Preventative Detention Orders
Recommendation 1: The Bill should be amended to include additional sub-clauses (in s105.4(4) and (6)), which require the issuing authority to be satisfied that the purpose for which the order is made cannot be achieved by a less restrictive means.
Recommendation 2: The Bill should be amended to provide for the lapse of the Preventative Detention Order ('PDO') provisions in 4-5 years (ie a shorter sunset clause).
Recommendation 3: The Bill should provide that a detained person or their lawyer can make an application for revocation of a PDO and can appear in any application for a continuing PDO or for revocation or extension of a PDO.
Recommendation 4: To avoid any concern that a detained person may seek to tie up AFP resources by raising frivolous or vexatious points in an inter-partes application for a continuing PDO or for revocation or extension of a PDO, the Bill be amended such that:
- The issuing authority is given express power to control its own proceedings. This would give it ample power to prevent a detained person or their lawyer seeking to abuse the procedure.
- It is made clear that the issuing authority is not bound by the rules of evidence and may inform itself as it sees fit. This would minimise the taking of technical objections and allow the issuing authority to mould its procedures to take account of, for example, operational constraints on the AFP.
Recommendation 5: At the very least, the Bill should set out the minimum requirements for the content of the 'summary' of the grounds on which a PDO is made. The Commission has in mind an amendment which requires that the summary is sufficient to alert the subject of the order to the factual basis upon which the order is made.
Summaries should also be required in respect of each extension, refused revocation and decision to grant a continuing PDO. Again, they should be required to be sufficient to alert the subject of the order to the factual basis upon which the order or decision is made.
Recommendation 6: That the Committee consider whether the use of Special Advocates or a national Public Interest Monitor could be used to ensure fairness to a detained person where security sensitive information is unable to be disclosed (in full or in part) to them.
Recommendation 7: While the remedies available for contravention of the Protocol under the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) could be improved, the Commission recommends that a similar protocol/complaint handling mechanism be considered in relation to detention under the Bill.
Recommendation 8: That the issue of possible solitary confinement of people detained under PDOs (and other issues relating to the treatment of people detained in state prisons) be addressed in that protocol.
Recommendation 9: Given that the limitations on contact with family members of people detained under PDOs is arguably of little practical utility from a national security perspective, the Commission recommends that more expansive contact rights should be included in the Bill. For example, the contact rights available to people aged under 18 or who are incapable of managing their own affairs could be applied more generally. This would still be subject to the right of the AFP to prevent contact with a particular person through the use of prohibited contact orders.
Recommendation 10: The Bill should be amended to provide that a detained person has a right be informed of a prohibited contact order, save in exceptional circumstances (for example, where disclosure would inevitably compromise intelligence gathering efforts). There should also be provision for a detainee to seek to have such an order revoked.
Recommendation 11: Contact with lawyers should take place within the sight, but not the hearing, of an AFP officer.
Recommendation 12: The disclosure offences and restrictions which apply to contact with lawyers need to be reconsidered and amended so as to avoid imposing unnecessary constraints upon the provision of legitimate legal advice. More specifically, the Bill should allow a lawyer to provide their professional services in connection with any pressing lawful personal or business affairs.
Recommendation 13: The Bill should be amended to require the issuing authority to take into account the best interests of the child when considering a PDO application.
Recommendation 14: The time limit on contact between children and parents/guardians should be removed or relaxed. To avoid possible practical complications, the Bill could confer upon the issuing authority the power to impose some upper limit on contact in the event the AFP demonstrates that there are compelling reasons for doing so.
Recommendation 15: The non-disclosure offence should be amended so as to allow disclosure of the matters specified in s105.41(3)(b)(i)-(iv) between 'family members' (as defined in proposed s105.35(3)). Provision could be made (similar to prohibited contact orders) to allow the AFP to prevent disclosure to a particular family member.
Recommendation 16: The Bill should confer upon a detained person the right to obtain legal aid if they are unable to afford representation.
Recommendation 17: The issuing Court should be specifically required to consider whether there are less restrictive means of achieving the relevant purpose (protecting the public from a terrorist act).
Recommendation 18: The Bill should be amended to provide for the lapse of the control order provisions in 4-5 years (ie a shorter sunset clause).
Recommendation 19: The Bill should be amended such that the issuing court for control orders is required to satisfy itself that any ex-parte application is warranted in the particular circumstances. This is the normal practice of a court asked to consider an ex-parte application.
Recommendation 20: In relation to access to information regarding the basis for the making of control orders:
- the Bill should set out the minimum content to be included in the summary to be provided to the subject and specifically require that it include sufficient factual material to alert the subject of the order to the factual basis upon which the order was made; and
- consideration should be given to the use of the Special Advocate procedure and/or a Public Interest Monitor in the case of security sensitive material.
Recommendation 21: In relation to the defences to the new proposed sedition offences:
- that section 80.3 should be broadened so as to extend to expression which could be characterised as 'attempting to encourage discussion on matters of public interest' if such expression falls within the proposed sections 80.2(7) or (8); and
- that proposed section 80.3 should be broadened to expressly provide a defence in respect of anything said or done in good faith in the performance, exhibition or distribution of an artistic work; the course of any statement, publication or discussion or debate held for any genuine purpose; or, in making or publishing of a fair and accurate report of a particular matter.