Government response to committee report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014

22 October 2014

The Government has responded to the inquiry of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) into the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (the Bill).

The Government has accepted all of the Committee’s recommendations made in its unanimous bipartisan report and, by doing so, expects the Parliament to accept the committee’s principal recommendation for it to pass the Bill.

The Government will seek to have the Bill passed next week and looks forward to the cooperation of the Opposition in ensuring this happens.

This urgent legislation tackles the escalating threats posed by persons who have participated in foreign conflicts or undertaken training with extremist groups overseas, and also by those who they influence.

The Government is determined to give our law enforcement, intelligence and border protection agencies the tools they need to mitigate such threats. The Bill has a direct impact on their ability to protect the Australian public.

The Committee’s recommendations focus on improving the clarity of provisions in the Bill and ensuring that the powers provided for in the Bill are used appropriately and subject to proper review. Implementing the recommendations will further strengthen the provisions of the Bill including the safeguards, transparency and oversight mechanisms.

The Government recognises the valuable work of the Committee, and particularly its Chair, Mr Dan Tehan MP, and Deputy Chair, The Hon Anthony Byrne MP. We thank all those who participated in its inquiry. The Report provided a thorough consideration of the Bill and the issues raised in evidence by a wide range of stakeholders.

A copy of the Government response to the Committee’s recommendations is attached.

Schedule 1—Main counter-terrorism amendments

Recommendation Government response

Recommendation 1

The Committee recommends that the Attorney-General amend the Counter- Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 to remove the ability of
'members' or 'part-time senior members' of the Administrative Appeals Tribunal to be eligible issuing officers for a delayed notification search warrant.

Supported

The Government will amend the Bill to remove the ability of 'members' and 'part- time senior members' of the Administrative Appeals Tribunal to be eligible issuing officers for a delayed notification search warrant.

Recommendation 2

The Committee recommends that the Attorney-General amend the Counter- Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 to reduce the extension of a notification period for a delayed
notification search warrant without requiring Ministerial authorisation from 18 to 12 months.

Supported

The Government will amend the Bill to reduce the extension of a notification period for a delayed notification search warrant without requiring Ministerial authorisation from 18 to 12 months.

Recommendation 3

The Committee recommends that additional exemptions be included in the offence provisions relating to disclosure of information on delayed notification search warrants in proposed section 3ZZHA of the Counter Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 to explicitly enable:

· disclosure of information in the course of obtaining legal advice,

· disclosure of information by any person in the course of inspections by the Commonwealth Ombudsman, or as part of a complaint to the Commonwealth Ombudsman or other pro-active disclosure made to the Commonwealth Ombudsman, and

· communication of information by Commonwealth Ombudsman staff to the Commonwealth Ombudsman or other staff within the Office of the Commonwealth Ombudsman in the course of their duties.

Supported

The Government will amend the Bill to include the recommended additional exemptions in the offence provisions relating to disclosure of information on delayed notification search warrants.

Recommendation 4

The Committee recommends that the Attorney-General amend the Explanatory Memorandum of the Counter Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 to confirm that the Commonwealth Director of Public Prosecutions must take into account the public interest, including the public interest in publication, before
initiating a prosecution for the disclosure of information relating to a delayed notification search warrant.

Supported

The Government will amend the Explanatory Memorandum in consultation with the Commonwealth Director of Public Prosecutions (CDPP).

Recommendation 5

Whilst there were differing views within the Committee, the Committee recommends that the Attorney-General further clarify the meaning of the terms 'encourage',
'advocacy' and 'promotion' by amendment to either the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 or its Explanatory Memorandum in light of the evidence provided during the Committee's inquiry.

Supported

The Government will amend the Explanatory Memorandum for the Bill to clarify the meaning of the terms 'encourage',
'advocacy' and 'promotion' as they relate to the advocating terrorism offence.

Recommendation 6

The Committee recommends that the Attorney-General amend the Explanatory Memorandum of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 to clarify the meaning of
'promotion' in relation to statements of support for the objectives or activities of a terrorist organisation as defined by the Criminal Code.

