The Parliamentary Joint Committee on Intelligence & Security report on the
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth) - following a lightning consultation - features the following recommendations in 213 pages -
R1
The Committee recommends that the Attorney-General amend the Bill to remove the ability of ‘members’ or ‘part-time senior members’ of the Administrative Appeals Tribunal to be eligible issuing officers for a delayed notification search warrant.
R2
that the Attorney-General amend the Bill to reduce the extension of a notification period for a delayed notification search warrant without requiring Ministerial authorisation from 18 to 12 months.
R3
that additional exemptions be included in the offence provisions relating to disclosure of information on delayed notification search warrants in proposed section 3ZZHA of the Bill to explicitly enable:
- disclosure of information in the course of obtaining legal advice,
- disclosure of information by any person in the course of inspections by the Commonwealth Ombudsman, or as part of a complaint to the Commonwealth Ombudsman or other pro-active disclosure made to the Commonwealth Ombudsman, and communication of information by Commonwealth Ombudsman staff to the Commonwealth Ombudsman or other staff within the Office of the Commonwealth Ombudsman in the course of their duties.
R4
the Attorney-General amend the Explanatory Memorandum of the Bill to confirm that the Commonwealth Director of Public Prosecutions must take into account the public interest, including the public interest in publication, before initiating a prosecution for the disclosure of information relating to a delayed notification search warrant.
R5
Whilst there were differing views within the Committee, the Committee recommends that the Attorney-General further clarify the meaning of the terms ‘encourage’, ‘advocacy’ and ‘promotion’ by amendment to either the Bill or its Explanatory Memorandum in light of the evidence provided during the Committee’s inquiry.
R6 The Committee recommends that the Attorney-General amend the Explanatory Memorandum of the Bill to clarify the meaning of ‘promotion’ in relation to statements of support for the objectives or activities of a terrorist organisation as defined by the Criminal Code.
R7
that the Attorney-General review all current listings of terrorist organisations under the Criminal Code to determine whether additional names or aliases should be added to any listings.
R8
that the Attorney-General notify the Committee of any proposed Regulation to alter the listing of a terrorist organisation by adding or removing a name or alias. The Committee also recommends that it have the power to determine if it wishes to review any proposed changes to listings.
R9
the Government consider requiring that a control order can only be based on a foreign conviction where the conduct giving rise to the conviction would constitute a terrorism related offence in Australia.
R10
The Committee notes that the Attorney-General’s Department and the Australian Federal Police have flagged the possibility of further enhancements to the control order regime given ongoing examination of the application process and purposes for which a control order can be sought.
Should further changes be proposed, the Committee recommends that these amendments are referred to this Committee with appropriate time for inquiry and review.
R11
The Committee recommends the Bill be amended:
- to ensure that a preventative detention order is only able to refer to a description in circumstances where the person’s true name is not known and not able to be determined based on reasonable inquiries.
- to enable a preventative detention order to refer to an alias (as well as, or instead of a description) instead of a name where the person’s name is not known and not able to be determined based on reasonable inquiries.
The Bill be amended so that where a description is included in the preventative detention order, it has sufficient detail so as to identify beyond reasonable doubt the person to whom it applies.
R12
the existing preventative detention order regime be amended to specify that where the Ombudsman is required to be notified of certain events by the Australian Federal Police, this notification is required to take place as soon as is reasonably practicable.
R13
the Bill be amended so that the following powers sunset 24 months after the date of the next Federal election:
- control order regime in Division 104 of the Criminal Code Act 1995 (Cth)
- preventative detention order regime in Division 105
- the stop, search and seizure powers relating to terrorism offences in Division IIIA of the Crimes Act 1914 questioning and questioning and detention warrant regime in the Australian Security Intelligence Organisation Act 1979 (Cth).
The Intelligence Services Act 2001 (Cth) be amended to require the Parliamentary Joint Committee on Intelligence and Security to complete a review of each of the powers listed above 18 months after the next Federal election.
The Independent National Security Legislation Monitor Act 2010 (Cth) be amended to require the INSLM to finalise a review of the operation of each of these powers 12 months after the next Federal election.
R14
the functions of the Parliamentary Joint Committee on Intelligence and Security be extended to encompass the counter-terrorism activities of the Australian Federal Police, including, but not limited to, anything involving classified material.
