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
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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
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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 in this paper. Other matters that are minor or technical, related to the functions and interactions between government agencies or administrative and practical in nature are not been included in this paper, but will be worked through with relevant agencies. 2.3 Previous reviews The Act has been formally reviewed twice since its enactment. The 2014 statutory review — the Victorian Review of Counter-Terrorism Legislation — was tabled in Parliament on 16 September 2014. It was conducted by His Honour David Jones AM, Lieutenant General (Ret’d) Mark Evans AO DSC, and Mr Kieran Walshe APM. This review examined the operation of each Part of the
4 See Part 5.3 of the Criminal Code Act 1995 (Cth), the Terrorism (Police Powers) Act 2000 (NSW), the Terrorism (Preventative Detention) Act 2005 (Qld), the Terrorism (Preventative Detention) Act 2005 (SA), the Terrorism (Preventative Detention) Act 2006 (WA), the Terrorism (Preventative Detention) Act 2005 (SA), the Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT) and the Terrorism (Emergency Powers) Act 2003 (NT). 5 See section 5.1 for further discussion on the Charter of Human Rights and Responsibilities Act 2006.
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Issues Paper: Review of the Terrorism (Community Protection) Act 2003 — Stage Two
Act in detail and concluded that, despite the powers having been used sparingly, there was an ongoing need for the Act subject to a number of improvements. The Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers (Harper-Lay Review) was convened following the 5 June 2017 siege and hostage situation in Brighton, Melbourne. Led by Ken Lay AO APM and the Hon. David Harper AM QC, the panel extensively reviewed the operation of the Act and delivered findings in two reports. Report 1 focused on the powers of Victoria Police to respond to terrorism. Report 2 considered reforms necessary to enhance the ability of agencies and institutions to prevent, investigate, monitor and respond to terrorist attacks. Together, the reports made 42 recommendations, many of which involved reforms to the Act. All recommendations from Report 1 and recommendations 18 – 21 and 24 of Report 2 were implemented in the Justice Legislation Amendment (Terrorism) Act 2018. Implementation of remaining recommended reforms to the Act in Report 2 is ongoing. 2.4 Other recent reviews and inquiries Similar reviews of terrorism-related legislation have been conducted in the period since the Harper-Lay Review was completed. New South Wales6 and Queensland7 each conducted statutory reviews of counter-terrorism legislation in 2018. Parts of these reviews are considered later in this paper. The Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosque on 15 March 2019 (New Zealand) investigated how public sector agencies work to protect citizens from terrorist attacks.8 Its report – Ko to tatou kainga tenei – was presented to the New Zealand Governor-General in November 2020. The Commonwealth Parliamentary Joint Committee on Intelligence and Security (the Committee) is currently inquiring into matters relating to extremist movements and radicalism in Australia. The Committee is expected to deliver its report in mid-2021. These reviews and inquiries are in addition to the ongoing work of the Independent National Security Legislation Monitor at the Commonwealth level.
3. Ongoing need
Section 41 provides that the Act will expire on 1 December 2021. It is therefore necessary to assess the ongoing need of the Act. This task requires consideration of two key questions. First, does the current threat of terrorism continue to justify the existence of intrusive powers such as those granted by the Act (Section 3.1). Second, is the Act appropriately tailored to this threat (Section 3.2). DJCS is seeking community and stakeholder feedback on both. 3.1 The current threat environment Australia’s current terrorism threat level is set at ‘probable’, meaning that “credible intelligence, assessed by our security agencies, indicates that individuals or groups continue to possess the intent and capability to conduct a terrorist attack in Australia”.9
6 NSW Department of Justice, Statutory review of the Terrorism (Police Powers) Act 2002, June 2018. 7 Crime and Corruption Commission (Queensland), Review of the Terrorism (Preventative Detention) Act 2005, September 2018. 8 www.christchurchattack.royalcommission.nz (accessed 23 February 2021). 9 Australian Government, Australian National Security (webpage), viewed 9 April 2021
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The Australian Federal Police recently indicated that as at 17 February 2021, the following terrorism-related events have occurred in Australia since the National Threat Level was raised to PROBABLE in September 2014: • 59 counter-terrorism related operations have resulted in 128 people charged with terrorism related offences • nine terror attacks and 19 major counter-terrorism disruption operations have taken place in response to potential or imminent attacks, of which: o all nine attacks involved individuals motivated by extremist Islamic ideology, and o two of the disruptions were related to ideologically motivated violent extremism.10 While acknowledging the loss of life and despite counter-terrorism operations continuing to take place, the number of terrorism events in Australia and the associated disruption to quality of life and community safety has remained modest compared to some other jurisdictions. Victoria Police has recently commented on the current threat environment in Victoria, stating that “politically and ideologically motivated violence has evolved in the recent past, influenced by events overseas, but restricted to some extent by our unique circumstances. In Victoria, terrorism inspired by Salafi-jihadi ideology remains the primary threat.”11 Victoria Police also acknowledged “that the threat of terrorism can come from multiple sources and be inspired by a range of ideological or political causes,” such as right-wing and left-wing extremism.12 The Australian Security and Intelligence Organisation (ASIO) has moved away from labelling on a left–right spectrum and shifted its language to categorise individuals or groups based on their use or advocacy of violence.13 ASIO adopted this approach on the basis of “seeing a growing number of individuals and groups that don’t fit on the left–right spectrum at all; instead, they’re motivated by fear of societal collapse or a specific social or economic grievance or conspiracy.”14
3.1.1 Right wing extremism Right wing extremism (RWE) refers to a broad category of groups that are unified by political programs of anti-immigration, white supremacy, western chauvinism, racism, shared narratives of white victimisation and violent calls to action to act on these attitudes, among other characteristics.15 In Victoria, individuals and groups who adhere to RWE ideologies have diverse and multifaceted ideological views.16 Victoria Police view right wing extremists as a non-cohesive cohort, who exhibit differing attitudes towards support for violence, solutions to societal issues and perceptions the degree to which society is perceived to be corrupted or decayed.17
10 AFP Submission number 5 to 2021 Parliamentary Joint Committee on Intelligence and Security, Inquiry into Extremist Movements and Radicalism in Australia, 17 February 2021, 3 11 Victoria Police Submission number 4 to 2021 Parliamentary Joint Committee on Intelligence and Security, Inquiry into Extremist Movements and Radicalism in Australia, 17 February 2021, 2 12 Ibid. 13 Australian Security and Intelligence Organisation, ‘Violent Extremism Terminology’, web page, 2021 < https://www.asio.gov.au/violent- extremism-terminology.html> 14 Australian Security and Intelligence Organisation, ‘Violent Extremism Terminology’, web page, 2021 < https://www.asio.gov.au/violent- extremism-terminology.html> 15 Anders Ravid & Iris Beau Segers, ‘What is right-wing extremism?’, Centre for Research on Extremism (Web page), 7 November 2020, < https://www.sv.uio.no/c-rex/english/groups/compendium/what-is-right-wing-extremism.html> 16 Victoria Police Submission number 4 to 2021 Parliamentary Joint Committee on Intelligence and Security, Inquiry into Extremist Movements and Radicalism in Australia, 17 February 2021, 2 17 Ibid.
