any time that may be disregarded
    for the benefit of the detainee.

  5. As explained above, the Commission considers that all extensions of the
    investigation period beyond four hours should be dealt with under a single
    mechanism to extend time – the extension of investigation mechanism.
    Further, those activities closely related to the investigation currently dealt
    with under the specified disregarded time mechanism should be dealt with under
    the extension of investigation mechanism.

  6. If the Committee recommends these reforms, the extension of investigation
    mechanism should be capped at four days.

  7. Alternatively, if the Committee recommends that there should be a single
    mechanism to extend time but the categories of specified disregarded time remain
    unchanged, the extension of investigation mechanism should be capped at three
    days. This is because the recommended period of four days above takes into
    account some categories of time that could otherwise be reasonably disregarded
    under the specified disregarded time mechanism.

  8. However, if the Committee concludes that the dual extension mechanisms and
    all the categories of specified disregarded time should be retained, the
    Commission urges that the unspecified disregarded time mechanism should be
    capped at no more than 48 hours.

  9. This is because the total maximum length of permissible detention would
    still be three days (made up of 24 hours extended investigation time plus 48
    hours of authorised unspecified disregarded time) plus any extra time that may
    be reasonably disregarded under all the existing categories of specified
    disregarded time.

  10. The Commission is of the strong view that should the scheme retain its
    complexity, the cap on unspecified disregarded time in proposed s 23DB(11)
    must be capped at 48 hours.

Recommendation 1:

  • Repeal proposed ss 23DB(9)(m) and as a consequence, also repeal ss
    23DB(11), 23DC and 23DD;
  • Repeal proposed s 23DB(9)(f), (g), (h), (i) and (k); and
  • Amend proposed s 23 DF(7) so that the maximum time an investigation can be
    extended by is four days subject to any further time as required by the court to
    dispose of an application under ss 23DE, 23WU or 23XB.

Recommendation 2: Alternatively, if the Committee recommends
that s 23DB(9)(m) be repealed but s 23DB(9)(f), (g), (h), (i) and (k) be
retained, the maximum time for an extension of the investigation period under
proposed s 23DF(7) should be no more than three days.

Recommendation 3: Alternatively, if proposed s 23DB(9)(m) is retained,
it should be capped under proposed s 23DB(11) at no more than 48 hours.

4.2 The application
procedures

  1. As stated above, the Commission recommends that s 23DB(9)(m) be removed from
    the Bill. It follows that the Commission also recommends that ss 23DC and 23DD
    be removed from the Bill, as these provisions deal with the application for and
    the grant of unspecified time to be disregarded from the investigation period.

  2. However, in the event that ss 23DB(9)(m), 23DC and 23DD are retained, the
    Commission makes the following comments relevant to the application and grant
    procedures set out in both:

    • The disregarded time mechanism (ss 23DC and 23DD); and

    • The extension of investigation mechanism (ss 23E and 23DF).

(a) Improved safeguards

  1. The Commission considers judicial oversight over the application for and
    grant of extensions of the investigation period to be a vital safeguard.

  2. The Commission therefore supports the proposals to restrict the hearing and
    grant of applications to extend time under both mechanisms to a Magistrate.
    Previously applications could also be heard by justices of the peace or a bail
    justice.[43]

  3. However, a Magistrate hearing and determining applications for extensions of
    time is, of itself, an insufficient
    safeguard.[44] The Commission
    therefore also supports the following improved safeguards in the application
    process for both mechanisms proposed by sch 3 of the Bill:

    • That an application under both mechanisms must be made in writing under
      proposed ss 23DC(2) and 23DE(1);

    • That applications under both mechanisms must first be authorised by an
      ‘authorising officer’ under proposed ss 23DC(3) and 23DE(2); and

    • That a copy of the applications or an instrument in relation to disregarded
      time or extensions of the investigation period respectively must be given to the
      detainee and his or her legal representative under proposed ss 23DC(6),
      23DD(6), 23DE(5) and 23DF(6).

  4. The Commission is concerned that the proposed safeguard that applications be
    made in writing for terrorism offences is not proposed to be included for
    non-terrorism offences in proposed s 23D(2) of the Crimes Act. There does
    not seem to be any valid reason for including this safeguard for terrorism
    offences and not non-terrorism offences.

  5. Further, the Commission recommends that the following additional safeguards
    for terrorism offences also be implemented.

(b) All relevant
information should be before the Magistrate

  1. In addition to the safeguards proposed by sch 3 of the Bill, Magistrates
    must have access to all relevant information in order to play an effective
    oversight role.

  2. In particular, the Commission notes that before a Magistrate may grant an
    extension, he or she must determine whether ‘the investigation into the
    offence is being conducted properly and without delay’ under
    ss 23DD(2)(d) and 23DF(2)(c) of the Crimes Act.

  3. However, there is no requirement in s 23DC(4) or 23DE(3) that obliges an
    investigating official to include a statement about the steps taken to progress
    the investigation.

  4. This information would greatly assist the Magistrate in his or her task of
    review.

  5. Further, the Commission submits that the national security matters
    identified in ss 23DC(5) and 23DE(4) should be before the Magistrate when
    he or she is determining an application under either mechanism to extend the
    investigation period.

  6. To address any national security concerns, provisions could be inserted into
    the Bill that allow the Magistrate the discretion to withhold sensitive
    information from the detainee and their legal representative in appropriate
    circumstances.

(c) Collating and
analysing information should not be a ground for justifying an application to
disregard time

  1. Further, if ss 23DB(9)(m) and 23DC of the Crimes Act are retained, the
    Commission believes that any reasons used to justify an application to disregard
    time from the investigation period should be specific to additional time that
    suspends or delays an investigation due to the nature of a terrorism
    offence.

  2. The Commission notes that an alternative solution posed by Clarke was that
    s 23CA(8)(m) of the Crimes Act be limited to time-zone
    differences.[45]

  3. While the possible grounds for applying for a period of time to be
    disregarded from the investigation period under proposed s 23DB(9)(m) of the
    Crimes Act listed under proposed s 23DC(4)(3)(ii)-(iv) are not
    controversial, the Commission is concerned that the first possible ground
    is:

    (i)  the need to collate and analyse information relevant
    to the investigation from sources other than the questioning of the person
    (including, for example, information obtained from a place outside
    Australia)[.]

  4. The collection and analysis of information is an important part of any
    investigation. The same ground should not be capable of supporting both an
    application to disregard time and an application to extend time.

  5. In this regard, the Commission notes that the maximum extended investigation
    period for terrorism offences of 24 hours is already 12 hours longer than
    non-terrorism offences to account for their increased
    complexity.[46]

  6. The Commission restates its position that applications to extend the period
    of investigation time should be dealt with by a singular legislative mechanism.
    The Commission submits the most appropriate mechanism for this is the mechanism
    to extend the investigation period under proposed s 23DE of the Crimes Act.

  7. The Commission is therefore of the view that the proposed ground of
    ‘collating and analysing information’ in proposed
    s 23DC(4)(e)(i) should only be used as a ground for the extension of the
    investigation period under proposed s 23DE of the Crimes Act.

  8. The Commission therefore submits that proposed s 23DC(4)(e)(i) should
    be removed from the Bill.

Recommendation 4: Amend proposed
ss 23DC(4) or 23DE(3) to include as a requirement that an investigating
official include a statement about the steps taken to progress the
investigation.

Recommendation 5: Delete proposed ss 23DC(5) and 23DE(4). The
Commission notes that to address any national security concerns, a Magistrate
could have the discretion to withhold any sensitive information identified in
these provisions from a detainee and their legal representative.

Recommendation 6: Delete proposed s 23DC(4)(e)(i) of the
Crimes Act.

4.3 Threshold for
state of mind for arresting officer

  1. The Commission recommends that the Bill be amended to ensure consistency
    between the state of mind required to arrest a person without a warrant and that
    required to continue to hold a person under arrest.

  2. Under s 3W(1) of the Crimes Act, an arresting officer must ‘believe on
    reasonable grounds’ that a person has committed the offence. Under
    s 23C(2)(b) and proposed s 23DB(2)(b), an arresting officer need only
    ‘reasonably suspect’ that the person committed an offence other than
    the one for which they were arrested.

  3. A reasonable suspicion is a lower threshold than a reasonable
    belief.[47]

  4. The Explanatory Memorandum to the Bill does not explain why the Bill does
    not amend s 23C(2)(b) or why proposed s 23DB(2)(b) still refers to a
    ‘suspicion’ rather than a ‘belief’. The AGD discussion
    paper specifically called for comment on this
    inconsistency.[48]

  5. There does not appear to be any valid reason to distinguish between the
    power to arrest without warrant under s 3W(1) in relation to a first offence and
    the power to maintain that arrest under s 23C(2)(b) and proposed
    s 23DB(2)(b), still without warrant, for a second offence.

  6. The Commission therefore recommends that the Committee amend the Bill so
    that proposed s 23DB(2)(b) refers to a ‘belief’ rather than a
    suspicion and to include a clause that amends s 23C(2)(b) to also refer to a
    ‘belief’.

Recommendation 7: Amend s 23DB(2)(b)
to refer to a ‘belief on reasonable grounds’ and insert a clause
that amends s 23C(2)(b) to also refer to ‘belief on reasonable
grounds’.

5 Presumption
against bail for terrorism offences

  1. The Commission supports the proposed amendments in sch 6 of the Bill, which
    provide a right of appeal to both the prosecution and the defendant against the
    grant or refusal of bail under s 15AA of the Crimes Act.

  2. However, the Commission is concerned that the Bill leaves s 15AA unchanged
    and is not satisfied that a right of appeal will remedy the Commission’s
    significant concerns with the presumption against bail in s 15AA of the Crimes
    Act.

  3. Section 15AA of the Crimes Act provides that persons charged with terrorism
    and other serious or violent offences must not be granted bail except in
    exceptional circumstances.

5.1 Human rights
concerns

  1. The Commission is of the view that s 15AA is inconsistent with the right to
    liberty in art 9(3) of the ICCPR. Article 9(3) provides:

    It shall
    not be the general rule that persons awaiting trial shall be detained in
    custody, but release may be subject to guarantees to appear for trial, at any
    other stage of the judicial proceedings, and, should occasion arise, for
    execution of the judgement.

