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Terrorism (Community Protection) Act 2003: Stage Two

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Terrorism (Community Protection) Act 2003: Stage Two Issues Paper Review of the Terrorism (Community Protection) Act 2003: Stage Two Issues Paper: Review of the Terrorism (Community Protection) Act 2003 — Stage Two Table of contents 1. Introduction ....................................................................................................................................................... 3 1.1 The review .......................................................................................................................................................... 3 1.2 Opportunities to have your say ........................................................................................................................... 3 2. Context .............................................................................................................................................................. 4 2.1 The Terrorism (Community Protection) Act 2003 ............................................................................................... 4 2.2 Issues raised in Stage One ................................................................................................................................ 4 2.3 Previous reviews ................................................................................................................................................ 4 2.4 Other recent reviews and inquiries ..................................................................................................................... 5 3. Ongoing need ................................................................................................................................................... 5 3.1 The Current threat environment ......................................................................................................................... 5 3.1.1 Right wing extremism ......................................................................................................................................... 6 3.1.2 Lone actors ......................................................................................................................................................... 8 3.1.3 The internet and digital environments ................................................................................................................ 9 3.2 Legislative framework: necessity and effectiveness .......................................................................................... 9 4. Sunset and review .......................................................................................................................................... 11 4.1 The Act’s sunset and review provisions ........................................................................................................... 11 4.2 Role and effectiveness of sunset and review clauses as safeguards .............................................................. 11 4.2.1 Sunset provision as a safeguard ...................................................................................................................... 11 4.2.2 Statutory review requirement as a safeguard................................................................................................... 12 5. Safeguards and oversight ............................................................................................................................. 13 5.1 Charter of Human Rights and Responsibilities................................................................................................. 13 5.2 Adequacy of safeguards and oversight ............................................................................................................ 13 6. Specific issues raised in Stage One ............................................................................................................. 15 6.1.1 Expanding the purposes identification material (DNA) can be collected for under the Act .............................. 15 6.1.2 Inserting a pause mechanism for detention decisions ..................................................................................... 17 6.1.3 Expanding circumstances in which special police powers may be enlivened .................................................. 18 Appendix A — Outline of the Terrorism (Community Protection) Act 2003 ....................................................... 20 Appendix B — List of questions ............................................................................................................................. 25 Glossary ..................................................................................................................................................................... 27 TRIM ID: CD/21/290063 Page 2 of 28 Date: 4 May 2021 Issues Paper: Review of the Terrorism (Community Protection) Act 2003 — Stage Two 1. Introduction 1.1 The review The review of the Terrorism (Community Protection) Act 2003 (the Act) is taking place to meet the Act’s statutory review requirement1 and address the Act’s sunset provision.2 The review is being undertaken in two stages due to the impact of the COVID-19 pandemic on the Victorian community throughout 2020. To meet the requirements of section 38, a statutory review of the Act was conducted in 2020 (Stage One). The then Attorney-General tabled the Stage One Report before both houses of Parliament on 10 December 2020. Stage Two (this review) will address the Act’s expiry on 1 December 2021, explore the matters highlighted by stakeholders in Stage One, undertake further stakeholder consultation and invite public submissions to ascertain the views of the Victorian community on the operation of the Act. Stage Two will not revisit the policy settings implemented in the 2018 reforms arising out the of the review conducted by the Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers (Harper-Lay Review).3 However, Stage Two may examine whether any refinements can be made to improve the effectiveness of those reforms. The terms of reference for Stage Two are to consider the operation of the Act in terms of its: 1. ongoing need: determine whether the Act’s 1 December 2021 expiry should be retained, repealed or extended 2. fairness & proportionality: having regard to the Act’s objectives, necessity and 1 December 2021 expiry, assess whether the system of safeguards designed to ensure the proper exercise of powers set out in the Act is appropriate 3. effectiveness: review any other relevant issues that arise in relation to the operation of the Act, including the issues raised in the Stage One Report. In conducting the review consideration will be given to: 1. the purposes of the Terrorism (Community Protection) Act 2003 2. previous reviews of the Terrorism (Community Protection) Act 2003; and 3. the relevant rights and freedoms set out in Victoria’s Charter of Human Rights and Responsibilities Act 2006 engaged by the Terrorism (Community Protection) Act 2003. Stage Two of the review may make recommendations to the Attorney-General on these and any other matters. 1.2 Opportunities to have your say Written submissions The Review invites written submissions on the topics and themes in this issues paper. Questions are posed throughout the paper. You may elect to only respond to the questions of most interest to you or your organisation, or provide other feedback relevant to the review Terms of Reference. 1 Terrorism (Community Protection) Act 2003 s.38 2 Terrorism (Community Protection) Act 2003 s.41 3 Implemented by the Justice Legislation Amendment (Terrorism) Act 2018 TRIM ID: CD/21/290063 Page 3 of 28 Date: 4 May 2021 Issues Paper: Review of the Terrorism (Community Protection) Act 2003 — Stage Two Written submissions are sought by Friday 4 June 2021 and can be submitted to Anthony Lawrie, Executive Director Priority Projects at: [email protected]. DJCS will also engage in targeted consultation with a broad range of stakeholders including law enforcement and security agencies, oversight bodies, legal stakeholders, and peak community groups. 2. Context 2.1 The Terrorism (Community Protection) Act 2003 The Act was enacted on 15 April 2003 and came into full effect on 1 July 2004. It was part of a nation-wide legislative response to the heightened threat of terrorist attacks in Australia following the 11 September 2001 attacks in the USA and the 2002 Bali bombings. The Act operates alongside complementary acts from the Commonwealth and other states and territories.4 The Act introduced new powers and obligations designed to prevent, disrupt and respond to terrorist threats and attacks. The Act has since been amended to include preventative detention orders, covert search warrants, powers for questioning terror suspects and a range of other complementary powers for Victoria Police. Despite some powers being significant and intrusive, there has been a focus on ensuring limitations on any rights and freedoms are considered reasonable and justified and align with community expectations.5 Appendix A to this paper outlines the key powers and safeguards in the Act, and provides a glossary of key terms to assist understanding of the Act. 2.2 Issues raised in Stage One During Stage One, DJCS invited agencies with roles under the Act to provide feedback on operational matters and outline suggestions for consideration in Stage Two. In response, agencies identified a number of matters as warranting further consideration. Matters having the potential to impact the rights of individuals within our community are included
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