R15
the definition of ‘subverting society’ in proposed section 117.1 of the Criminal Code be replaced with a cross-reference to the conduct contained in the definition of ‘terrorist act’ in section 100.1 of the Criminal Code.
R16
the Attorney-General consider amending the definition of ‘engaging in a hostile activity’ in proposed section 117.1 of the Criminal Code to constrain it to conduct that would be considered to be a ‘serious offence’ if undertaken within Australia. The definition of ‘serious offence’ for the purposes of this section should be made in consideration of other comparable areas of Australian criminal law.
R17
the Attorney-General remove from, or more specifically define, acts prejudicial to the ‘international relations’ of Australia in the definition of ‘prescribed organisation’ contained in clause 117.1(2) for the proposed foreign incursions and recruitment offences.
R18 the proposed subsection 119.3(2)(b), which explicitly enables the Minister to declare an entire country for the purposes of prohibiting persons from entering, or remaining, in that country, be removed from the Bill .
R19 that the Bill be amended to insert a clause that enables the Parliamentary Joint Committee on Intelligence and Security to conduct a review of the declaration of each area made under proposed section 119.3, within the disallowance period for each declaration. The clause should be modelled on the existing subdivision 102.1A of the Criminal Code in relation to the listing of terrorist organisations.
20
If legislated, the Committee recommends that subclause 119.2(6), relating to the proposed offence for entering, or remaining in, a declared area, sunset two years after the next Federal election.
R21
the Intelligence Services Act 2001 (Cth) be amended to require the Parliamentary Joint Committee on Intelligence and Security to complete a public inquiry into the ‘declared area’ provisions in clauses 119.2 and 119.3 of the Bill , including the list of ‘legitimate purposes’, 18 months after the next Federal election.
The Committee further recommends that the Independent National Security Legislation Monitor Act 2010 (Cth) be amended to require the Independent National Security Legislation Monitor to review and report on the operation of the ‘declared area’ provisions 12 months after the next Federal election.
R22 the proposed section 27D of the Foreign Evidence Act 1994 (Cth), which currently applies only to public officials and persons connected to public officials, be broadened to apply in circumstances where any person has directly obtained material as a result of torture or duress.
R23
the Government broaden the definition of ‘duress’ in proposed Part 3A of the Foreign Evidence Act 1994 (Cth) to include other threats that a reasonable person might respond to, including threats against a person’s assets, personal associates or other third parties.
R24 the proposed Part 3A of the Foreign Evidence Act 1994 (Cth) be amended, based on section 165 of the Evidence Act
1995 (Cth), to require courts to provide appropriate direction to juries, where necessary, about the potential unreliability of foreign evidence admitted under Part 3A.
R25 the Attorney-General amend the Explanatory Memorandum to make it clear that the definition of ‘politically motivated violence’ must be read with reference to the opening words in the definition of ‘security’ in section 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) .
R26 the proposed subsection 22A(2) of the Australian Passports Act 2005 (Cth) and proposed section 15A of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) be amended so that the Director-General of ASIO or a Deputy Director-General must suspect on reasonable grounds the factors necessary to apply for the suspension of travel documents.
R27
the ability of the Foreign Affairs Minister to delegate the power to suspend a travel document be limited to the Secretary of the Department of Foreign Affairs and Trade.
R28
the Bill be amended to require the Attorney-General or Minister for Justice to conduct:
- a review of the decision to issue a certificate under paragraph 38(2)(a) of the Australian Security Intelligence Organisation Act 1979 (Cth) or proposed subsection 48A(4) of the Australian Passports Act 2005 (Cth) within 12 months of issuing that certificate; and
- ongoing reviews every 12 months for the time period the certificate remains active.
3 Schedules 2 to 7
R29
the Bill be amended to require the Attorney-General to make a decision to issue a security notice ‘on reasonable grounds’, having regard to:
- whether there are reasonable grounds to suspect that a person is, or will be, directly involved in activities which are prejudicial to security (with consideration given to ASIO’s security assessment); and
- the likely effect of the cancellation of welfare payments on any dependents and what alternative arrangements might apply.
R30 the Bill be amended to require the Attorney-General to conduct:
- an initial review of the decision to issue a security notice within 12 months of making that decision; and
- ongoing reviews every 12 months after for the time period the security notice remains active.