  2. It is the Commission’s view that s 15AA of the Crimes Act is a
    disproportionate interference with the right to liberty under art 9 of the ICCPR
    as well as the presumption of innocence under art 14(2) of the ICCPR.
  3. The UN Human Rights Committee, in its 2009 Concluding Observations on
    Australia, stated:

    The Committee is particularly concerned at:

    (a)....

    (b) the reversal of the burden of proof contrary to the right to be presumed
    innocent;

    (c) the fact that “exceptional circumstances”, to rebut the
    presumption of bail relating to terrorism offences, are not defined in the
    Crimes Act;

    ...

    The State party should ensure that its counter-terrorism legislation and
    practices are in full conformity with the Covenant...The State party should in
    particular: (a) guarantee the right to be presumed innocent by avoiding
    reversing the burden of proof; (b) ensure that the notion of “exceptional
    circumstances” does not create an automatic obstacle to release on
    bail.[49]

  4. The Commission also notes that Article 5.3 of the ECHR provides in summary
    that:

    Everyone arrested or detained shall be entitled to trial
    within a reasonable time or to release pending bail where the arrest and
    detention is for the purpose of bringing him before a competent legal
    authority:

    • on reasonable suspicion of having committed an offence; or
    • when it is reasonably considered necessary to prevent his committing an
      offence or fleeing after having done so.

    Release may be conditioned
    by guarantees to appear for trial.

5.2 Repeal s 15AA of
the Crimes Act

  1. Given the length of time a person charged with a terrorism offence can
    lawfully be detained prior to charge under the provisions discussed above, it is
    deeply worrying that a judge’s discretion to grant bail with reference to
    the individual circumstances of the case is fettered by s 15AA of the
    Crimes Act.[50]

  2. The Commission is not convinced of the need for s 15AA of the Crimes
    Act and is of the view that it is a disproportionate response to the
    threat of terrorism that is inconsistent with Australia’s international
    human rights obligations under Article 9 and 14 of the ICCPR.

  3. In this regard, the Commission notes that requirements to show
    ‘exceptional circumstances can lead to lengthy periods of pre-trial
    detention.[51]

  4. While the Commission’s primary position is that s 15AA of the
    Crimes Act should be repealed, as an alternative, the Commission recommends that
    ‘exceptional circumstances’ be defined.

  5. A possible definition of ‘exceptional circumstances’ could come
    from Coldrey J’s judgment in DPP v
    Cozzi    .[52] In that case, Coldrey
    J considered, in the context of the Bail Act 1977 (Vic), that whether
    circumstances are ‘exceptional’ requires that all the circumstances
    be ‘viewed as a whole’ and may be exceptional as a result of a
    ‘variety of factors which of themselves might not be regarded as
    exceptional’.[53]

  6. Coldrey J listed a number of circumstances which had previously been found
    to constitute ‘exceptional circumstances’, including:

    • Strength of the Crown case;

    • The question of delay;

    • Strong family support;

    • Stable accommodation;

    • Availability of employment;

    • Low risk of flight or re-offending;

    • Lack of prior criminal history; and

    • Personal situation of the
      applicant.[54]

Recommendation
8: Repeal s 15AA of the Crimes Act 1914 (Cth) or define
‘exceptional circumstances’.

6 Police search powers

  1. The Commission views the provisions of the Bill relating to emergency search
    and seizure and emergency re-entry as unduly broad and subject to inadequate
    safeguards to protect individual rights.

  2. It is vital that Parliament carefully draft laws authorising interferences
    with the human right to privacy, an aspect of which is the home, to ensure that
    interferences with this right can be justified.

6.1 Human rights
concerns

  1. Both the new emergency search and seize powers introduced by sch 4 of the
    Bill and the emergency re-entry powers introduced by sch 5 of the Bill raise for
    consideration art 17 of the ICCPR.

  2. Article 17 of the ICCPR prohibits both unlawful and arbitrary interferences
    with a person’s privacy and home. Every invasion of the ‘home’
    that occurs without the consent of the individual affected represents an
    interference.[55 ]

  3. The Commission acknowledges that preventing a person’s death or
    serious injury is a legitimate purpose for which an individual’s right to
    privacy and home might be impinged upon. However, it is necessary that any
    interference is justified and proportionate to avoid arbitrariness.

  4. For example, in the case of Rojas Garc´a v
    Columbia    ,[56] the UN Human
    Rights Committee found that an interference with the right to the home under
    art 17 of the ICCPR was arbitrary even if it was in accordance with
    domestic law, where the need for the intrusion into the home was not justified.

6.2 Emergency search
& seize powers

  1. Proposed s 3UEA of the Crimes Act will introduce a new power which will
    allow a police officer to enter premises in emergency situations without first
    obtaining a warrant.
(a) Circumstances in
which the powers can be used

  1. Proposed s 3UEA of the Crimes Act authorises entry without a warrant
    where a police officer ‘suspects’, on reasonable grounds, that it is
    necessary to

    • (a) enter a premises in order to prevent a thing that is on the premises
      from being used in connection with a terrorism offence; and

    • (b) to exercise the power without the authority of a search warrant because
      there is a serious and imminent threat to a person’s life, health and
      safety.

  2. The Commission is concerned that proposed s 3UEA authorises warrantless
    entry powers on the mere ‘suspicion’ rather than a
    ‘belief’, of the above circumstances.

  3. While it may be appropriate in the circumstances of obtaining a warrant to
    enable an officer to swear the information on the basis of a suspicion, it is
    not acceptable in a situation where there is no independent scrutiny of that
    information.

  4. Further, the Commission notes that once the police officer has entered the
    premises without a warrant, he or she may:

    • Search the premises for the thing and seize the thing if
      found;[57]

    • Secure the premises for as long as is reasonably necessary to obtain a
      warrant authorising removing another thing relevant to an indictable or summary
      offence;[58]

    • Seize any other thing or do anything to make the premises safe, if the
      police officer suspects, on reasonable grounds, that it is necessary to do so to
      protect a person’s life, health or safety; and without the authority of a
      search warrant because the circumstances are serious and
      urgent.[59]

  5. The broad scope of these powers reinforces the Commission’s view that
    they should only be authorised where a police officer ‘believes’ and
    not merely ‘suspects’ that it is necessary to enter the premises for
    the reasons set out in proposed s 3UEA(1)(a) and (b).

  6. The Commission does not support the power to secure the premises to obtain a
    warrant to seize another thing relevant to an indictable or summary offence. The
    Commission considers the inclusion of this power to go beyond what is necessary
    to prevent death or serious injury and may render the power susceptible to
    misuse.

  7. In the Commission’s view, there is little evidence to support the view
    that police officers could not leave the premises having prevented any threat to
    a person’s life, obtain a warrant within 24 hours and then return to the
    premises to seize anything found that related to another indictable offence.

  8. Further, given that s 3UEA(5) authorises a police officer to seize
    ‘any other thing’ or ‘do anything’ without a warrant,
    the Commission considers that the power set out in s 3UEA(5) should be
    narrowed to cases where not only are the circumstances serious and urgent but
    also the threat to a person’s life, health or safety is
    ‘imminent’.

  9. Given the primary powers are only exercisable in emergency situations this
    change would ensure any ancillary powers exercised while on the premises are
    exercised in the same narrow range of circumstances. Inserting
    ‘imminent’ would also bring these powers into line with the proposed
    new definition of ‘emergency situation’ in s 3C(1) of the Crimes Act
    (sch 5, cl 1 of the Bill).

  10. Further, the power should only be to do anything ‘reasonably
    necessary’ to make the premises safe.

Recommendation 9: Amend proposed s 3UEA of the Crimes Act as follows:

  • Change ‘suspects’ in subsection (1) to
    ‘believes’;

  • Delete sub-ss (3) and (4); and

  • In sub-s (5):

    • Change ‘suspects’ to ‘believes’;

    • Insert the words ‘reasonably necessary’ after
      ‘anything’; and

    • Amend (a) to read ‘in order to protect a person from a
      serious and imminent threat to a person’s life, health and
      safety’.

(b) Other safeguards

  1. Proposed subsection 3UEA(7) requires that where a police officer has entered
    a premises he or she must notify the occupier of the premises within 24 hours of
    the entry that entry has taken place.

  2. The Commission supports the notification requirements.

  3. The European Court of Human Rights has stressed the importance of ensuring
    that people are given enough information about searches of their homes to
    ‘enable them to identify, prevent and challenge any
    abuse’.[60]

  4. The ability to challenge searches that are unreasonable, not based on proper
    grounds, or are excessive is vital to ensuring proportionality between the
    legitimate aim pursued by the searches and the means deployed to achieve that
    aim.

  5. However, notification in itself is insufficient to safeguard against the
    abuse of power.

  6. The power to enter and search a private home without a warrant is an
    extraordinarily broad power. It presents a significant intrusion on the right to
    privacy and the home.

  7. Therefore the power must be proportionately balanced with a number of
    safeguards to ensure it is exercised in a transparent and accountable manner.
    Specific recommended safeguards are discussed below.

(i) Ex post facto warrant
procedure

  1. The Commission considers that if a police officer conducts a warrantless
    search then that police officer should be required to obtain a search warrant
    from a judicial officer after the search is completed.

  2. The police officer should be required to first demonstrate that there were
    reasonable grounds to exercise powers under section 3UEA and second explain why
    a search warrant could not be obtained by alternate means (for example by
    telephone or facsimile).

  3. For example, the Canadian Criminal Code grants power for a ‘peace
    officer’ to search and seize without a warrant in relation to the
    possession of prohibited devices, ammunition or explosive
    substances.[61] If this power is
    exercised the peace officer must go before a justice and
    identify:[62]

    • The grounds on which it was concluded that the peace officer was entitled to
      conduct the search; and

    • The things or documents, if any, seized.

  4. An ex post facto warrant procedure is fundamental to ensuring police
    officers are held accountable for their actions and safeguarding against any
    abuse of power.

