CTH Passes New Legislation to Strengthen Counter-Terrorism Measures

On 11 December 2019, the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 (Cth) (‘the Act’) received assent. The Act is intended to strengthen Australia’s counter-terrorism legislative network and introduces a range of amendments that fall into two major categories:

1.  Amendments to the Crimes Act 1914 (Cth) (‘the Crimes Act’) to further restrict bail and parole and
2.  Amendments to the Continuing Detention Order (CDO) Scheme under Division 105A of the Criminal Code Act 1995 (Cth)  (‘the Criminal Code’).

Restrictions on Bail and Parole

Prior to the Act receiving assent, section 15AA of the Crimes Act enforced presumptions against bail and parole for persons being considered for bail and parole as a result of a charge or conviction for a terrorism offence. The Act amends and expands the application of section 15AA by broadening the group of offenders who are presumed not to be granted parole. This broader group of offenders includes:

1. previous convicted offenders including those currently serving a sentence for a terrorism offence,
2. persons subject to a control order and
3. persons who the Attorney-General is satisfied have made statements or carried out activities supporting, or advocating 22 support for, terrorist acts.

The Act also establishes a set of criterion for determining whether there are existing exceptional circumstances that justify making a parole order in relation to a person under 18 years of age. There is no exhaustive list of considerations that the Attorney-General must take into account, however, the Act requires that if the offender is under 18 years of age, it is necessary for the Attorney-General to consider:

1.  Protection of the community as the paramount consideration; and
2.  The best interests of the person as a primary consideration.

The Act also requires that these considerations be taken into account in decisions relating to fixing non-parole periods for persons under 18 years of age and determining whether the presumption against bail for certain offences including terrorist offences is rebutted due to exceptional circumstances.

Amendments to the CDO Scheme

The CDO Scheme is intended to ensure the safety and protection of the community from terrorist offenders who pose an unacceptable risk of committing a serious terrorist offence if released at expiry of their custodial sentence. Schedule 2 of the Act introduces new amendments to the Criminal Code intended to support and enhance the current framework through two main measures:

1. The Act expands the eligibility of criteria for the CDO scheme. Prior to the Act, an application for a CDO could only be made for a person who was detained in custody and serving a sentence of imprisonment for an offence under section 105A.3(1) of the Criminal Code which includes offences such as international terrorist activities, foreign incursions, recruitment activities and serious terrorist offences under Part 5.3 of the Criminal Code. The Act now allows a person who is detained in custody and serving a sentence of imprisonment for an offence other than an offence under section 105A.3, and who has been continuously detained in custody since being convicted of a section 105A.3 offence, to be eligible to receive a CDO. According to the explanatory memorandum, the purpose of the amendment is to “ensure that a terrorist offender continues to be eligible for a CDO irrespective of whether the final sentence from which the offender is released is a terrorism sentence, or another sentence that is served concurrently or cumulatively with their terrorism sentence.”
2. The Act also amends the information disclosure obligations in order to remove the requirement for an individual in relation to whom an application has been made for a CDO to be provided with a complete copy of the application in certain circumstances. According the explanatory memorandum, the amendments are intended to “bring the information protections available in respect of CDO applications in line with the protections available in other contexts, such as criminal prosecutions.”  The amendments allow information to be excluded from a CDO application on the basis of "public interest immunity". The Senate agreed upon an amendment inserting an express stipulation that there is no “obligation on the offender to satisfy the Court that a claim of public interest immunity should not be upheld” but rather that the person claiming the immunity must make and substantiate the claim, and satisfy the Court that the claim should be upheld.

Response to the Act

The Act manifests the government’s response to the recommendations of the Council of Australian Governments (COAG) concerning Australia’s bail and parole regimes following a terrorist incident in 2017 where an offender on parole with a long history of violence who had been previously acquitted of a terrorist offence shot and killed a man and held a woman hostage before being fatally shot. A previous Bill in February of this year with no substantive differences to this Act lapsed on prorogation of Parliament before being debated in either House of Parliament.

As the Bill Digest explains, critics suggest that the amendments “go beyond what would be required to give effect to the COAG decision, and are problematic in several respects, including by capturing individuals with only a tenuous link to terrorism.” While the government has asserted that the Act is compatible with human rights, others have suggested the Act produces incursions into the presumption of innocence and right to liberty. The Australian Human Rights Commission recommended extensive amendment during the parliamentary process including a requirement of non-application of the presumption against bail and parole for children. The Law Council of Australia criticised the expansion of the presumption against bail and parole as unnecessary, disproportionate and against the interests of rehabilitation and deradicalisation efforts.

On the other hand, in a media release, the Attorney-General, Mr Christian Porter asserted that “the Morrison Government makes no apologies for the tough steps we are taking to protect the community from the very real and ongoing threat of terrorist attacks.” Mr Peter Dutton, the Minister for Home Affairs, also stated that “Whether it is by providing record funding for our law enforcement agencies, strengthening our borders, or passing tough laws to keep terrorists in prison where they belong, our first priority is keeping every Australian safe and secure.”

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Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019, Bill, second reading speech and explanatory memorandum available from TimeBase's LawOne Service.

Media Release: New Laws Will Keep Terrorists Behind Bars Longer (Hon Christian Porter (Attorney-General), Hon Peter Dutton (Minister for Home Affairs), 04/12/19)