R31
Unless the Attorney-General is able to provide to the Parliament further explanation on the necessity of the proposed definition of ‘serious Commonwealth offence’ for the purposes of the Customs Act 1901 (Cth) and how it would enable a greater role for Customs in dealing with national security threats or terrorist activity, the Committee recommends that the definition be removed from the Bill .
R32
that the allowable period of detention by a Customs officer without notification to a family member or other person be extended from 45 minutes to two hours, rather than four hours as proposed in the Bill.
The Committee notes that this does not deny a Customs officer’s power to refuse contact beyond this period on grounds of national security, security of a foreign country, safeguarding law enforcement processes or to protect the life and safety of another person.
R33
that information on the frequency of the use of Customs detention powers is included in the Department’s annual report. Further where a Customs officer exercises the power to refuse contact with a family member or other person on the grounds of national security, security of a foreign country, safeguarding law enforcement processes or to protect the life and safety of another person, then notice of this should be provided to the Ombudsman within seven days.
R34
that the Privacy Commissioner undertake a Privacy Assessment of the data collected and stored by the Department of Immigration and Border Protections and Customs, and report to the Attorney-General by 30 June 2015, with specific regard to the collection, storage, sharing and use of that data by the government agencies within the remit of the Commissioner’s jurisdiction.
R35
that the Bill be amended to remove the ability to prescribe the collection of additional categories of biometric information within the Migration Regulations.
Should this information be required by relevant agencies to ensure Australia’s border security, further legislative amendments should be proposed by the Government and referred to this Committee with appropriate time for inquiry and report.
R36 the Government consult with the Privacy Commissioner and conduct a privacy impact statement prior to proposing any future legislative amendments which would authorise the collection of additional biometric data such as fingerprints and iris scans.
Recommendation 37 is that
The Committee commends its recommendations to the Parliament and recommends that the Bill be passed.
The Committee comments that
The inquiry was referred to the Committee by the Attorney-General on 24 September 2014. The Chair of the Committee, Mr Dan Tehan MP, announced the inquiry by media release on 25 September 2014 and invited submissions from interested members of the public. Submissions were requested by 3 October 2014.
The Committee received 46 submissions, 10 supplementary submissions and two exhibits from sources including government agencies, legal,
community and civil liberties groups and members of the public. A list of submissions and exhibits received by the Committee is at Appendix A.
[disclosure: I made a submission]
The Committee held three public hearings, one private hearing and one private briefing in Canberra on 2 October, 3 October and 8 October 2014. A list of hearings and the witnesses who appeared before the Committee is included at Appendix B.
Both the Inspector-General of Intelligence and Security and the Commonwealth Ombudsman appeared before the Committee and gave evidence that they have sufficient authority to oversight the new powers in the Bill. These agencies are likely to require more resources to fulfil their expanded role. As recommended in the Committee’s previous report, the position of the Independent National Security Legislation Monitor should also be urgently filled.
Copies of submissions received and transcripts of public hearings can be accessed on the Committee website at www.aph.gov.au/pjcis. Links to the Bill and the Explanatory Memorandum are also available on the Committee website.
Timeframe for the inquiry
Nearly every submission to the inquiry commented on the short timeframes. The intensive nature of the inquiry and the short timeframes placed significant demands on the Committee. While the Committee recognises and understands that this resulted from exceptional circumstances, it would have been preferable if more time had been available for the inquiry.
The Committee notes that a number of the measures in the Bill are derived from recommendations in earlier reviews or have formed part of community consultations conducted by the Attorney-General’s Department. The Bill also proposes a number of necessary and urgent measures to respond to threats to Australia’s national security and this has necessitated an expedited process.
This report, while making a number of recommendations to amend the Bill, is designed to inform the next stage of debate which will take place in the Senate and House of Representatives. In some instances the Committee has recommended amendments to the Bill. In other instances the Committee has determined that measures in the Bill require more detailed explanation and has requested that the Attorney-General provide additional information to assist debate of the Bill.
The provisions of the Bill were intensely debated and there were a variety of views expressed within the Committee. The Committee expects the Bill will be subject to continuing debate in the Parliament and the community.
It is the Committee’s firm view that for the third tranche of proposed legislation, a longer timeframe will be required to deal with the complexity of the legislation and allow sufficient time for public consultation.
Report structure