  5. The Commission therefore recommends that an ex post facto warrant procedure
    be included in the Bill. The procedure should state that the AFP will not be
    able to rely on any evidence obtained in a search, where an ex post facto
    warrant application for the search is unsuccessful.

Recommendation 10: Include an ex post facto warrant
procedure in proposed s 3UEA of the Crimes Act 1914 (Cth).

(ii) Seizure receipts

  1. In the case of delayed notice of an entry and search, as proposed by the
    Bill, it is important that detailed records are kept and made available to
    individuals so that they can monitor the scope of the search when they learn of
    it. These records must include details of items damaged or destroyed.

  2. The Commission acknowledges that item 4 of sch 4 will require seizure
    receipts to be provided for things seized under the proposed new power under
    s 3UEA of the Crimes Act. Section 3UF(3) of the Crimes Act provides that a
    seizure notice must:

    (a) identify the thing; and

    (b) state the date on which the thing was seized; and

    (c) state the ground or grounds on which the thing was seized; and

    (d) state that, if the owner does not request the return of the thing within
    90 days after the date of the notice, the thing is forfeited to the
    Commonwealth.

  3. The Commission notes however that the notice only relates to things
    seized[63] and that notice need only
    be given to the owner of the thing or the person from whom the thing was
    seized.[64]

  4. Given that the proposed new powers under s 3UEA of the Crimes Act
    include the ability to ‘do anything’ to make a premises safe, it is
    foreseeable that items will be damaged or destroyed. Further, these items may be
    taken from the premises and not necessarily from a person.

  5. Accordingly, the Commission recommends that these provisions be amended to
    ensure a description of any items taken from the premises (rather than from a
    person) or destroyed or damaged on the premises is included in a seizure notice
    where relevant to a particular search.

Recommendation 11: Amend s 3UF(3) of the Crimes Act 1914 (Cth) to ensure a
seizure receipt includes a description of any items taken from the premises
(rather than from a person) or destroyed or damaged on the premises where
relevant to a particular search.

(iii) Authorisation and
supervision

  1. The Commission is also concerned that the emergency search and seizure
    powers are available to all officers, regardless of rank.

  2. In the Commission’s view, the proposed provisions should include a
    system of authorisation and supervision by police officers with the rank of
    Superintendent or above.

  3. This would further prevent any misuses of this extreme
    power.

Recommendation 12: Amend proposed s 3UEA of the Crimes Act 1914 (Cth) to include a system of authorisation and
supervision by police officers with the rank of Superintendent or above.

6.3 Emergency
re-entry powers

  1. Proposed ss 3J(2)(a) and 3JA of the Crimes Act will extend the time
    available for police officers to re-enter a premises under a search warrant from
    one hour to 12 hours or a longer authorised period not exceeding the life of the
    warrant.

  2. The Commission is concerned that the broadness of these draft provisions
    leaves them susceptible to misuse.

  3. The Commission accepts that there may be ‘emergency situations’
    which require police officers to leave premises and then re-enter longer than
    one hour after they have left the premises. However, in the Commission’s
    view, such re-entry should be first authorised by an issuing officer.

  4. The purpose of this amendment is to provide for a longer period of
    time during which re-entry is permitted, rather than to authorise urgent
    re-entry into premises in cases where there is insufficient time to apply for an
    application. Given this, the Commission considers that it would be an
    appropriate safeguard for police officers to make an application to an issuing
    officer in almost all cases.

  5. This level of oversight would guard against the disproportionate and
    unjustified use of these powers.

  6. Accordingly, the Commission recommends that proposed ss 3J(2)(aa) and
    3JA be amended to ensure that the power to re-enter premises in an emergency
    situation is only available where an application to an issuing officer has been
    made.

  7. Further, the Commission notes that the definition of ‘emergency
    situation’ in proposed s 3C(1) of the Crimes Act is only in relation to
    the reason for the executing officer and constables assisting leaving the
    premises.

  8. In the Commission’s view, the issuing officer should not only be
    satisfied that the emergency situation has required the officers to leave the
    premises but also that it is the reason why the officers are unable to re-enter
    the premises within the one hour time limit.

  9. These applications should be kept in a register and made available for
    inspection to the proposed Parliamentary Joint Committee on Law Enforcement.

Recommendation 13: Amend sch 5 of the Bill as follows:

  • Delete proposed s 3J(2)(aa) of the Bill.
  • In proposed s 3JA(c), change ‘12 hour period mentioned in paragraph
    3J(2)(aa)’ to ‘one hour period mentioned in 3J(2)(a)’.
  • Amend proposed s 3JA(3) so that it reads:

    (3) If an application
    mentioned in subsection (1) has been made, an issuing officer may extend the
    period during which the executing officer and constables assisting may be away
    from the premises

    (a) for not more than 12 hours if there is an emergency situation and an
    issuing officer is satisfied by information on oath or affirmation that because
    of the emergency situation, the constables assisting will not be able to return
    to the premises within 1 hour; or

    (b), a period longer than 12 hours if there is an emergency situation and an
    issuing officer is satisfied by information on oath or affirmation, that there
    are exceptional circumstances that justify a period longer than 12 hours.

    (4) an issuing officer can grant more than one application to extend the
    period during which the executing officer and constables assisting may be away
    from the premises under subsection (3) provided any one extension would not
    result in the period ending after the expiry of the warrant.

Recommendation 14: Applications to the issuing officer under proposed
s 3JA(3) of the Crimes Act should be kept in a register, which is available to
the proposed Parliamentary Joint Committee on Law Enforcement for inspection

6.4 Oversight by the
new Parliamentary Joint Committee on Law Enforcement

  1. The Commission recommends that the Bill provide the newly established
    Parliamentary Joint Committee on Law Enforcement with a specific function to
    review and annually report on the exercise of police powers under new ss 3UEA,
    3J(2)(a) and 3JA of the Crimes Act.

  2. The Parliamentary Joint Committee on Law Enforcement should have the power
    to request and inspect copies of all notices provided to occupiers of premises,
    seizure receipts and applications to re-enter premises after one hour in
    emergency situations.

  3. If an ex post facto warrant procedure is introduced to accompany proposed
    s 3UEA of the Crimes Act, the Parliamentary Joint Committee on Law
    Enforcement should be given the power to request and inspect all applications
    for ex post facto warrants as well as copies of any instruments granting or
    refusing the applications.

  4. A mechanism could also be established whereby the AFP reports on each use of
    the power to the proposed Parliamentary Joint Committee on Law Enforcement
    quarterly.

Recommendation 15: Insert a provision into either
the Bill or the Parliamentary Joint Committee on Law Enforcement Bill 2010,
which provides the Parliamentary Joint Committee on Law Enforcement with a
specific function to review and report on the exercise of police powers under
proposed ss 3UEA, 3J(2)(a) and 3JA of the Crimes Act 1914 (Cth).

7 Treason offences

  1. Division 80 of pt 5.1 of the Criminal Code (Cth) (Criminal Code)
    provides for the offences of treason (s 80.1).

  2. The Commission supports the amendments proposed by item 15 of sch 1 of the
    Bill relating to the offences of ‘assisting enemies at war with the
    Commonwealth’ and ‘assisting countries, etc, engaged in armed
    hostilities against the Commonwealth’ in proposed s 80.1AA of the Criminal
    Code.

  3. The proposed amendments will appropriately narrow these offences to ensure
    only material assistance to an enemy country provided intentionally by a person
    owing an allegiance to the Commonwealth will constitute treason.

  4. However, the Commission considers that the requirement to have an allegiance
    to the Commonwealth should be an element of all the treason offences in new
    sub-div B of pt 5.1 of the Criminal Code, including for example, causing death
    or harm to the Sovereign, the Governor-General or the
    Prime-Minister[65] or levying or
    preparing to levy war against the
    Commonwealth.[66]

  5. Both the ALRC Report and the PJCIS Review Report recommended that an
    allegiance to the Commonwealth be required for all treason
    offences.[67]

  6. The Government supported both of these
    recommendations.[68]It is unclear,
    therefore, why the distinction appears in the Bill. There is no justification
    for the differential treatment in the Explanatory Memorandum. The Commission
    raised this drafting concern in response to the AGD discussion paper in October
    2009.[69]

  7. There is no apparent reason to distinguish between the treason offences in
    proposed ss 80.1AA and 80.1 of the Criminal Code. The concerns with the
    breadth of the offence that have led to the amendments apply equally to all
    treason offences in div 80 of pt 5.1 of the Criminal Code.

  8. Further, the Commission considers a proclamation under proposed
    s 80.1AA(2) of the Criminal Code should be accompanied by announcements in
    national media outlets such as newspapers, television and radio to ensure that
    citizens have advanced notice of any proclamations declaring enemies of the
    Commonwealth.

Recommendation 16: Insert a clause similar
to proposed s 80.1AA(1)(f) and (4)(e) into s 80.1 of the Criminal
Code.

Recommendation 17: Insert a new sub-s (2A) into s 80.1AA of
the Criminal Code that requires an announcement in all national media
outlets that a proclamation referred to in s 80.1AA(2) has been made as
soon as reasonably practicable after a proclamation has been made.

8 Urging violence
offences

  1. The Commission supports the technical amendments that change the terminology
    from ‘sedition’ to ‘urging violence’ throughout pt 5.1
    of the Criminal Code as proposed by the items 4, 5 and 17 of sch 1 of the Bill.
    This terminology better reflects the nature of the offences and is consistent
    with the recommendations of the
    ALRC.[70]

  2. Significantly, sch 1 of the Bill also proposes to repeal the offence of
    ‘urging violence within a community’ in s 80.2(5) of the Criminal
    Code and replaces it with two new types of offences.

  3. Sections 80.2A(1) and 80.2B(1) create offences where:

    • A person intentionally urges another person or group to use force or
      violence against another group or member of a group;

    • The group or member is distinguished by race, religion, nationality,
      national or ethnic origin or political opinion; and

    • The use of the force or violence would threaten the peace, order and good
      government of the Commonwealth (public order offences).

