Thursday, 3 September 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020; Second Reading
That this bill be now read a second time.
The government is committed to ensuring the safety and security of all Australians. Protecting the community from terrorist threats is one of the government's highest priorities.
Australia has a robust national security and counterterrorism framework to ensure that our agencies have the powers they need to prevent terrorist attacks and manage those who would seek to commit them. Since the national terror threat level was raised to 'probable' in 2014, the Australian government has passed 19 tranches of national security legislation to ensure agencies have the powers they need to prevent terrorist attacks. These laws are kept under constant review to ensure that our legal frameworks are appropriate and adapted to the evolving threat environment.
In 2016, the Australian government introduced the high-risk terrorist offender regime into the Commonwealth Criminal Code. This provides for the continuing detention of high-risk terrorist offenders who pose an unacceptable risk of committing a serious terrorism offence at the end of their custodial sentence.
The Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 is the latest step of this government, in partnership with states and territories, to safeguard Australians from the threat of terrorism. The bill will establish an extended supervision order scheme to ensure that high-risk terrorist offenders who are released into the community at the end of their custodial sentences are subject to close supervision in proportion to the level of risk they pose to community safety.
As we have learnt from the appalling 2019 London Bridge and 2020 Streatham attacks in the UK, convicted terrorist offenders can pose a very real threat to the community at the conclusion of their sentence. With several convicted terrorist offenders due to complete their custodial sentences of imprisonment in the next five years, the need for effective risk management measures to keep our community safe is greater than ever.
The bill seeks to broaden the range of tools available to address the risk posed by convicted terrorist offenders. The threshold for a Supreme Court to order continuing detention is high, commensurate with the severity of continuing detention. Extended supervision orders will allow supreme courts to impose tailored supervisory conditions specific to the risk posed by the terrorist offender if released into the community, where the court is not satisfied that continuing detention is appropriate to prevent that risk. While control orders are available, they can only be made by federal courts and provide for a smaller range of possible conditions.
Under an extended supervision order, a Supreme Court may impose any conditions (which includes prohibitions, restrictions or obligations) that it is satisfied are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence.
The establishment of a Commonwealth scheme for extended supervision orders responds to recommendations of the Independent National Security Legislation Monitor and the Parliamentary Joint Committee on Intelligence and Security.
Criminal Code amendments
The bill amends the Criminal Code to make extended supervision orders available for eligible terrorist offenders.
Where the Minister for Home Affairs seeks a continuing detention order, and the court is not satisfied of the thresholds for this order, the bill will require the court to consider an extended supervision order as an alternative. The minister may also apply to a state or territory Supreme Court for an extended supervision order if the minister considers this appropriate.
The extended supervision order scheme has been designed to allow the court to tailor orders to address the particular risk posed by each terrorist offender. The offender must comply with the conditions set by the court, and offences will apply to breaches of those conditions. The maximum duration of an extended supervision order is three years, but subsequent orders may be made if the offender continues to pose an unacceptable risk to the community.
Courts may appoint relevant experts, such as psychologists or psychiatrists, to assist the court to assess the risk posed by the offender. An extended supervision order must be reviewed annually by a court, or sooner if the offender or Minister for Home Affairs applies for a review. The court must vary the order if the court is not satisfied that the period of the order, or the conditions imposed by the order, remain reasonably necessary to protect the community from the unacceptable risk posed by the offender.
The bill also includes provisions to support the operation of the scheme, relating to information-sharing arrangements, the ability for the minister to direct an offender to undergo an assessment by a relevant expert, and the ability for the AFP Commissioner to enter into arrangements for the performance of functions related to the scheme—for example, electronic monitoring.
Amendments to other legislation
The bill also amends other legislation to support the effective implementation of the extended supervision order scheme.
To ensure the compliance of an offender on an extended supervision order, the bill amends the Crimes Act 1914 to extend the existing regime of monitoring warrants for control orders to also include extended supervision orders and interim supervision orders. These amendments will allow law enforcement to monitor the compliance of an offender either with their consent or with a warrant to search their premises or person.
Amendments to the Surveillance Devices Act 2004 and the Telecommunications (Interception and Access) Act 1979 will allow law enforcement to obtain warrants for electronic surveillance to monitor compliance with supervision orders and inform the minister's decision as to whether to apply for a post-sentence order.
The bill will also amend the international production order regime contingent on the passage of the Telecommunications Legislation Amendment (International Production Orders) Bill 2020.
The bill amends the National Security Information (Criminal and Civil Proceedings) Act 2004 to extend existing provisions which apply to control order proceedings, to allow the court to consider sensitive information in extended supervision order proceedings without that information being disclosed to the offender or their legal representative. This will ensure that the process of applying for an extended supervision order does not reveal sensitive sources, which is of utmost importance in a custodial environment.
To ensure that the offender receives a fair hearing, the bill extends the existing special advocate regime which is currently in place for control order proceedings. The bill expressly prohibits the court from considering court-only evidence in determining whether to make a continuing detention order, as is currently the case.
This bill is an important addition to the government's response to the terrorism threat. The amendments to the Criminal Code have been approved by a majority of states and territories, as required by the Intergovernmental Agreement on Counter-Terrorism Laws.
To enable the parliament to give full consideration to this bill, it will be referred to the Parliamentary Joint Committee on Intelligence and Security. I commend the bill to the House.