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Victoria Police divide the RWE ideological spectrum into the moderate, far and extreme right, “with the extreme right being the most open to using violence to influence change. Within these definitions there is a broad range of groups that adhere to ideas associated with civic nationalism, ethno-nationalism and/or national socialism.”18 The Australian Federal Police recently observed that small RWE groups typically retained a more informal structure than similar Islamic extremist organisations.19 Further, their leadership and membership may be more fluid and geographically dispersed, with organisational behaviour shifting quickly in unpredictable ways.20 In 2020 approximately 40 per cent of counter-terrorism investigations conducted by ASIO were categorised as RWE.21 Examples of RWE terrorist activity include the 2019 Christchurch Mosque shootings and a 2019 plot to attack left wing organisers at Melbourne’s Trade Hall.22 In January 2021 a large group of men were discovered chanting neo-Nazi slogans at a cross-burning in the Grampians in Western Victoria23. The recent Parliamentary Inquiry into Anti-Vilification Laws identified that RWE has driven a rise in extremist discourse in schools and in online communities.24 The ABC has also reported that international RWE groups such as ‘The Base’ have been shown to target young adults, including teenagers, in their recruitment.25 Figure 1.1 demonstrates increase of terrorist attacks attributed to RWE in Western Europe, North America and Oceania, particularly since 2014. Further, the proportion of terrorist attacks in these regions perpetrated by right wing extremists also grew from 14 per cent in the period between 2002–2014 to 46 per cent in 2019. 26
18 Ibid 3. 19 Australian Federal Police, Submission number 5 to 2021 Parliamentary Joint Committee on Intelligence and Security, Inquiry into Extremist Movements and Radicalism in Australia, February 2021, 6 20 Ibid 21 Mike Burgess, ‘Director General’s Annual Threat Assessment’, Australian Security Intelligence Organisation, Speech, 17 March 2021,
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Figure 1.1: Far-Right Terrorism incidents in Western Europe, North America and Oceania, 1970- 201927
RWE is characterised by a high proportion of lone actor behaviour. In the period between 1970 and 2019, 60 per cent of RWE terror attacks in Western Europe, North America and Oceania were undertaken by lone actors28.
3.1.2 Lone actors “Lone actor” generally refers to an individual planning and implementing a terrorist action without being explicitly affiliated with, or receiving support from, a specific terrorism network, group or organisation.29 The action is taken without oversight, assistance or orders. These attacks are often undertaken using less advanced technology than traditional terrorist actions. They may involve simple methods of inflicting violence such as driving a car into a crowded street or using simple weapons such as knives or other easily purchased items and are difficult to detect and disrupt.30 ASIO has said that “the most likely form of terrorism in Australia remains an attack by a ‘lone actor’ or a small group using simple attack methodologies.”31 The two fatal terrorist attacks that have occurred in Victoria (the Brighton Siege and Bourke Street Attack) were both lone actor attacks. Outside of Australia, the 77 deaths caused by ISIS-inspired attacks in the USA from 2014 to 2019 were lone actor attacks32.
27 Institute for Economics and Peace, Global Terrorism Index: Measuring the Impact of Terrorism, November 2020, 62 28 Ibid, 64 29 Edwin Bakker and Jeanine de Roy can Zuijdewijn 2015, ‘Counter Lone-Actor Series No.2: Lone Actor Terrorism Definitional Workshop’, Royal United Services Institute for Defence and Security Studies, 2 30 Australian Security Intelligence Organisation, Counter-Terrorism Fact Sheet (webpage), viewed 9 April 2021 https://www.asio.gov.au/counter- terrorism.html 31 Australian Security Intelligence Organisation, Counter-Terrorism Fact Sheet (webpage), viewed 9 April 2021 https://www.asio.gov.au/counter- terrorism.html 32 Institute for Economics and Peace, Global Terrorism Index: Measuring the Impact of Terrorism, November 2020, 57
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Issues Paper: Review of the Terrorism (Community Protection) Act 2003 — Stage Two
3.1.3 The internet and digital environments The internet and digital environments provide an efficient vehicle for disseminating and promoting a cause, accelerating processes that previously relied on print media and in-person relationships. The United Nations Office on Drugs and Crime identified four ways the internet is used by terrorists and terrorist organisations: propaganda, planning, training and financing.33 Propaganda is further broken down into recruitment, incitement and radicalisation. Following the example of ISIL, extremist organisations and RWE have taken advantage of the efficiency and scale of digital communities and forums to increase their reach and promote ideologies to a larger audience.34 Prominent examples of the use of digital platforms as propaganda include the ISIL beheading of journalist James Foley, the Christchurch Mosque attacks and the Capitol Hill insurrection on 6 January 2021. Questions: 1. Does this accurately characterise the current terrorism threat environment, including emerging risks? 2. Does the threat level warrant the continued operation of the Act?