  4. Sections 80.2A(2) and 80.2B(2) mirror ss 80.2A(1) and 80.2B(1) with the
    exception that there is no requirement that the force or violence threaten the
    peace, order or good government of the Commonwealth (anti-vilification
    offences).

  5. The Commission supports the following amendments proposed by the Bill to the
    urging violence provisions:

  • (a) The clarification of the fault elements in the urging violence
    provisions. The Bill requires that a person intended to urge the
    use of force or violence and intended that the force or violence would
    occur.

  • (b) The inclusion of ‘ethnic origin’ so that a group may be
    distinguished by ‘race, religion, nationality, national origin, ethnic
    origin or political opinion’.

  • (c) The move to targeting persons that urge individuals to commit violence;
    and

  • (d) The move to targeting persons that urge groups or individuals to commit
    violence against individuals.

8.1 Human Rights
concerns

  1. The urging violence provisions prohibit communication that incites violence
    against particular individuals or groups. Accordingly, these offences restrict
    freedom of expression.

  2. Freedom of expression constitutes one of the essential foundations of a
    democratic society and one of the basic conditions for its
    progress.[71] Freedom of expression
    is protected by art 19 of the ICCPR. Article 19(2) protects 'information and
    ideas of all kinds'; it not only applies to information or ideas that are
    favourably received, or regarded as inoffensive or as a matter of indifference,
    but also those that offend, shock and
    disturb.[72] Such are the demands of
    pluralism, tolerance and broadmindedness without which there is no democratic
    society.[73]

  3. The freedom is not, however, absolute. Article 19(3) of the ICCPR recognises
    specific instances in which it is permissible for states parties to restrict
    freedom of expression. It provides:

    The exercise of rights provided
    for in paragraph 2 of this article carries with it special duties and
    responsibilities. It may therefore be subject to certain restrictions, but these
    shall only be such as are provided by law and are necessary:

    • For the respect of the rights or reputations of others;

    • For the protection of national security or of public order (ordre public), or of public health or morals.

  4. The urging violence provisions will therefore only constitute a permissible
    restriction on freedom of expression to the extent that they can be said to be
    necessary for the purposes of protecting the rights or reputation of others or
    protecting public order or national security.

  5. The word ‘necessary’ imports the principle of proportionality,
    which requires that any restriction must be proportionate to the legitimate ends
    sought to be achieved.[74]

8.2 Anti-vilification
Offences

  1. The Commission has consistently called for a comprehensive regime of
    Commonwealth legislation designed to prohibit acts of incitement to racial or
    religious violence in order to fulfil Australia’s obligations under
    international law,[75] particularly:

    • Article 4a of the International Covenant on the Elimination of all forms
      of Racial Discrimination       (CERD),[76] which requires that
      there be an offence of incitement to violence or discrimination against groups
      of another colour or ethnic origin, punishable by law; and

    • Article 20(2) of the ICCPR which requires that any advocacy of national,
      racial or religious hatred that constitutes incitement hostility or violence be
      prohibited by law.

  2. Section 18C(1) of the Racial Discrimination Act 1975 (Cth) provides
    that:

    It is unlawful for a person
    to do an act, otherwise than in private, if:

    • the act is reasonably likely, in all the circumstances, to offend, insult,
      humiliate or intimidate another person
      or a group of people; and
    • the act is done because of the race, colour or national or ethnic origin of
      the other person
      or of some or all of the people in the group.

  3. Section 18C(1) of the Racial Discrimination Act
    1975     (Cth) does not cover the dissemination of ideas based on racial
    superiority or hatred or incitement to acts of violence.

  4. The Commission welcomes, in principle, the new alternative offences in
    proposed ss 80.2A(2) and 80.2B(2) that do not require the prosecution to prove a
    connection between the use of force or violence and a threat to the peace, order
    and good government of the Commonwealth. These offences are therefore better
    targeted at protecting individuals or groups themselves from violence.

  5. However, given one of the group’s or individual’s protected
    attributes is ‘political opinion’, it is important to note that in a
    democracy the freedom of political expression is attributed great weight. In
    Australia the freedom of political communication is constitutionally protected
    but only in very limited
    circumstances.[77] Offences that
    limit freedom of expression must be carefully drafted to ensure that legitimate
    speech, particularly political dissent, is not captured.

  6. The Commission recommends that the balance struck by the proposed
    anti-vilification offences between protecting freedom of expression and
    effectively promoting racial equality can be improved by:

    • Relocating the anti-vilification offences;

    • Replacing the term ‘urge’ with ‘incite’; and

    • Including a requirement that force or violence be ‘reasonably
      likely’ to occur.

(a) Relocating the
anti-vilification offences

  1. The Commission has concerns regarding the location of ss 80.2A(2) and
    80.2B(2) within ch 5 of the Criminal Code which is entitled ‘The
    Security of the Commonwealth’ and contains the majority of the
    Commonwealth’s anti-terrorism provisions.

  2. First, ss 80.2A(2) and 80.2B(2) have no connection to the security of the
    Commonwealth. The offences protect vulnerable groups in the community from
    serious forms of vilification.

  3. Secondly, the Commission has significant concerns about conflating race and
    religion with terrorist behaviour. The 2004 Australian Human Rights Commission
    (then HREOC) Report 'Ismaع–Listen’ found that Australian Arabs
    and Muslims experience vilification on the basis that they share responsibility
    for terrorism or are potential
    terrorists.[78]

  4. The Commission considers that enacting what is in substance an
    anti-vilification offence under the guise of anti-terrorism legislation will
    have a counter-productive effect of further vilifying vulnerable groups in the
    community.

  5. In light of these concerns the Commission recommends that the offences
    proposed in ss 80.2A(2) and 80.2B(2) be relocated to another section of the
    Criminal Code, for example, ch 9 entitled ‘Dangers to the
    Community’.

Recommendation 18: Relocate proposed ss
80.2A(2) and 80.2B(2) into ch 9 of the Criminal Code, entitled ‘Dangers to
the Community’.

(b) Use the term
‘incite’

  1. The Commission is concerned that the term ‘urging’ is not
    defined anywhere in the Criminal Code. It is important that such a critical
    element of the offence be defined to provide guidance to the judiciary and to
    ensure the public is aware of precisely what conduct is prohibited.

  2. Alternatively, the Commission considers that the concept of
    ‘urge’ should be replaced with ‘incite’. The term incite
    or incitement is used both in Article 4a of the CERD and Article 20 of the
    ICCPR.

  3. Using the term ‘incites’ would enable consistency with the terms
    used in international law and better enable the judiciary to be guided by
    international law jurisprudence on this
    term.[79] It may also better focus
    the court’s attention on the effect of the conduct rather than the
    subjective intention of the person engaging in the behaviour.

  4. The term ‘incite’ is used in similar legislation in
    Canada.[80]

Recommendation 19: Replace the term ‘urges’ in
proposed ss 80.2A(2) and 80.2B(2) of the Criminal Code with
‘incites’.

(c) Require that force
or violence be ‘reasonably likely’ to occur

  1. Proposed ss 80.2A(2) and 80.2B(2) require that the person intended to urge
    force or violence and intended that the force or violence occur.

  2. While the Commission supports the intention of the Bill to clarify the fault
    elements, the Commission does not believe that it should be necessary to prove
    intention in relation to both of these elements.

  3. It is difficult to imagine a situation where a person intentionally urges
    another person or group to use force or violence against another person or group
    but does not intend that force or violence to occur.

  4. Instead, the offence should be made out if:

    • The first person intentionally urges (or incites) another person, or a
      group, to use force or violence against a group (the targeted
      group      );

    • The force or violence is reasonably likely to occur in the circumstances;
      and

    • The targeted group is distinguished by race, religion, nationality, national
      or ethnic origin or political opinion.

  5. This is consistent with the Crimes Act Amendment (Incitement to Violence)
    Bill 2005 (Cth) (Incitement to Violence Bill), introduced by the Government when
    in opposition.

  6. Proposed ss 62(1) and 63(1) of the Incitement to Violence Bill provided:

    62(1) A person must not, with the intention of inciting violence
    against another person or a group of people, or with the intention of inciting
    damage to property, do an act, otherwise than in private, if the act is:

    • reasonably likely, in all the circumstances, to incite violence against the
      other person or group of people; or damage to property, and

    • done because of the race, colour, or national or ethnic origin of the other
      person or of some or all of the people in the group.

    ....

(d) Define circumstances
that a court may consider

  1. The Commission also recommends that the offence set out circumstances to
    which a court may have regard when determining whether a person has committed an
    offence under ss 80.2A(2) and 80.2B(2).

  2. In the ALRC Report, the ALRC recommended that in order to ensure the right
    to freedom of expression is not curtailed unnecessarily, the court should have
    regard to the context in which the conduct in the urging violence offences
    occurred, including the factors specified in proposed s
    80.3.[81] The Commission supports
    this position.

  3. The Commission therefore supports the ALRC Report’s recommendation
    12-2 that in determining whether the offence has been made out, the court should
    take into account whether the acts were done:

    • In the development, performance, exhibition or distribution of an artistic
      work;

    • In the course of any statement, publication, discussion or debate made or
      held for any genuine academic, artistic or scientific purpose or any other
      genuine purpose in the public interest; or

    • In the dissemination of news or current affairs.

  4. This could be done by directing the court to consider these factors when
    determining whether:

    • A person intended that the urged force or violence would occur; or

    • A person intentionally urged another person to use force or violence; or

    • It is reasonably likely force or violence will occur in the circumstances.

Recommendation 20: Amend ss 80.2A(2) and
80.2B(2) of the Criminal Code to replace the element that ‘the first
person does so intending that force or violence will occur’ with the
element ‘that the force or violence is reasonably likely in the
circumstances’.

The Commission notes that this recommendation could be applied to s 80.2 as
well as proposed ss 80.2A(1) and 80.2B(1).

