Bill Proposing Terrorism Legislation Overhaul Introduced in Victoria

Tuesday 15 May 2018 @ 9.33 a.m. | Crime | Legal Research

Last Wednesday, 9 May 2018, Victorian Attorney-General Martin Pakula introduced the Justice Legislation Amendment (Terrorism) Bill 2018 (Vic) (the “Bill”) into the Victorian Legislative Assembly. The proposed purpose of this Bill is to amend a number of Victorian Acts in response to the recommendations of the Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers (the “expert panel”). Attorney-General Martin Pakula was quoted in the media release of 9 May 2018:

“This is the most significant shake up of our counter terrorism laws since they were introduced. Our reforms will strengthen bail and parole laws to help keep the community safe.”

“The new laws will include important safeguards, such as independent oversight, and implement key recommendations of the Expert Panel.”

Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers

The expert panel was established by the Victorian Government in June 2017. The panel, led by former Victorian Court of Appeal Justice, the Hon David Harper AM, and former Victorian Chief Commissioner of Police, Ken Lay AO, was formed to examine and evaluate Victoria’s key terrorism legislation. In particular, the expert panel examined the effectiveness of current Victorian legislation as well as the related powers and procedures of the relevant agencies in preventing, investigating, monitoring and responding to terrorism. The panel produced two reports at the end of 2017.

The rationale behind the establishment of the expert panel was summarised by Mr Pakula in his second reading speech on 10 May 2018:

“Violent acts of terror pose a threat to communities around the world. In recent times, there have been a number of violent incidents in Australia, including in Victoria, which have been motivated by extreme views and undermine the cohesive fabric of our community. These recent, horrifying incidents have triggered consideration across all jurisdictions of whether existing counter-terrorism legislation and practice adequately guard against the evolving threat of terrorism and violent extremism.

Following the siege and hostage incident in Brighton in June 2017, the government appointed an Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers to examine the operation and effectiveness of Victoria's legislation and the powers and procedures of Victorian and Commonwealth agencies to prevent, monitor, investigate and respond to terrorism. The Expert Panel was led by former Chief Commissioner of Victoria Police, Ken Lay AO APM, and former Justice of the Court of Appeal, the Honourable David Harper AM QC.

The Expert Panel commenced its review on 26 June 2017 and publicly released reports on 21 September 2017 and 20 November 2017. Report 1 focused on reforms to police powers to deal with terrorism and assessed the tools required to counter the risk posed by violent extremists. Report 2 had a broader remit and considered reforms necessary to enhance the ability of relevant agencies and institutions to prevent, investigate, monitor and respond to terrorist acts.”

The Bill

The purpose of the Bill was outlined by Mr Pakula in the second reading speech on 10 May 2018:

"The Bill represents an overhaul of Victoria's terrorism framework, including amendments to the Terrorism (Community Protection) Act 2003 (Vic), the Bail Act 1977 (Vic), the Corrections Act 1986 (Vic), the Children Youth and Families Act 2005 (Vic), the Crimes Act 1958 (Vic), the Criminal Procedure Act 2009 (Vic) and the Sentencing Act 1991 (Vic). The Bill will give effect to all legislative recommendations from Report 1 of the Expert Panel, and recommendations 18 to 21 and 24 from Report 2. The wide-ranging reforms in this Bill will support the safety of Victorians by ensuring that Victoria Police and other justice agencies are equipped with the tools they need to address the threat of violent extremism, and keep our community safe."

The proposed amendments to the Terrorism (Community Protection) Act 2003 (Vic) were outlined in Mr Pakula's second reading speech:

"Part 2 of the Bill amends the Terrorism (Community Protection) Act 2003 ('the Act') to expand Victoria's preventative detention framework and improve the operation of special police powers to prevent or reduce the impact of a terrorist act. The Bill also makes changes to ensure that there is appropriate oversight of the exercise of powers under the Act and to facilitate reporting to the Victorian Parliament. These reforms implement recommendations 2 and 13 to 15 of the Expert Panel's Report 1, and recommendations 18 to 21 and 24 of Report 2."

Additionally, the proposed amendments to the Crimes Act 1958 (Vic) are specifically aimed at recommendation 1 of report 1 from the expert panel. The amendments and rationale behind these proposed reforms were outlined by Mr Pakula in his second reading speech:

"In the context of the Lindt Café Siege in Sydney and the State Coroner of New South Wales considering use of force powers in his Inquest into the deaths arising from the siege, the Expert Panel considered practical options to remove any barriers to Victoria Police employing appropriate force when responding to terrorist acts.

As a result, the Expert Panel recommended that the power in section 462A of the Crimes Act to use force be clarified in order to 'put beyond doubt that it applies to pre‐emptive action, including lethal force, employed in response to a life-threatening act where it may be the last opportunity to safely and effectively intervene'.

Section 462A of the Crimes Act is concerned with the use of force by any person when it is necessary to prevent an indictable offence. The Bill inserts an example to this provision, describing a situation where a police officer or protective services officer uses lethal force. The use of a statutory example allows a clear explanation of the effect of the existing law — which the Expert Panel agreed was adequate and well understood — as it applies in practice to police in the field. The amendment will provide greater clarity for law enforcement in response to terrorism scenarios, so that police are confident to act at critical moments to use lethal force in order to prevent death or really serious injury."

Other areas where the Bill proposes to make reforms include in the areas of:

  • Preventative detention (Recommendation 2, Report 1 and Recommendations 18 to 21an d 24, Report 2)
  • Special police powers (Recommendations 13 to 15, Report 1)
  • Protecting counter-terrorism intelligence (Recommendation 16, Report 1)
  • Oversight and reporting on the use of counter-terrorism powers
  • Presumption against bail (see also amendments to the Bail Act 1977 (Vic) (Recommendations 9 to 11, Report 1))

The Bill also proposes to amend the Criminal Procedure Act 2009 (Vic) and Sentencing Act 1991 (Vic) in so far as:

"The Bill amends the definition of Category A Serious Youth Offences in both the Criminal Procedure Act 2009 and Sentencing Act 1991 to add terrorism offences under the Terrorism (Community Protection) Act 2003 to the existing definition, which currently includes terrorism offences and foreign incursion offences under the Criminal Code Act 1995 (Cth). This amendment ensures that young people charged with Victorian terrorism offences are dealt with as a terrorism risk."

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