3.2 Legislative framework: necessity and effectiveness The Act provides a legislative framework to detect, disrupt, prevent and respond to terrorist events. Assessing the ongoing need for the Act and its powers requires consideration of the nature of the threat the Act is designed to address and its effectiveness for doing so. The Act was introduced in 2003 to respond to the immediate threat of terrorism. To balance the Act’s powers with important civil liberties it contained a requirement to be reviewed to ensure it was still justified.35 The need for robust counter-terrorism legislation has been the subject of commentary since the Act’s inception. In 2011 the Commonwealth Independent National Security Legislation Monitor (INSLM) said that given the lack of any evidence that the threat of terrorism had abated, “CT laws in substance if not in form ought to be seen as a regime of intended indefinite duration.”36 At this time the INSLM therefore believed that the effectiveness and appropriateness of counter- terrorism laws should be assessed on the basis that they or any improvements of them will be in force for a long time to come.”37 In Victoria, the Harper-Lay Review concluded that the key features of the Act remain necessary and recommended strengthening certain powers to ensure they were well adapted to current threats.38 The historical usage rates of the powers contained within the Act are a further consideration for its ongoing need. Since the 2014 statutory review, the powers in the Act have been used
33 United Nations Office on Drugs and Crime 2012, The use of the internet for terrorist purposes, 2012, 3 34 Maura Conway 2020, ‘Routing the Extreme Right: Challenges for Social Media Platforms’, Royal United Services Institute for Defence and Security Studies Journal, 1 35 Parliament of Victoria, Parliamentary Debates, Legislative Assembly, 27 February 2003, p.164 (Hon. Steve Bracks MP). 36 Independent National Security Legislation Monitor, Annual Report 2011, 16 December 2011, 6 37 Independent National Security Legislation Monitor, Annual Report 2011, 16 December 2011, 6 38 Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers Report 1, 2017, 4-5
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sparingly with one preventative detention order and six covert search warrants having been issued.39 The frequency of use of powers has been interpreted in a range of ways. In its 2018 review of the Queensland Terrorism (Preventative Detention) Act 2005, the Queensland Crime and Corruption Commission observed that the “fact that the [Terrorism (Preventative Detention) Act 2005] has never been used means that it has not been misused or abused, but also that its safeguards have not been tested.”40 In 2018 the AFP stated to the Parliamentary Joint Committee on Intelligence and Security that although some counter-terrorism powers are rarely used, this does not mean they are unnecessary.41 Its submission stated that the relevant powers filled a narrow but critical gap in counter-terrorism capability. Given the narrow scope of application, they would not expect to use the powers regularly, but maintained that the powers were necessary42. Submissions received by the INSLM for its 2017 Statutory Deadlines Review also provided contrasting views to those noted above. For example, the Australian Human Rights Commission stated that the fact that “powers are rarely, if ever used … would appear to indicate that [other pre-existing powers] are sufficient to fulfil the important aim of preventing terrorist attacks.”43 Another factor relevant to determining the ongoing need for the Act is the potential impact of a terrorism event. Terrorist acts around the world have regularly resulted in mass casualties. Further, as noted by the Director General of ASIO, “even a low-capability attack can still result in loss of life.”44 Questions 3. What does the sparing use of the powers in the Act indicate about the ongoing need for the Act? 4. What is the best way to assess the ongoing necessity of the Act and the powers contained within? 5. Are all the powers in the Act still necessary and appropriately tailored to current and emerging terrorist threats including right-wing extremists, lone actors, and emerging technologies? 6. What would be the risks if some or all of the powers in the Act expired? How else could these risks be addressed?
39 Victoria Police, Report, 2014-15, pursuant to sections 13, 13ZR and 21M of the Terrorism (Community Protection) Act 2003 (report), Report, 2016-17, pursuant to sections 13, 13ZR and 21M of the Terrorism (Community Protection) Act 2003 (report), Report, 2018-19, pursuant to sections 13, 13ZR and 21M of the Terrorism (Community Protection) Act 2003. 40 Queensland Crime and Corruption Commission, Review of the (Terrorism Prevention) Act 2005, September 2018, 38 41 Australian Federal Police Submission number 5 to 2018 Parliamentary Joint Committee on Intelligence and Security, Review of police stop, search and seizure powers, the control order regime and the preventative detention order regime, February 2018, 9 42 Ibid 43 Australian Human Rights Commission submission number 11 to the Independent National Security Legislation Monitor: Statutory Deadline Review 15 May 2017, 9-10. 44 Mike Burgess, ‘Director General’s Annual Threat Assessment’, Australian Security Intelligence Organisation, Speech, 17 March 2021,
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4. Sunset and review 4.1 The Act’s sunset and review provisions When the Act was passed in 2003, section 41 (the sunset clause) provided that the Act would expire in 2006. To avoid this expiry, positive action from government is required to extend the Act’s operation. Section 38 (the review clause) also originally required a review of the Act be completed after three years of operation, prior to the Act’s 2006 sunset. In 2006, amendments were made to the Act to include Preventative Detention Orders (PDOs) following the London train bombings.45 At the same time, the sunset clause was extended for a further 10 years and the review clause extended to 2011. This review date was then extended twice, from 2011 to 2013,46 and then 2013 to 2014.47 In 2014, government undertook the ‘Victorian Review of Counter-terrorism Legislation’ of the Act in response to section 38 review clause obligations. The resulting reforms included extending the review date to 31 December 2020, in anticipation of the Act’s revised sunset of 1 December 2021.48 This review clause was satisfied by the release of the Stage One report evaluating the Act, though this Stage Two review continues that work, particularly considering the Act’s impending sunset. As highlighted by the then Premier, the purpose of the review and sunset clauses is to preserve the balance between community safety and individual rights in counter-terrorism law: Part 7 of the bill requires the government to review the operation of the bill in three years’ time to see whether it is still justified and backs this up with an automatic termination date of 1 December 2006. This is a key safeguard to ensure that the powers are removed from the statute book should the current terrorist threat recede. If the review finds that the legislation is still necessary, is working well and has not been abused, Parliament can repeal the sunset clause.49
4.2 Role and effectiveness of sunset and review clauses as safeguards
4.2.1 Sunset provision as a safeguard Sunset provisions are commonly used in counter-terrorism legislation both domestically and overseas. Other legislation with sunset provisions includes the Commonwealth Anti-Terrorism Act (No.2) 2005, the United Kingdom’s Prevention of Terrorism Act 2005, and the United States’ USA Patriot Act (2001). The following benefits of legislative sunset clauses have been identified: • To act as a safeguard against ‘legislative panic’. The passage of emergency legislation in a situation of uncertainty may cause a legislative over-correction and a sunset clause allows for revisitation outside an emergency setting.50