Recommendation 21: Implement recommendation 12-2 of the ALRC report by
either:

a) inserting new ss 80.2A(6) and 80.2B(4A) into the Criminal Code as
follows:

When determining whether a person intentionally urges another person or group
to use force or violence against a group, the court may have regard to any
relevant matter, including whether the acts were done

(a) in the development, performance, exhibition or distribution of an
artistic work; or

(b) in the course of any statement, publication, discussion or debate made or
held for any genuine academic, artistic or scientific purpose or any other
genuine purpose in the public interest; or

(c) in the dissemination of news or current affairs.

The Commission notes that the same provision could be used for determining
whether a person ‘intends force or violence to occur’.

b) Alternatively, if the Committee recommends including an element that
‘the force or violence is reasonably likely to occur in the
circumstances’ in ss 80.2A and 80.2B of the Criminal Code, then
including the following paragraph:

These circumstances may include:

(a) whether the acts were done in the development, performance, exhibition or
distribution of an artistic work; or

(b) whether the acts were done in the course of any statement, publication,
discussion or debate made or held for any genuine academic, artistic or
scientific purpose or any other genuine purpose in the public interest; or

(c) whether the acts were done in the dissemination of news or current
affairs.

These recommendations could also be applied to s 80.2 as well as proposed
ss 80.2A(1) and 80.2B(1).

8.3 The good faith
defence

  1. Item 28 of sch 1 of the Bill proposes to extend the range of circumstances
    in which the good faith defence in s 80.3 of the Criminal Code is available to
    include the legitimate public discussion, artistic works and the dissemination
    of news or current affairs.

  2. The good faith defence is available in relation to an offence under s 80.2
    of the Criminal Code as well as the proposed public order offences and
    anti-vilification offences.

  3. The Commission considers that the most appropriate way to ensure the right
    to freedom of expression is not unjustifiably restricted is to amend the
    offences in the manner outlined above so that legitimate conduct is not
    prohibited rather than relying on a defence to excuse the conduct.

  4. Further, it is difficult to imagine a situation where someone could intentionally urge a person to use force or violence against another
    person or group or intend force or violence to occur ‘in good
    faith’.

  5. The Commission recommends that if its above recommendations are implemented,
    proposed s 80.3(3) of the Criminal Code should not apply to proposed
    ss 80.2A and 80.2B of the Criminal Code.

Recommendation 22: If Recommendation 21 is accepted, proposed s 80.3(3) of the Criminal Code
should not apply to proposed ss 80.2, 80.2A and 80.2B of the Criminal Code.

8.4 Public Order
Offences

  1. Sections 80.2A(1) and 80.2B(1) prohibit the incitement to violence against
    particular groups and members of groups where the violence would threaten the
    peace, order and good government of the Commonwealth.

  2. The Commission questions the necessity of this offence. The need for this
    additional offence, beyond the offences in ss 80.2A(2) and 80.2B(2) and
    existing offences covering threats to the Commonwealth has not been established.

  3. For this reason, the Commission recommends deleting proposed
    ss 80.2A(1) and 80.2B(1) unless the Government can provide sufficient
    justification for retaining the offences.

Recommendation 23: Delete proposed ss 80.2A(1) and 80.2B(1) of the Criminal Code.

9 Terrorist organisation
offences

  1. Section 102.1 of the Criminal Code enables the Governor-General to make a
    regulation specifying an organisation as a ‘terrorist organisation’.

  2. Currently, a regulation of this kind ceases to have effect two years after
    the day on which it takes
    effect.[82]

9.1 Human rights
concerns

  1. The Commission remains concerned that proscribing organisations as
    ‘terrorist organisations’ can undermine freedom of
    expression[83] and has a
    disproportionate impact on Arab
    communities.[84]

  2. The Commission is also concerned that broadly drafted terrorism offences in
    relation to assisting or supporting ‘terrorist organisations’ can
    criminalise innocent behaviour[85] and unnecessarily broaden the group of people that may be susceptible to the
    broad range of powers available to police to investigate and detain persons
    suspected of committing a terrorist
    offence.[86]

  3. The Commission emphasises the overriding duty of governments to define
    precisely, by law, all criminal offences in the interest of legal
    certainty.[87]

9.2 Increasing the
listing period for terrorist organisations

(a) Listing under the
Criminal Code

  1. Proposed s 102.1.3 of the Criminal Code will increase the period before a
    regulation proscribing an organisation as a ‘terrorist organisation’
    expires from 2 to 3 years.

  2. The Commission does not support this amendment. As acknowledged by the
    Parliamentary Joint Committee on Intelligence and Security (PJCIS):

    [t]riggering a review is a safeguard both for the entity and the
    Minister, who must continue to be satisfied the entity meets the legislative
    criteria’ for proscribing an organisation as a ‘terrorist
    organisation.[88]

  3. Given the proscription as a ‘terrorist organisation’ has
    significant human rights implications for the individuals concerned, it is
    important that such a mechanism, if retained, is accompanied by adequate
    legislative safeguards.

  4. The Commission is not convinced that there are sufficient reasons for
    limiting the availability of this important safeguard.

  5. Further, the Commission submits that, given the significant implications of
    being proscribed a ‘terrorist organisation’, the decision to
    proscribe an organisation as a ‘terrorist organisation’ should be
    subject to merits review under the Administrative Appeals Tribunal Act
    1975     (Cth).

(b) Listing under the UN
Charter Act

  1. Proposed s 15A of the Charter of United Nations Act 1945 (Cth)
    (UN Charter Act) will have the effect of limiting the listing period for
    organisations declared to be ‘entities or persons involved in terrorist
    activities’ to three years.

  2. Part 4 of the UN Charter Act provides for offences directed at those who
    provide assets to, or deal in the assets of, ‘entities or persons involved
    in terrorist activities’. Accordingly, declaring a person or entity under
    s 15 of the UN Charter Act can have significant human rights implications for
    individuals.

  3. The regular review provided for by the expiry of the declarations is an
    important safeguard to ensure that organisations continue to meet the
    legislative criteria for being declared an ‘entity or person involved in
    terrorist activities’.

  4. The Commission is not convinced that there is any good reason for setting
    this period at three years rather than two years.

  5. The Commission notes that the regular expiry of declarations prompting a
    review is an even more important safeguard in the context of a listing under the
    UN Charter Act. This is because s 15(6) of the UN Charter Act provides that a
    person or entity is listed by notice in the Gazette. At least, regulations under
    s 102.1 of the Criminal Code are subject to a measure of parliamentary scrutiny
    through being subject to possible disallowance.

  6. Additionally, the decision to declare a person or entity under the UN
    Charter Act should be made subject to merits review under the Administrative Appeals Tribunal Act 1975. The Commission notes that this
    is consistent with recommendation 22 of the PJCIS Review
    Report.[89]

Recommendation 24: Remove from the Bill proposed s 102.1.3
of the Criminal Code. Amend s 15A of the Charter of the United Nations Act
1945 (Cth) to provide for a two year review. Allow both of these decisions
to be reviewable under the Administrative Appeals Tribunal Act 1975 (Cth).

9.3 Definition of
‘advocates’

  1. The Governor-General can proscribe an organisation as a ‘terrorist
    organisation’ under s 102.1(2) of the Criminal Code, if he or she is
    satisfied that the organisation ‘advocates’ the doing of a terrorist
    act (whether or not a terrorist act has occurred or will occur).

  2. ‘Advocates’ is currently defined by s 102.1(1A) of the
    Criminal Code as:

    (1A)  In this Division, an organisation advocates the doing of a terrorist act if:

    (a) the organisation directly or indirectly counsels or urges the doing
    of a terrorist act; or

    (b) the organisation directly or indirectly provides instruction on the
    doing of a terrorist act; or

    (c) the organisation directly praises the doing of a terrorist act in
    circumstances where there is a risk that such praise might have the effect of
    leading a person (regardless of his or her age or any mental impairment (within
    the meaning of section 7.3) that the person might suffer) to engage in a
    terrorist act.

(a) Narrow
the definition of ‘advocates’

  1. Section 102.1(1A) of the Criminal Code poses the risk of undermining a
    person’s freedom to express legitimate political views.

  2. As set out above, the right to freedom of expression is protected by art 19
    of the ICCPR and any legitimate interference with this right must be the least
    restrictive and proportionate to the actual security risk.

  3. In relation to sub-ss (a) and (b), the Commission recommends that these
    provisions remove the term ‘indirectly’ so that only directly
    counselling, urging or instructing terrorist acts to occur attracts criminal
    liability.

  4. The Commission also recommends that the definition of
    ‘advocates’ be clarified so that it is clear an organisation and not
    just one of its members does the advocating and that the organisation intends
    for its advocacy to persuade others to do terrorist acts.

Recommendation 25: Remove the term ‘indirectly’
from s 102.1(1A)(a) and (b) of the Criminal Code.

Recommendation 26: Insert a definition into the Criminal Code that
defines when an organisation and not just one of its members is
‘advocating’.

Recommendation 27: Insert a subsection that states an organisation
advocates the doing of a terrorist act only if it does one of the acts in
s 102.1(1A)(a) or (b) intending its advocacy to persuade others to do
terrorist acts.

(b) Remove
s 102.1(1A)(c)

  1. The Commission supports the Bill’s proposed amendment to
    s 102.1(1A)(c) that clarifies that there must be a ‘substantial
    risk’ that praising the doing of a terrorist act might result in a person
    engaging in a terrorist act.

  2. However, the Commission does not consider this amendment goes far enough.
    The Commission is concerned that ‘praising’ the doing of a terrorist
    act is too tenuous a link with actually committing a terrorist act and could
    disproportionately interfere with the right to freedom of expression.

  3. The Commission recommends that s 102.1(1A)(c) be repealed. This is
    consistent with the Sheller Report’s preferred recommendation
    9.[90]

Recommendation
28: Repeal s 102.1(1A)(c) of the Criminal Code.

(c) Align
the definition for the classification of publications, films and computer
games

  1. Finally, the Commission notes that the definition of ‘advocates’
    is replicated when defining which films, computer games and publications should
    be classified ‘RC’ in s 9A(2)(c) of the Classification
    (Publications, Films and Computer Games) Act 1995     (Cth).