Supported

The Government will amend the Explanatory Memorandum for the Bill to clarify the meaning of the term 'promotion' in relation
to the new advocating terrorism offence.

Recommendation 7

The Committee recommends that the Attorney-General review all current listings of terrorist organisations under the Criminal Code to determine whether additional names or aliases should be added to any listings.

Supported

The Government will ensure that a review of all current listings of terrorist organisations under the Criminal Code will be conducted to determine whether additional names or
aliases should be added to any listings.

Recommendation 8

The Committee recommends that the Attorney-General notify the Committee of any proposed Regulation to alter the listing of a terrorist organisation by adding or removing a name or alias. The Committee also recommends that it have the power to
determine if it wishes to review any proposed changes to listings.

Supported

The Government will ensure that the
Attorney-General notifies the Committee and where appropriate, refers for review, any proposed Regulation to alter the listing of a terrorist organisation by adding or removing
a name or alias.

Recommendation 9

The Committee recommends that the Government consider requiring that a control order can only be based on a foreign conviction where the conduct giving rise to the conviction would constitute a terrorism related offence in Australia.

Supported

The Government will amend the Bill to provide a control order will be available where the conduct is equivalent to a terrorism offence in Australia within the meaning of
the definition in section 3(1) of the Crimes
Act 1914.

Recommendation 10

The Committee notes that the
Attorney-General's Department and the Australian Federal Police have flagged the possibility of further enhancements to the control order regime given ongoing examination of the application process and purposes for which a control order can be sought.

Should further changes be proposed, the Committee recommends that these amendments are referred to this Committee with appropriate time for inquiry and review.

Supported

The Government will refer future proposals to amend the control order regime to the Committee for review and report.

Recommendation 11

The Committee recommends that the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 be amended:

· to ensure that a preventative detention order is only able to refer to a description in circumstances where the person's true name is not known and not able to be determined based on reasonable inquiries.

· to enable a preventative detention order to refer to an alias (as well as, or instead of a description) instead of a name where the person's name is not known and not able to be determined based on reasonable inquiries.

The Committee also recommends that the Bill be amended so that where a description is included in the preventative detention order, it has sufficient detail so as to identify
beyond reasonable doubt the person to whom it applies.

Supported

The Government will amend the Bill to ensure that any preventative detention order which refers to a description of a person can be used only where the person's true name is not known and not able to be determined based on reasonable inquiries—the description should contain sufficient detail to identify the person.

The Government will also amend the Bill to allow a preventative detention order to refer to an alias (as well as, or instead of a description) instead of a name where the person's name is not known and not able to be determined based on reasonable inquiries.

Recommendation 12

The Committee recommends the existing preventative detention order regime be amended to specify that where the Ombudsman is required to be notified of certain events by the Australian Federal Police, this notification is required to take place as soon as is reasonably practicable.

Supported

The Government will amend the Bill to require that where the Ombudsman is required to be notified of certain events by the Australian Federal Police, this notification is required to take place as soon as is reasonably practicable.

Recommendation 13

The Committee recommends that the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 be amended so that the following powers sunset 24 months after the date of the next Federal election:

  • control order regime in Division 104 of the Criminal Code Act 1995
  • preventative detention order regime in
    Division 105
  • the stop, search and seizure powers relating to terrorism offences in Division IIIA of the Crimes Act 1914
  • questioning and questioning and detention warrant regime in the Australian Security Intelligence Organisation Act 1979

The Committee recommends that the Intelligence Services Act 2001 be amended to require the Parliamentary Joint Committee on Intelligence and Security to complete a
review of each of the powers listed above 18 months after the next Federal election.

The Committee recommends that the Independent National Security Legislation Monitor Act 2010 be amended to require the INSLM to finalise a review of the operation of each of these powers 12 months after the next Federal election.

Supported

The Government will amend the Bill to implement the recommendation, however, given the uncertainty associated with the timing of elections, the amendments will provide that the relevant provisions sunset on
7 September 2018 and that reviews be completed by 7 March 2018, two years and
18 months respectively after the last date on which the next Federal election must be called. This is designed to ensure there is sufficient time in which to observe the operation of the amendments in order to undertake a meaningful review and make a decision as to whether to continue the operation of each of the regimes.