45 Terrorism (Community Protection) (Amendment) Act 2006 46 Terrorism (Community Protection) Amendment Act 2011 47 Courts and Other Justice Legislation Amendment Act 2013 48 Terrorism (Community Protection) Amendment Act 2015 49 Parliament of Victoria, Parliamentary Debates, Legislative Assembly, 27 February 2003, p.164 (Hon. Steve Bracks MP). 50 John Ip, Sunset Clauses and Counterterrorism Legislation (2013) 74 Public Law, 12-13
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• To provide an opportunity to review legislative powers with the benefit of additional evidence. This could include an evaluation of the efficacy of powers and their ongoing need.51 • To act as a safeguard against the normalisation of exceptional powers. This is achieved by keeping intrusive legislation on the legislative agenda and driving political interest in the topic.52 • To provide a balance against the provision of extraordinary powers to the executive at a given point in time.53
4.2.2 Statutory review requirement as a safeguard Review clauses are generally used to determine if legislation is effective and able to respond with appropriate reforms.54 The way a review clause is structured and delivered will influence how it acts as a safeguard. When evaluating different review models the United Kingdom Law Commission noted the following characteristics could be considered: • Whether the Act should specify a particular body — departmental, Parliamentary or external (or a combination) — to provide certainty and encourage sustained corporate knowledge of the review process.55 • Whether the review clause would benefit from clarification of the objectives of the Act (for example, through an objects clause) or other forms of guidance such as the creation of a mandatory terms of reference.56 • Other issues such as regularity of a review, the attachment of a review to a sunset provision, or the use of a review to explicitly gather data and publish information of legislative effectiveness.57 The current review clause does not outline a framework for how the statutory review is to be completed or what it must consider (beyond the operation of the Act) giving the Attorney-General flexibility to determine a review model. Questions: 7. Are the review and sunset mechanisms relevant and effective safeguards on the powers in the Act? 8. Is the original purpose of the sunset clause still relevant given the ongoing threat posed by terrorism? 9. If a sunset clause is retained, when should the Act next expire? 10. Would the Act benefit from a more prescriptive review mechanism that contains, for example, explicit review criteria or a clarification of review objectives?
51 Nicola McGarrity, Rishi Gulati and George Williams, Sunset Clauses in Australian Counterterrorism Laws (2012) 33 Adelaide Law Review, 32 52 John Ip, Sunset Clauses and Counterterrorism Legislation (2013) 74 Public Law, 12 53 Ibid 54 United Kingdom Law Commission, Post-Legislative Scrutiny, Consultation Paper no 178, 2006, 30 55 Ibid, 13-17 56 Ibid, 36; 39 57 Ibid, 41
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5. Safeguards and oversight
The Act contains a range of safeguards and oversight mechanisms intended to balance its significant and intrusive powers while preserving fundamental rights and liberties. These functions work to ensure that there is proportionality between the powers in the Act and the need to protect community safety from threats posed by terrorism and violent extremism.58 The terms of reference require consideration of whether this system of safeguards is appropriate. 5.1 Charter of Human Rights and Responsibilities The Charter of Human Rights and Responsibilities Act 2006 (the Charter) provides an overarching safeguard to the use of those powers. It requires public authorities, such as Victoria Police and the courts, to consider and act compatibly with human rights in their actions and when making decisions, including in the context of the use of powers in the Act.59 The Charter also requires that, “so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.”60 As noted by the Harper-Lay Review, counter-terrorism measures contained in the Act such as the preventative detention regime raise difficult civil liberties and human rights questions.61 The Charter provides that a “human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account” a range of factors.62 The level of threat posed by terrorism has been a central factor, along with other safeguards and oversight arrangements discussed below, for why the powers in the Act have previously been assessed as compatible with the Charter.63 Changes in the threat environment are therefore capable of impacting the extent to which limitations of human rights may be justified. Question: 11. Do the changes to the threat environment over time impact the justifications previously used for the limitation of rights under the Act?
5.2 Adequacy of safeguards and oversight Appendix A to this paper outlines procedural safeguards and oversights arrangements in the Act. The importance of maintaining robust safeguards and oversight to the extraordinary nature of the powers in the Act and community standards and expectations is well observed. When making its recommendations, the Harper-Lay Expert Panel observed that its deliberations were guided by “the ultimate objective of making our community safer by maximising the ability of our law enforcement and other agencies to prevent and respond to the changing and dynamic nature of terrorism and violent extremism.”64 It also noted that “… the passage of time does not
58 Parliament of Victoria, Parliamentary Debates, Legislative Assembly, 10 May 2018, p.1325 (Martin Pakula MP) 59 Charter of Human Rights and Responsibilities Act 2006, section 38(1). 60 Charter of Human Rights and Responsibilities Act 2006, section 32(1). 61 Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers Report 1, 2017, 28 62 Charter of Human Rights and Responsibilities Act 2006, section 7(2). 63 The 2014 Statutory Review undertook a detailed analysis of the application of the Charter to the Act. It found that the powers in the act were reasonable and justifiable interferences with the rights contained in the Charter (see Department of Justice, Victorian Review of Counter-Terrorism Legislation, September 2014, 51). Reforms to the Act since 2014 have also been assessed in associated statements of compatibility as being compatible. 64 Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers, Report 1, 2017, 16