  2. The Commission submits that the definition of ‘advocates’ in the Classification (Publications, Films and Computer Games) Act 1995 (Cth)
    should be narrowed in the same way recommended above for the definition of
    ‘advocates’ in s 102.1(1A) of the Criminal Code.

Recommendation 29: Remove the term ‘indirectly’
from s 9A(2) and repeal s 9A(2)(c) from the Classification
(Publications, Films and Computer Games) Act 1995 (Cth).

9.4 Other recommended
amendments to the terrorism organisation offences

  1. The AGD discussion paper proposed several amendments to the terrorism
    organisation offences that the Bill does not implement.

  2. The Commission notes that among the amendments discussed in the AGD
    discussion paper were the following important proposals:

    • Amending the definition of ‘terrorist act’ in s 100.1 of the
      Criminal Code;

    • Amending the offence of ‘providing support to a terrorist
      organisation’ in s 102.7 of the Criminal Code; and

    • Amending the offence of providing training to or receiving training from a
      terrorist organisation in s 102.5 of the Criminal Code.

  3. In his Second Reading speech to the National Security Law Amendment Bill,
    the Attorney-General explains that the Bill’s failure to make any
    substantial amendment of the core provisions of divs 101 and 102 of the Criminal
    Code is because the States must first amend the referring legislation by which
    they enlivened the topic of ‘terrorist acts’ for Commonwealth
    legislative power.

  4. The Attorney-General does not explain why Item 2 of Sch 2 (which inserts
    ‘substantial’ before ‘risk’ in s 102.1(1A)(c)) is not
    also subject to this requirement.

  5. The Commission questions the necessity for an amendment of the States’
    referral legislation.[91] Clause 3
    of the Commonwealth and States and Territories Agreement on Terrorism and
    Multi-Jurisdictional Crime, 5 April 2002 provides that:

    Any
    amendment based on the referred power will require consultation with and
    agreement of States and Territories.

  6. Section s 100.8(2) of the Criminal Code, if
    valid,[92] also states that an
    express amendment of Part 5.3 of the Criminal Code may be made ‘if it is
    approved by a majority of the group consisting of the States and the Australian
    Capital Territory and the Northern Territory; and at least 4 States’.

  7. Consultation and agreement falls far short of an amendment to the referral
    legislation.

  8. The Commonwealth also has wide legislative powers directly conferred on the
    Parliament by s 51 of the Constitution,
    which include the defence power (s 51(vi)) and the external affairs power (s 51(xxix)).

  9. In Thomas v Mowbray,[93] a majority of the High Court held that the defence power in s 51(vi) of the
    Constitution could extend to the threat of terrorism. The majority further held
    that a referral of State power was unnecessary to support the validity of the
    control order provisions in Division 104 of Part 5.3 of the Criminal Code
    because the Commonwealth’s legislative powers directly supported the
    validity of these provisions. [94]

  10. As will be outlined below, the Commission is concerned that these proposals
    are not being introduced in this Bill and urges the Committee to scrutinise the
    Government’s position, which has the effect of delaying further these
    discussed proposals.

(a) Definition
of ‘terrorist act’ (s 100.1 of the Criminal Code)

  1. The Commission is concerned that the definition of ‘terrorist
    act’ in s 100.1 of the Criminal Code remains problematic.

  2. The definition of ‘terrorist act’ in s 100.1 of the Criminal
    Code already covers actions that would not be considered ‘terrorism’
    under the UN Security Council Resolution 1566 (2004), such as serious
    interference with electronic systems including information systems,
    telecommunication systems or a financial
    system.[95]

  3. Given the breadth of coverage, the Commission urges the Committee to
    recommend the removal of ‘threat of action’ from the definition of
    ‘terrorist act’.

Recommendation 30: Remove
‘threat of action’ from the definition of ‘terrorist
act’ in s 100.1 of the Criminal Code.

(b) Offence
of providing support to a terrorist organisation (102.7 of the Criminal Code)
  1. In the Commission’s view, the offence of providing
    ‘support’ to a terrorist organisation in s 102.7 of the
    Criminal Code is too broad and may capture indirect support, such as the
    publication of views favourable to the organisation. Section 102.7
    provides:

102.7  Providing support
to a terrorist organisation

(1)  A person commits an offence if:

(a)  the person intentionally provides to an organisation support or
resources that would help the organisation engage in an activity described in
paragraph (a) of the definition of terrorist organisation in this Division;
and

(b)  the organisation is a terrorist organisation; and

(c)  the person knows the organisation is a terrorist organisation.

Penalty:  Imprisonment for 25 years.

(2)  A person commits an offence if:

(a)  the person intentionally provides to an organisation support or
resources that would help the organisation engage in an activity described in
paragraph (a) of the definition of terrorist organisation in this Division;
and

(b)  the organisation is a terrorist organisation; and

(c)  the person is reckless as to whether the organisation is a
terrorist organisation.

Penalty:  Imprisonment for 15 years.

  1. This may disproportionately interfere with the right to freedom of
    expression in art 19 of the ICCPR by extending to expression which is not
    expression that incites violence or public disorder. When the Sheller Committee
    reviewed these offences in 2006, it accepted that:

    the combination
    of vulnerability and uncertainty requires that the section be amended to limit
    its application in a way which would reduce any infringement upon the right to
    freedom of expression.[96]

  2. The offence of providing ‘support’ to a terrorist organisation
    should therefore be narrowed appropriately and without delay.

  3. The AGD discussion paper proposes to amend s 102.7 of the Criminal Code
    to clarify that the support provided must be ‘material’ and that the
    material support must be provided by the person with the ‘intention that
    the support helps the organisation engage in a terrorist
    act’.[97]

  4. The Commission urges the Committee to recommend including in the Bill
    provisions that implement these proposals.

  5. The Commission also urges the Committee to recommend that the term
    ‘support’ in s 102.7 of the Criminal Code be defined to exclude the
    publication of views that appear to be favourable to a terrorist organisation
    and its stated objective. This would implement recommendation 14 of the Sheller
    Report.

Recommendation 31:

  • (a) The Committee scrutinise the Government’s position in relation to
    not being able to amend s 102.7 of the Criminal Code without the States amending
    their referral legislation;

  • (b) If the Committee is satisfied that an amendment to the States referral
    legislation is not required, the Committee recommend that s 102.7 of the
    Criminal Code be amended as follows:

    • Clarify that the support provided must be ‘material’ and that
      the material support must be provided by the person with the ‘intention
      that the support helps the organisation engage in a terrorist act’.

    • Define the term ‘support’ to exclude the publication of views
      that appear to be favourable to a terrorist organisation and its stated
      objectives.

(c) Offence
of providing training to or receiving training from a terrorist organisation
(s 102.5 of the Criminal Code)

  1. The Commission is concerned that the offence of providing training to or
    receiving training from a terrorist organisation in s 102.5 of the Criminal Code
    remains unchanged by the Bill. This is despite the proposals discussed in the
    AGD discussion paper that sought to implement urgent recommendations made
    by both the Sheller Report and the PJCIS review in
    2006.[98]

  2. While the Commission considers that the exemption scheme proposed in the AGD
    discussion paper was
    problematic,[99] the Commission is
    concerned that the Bill leaves humanitarian organisations carrying out
    legitimate activities vulnerable to being charged with a criminal offence
    carrying a maximum sentence of 25 years.

  3. The Commission therefore recommends that rather than conduct further
    consultations around a complex scheme of ministerial approval as proposed by the
    AGD discussion paper, the offence of providing training to a terrorist
    organisation in s 102.5 of the Criminal Code be urgently amended in line with
    recommendation 12 of the Sheller Report and recommendation 16 of the PJCIS
    Review Report.

  4. The amendments proposed by the Sheller Report and the PJCIS Review Report
    seek to narrow the offence to ensure that innocent and legitimate activity is
    not criminalised. The Commission considers that the best way to achieve this is
    to draft the offence narrowly and carefully so that it precisely targets conduct
    that is ancillary to the committing of a terrorist act and allows for the
    consideration of all the circumstances of a particular case.

Recommendation 32: Amend s 102.5 of the Criminal Code (Cth) in accordance with the recommendations of the Sheller Report and the
PJCIS Review Report:

  • Define ‘training’ to mean training that is connected with a
    terrorist act or that training that could reasonably prepare the organisation or
    person receiving the training, to engage in, or assist with, a terrorist act;
    and

  • Repeal the element of strict liability in sub-s
    (3).

Recommendation 33: Repeal ss 102.5(1)(c) and (4)
and replace them with the following:

At the time of providing the training:

  • the person has knowledge that the organisation is a terrorist
    organisation; and

  • either the person providing the training intends that the person
    receiving the training will commit a terrorist act; or the person receiving the
    training intends to commit a terrorist act.

9.5 Further
legislative review of terrorist organisation offences

  1. The Commission notes that clause 6 of sch 2 of the Bill will repeal the
    provision providing for a three year review of the terrorist organisation
    listing provisions because this review has already taken place.

  2. Given that the Bill makes very little change to the terrorism organisation
    provisions, the Commission urges the Committee to recommend that a further
    legislative review of these provisions by an appropriate body, such as the
    National Security Legislation Monitor, be provided for in the Criminal
    Code.

  3. While the Commission acknowledges that the offence of associating with
    terrorist organisations is proposed to be reviewed by the Legislation Monitor
    once
    established,[100] the Commission urges the Committee to recommend that the following problematic
    aspects of the terrorist organisation offences identified by the Sheller
    Committee and the PJCIS reviews also be reviewed by the Legislation Monitor as a
    matter or urgency:

    • Intentionally being a member of a terrorist organisation;

    • Getting funds to or from a terrorist organisation; and

    • Financing a terrorist organisation.

Recommendation
34: Refer the offences of membership, funding and financing of terrorist
organisations to the Legislation Monitor for review as a matter of urgency.

10 Parliamentary Joint
Committee on Law Enforcement

  1. The Commission supports the establishment of the Parliamentary Joint
    Committee on Law Enforcement (PJC Committee) as provided for in the
    Parliamentary Joint Committee on Law Enforcement Bill 2010.

