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Review of Australian Federal Police Powers Review of Australian Federal Police Powers Submission to the Parliamentary Joint Committee on Intelligence and Security 10 September 2020 ABN 47 996 232 602 Level 3, 175 Pitt Street, Sydney NSW 2000 GPO Box 5218, Sydney NSW 2001 General enquiries 1300 369 711 National Information Service 1300 656 419 TTY 1800 620 241 Australian Human Rights Commission Review of AFP Powers, 10 September 2020 1 Introduction ............................................................................................... 4 2 Summary .................................................................................................... 5 3 Recommendations ................................................................................... 11 4 Background .............................................................................................. 15 5 Stop, search and seize powers ............................................................... 18 5.1 Structure of provisions .............................................................................. 18 5.2 Consideration ............................................................................................ 20 (a) Relevant human rights .............................................................................................. 20 (b) Stop, search and seize powers ................................................................................. 21 (c) Prescribed security zones .......................................................................................... 22 (d) Warrantless entry to premises ................................................................................. 26 (e) Extension of emergency powers ............................................................................... 31 6 Control orders .......................................................................................... 32 6.1 Structure of provisions .............................................................................. 33 (a) Nature of controls and consequences for breach ................................................. 33 (b) Process of making a control order .......................................................................... 38 (c) Threshold for making a control order ..................................................................... 42 6.2 Use of control orders ................................................................................. 44 (a) Initial experience with control orders ..................................................................... 44 (b) Situations in which control orders may be imposed ............................................. 47 6.3 Consideration ............................................................................................ 57 6.4 Scope of control orders ............................................................................. 61 7 Preventative detention orders ............................................................... 63 7.1 Structure of provisions .............................................................................. 63 7.2 Human rights issues .................................................................................. 67 7.3 Use of preventative detention orders ....................................................... 68 (a) Actual use .................................................................................................................... 68 (b) Hypothetical examples .............................................................................................. 71 7.4 Assessment ................................................................................................ 73 8 Continuing detention orders .................................................................. 74 8.1 Structure of provisions .............................................................................. 75 8.2 Use of provisions ....................................................................................... 77 8.3 Consideration ............................................................................................ 77 (a) Scope of offences ....................................................................................................... 77 (b) Assessment of risk ...................................................................................................... 79 2 Australian Human Rights Commission Review of AFP Powers, 10 September 2020 (c) Availability of less restrictive alternatives ............................................................... 88 Appendix A: Control orders made .................................................................... 94 3 Australian Human Rights Commission Review of AFP Powers, 10 September 2020 1 Introduction 1. The Australian Human Rights Commission (the Commission) makes this submission to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) in relation to its ‘Review of AFP Powers’. 2. This is a statutory review required by s 29(1)(bb)(i) and (ii) and s 29(1)(cb) of the Intelligence Services Act 2001 (Cth) into the operation, effectiveness and implications of: • Division 3A of Part IAA of the Crimes Act 1914 (Cth) (Crimes Act) (which provides for certain police powers, including ‘stop, search and seize powers’, in relation to terrorism) and any other provision of the Crimes Act as it relates to that Division • Divisions 104 and 105 of the Criminal Code (which provide for control orders and preventative detention orders in relation to terrorism) and any other provision of the Criminal Code Act 1995 (Cth) as it relates to those Divisions • Division 105A of the Criminal Code (which provides for continuing detention orders). 3. The PJCIS is required to conduct its review of the first two matters by 7 January 2021 and the third matter by 7 December 2022. 4. The Commission has made several submissions about the counter- terrorism laws that are under consideration in this review. This includes submissions made to: • the Legal and Constitutional Legislation Committee in relation to the 2005 Bill that introduced the stop, search and seize powers in relation to terrorism, control orders and preventative detention orders1 • the 2013 COAG Review of Counter-Terrorism Legislation2 • the 2016 PJCIS review of the Criminal Code Amendment (High Risk Terrorist Offenders) Bill that introduced continuing detention orders3 • the 2017 Statutory Deadline Reviews by the Independent National Security Legislation Monitor (INSLM)4 4 Australian Human Rights Commission Review of AFP Powers, 10 September 2020 • the 2018 PJCIS review of police powers, control orders and preventative detention orders.5 5. The Commission welcomes the opportunity to make a submission to this review. 2 Summary 6. Ensuring community safety is one of the most important tasks of government. Taking steps to prevent the commission of terrorist acts, and to prosecute those responsible for committing terrorist acts, promotes the human rights of members of the Australian community6 and is an obligation on Australia under international law.7 7. International law also requires that the steps taken to prevent the commission of terrorist acts are themselves consistent with human rights.8 As the UN General Assembly has said: [T]he promotion and protection of human rights for all and the rule of law is essential to all components of the [United Nations Global Counter- Terrorism] Strategy, recognizing that effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing.9 8. When assessing the impact of powers given to law enforcement agencies to prevent terrorist acts, the rights of two groups of people are particularly relevant: first, people who are at risk of being victims of terrorist attacks; secondly, people who are accused of involvement in terrorist acts or who are otherwise affected by its prevention or investigation.10 9. In terms of the first group, the most important of the human rights sought to be protected are the right to life (article 6(1) of the International Covenant on Civil and Political Rights (ICCPR))11 and the right to liberty and security of the person (article 9(1) of the ICCPR) including the right to bodily integrity. We must have comprehensive and effective measures in place in order to protect the lives of all those who live in Australia from the threat of terrorism. 10. Because terrorism is ideologically or politically motivated, an essential strategy in countering the extremism that breeds terrorism is to win ‘the contest of ideas’ by rigorously defending the basic human rights 5 Australian Human Rights Commission Review of AFP Powers, 10 September 2020 and freedoms which form ‘the bedrock of dignity and democracy that make our societies worth protecting’.12 11. Winning the contest of ideas becomes much more difficult if counter- terrorism laws, or the way that they are used, undermine basic human rights standards. That is one reason why it is necessary that the human rights of those in the second group are also safeguarded. 12. But we must protect the human rights of people who are accused or suspected of involvement in terrorist acts, not merely to demonstrate to others the strength of our values, but because we recognise those values as intrinsically important in a ‘free and confident society’.13 13. The Australian Government has assessed that the primary terrorist threat in Australia currently comes from people motivated by Islamist extremist ideology.14 This threat was heightened in September 2014 by
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