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result in any diminished understanding of the exceptional nature of these powers, and that any new powers are appropriately constrained by necessary safeguards and limitations.”65 For example, when recommending the changes that became the Part 2AA preventative police detention scheme,66 the Expert Panel recommended establishing additional measures “… to safeguard and protect the interests of minors and other potentially vulnerable persons.”67 This was recognised by the then Attorney-General who noted that the Expert Panel was “… mindful that excessive and repressive measures could be counter-productive, undermining unity and social cohesion, and accordingly it was careful to ensure that it recommendations were measured and proportionate, and included appropriate safeguards and limitations.”68 When introducing the amending legislation into parliament69 the then Attorney-General outlined the safeguards and oversights to the new Part 2AA, including the role of the PIM in overseeing preventative police detention, and the ability of a detained person to contact either the Ombudsman or IBAC.70 These measures were described as important safeguards to “ensure that there is proportionality between preventative police detention and the need to protect community safety from threats posed by terrorism and violent extremism.”71 Oversight of powers in terrorism legislation is also viewed as an important safety measure. For example, the VI views its oversight role as an important integrity response to ensure Victoria Police complies with the requirements of the Act and to provide the public with assurance that police powers are used lawfully.72 The review of New South Wales’s Terrorism (Police Powers) Act 2002 (NSW Review) noted the role of oversight of powers under the NSW Act. This was recognised by NSW Parliament establishing a robust scrutiny function when its legislation was enacted.73 This review also highlighted the role of special advocates and Public Interest Monitors as a means to test the cogency of cases made in support of applications.74 It also observed the acute “need for safeguards to provide for the adequate protection of any minor or vulnerable person who is detained. Measures must be balanced and proportionate, and crafted with due regard to the particular vulnerability of these cohorts.”75 The Crime and Corruption Commission of Queensland made similar observations in its review of the Terrorism (Police Detention) Act 2005 (Qld) (Queensland Review). It noted that there is a general acceptance that legislation enacted to prevent terrorist attacks must strike a balance between promoting security and community safety and preserving fundamental human rights and liberties.76
65 Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers, Report 1, 2017, 16 66 See recommendation 2 – Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers, Report 1, 2017, 24 67 Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers, Report 1, 2017, 24 68 Parliament of Victoria, Parliamentary Debates, Legislative Assembly, 10 May 2018, P.1323 (Martin Pakula MP) 69 Justice Legislation (Terrorism) Bill 2018 70 Parliament of Victoria, Parliamentary Debates, Legislative Assembly, 10 May 2018, P.1325 (Martin Pakula MP) 71 Parliament of Victoria, Parliamentary Debates, Legislative Assembly, 10 May 2018, P.1325 (Martin Pakula MP) 72 Victorian Inspectorate, Annual Report 2019-20, 73 73 NSW Department of Justice, Statutory review of the Terrorism (Police Powers) Act 2002, 57-58 74 NSW Department of Justice, Statutory review of the Terrorism (Police Powers) Act 2002, 37 75 NSW Department of Justice, Statutory review of the Terrorism (Police Powers) Act 2002, 38 76 Queensland Crime and Corruption Commission, Review of the (Terrorism Prevention) Act 2005, September 2018, 18
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Question: 12. Are the safeguards and oversight mechanisms contained in the Act adequate and workable? If not, how could they be improved? 13. Are the safeguards and oversight mechanisms adequate and workable for children and young people? 14. Are there safeguards and oversight mechanisms from other jurisdictions that could be incorporated into the Act?
6. Specific issues raised in Stage One
6.1.1 Expanding the purposes identification material (DNA) can be collected for under the Act A person detained in accordance with a police detention decision or a preventative detention order may have identification material, including a DNA sample, collected where they provide written consent.77 Where consent is not provided, a DNA sample may be obtained where a police officer of or above the rank of sergeant believes on reasonable grounds that it is necessary to do so: a. for the purpose of documenting an injury of illness;78 or b. if reasonably necessary to confirm the identity of a person subject to a police detention decision.79 Victoria Police has requested that consideration be given to expanding the range purposes DNA samples may be obtained from detained persons, such as for investigatory and evidentiary purposes relating to contravention of a terrorist offence either under the Act or the Criminal Code Act 1995 (Cth). Under the Crimes Act 1958 Victoria Police are permitted take DNA samples from persons suspected of committing an indictable offence where justified in all the circumstances either with the informed consent of the suspect or with the authorisation of a senior police officer.80 The threshold for taking a DNA sample is higher in the Crimes Act 1958 than the Act requirements Victoria Police wish to expand.
Table 1: Circumstances in which Victoria Police can take DNA sample81
Children 15-17 Adults Informed A police officer can request a DNA A police officer can request a DNA consent sample where: sample where: • the child is believed on reasonable • the adult is suspected on reasonable grounds of having committed a DNA grounds of having committed the sample offence indictable offence, and
77 Terrorism (Community Protection) Act 2003 (Vic), ss13AZZD(2); 13ZL(2). 78 Terrorism (Community Protection) Act 2003 (Vic), ss13AZZD(2) and 13ZL(2). 79 Terrorism (Community Protection) Act 2003 (Vic), ss13AZZD(2) and 13ZL(2). 80 See for example, Crimes Act 1959, ss464SC and 464SE. 81 Crimes Act 1959, ss464SC and 464SE.
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Children 15-17 Adults • the carrying out of the procedure is • the carrying out of the procedure is justified in all of the circumstances, and justified in all of the circumstances. • both the child and their parent or • The adult provides informed consent guardian consents. Senior A police officer of or above the rank of A police officer of or above the rank of police senior sergeant who is independent of senior sergeant who is independent of authorisation the investigation may authorise the taking the investigation may authorise the taking of a DNA sample where: of a DNA sample where: • the child is in lawful custody • the person is in lawful custody • the child is not incapable of giving • the person is not incapable of giving informed consent by reason of mental informed consent by reason of mental impairment impairment • both the child and their parent or • the person has refused to consent guardian has refused to consent • the person is believed on reasonable • the child is believed on reasonable grounds to have committed a particular grounds to have committed a DNA indictable offence, and sample offence, and taking the sample without the consent of taking the sample from the child is the person is justified in all the justified in all the circumstances. circumstances.
Victoria Police considers that there is a high likelihood that the threshold of reasonable belief of a DNA sample offence being committed will be met when a person is detained in accordance with a police detention decision or a preventative detention order. Nevertheless, it is possible that this will not always be the case. Consequently, any reforms to the Act permitting the taking of DNA for investigative purposes may lower the current Crimes Act thresholds. In such cases, Victoria Police considers that the imminence and seriousness of the terrorism act in respect of which the police detention decision or preventative detention order has been made should be sufficient to justify the need to take a DNA sample for evidentiary or investigative purposes. Question: 15. Is expanding the purposes for taking DNA under the Act reasonable and necessary? Are the general provisions in the Crimes Act provisions sufficient in the context of terrorism investigations? 16. Will it assist with the prevention of a terrorist act or preservation of evidence relating to a recent terrorist act? 17. Would the corresponding impacts on human rights from any changes to the Act be reasonable and justified? Would additional safeguards be required? Is this of particular concern for children?