10.1 Functions of the
Committee

  1. In proposed s 7, the PJC Committee is tasked with the functions of
    monitoring and reviewing the performance of both the AFP and the Australian
    Crime Commission (ACC).

  2. The Commission is of the view that this oversight function is an important
    safeguard on the proper and lawful exercise of the broad police powers discussed
    above, particularly the warrantless search powers and pre-charge detention
    regime.

  3. It is not just the drafting of the laws but the exercise of anti-terrorism
    police powers that must be proportionate and justified to be consistent with
    human rights standards.

  4. The Commission is therefore concerned that the functions of the PJC
    Committee as set out in proposed s 7 do not include a reference to human rights
    and in particular, the right to liberty in art 9 of the ICCPR, privacy and home
    in art 17 of the ICCPR, freedom of expression in art 19 of the ICCPR and the
    presumption of innocence in art 14 of the ICCPR.

  5. The Commission therefore recommends that the PJC Committee functions include
    a reference to monitoring and reporting on how the exercise of any national
    security legislation powers interfere with the above human rights in the ICCPR.

Recommendation 35: Amend proposed s 7 of the Parliamentary
Joint Committee on Law Enforcement Bill 2010 to include the specific function of
monitoring and reporting on how the exercise of any national security
legislation powers interferes with human rights.

10.2 Definition of
‘sensitive information’

  1. Given the important oversight role the PJC Committee will play, it is
    crucial that it is well resourced and equipped with sufficient powers to obtain
    all information relevant to its task.

  2. Proposed ss 8(2) and 9(2) of the Bill provides that the CEO of the ACC or
    the Commissioner of the AFP may decide not to comply with a request for
    disclosure from the Committee if satisfied that:

    • The information is ‘sensitive’; and

    • The public interest in giving the information to the Committee is outweighed
      by any prejudicial consequences that might result from providing the
      information.

  3. While the Commission acknowledges that the Government has a legitimate
    interest in protecting genuinely sensitive information, the Commission considers
    that in order to give effect to the PJC Committee’s intended oversight
    functions, the Bill should strike a better balance.

  4. The Government has not justified why provisions preventing the PJC Committee
    from disclosing any information obtained through the performance of its
    functions would not adequately deal with the Government’s legitimate
    concern to protect sensitive information.

  5. This is particularly so given the definition of ‘sensitive
    information’ in proposed s 3 is so broad that it includes information that
    if disclosed:

    • Could prejudice a person’s reputation; or

    • Would unreasonably disclose confidential commercial information.

  6. The Commission strongly urges the Committee to recommend amendments to the
    Bill that ensure the mechanism for protection of sensitive information do not
    prevent the Committee from obtaining the information necessary for it to
    adequately fulfil its oversight functions.

Recommendation 36: Repeal ss 8(2)-(6) and 9(2)-(6) of the Parliamentary Joint Committee on
Law Enforcement Bill 2010 and replace with provisions that penalise members and
staff of the PJC Committee for disclosing any sensitive information.

Recommendation 37: Remove subs-s (h) and (k) from the definition of
‘sensitive information’ in proposed s 3 of the Parliamentary Joint
Committee on Law Enforcement Bill 2010.

11 Further legislative
reviews required

  1. There are a number of crucial provisions of the national security
    legislation regime that were not discussed in the AGD discussion paper and
    do not form part of the Bill’s proposed amendments. These include:

    • Preventative detention orders – proposed to be reviewed by the Council
      of Australian Governments
      (COAG);[101]

    • Control orders - proposed to be reviewed by
      COAG;[102]

    • Police powers to stop, search and seize in ‘prescribed security
      zones’ and Commonwealth places - proposed to be reviewed by
      COAG;[103] and

    • Proscription of terrorist organisations – proposed to be reviewed by
      COAG.[104]

  2. The Commission is also concerned that the ASIO powers to detain and question
    a person to collect
    intelligence[105] are not due for
    review until 2016.

  3. The Commission recommends that the above provisions also be referred to the
    Legislation Monitor for review on an urgent basis.

Recommendation
38: Insert a provision into the Bill that refers the above provisions to the
Legislation Monitor for review.

[1] The Hon John Clarke QC, Report of the Clarke Inquiry into the Case of Dr Mohamed Haneef (November
2008).

[2] Report of the
Security Legislation Review Committee, (June
2006)

[3] Parliamentary Joint
Committee on Intelligence and Security, Inquiry into the proscription of
‘terrorist organisations’ under the Australian Criminal Code (September 2007).

[4] Parliamentary Joint Committee on Intelligence and Security, Review of
Security and Counter Terrorism Legislation (2006).

[5] Australian Law
Reform Commission, Fighting Words: A Review of Sedition Laws in
Australia, Report no 104
(2006).

[6] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009).

[7] See:
Attorney –General’s Department, ‘Submissions to the National
Security Legislation Public Consultation’,http://www.ag.gov.au/www/agd/agd.nsf/Page/Consultationsreformsandreviews_Nationalsecuritylegislation-Publicconsultation_SubmissionstotheNationalSecurityLegislationPublicConsultation,
(viewed 4 May 2010).

[8] Selection
of Bills Committee, Parliament of Australia, Report No 6 of 2010 (2010),
Appendix 3.

[9] Details and
process for Council of Australian Governments’ (COAG) review of
counter-terrorism legislation’, Council of Australian Governments’
Meeting (10 February 2006), Attachment G. At <http://www.coag.gov.au/coag_meeting_outcomes/2006-02-10/docs/attachment_g_counter_terrorism.rtf>, (viewed 28 April 2010).

[10] COAG above.

[11] COAG above.

[12] See the Clarke
Report.

[13] See Crimes Act
1914 (Cth) s 23CA.

[14] See Crimes Act 1914 (Cth) s 23CA(4).

[15] See Crimes Act 1914 (Cth) s 23DA(7) and proposed ss 23DE and 23DF.

[16] See Crimes Act 1914 (Cth) s 23CA(8)(a)-(l).

[17] See Crimes Act 1914 (Cth) ss 23CA(8)(m) and 23CB.

[18] Clarke Report, 283 and ch
3, 45-80.

[19] Seven days under
proposed s 23DB(11) plus 24 hours under the extension of investigation
mechanism.

[20] Article 9 of the
ICCPR protects both the right to liberty and the right to security of the
person. See also art 3 of the Universal Declaration of Human Rights and art 5(1)
of the European Convention on Human Rights.

[21] International Covenant
on Civil and Political Rights, opened for signature 16 December 1966,
999UNTS 171 (entered into force 23 March 1976 except Article 41 which came into
force on 28 March 1979).

[22] See
for example A v Australia, Communication No 560/1993, UN Doc
CCPR/C/59/D/560/1993; Spakmo v Norway, Communication No 631/1995, UN Doc
CCPR/C/67/D/631/1995; C v Australia Communication No 900/1999, UN Doc
CCPR/C/76/D/900/1999 and Baban v Australia, Communication No 1014/2001,
UN Doc
CCPR/C/78/D/1014/2001.

[23] UN
Human Rights Committee, General Comment 8: Right to liberty and security of
persons (Art 9), UN Doc 30/06/82, (1982),
[2].

[24] Borisenko v Hungary, Case No. 852/1999 (A/58/40), Freemantle v Jamaica, Case No. 625/1995
(A/55/40, Nazarov v Uzbekistan, Case No. 911/2000 (A/59/40), Kennedy v
Trinidad and Tobago, Case No. 845/1998
(A/57/40).

[25] Samoila and
Cionca v Romania, No 33065/03, (04.03.2008).

[26] Ipek v Turkey (2009)
Eur Court HR (2nd Section) (unreported). Applications nos 17019/02 and 30070/02
(3 May 2009).

[27] Ipek v
Turkey (2009) Eur Court HR (2nd Section) (unreported). Applications nos
17019/02 and 30070/02 (3 May 2009), [34] (references
omitted).

[28] Ipek v
Turkey (2009) Eur Court HR (2nd Section) (unreported). Applications nos
17019/02 and 30070/02 (3 May 2009),
[35].

[29] Ipek v Turkey (2009) Eur Court HR (2nd Section) (unreported). Applications nos 17019/02 and
30070/02 (3 May 2009), [36].

[30] Brogan v United
Kingdom (1989) 11 Eur Court HR (ser A)
117.

[31] Cited in McKay v
United Kingdom (2007) 44 Eur Court HR 41, 827 and Koster v Netherlands (1992) 14 Eur Court HR (ser A) 396.

[32] Brogan v United
Kingdom (1989) 11 Eur Court HR (ser A) 117,
[62].

[33] Clarke Report, 249.

[34] Clarke Report, 246.

[35] Clarke Report,
246.

[36] Clarke Report,
249.

[37] Clarke Report,
250.

[38] Clarke Report, 76, 82
and 262.

[39] See Explanatory
Memorandum, National Security Legislation Amendment Bill 2010, 32, which refers
to the explanation of the two categories of time that may be disregarded from
the investigation period that apply to both terrorism and non-terrorism offences
on 25.

[40] Clarke Report, 70.

[41] Clarke Report,
249.

[42] Clarke Report,
249.

[43] Crimes Act 1914 (Cth), ss 23CA(10), 23CB(3),
23DA(2).

[44] Clarke Report, 81.

[45] Clarke Report, 258.

[46] See Crimes Act 1914 (Cth), proposed s 23DA(7).

[47] See George v Rockett (1990) 170 CLR 104. For further discussion, see
also Clarke Report, 233-
234.

[48] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009),
[107].

[49] UN Human Rights
Committee, Concluding Observations on Australia (2009), UN Document No:
CCPR/C/AUS/CO/5, (7 May 2009),
[11].

[50] See Crimes Act 1914 (Cth), s 15AB,

[51] Almost 2
years in Raad v DPP [2007] VSC 330; 3.5 years in Re Kent [2008]
VSC 431.

[52] [2005] VSC
195.

[53] Coldrey J citing with
approval Vincent J in R v Maloney, unreported, 31 October
1990.

[54] DPP v Cozzi [2005] VSC 195, [22], [25].

[55 ]M Nowak, U.N. Covenant on
Civil and Political Rights: CCPR Commentary (2nd ed, 2005), 382,
[12].