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6.1.2 Inserting a pause mechanism for detention decisions Under the Act, an adult may be detained in preventative police detention for no more than four days.82 A child aged 14 to 17 may be detained in preventative police detention no more 36 hours.83 The detention time commences upon a person being taken into custody. The maximum duration a person may be detained under a preventative detention order made by the Supreme Court is 14 days, less any time a person has been detained under a corresponding order of another jurisdiction or in preventative police detention on the same basis.84 For interim preventative detention orders, the maximum period of detention is 48 hours. Victoria Police has requested that consideration be given to introducing a ‘pause mechanism’ for preventative police detention and preventative detention orders. The ‘pause mechanism’ could be engaged in exceptional circumstances such as where the detained person is unable to be questioned. A similar approach exists under the Commonwealth Crimes Act 1914 when calculating the total investigative period before which a person arrested on a terrorism offence has to be either released or brought before a judicial officer. 85 Circumstances in which time can be disregarded can include to allow for: a. a person to be conveyed from a place of arrest to a place of questioning86 b. a person to communicate with a lawyer, friend or family member87 c. a person to receive medical attention88 d. a person’s intoxication;89 or e. a person’s requirement to rest or recuperate.90 An individual can also be detained under the Commonwealth Crimes Act prior to any charges being laid against them. The initial pre-charge investigation period is up to four hours,91 which may be extended by a Magistrate up to 24 hours.92 A court order can also be sought to disregard up to 7 days of time during which questioning is suspended or delayed.93 Reasons that can be relied on in an application for suspending or delaying questioning include: a. the need to collate and analyse information relevant to the investigation94 b. the need to allow authorities (in or outside Australia) time to collect information95
82 Terrorism (Community Protection) Act 2003, s.13AA 83 Ibid. 84 Ibid., s.13G(1). 85 Crimes Act 1914 (Cth), s.23DB 86 Ibid. s23DB(9)(a) 87 Ibid. s23DB(9)(b) 88 Ibid. s23DB(9)(d) 89 Ibid. s23DB(9)(e) 90 Ibid. s23DB(9)(j). See Crimes Act 1914 (Cth), s.23DB(9) for a full list of circumstances where time can be disregarded 91 Ibid. s.23DB(5)(b) 92 Ibid. s23DF(7) 93 Ibid. s.23DD 94 Ibid. s.23DC(4)(e)(i) 95 Ibid. s.23DC(4)(e)(ii)
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c. the impact of time zones on a request for information from a place outside of Australia;96 or d. the need to used translation services to obtain information from outside of Australia.97 An inquiry was undertaken in 2008 by the Hon John Clarke QC into, among other things, the use of dead time provisions in relation to the detention of Dr Mohamed Haneef.98 Dr Haneef was detained without charge for over 12 days, during which time he was questioned for approximately 12 hours.99 The inquiry recommended that: a maximum cap should be imposed on dead time, that dead time be limited to a time period necessary to conduct inquiries across time zones, that police should only have one opportunity to apply for dead time, that police should not be able to extend the period of the suspect’s detention if there is already enough information to support a terrorism charge, that restrictions be placed on the time an application for dead time can be adjourned for and that considerations be given to whether applications for dead time should be made to the Supreme Court.100 Introducing a pause mechanism will intersect with a detained person’s rights, such as the right not to be arbitrarily detained as well as the right of any person arrested or detained to be brought promptly before a court.101 Question: 18. Should a pause mechanism be inserted into Parts 2AA and 2A of the Act? 19. How would this improve the effectiveness of the act? 20. What safeguards and oversights will be required to ensure the proper exercise of a pause mechanism and to protect a persons’ rights? Is this of particular concern for children?
6.1.3 Expanding circumstances in which special police powers may be enlivened Special Police Powers may be authorised if a prominent person is attending an event in Victoria which could reasonably be the subject of a terrorist attack.102 The exercise of the powers is limited to the event which is subject to the authorisation. Victoria Police has requested that consideration be given to extending special police powers so they follow the prominent person regardless of what events they attend and where they travel within Victoria. Victoria Police believe that this would aid its ability to protect the prominent person from a potential terrorist attack. The Law Council of Australia has previously noted the importance of laws to be “certain and clear”.103 Consideration of amendments to expand special police powers must be considered in that context to ensure that such reforms are capable of being understood by the public. Question:If 21. Should special police powers be extended in this fashion?
96 Ibid. s.23DC(4)(e)(iii) 97 Ibid. s.23DC(4)(e)(iv) 98 Noting that different provisions to those mentioned above applied at the time. See for example, Crimes Act 1914, s.23CA(8) as at 1 November 2010. 99 The Hon. John Clarke QC, Clarke Inquiry into the case of Dr Mohamed Haneef, Law Council of Australia, 16 May 2008, 15 100 The Hon. John Clarke QC, Clarke Inquiry into the case of Dr Mohamed Haneef, Law Council of Australia, 16 May 2008, 19 101 Charter of Human Rights and Responsibilities Act 2006 (Vic) ss21(4), (5). 102 Terrorism (Community Protection) Act 2003, s.21B(1). 103 Law Council of Australia, Policy Statement on Rule of Law Principles., March 2011, Principle 1, 2.
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22. How would this improve the effectiveness of the Act? 23. If this extension were adopted, what safeguards or protections would be required to ensure the powers are exercised fairly and proportionately (eg. to minimise the risk of inadvertent non-compliance)?
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Appendix A — Outline of the Terrorism (Community Protection) Act 2003
The table on the following pages provides an outline of the various powers and safeguards set out in the Act. A glossary of terms (in bold) is provided to assist understanding of the Act.
Power Part Description Safeguards and Oversight Covert search Part 2 The Supreme Court can grant a covert search The Public Interest Monitor represents the public interest warrants warrant to Victoria Police if satisfied there are in applications for covert search warrants. reasonable grounds for the suspicion or belief The Victorian Inspectorate conducts half yearly that: inspection of the records of Victoria Police to ascertain a. a terrorist act has been, is being, or is likely compliance with the Act. to be committed, or b. a person who resides at, or visits, the premises, has done an act in preparation for, or is planning a terrorist act, and covert entry and search of the premises is necessary and would substantially assist in preventing or gaining knowledge of the act. Preventative Part 2AA An authorised police officer may make a The Public Interest Monitor represents the public interest police detention police detention decision if satisfied: in reviews of preventative police detention. a. that there are reasonable grounds to suspect The Commission for Children and Young People a person: promotes the interests of and monitors and provides i. will engage in a terrorist act; or advice to the Attorney-General about the treatment of children in preventative police detention. ii. possesses a thing connected to preparation for or engagement of a The IBAC Commissioner must be notified of the making person in a terrorist act; or of a police detention decision. The IBAC Commissioner can be contacted by a detained person iii. has done an act in preparation for or and can receive complaints and investigate an application planning a terrorist attack for or a person’s treatment under a preventative b. and detention decision. The IBAC Commissioner can make
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i. making the decision would substantially representations to Victoria Police about a preventative assist in preventing a terrorist attack detention decision. occurring and detaining the subject is The Ombudsman must be notified of the making a reasonably necessary; or preventative detention decision. The Ombudsman can ii. it is reasonably necessary to detain a be contacted by a detained person and can receive person to preserve evidence of or relating complaints and investigate an application for or a person’s to terrorist act where a terrorist act has treatment under a preventative detention decision. The occurred within the past 28 days. Ombudsman can make representations to Victoria The terrorist act must be capable of being Police about a preventative detention decision. carried out and can occur within the next 14 A detained person may contact a lawyer to: days. • communicate with a lawyer A person detained under this Part may be • obtain advice about the decision, questioning or questioned by Victoria Police in relation to treatment certain terrorist acts. • instruct a lawyer to act in court proceedings An adult may be detained for a period not exceeding four days or a child (under 18 years • instruct a lawyer to make a complaint to the and over 14 years of age) for a period not Ombudsman or the IBAC Commissioner. exceeding 36 hours. The Victorian Inspectorate conducts half yearly inspection of the records of Victoria Police to ascertain compliance with the Act. Preventative Part 2A The Supreme Court can make a preventative The Public Interest Monitor represents the public interest detention orders detention order when satisfied that: in applications for preventative detention orders. a. that there are reasonable grounds to suspect The Commission for Children and Young People a person will: promotes the interests of and monitors and provides i. engage in a terrorist act advice to the Attorney-General about the treatment of children under preventative detention orders. ii. possesses a thing connected to preparation for or engagement of a IBAC must be notified of a the making of a preventative person in a terrorist act or detention order. IBAC can be contacted by a detained person. IBAC can receive complaints and investigate an iii. has done an act in preparation for or application for or a person’s treatment under a planning of a terrorist attack preventative detention order. IBAC can make
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b. and the order would substantially assist in representations to Victoria Police about a preventative preventing a terrorist attack occurring detention order. c. and The Ombudsman must be notified of the making a i. detaining the person is reasonably preventative detention order. The Ombudsman can necessary; or receive complaints and investigate an application for or a person’s treatment under a preventative detention order. ii. it is reasonably necessary to detain a The Ombudsman can make representations to Victoria person to preserve evidence of or relating Police about a preventative detention order. to terrorist act where a terrorist act has occurred within the past 28 days. A detained person may contact a lawyer to: A person detained under a preventative • communicate with a lawyer detention order may be questioned by Victoria • obtain advice about the decision, questioning or Police in relation to certain terrorist acts. treatment • instruct a lawyer to act in court proceedings • instruct a lawyer to make a complaint to the Ombudsman or IBAC. The Victorian Inspectorate conducts half yearly inspection of the records of Victoria Police to ascertain compliance with the Act. Prohibited contact Part 2A The Supreme Court may make a prohibited The Public Interest Monitor can represent the public orders contact order that a person who is detained interest in applications for prohibited contact orders. under a preventative detention order be IBAC must be notified of a the making of a prohibited prohibited from contacting a specified person contact order. IBAC can be contacted by a detained person. IBAC can receive complaints and investigate an application for or a person’s treatment under a prohibited contact order. IBAC can make representations to Victoria Police about a prohibited contact order. The Ombudsman must be notified of the making a prohibited contact order. The Ombudsman can receive complaints and investigate an application for or a person’s treatment under a prohibited contact order. The
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Ombudsman can make representations to Victoria Police about a prohibited contact order.
Police powers to Part 3 To protect people from chemical, biological or The Victorian Inspectorate conducts half yearly detain and radiological contamination where a terrorist inspection of the records of Victoria Police to ascertain decontaminate attack may have occurred, Victoria Police may compliance with the Act. direct persons away from any area and detain and direct a person to submit to a decontamination procedure. Special police Part 3A Special police powers may be authorised in The Premier or their delegate must approve in writing powers several circumstances. applications for authorisation or interim authorisations of First, special police powers may be authorised special police powers. to protect persons attending events in Victoria The Victorian Inspectorate conducts half yearly involving or likely to involve the attendance of inspection of the records of Victoria Police to ascertain prominent persons or a large number of people compliance with the Act. from a terrorist act. The Chief Commissioner of Police must apply to the Supreme Court to issue an order authorising special police powers. The Premier must give written approval to the Chief Commissioner of Police for the application to be made. Special police powers may also be authorised to: • prevent or reduce the impact of a terrorist act which the Chief Commissioner of Police is satisfied on reasonable grounds is occurring or capable of being carried out, and could occur, within the next 14 days • assist the investigation of, or recovery from a terrorist act which the Chief Commissioner of Police is satisfied on
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reasonable grounds has occurred or is occurring. An interim authorisation may be given for the use of special police powers in these circumstances for a period of up to 48 hours by the Chief Commissioner of Police where the Premier has given written approval. Written approval of the Premier is not required if the Premier or the Premier’s delegate (where applicable) is not reasonably able to be contacted. The Chief Commissioner of Police must apply to the Supreme Court for an order authorising the powers for any period beyond 48 hours. Finally, special police powers may be authorised to protect essential services from a terrorist act. The Governor in Council may, on the recommendation of the Minister responsible for the essential service made with the approval of the Premier and in accordance with the advice of the Chief Commissioner, authorise special police powers for this purpose. Protection of Part 5 Victoria Police may apply to the Supreme The Public Interest Monitor represents the public interest counter-terrorism Court for a counter-terrorism intelligence in applications for counter-intelligence protection intelligence protection order during an application for or orders. extension, revocation or variation of a Special Counsel may be appointed to protect a person’s preventative detention order or prohibited right to a fair hearing and to assist the Supreme Court in contact order. making of a counter-terrorism intelligence protection order.