[56] UN Human Rights
Committee Communication No 687/1996 [2.1] and
[10.3].

[57] Crimes Act
1914 (Cth), proposed s 3UEA(2)(a),
(b).

[58] Crimes Act 1914 (Cth), proposed s 3UEA(3),
(4).

[59] Crimes Act 1914 (Cth), proposed
s 3UEA(5).

[60] Van
Rossem v Belgium, Application No. 41872/98. See English version of registry
summary on <http://www.echr.coe.int/Eng/Press/2004/Dec/ChamberjudgmentVanRossemvBelgium91204.html>,
(viewed 18 March 2009).

[61] Criminal Code, RS 1985, c.C-46 s117.04(2) provides ‘Where, with respect to
any person, a peace officer is satisfied that there are reasonable grounds to
believe that it is not desirable, in the interests of the safety of the person
or any other person, for the person to possess any weapon, prohibited device,
ammunition, prohibited ammunition or explosive substance, the peace officer may,
where the grounds for obtaining a warrant under subsection (1) exist but, by
reason of a possible danger to the safety of that person or any other person, it
would not be practicable to obtain a warrant, search for and seize any such
thing, and any authorization, licence or registration certificate relating to
any such thing, that is held by or in the possession of the
person’.

[62]Criminal
Code, RS 1985, c.C-46 s117.04(3) provides ‘A peace officer who executes a
warrant referred to in subsection (1) or who conducts a search without a warrant
under subsection (2) shall forthwith make a return to the justice who issued the
warrant or, if no warrant was issued, to a justice who might otherwise have
issued a warrant, showing

(a) in the case of an execution of a warrant, the
things or documents, if any, seized and the date of execution of the warrant;
and

(b) in the case of a search conducted without a warrant, the grounds on
which it was concluded that the peace officer was entitled to conduct the
search, and the things or documents, if any,
seized’.

[63] Crimes Act
1914 (Cth), s3UF(1).

[64] Crimes Act 1914 (Cth), s 3UF(1) and (2)(i) and (ii).

[65] Criminal Code, s
80.1(1)(a)-(c).

[66] Criminal
Code, s 80.1(1)(d).

[67] Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws
in Australia, ALRC 104 (2006), recommendation 11-4 and Parliamentary Joint
Committee on Intelligence and Security, Report on Review of Security an
Counter-Terrorism Legislation (2006), recommendation
6(a).

[68] Government Response to
the Parliamentary Joint Committee on Intelligence and Security, Report on
Review of Security and Counter-Terrorism Legislation. Tabled December 2008.
At : <http://www.aph.gov.au/house/committee/pjcis/reports.htm>,
(viewed 28 April 2010) and Government Response to the Australian law Reform
Commission, Fighting Words: A Review of Sedition Laws in Australia.
Tabled December 2008. At <http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_AustralianGovernmentresponsetoALRCReviewofseditionlawsinAustralia-December2008>, (viewed 28 April 2010).

[69] Australian Human Rights Commission, Submission on the
Attorney-General’s Discussion Paper on Proposed Amendments to National
Security Legislation, (9 October 2009), recommendation 1, see further 6-7.
At <http://www.humanrights.gov.au/legal/submissions/2009/20091009_national_security.html>,
(viewed 28 April 2010).

[70] Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws
in Australia, Report no 104 (2006) recommendation
2-1.

[71] See Erdogdu v
Turkey (2002) 34 EHRR 50,
[52].

[72] See Fressoz and
Roire v France (2001) 31 EHRR 2,
[45].

[73] See Erdogdu v
Turkey (2002) 34 EHRR 50,
[52].

[74] See Faurisson v
France, UN Human Rights Committee, Communication No. 550/93, UN Doc:
CCPR/C/58/D/550/1993(1996), [8]. This is also the approach adopted by the
European Court of Human Rights in relation to the comparable provision of the
ECHR, article 10(2): see Fressoz and Roire v France (2001) 31 EHRR 2. See
also, R v Shayla [2003] 1 AC
247.

[75] Human Rights and Equal
Opportunity Commission, Racist Violence: Report of the National Inquiry into
Racist Violence in Australia (1991), Human Rights and Equal Opportunity
Commission, Article 18: Freedom of Religion and Belief (1998) and Human
Rights and Equal Opportunity Commission, Isma—Listen: National
Consultations on Eliminating Prejudice against Arab and Muslim Australians (2004).

[76] International
Convention on the Elimination of All Forms of Racial Discrimination, opened
for signature 21 December 1965, 660UNTS 195 (entered into force 4 January 1969
except Article 14 which came into force 4 December 1982).

[77] Australian Capital
Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Lange v Australian
Broadcasting Corporation (1997) 189 CLR 520; Levy v Victoria (1997)
189 CLR 579.

[78] Human Rights
and Equal Opportunity Commission, Ismaع-Listen: National
Consultations on Eliminating Prejudice against Arab and Muslim Australians (2004), [2.2.3].

[79] This is
supported by the common law interpretative principle that, subject to any
contrary intention expressed by the legislature, legislation that implements
Australia’s obligations under an international convention should be
interpreted using the same interpretative principles that apply to that
convention. See Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 265. See
further, D C Pearce and R S Geddes, ‘Statutory Interpretation in
Australia’ (6th ed, 2006), [2.16].

[80] Canadian Criminal Code RS
1985, s 319(1).

[81] Australian
Law Reform Commission, Fighting Words: A Review of Sedition Laws in
Australia, Report no 104 (2006),
259-261.

[82] Criminal Code, s
102.1(3).

[83] Australian Human
Rights Commission, Submission to the Parliamentary Joint Committee on
Intelligence and Security Review of the Power to Proscribe Terrorist
Organisations (2007) see especially [5], [7] and
[28].

[84] Australian Human
Rights Commission, A Human Rights Guide to Australia’s
Counter-Terrorism Laws (2008) [8.3]; Australian Human Rights Commission, Submission to the Parliamentary Joint Committee on Intelligence and Security
Review of the Power to Proscribe Terrorist Organisations (2007) [8], John
von Doussa, President of the Australian Human Rights Commission, 'Incorporating
Human Rights Principles into National Security Measures' (speech delivered at
the International Conference on Terrorism, Human Security and Development: Human
Rights Perspectives, City University of Hong Kong, 16-17 October 2007).

[85] Further, prosecution is
relieved of the burden of proving beyond reasonable doubt that an entity is a
terrorist organisation in every trial for the terrorist organisation offences
under div 102 of the Criminal Code: Evidence Act 1995 (Cth) s
143(1)(b).

[86] For example,
subjecting a person to a control order under s 104.2 of the Criminal Code or a
longer period of possible pre-charge detention under pt 1C of the Crimes Act.

[87] M Nowak, U.N. Covenant
on Civil and Political Rights: CCPR Commentary (2nd ed, 2005),
360.

[88] PJCIS Proscription
Report, 51 [6.15].

[89] PJCIS
Review Report, 32.

[90] Sheller
Report, 73.

[91] For further
discussion of this issue, see ‘Gilbert + Tobin Centre of Public Law
– Annexure 2’ of the Gilbert + Tobin Centre of Public Law’s
submission to the Senate Legal and Constitutional Affairs Committee inquiry into
the National Security Legislation Amendment Bill 2010, submitted on 3 May 2010.

[92] Thomas v Mowbray [2007] HCA 33, [212] (Kirby J), [456] (Hayne J), [607) (Callinan J). The
remaining 4 Judges did not consider the
issue.

[93] Thomas v Mowbray [2007] HCA 33.

[94] [2007]
HCA 33, [148], [153], [154] (Crennan and Gummow JJ with respect to the defence
and external affairs powers), [445], (Hayne J with respect to the defence and
external affairs powers), [6] (Gleeson CJ agreeing with respect to the defence
and external affairs powers), [582] (Callinan J with respect to the defence
power only), [611] (Heydon J with respect to the defence power
only).

[95] Resolution on
Threats to International Peace and Security Caused by Terrorist Acts, SC Res
1566, UN SCOR, 5053rd mtg, UN Doc S/Res/1566 (2004).

[96] Sheller Committee Report,
122, [10.53].

[97] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009), 63.

[98] Attorney-General’s
Department, National Security Legislation Discussion Paper (August 2009),
67.

[99] Australian Human Rights
Commission, Submission to the Attorney-General’s Discussion Paper on
Proposed Amendments to National Security Legislation, (9 October 2009),
section 9.2. At http://www.humanrights.gov.au/legal/submissions/2009/20091009_national_security.html#Heading241,
(viewed 4 May 2010).

[100] Parliamentary Joint Committee on Intelligence and Security, Report on Review
of Security and Counter-Terrorism Legislation (2006) recommendation 19.
Accepted by the government in its response to that Report. Government
Response to the Parliamentary Joint Committee on Intelligence and Security,
Report on Review of Security and Counter-Terrorism Legislation. Tabled
December 2008. At <http://www.aph.gov.au/house/committee/pjcis/reports.htm>,
(viewed 29 April 2010).

[101] Details and process for Council of Australian Governments’ (COAG) review
of counter-terrorism legislation’, Council of Australian
Governments’ Meeting (10 February 2006), Attachment G. At <http://www.coag.gov.au/coag_meeting_outcomes/2006-02-10/docs/attachment_g_counter_terrorism.rtf>, (viewed 28 April 2010).

[102] COAG above.

[103] COAG above.

[104] Parliamentary Joint
Committee on Intelligence and Security, Inquiry into the proscription of
‘terrorist organisations ’under the Australian Criminal Code. (September 2007) recommendation 7, accepted by Government in its Response to
that Report. Government Response to the Parliamentary Joint Committee on
Intelligence and Security, Inquiry into the proscription of ‘terrorist
organisations ’under the Australian Criminal Code. Tabled December
2008. At <http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_AustralianGovernmentresponsetoPJCISInquiryintotheproscriptionofterroristorganisationsundertheAustralianCriminalCode-December2008>,
(viewed 28 April 2010).

[105] Australian Security Intelligence Organisation Act 1979 (Cth) s 34ZZ.