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Appendix B — List of questions
Part 3: Ongoing need 1. Does this accurately characterise the current terrorism threat environment, including emerging risks? 2. Does the threat level warrant the continued operation of the Act? 3. What does the sparing use of the powers in the Act indicate about the ongoing need for the Act? 4. What is the the best way to assess the ongoing necessity of the Act and the powers contained within? 5. Are all the powers in the Act still necessary and appropriately tailored to current and emerging terrorist threats including right-wing extremists, lone actors, and emerging technologies? 6. What would be the risks if some or all of the powers in the Act expired? How else could these risks be addressed? Part 4: Sunset and review 7. Are the review and sunset mechanisms relevant and effective safeguards on the powers in the Act? 8. Is the original purpose of the sunset clause still relevant given the ongoing threat posed by terrorism? 9. If a sunset clause is retained, when should the Act next expire? 10. Would the Act benefit from a more prescriptive review mechanism that contains, for example, explicit review criteria or a clarification of review objectives? Part 5: Safeguards and oversight 11. Do the changes to the threat environment over time impact the justifications previously used for the limitation of rights under the Act? 12. Are the safeguards and oversight contained in the Act adequate and workable? If not, how could they be improved? 13. Are the safeguards and oversights adequate and workable for children and young people? 14. Are there safeguards and oversights from other jurisdictions that could be incorporated into the Act? Part 6: Specific rssues raised in Stage One 15. Is expanding the purposes for taking DNA under the Act reasonable and necessary? Are the general provisions in the Crimes Act provisions sufficient in the context of terrorism investigations? 16. Will it assist with the prevention of a terrorist act or preservation of evidence relating to a recent terrorist act? 17. Would the corresponding impacts on human rights from any changes to the Act be reasonable and justified? Would additional safeguards be required? Is this of particular concern for children? 18. Should a pause mechanism be inserted into Parts 2AA and 2A of the Act? 19. How would this improve the effectiveness of the act?
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20. What safeguards and oversights will be required to ensure the proper exercise of a pause mechanism and to protect a persons’ rights? Is this of particular concern for children? 21. Should special police powers be extended in this fashion? 22. How would this improve the effectiveness of the Act? 23. If this extension were adopted, what safeguards or protections would be required to ensure the powers are exercised fairly and proportionately (eg. to minimise the risk of inadvertent non-compliance)?
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Glossary
Terms Description The Act Terrorism (Community Protection) Act 2003 Australian Federal Australia’s national law enforcement agency, whose role is to enforce Police (AFP) Commonwealth criminal law. Australian Security An Australian intelligence agency and the nation’s security service. and Intelligence Organisation Authorised police A police officer appointed by the Chief Commissioner of Police officer authorised to make police detention decisions. Charter of Human The instrument setting out the basic rights, freedoms, and Rights and responsibilities for all people in Victoria as well as the obligations of Responsibilities 2006 public authorities, such as Government and Victoria Police. Act (Vic) Chief Commissioner of The chief constable and chief executive officer of Victoria Police, who Police is responsible for management and control of Victoria Police. Civic nationalism A form of nationalism which values the notion of citizenship and (RWE) cultural integration over ethnic forms of nationalism. Civic Nationalists often defends the value of national identity by promoting the view that individuals need a national identity in order to lead meaningful, autonomous lives. Membership in a civic nation is open to anyone who shares the same values. Civic Nationalism is often associated with various ‘patriot’ or anti-Islam groups and political parties found in Victoria, who view an adherence to an Islamic faith as incompatible with traditional Australian values Commission for The independent statutory body advocating for the rights and Children and Young wellbeing of children and young people in Victoria. People (CCYP) Counter-intelligence An order made under Part 5 of the Act to protect any information, protection order document or other thing relating to a terrorist act in Victoria or elsewhere which could prejudice a criminal investigation, endanger a person’s safety, threaten significant damage to property or prejudice national security. Covert search A warrant issued under Part 2 of the Act relating to premises, where it warrants is suspected that a terrorist act has been or is likely to be committed. A covert search warrant can also be issued if the premises are visited by or the residence of a person suspected of involvement, preparation or planning of a terrorist act. Ethno nationalism A form of nationalism wherein the nation is defined solely in terms of (RWE) ethnicity. The central theme for ethnic nationalists is that nations are defined by a shared heritage, which usually includes a common language, a common faith and a common ethnic ancestry. Groups and individuals in Victoria who adhere to this ideology often promote a
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Terms Description return to the White Australia Policy, under which only those of European ancestry could migrate to and live Australia Independent broad- The agency responsible for the prevention and exposure of public based Anti-Corruption sector corruption and misconduct with jurisdiction over state and local Commission (IBAC) government, police, parliament, and the judiciary in Victoria. National Socialism The ideology of the German National Socialist Workers’ (Nazi) Party. (RWE) An authoritarian political and social theory based on ideas of European racial supremacy. National Socialism is a form of fascism that promotes disdain for liberal democracy and the parliamentary system, also incorporating fervent antisemitism, anti-communism, scientific racism and eugenics. Groups and individuals in Victoria who adhere to this ideology desire the complete reformation of the Australian Government and society under an authoritarian National Socialist system Police detention A detention decision made by a police officer under Part 2AA of the decision (PDD) Act to prevent an imminent terrorist attack or to preserve evidence of a terrorist attack. Preventative detention An order made under Part 2A of the Act to detain a person suspected order (PDO) of engaging in a terrorist themselves, engaging another person in a terrorist act or possessing a thing connected with preparation for a terrorist act. Prohibited contact An order made under Part 2A of the Act that prohibits a person order (PCO) subject to a preventative detention order from contacting a specific person or class of persons. A PCO can be issued in addition to a preventative detention order to prevent serious harm, risk to operations or to preserve evidence. Public Interest Monitor An independent monitor who represents the public interest in (PIM) applications and decisions made under the Act. Salafi-jihadi ideology A hybrid religious-political ideology based on the Islamist call for a Global caliphate, advocacy for "physical" jihadism and the Salafi concept of returning to true Islam. Terrorist act The meaning given in section 4 of the Terrorism (Community Protection) Act 2003 Victoria Police Victoria’s primary law enforcement agency. Victoria Legal Aid An organisation which provides legal information, education and (VLA) advice for all Victorians and legal representation for people who meet eligibility criteria. Victorian Inspectorate A body which monitors, inspects and investigates complaints made about Victoria’s integrity agencies. Victorian Ombudsman An independent officer whose role is to investigate complaints about any Victorian government department or public body.
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