Pursuant to section 7 of the Independent
National Security Legislation Monitor Act
2010, the Government will request that the INSLM review the operation of the control order regime (Division 104), preventative detention order regime (Division 105), stop, search and question powers (Crimes Act
1914) and ASIO questioning and detention and questioning powers (ASIO Act) within
12 months of the date of the next Federal election / by 7 September 2017.

Recommendation 14

The Committee recommends that the functions of the Parliamentary Joint Committee on Intelligence and Security be extended to encompass the counter-terrorism activities of the Australian Federal Police, including, but not limited to, anything involving classified material.

Supported

Given the PJCLE and other bodies currently have oversight functions in relation to the AFP, including with respect to their
counter-terrorism activities, the Government will not implement this recommendation in the current bill. This will allow sufficient time to further consider the interactions between oversight bodies.

Recommendation 15

The Committee recommends that the definition of 'subverting society' in proposed section 117.1 of the Criminal Code be replaced with a cross-reference to the
conduct contained in the definition of
'terrorist act' in section 100.1 of the Criminal
Code.

Supported

The Government will amend the Bill to replace the definition of 'subverting society' with a cross-reference to the conduct contained in the definition of 'terrorist act' in section 100.1 of the Criminal Code.

Recommendation 16

The Committee recommends that the Attorney-General consider amending the definition of 'engaging in a hostile activity' in proposed section 117.1 of the Criminal Code to constrain it to conduct that would be considered to be a 'serious offence' if undertaken within Australia. The definition of 'serious offence' for the purposes of this section should be made in consideration of
other comparable areas of Australian criminal law.

Supported

The Government will amend the Bill to limit
the 'subverting society' element of the
'engaging in hostile activity' to conduct that
would be an offence in Australia.

Recommendation 17

The Committee recommends that the Attorney General remove from, or more specifically define, acts prejudicial to the
'international relations' of Australia in the definition of 'prescribed organisation' contained in clause 117.1(2) for the proposed foreign incursions and recruitment offences.

Supported

The Government will amend the Bill to include the definition of 'international relations' from section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2014.

Recommendation 18

The Committee recommends that proposed subsection 119.3(2)(b), which explicitly enables the Minister to declare an entire country for the purposes of prohibiting persons from entering, or remaining, in that country, be removed from the Counter Terrorism Legislation Amendment (Foreign Fighters) Bill 2014.

Supported

The Government will amend the Bill to remove the paragraph 119.3(2)(b), which explicitly enables the Minister to declare an entire country for the purposes of prohibiting persons from entering, or remaining, in that country.

Recommendation 19

The Committee recommends that the Counter Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 be amended to insert a clause that enables the Parliamentary Joint Committee on Intelligence and Security to conduct a review of the declaration of each area made under proposed section 119.3, within the disallowance period for each declaration. The clause should be modelled on the existing subdivision 102.1A of the Criminal Code in relation to the listing of terrorist organisations.

Supported

The Government will amend the Bill to authorise the PJCIS to conduct a review of each proposed declaration during the disallowable period.

Recommendation 20

If legislated, the Committee recommends that subclause 119.2(6), relating to the proposed offence for entering, or remaining in, a declared area, sunset two years after the next Federal election.

Supported

The Government will amend the Bill to implement the recommendation, however, as for recommendation 13, given the uncertainty associated with the timing of elections, the Bill will be amended to provide that the relevant provision sunset on 7 September
2018, two years 18 months after the last date on which the next Federal election must be called. This is designed to ensure there is sufficient time in which to observe the operation of the offence provision in order to make a decision as to whether to continue the operation of the offence.

Recommendation 21

If legislated, the Committee recommends that the Intelligence Services Act 2001 be
amended to require the Parliamentary Joint Committee on Intelligence and Security to complete a public inquiry into the 'declared area' provisions in clauses 119.2 and 119.3 of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014,
including the list of 'legitimate purposes', 18
months after the next Federal election.

The Committee further recommends that the Independent National Security Legislation Monitor Act 2010 be amended to require the Independent National Security Legislation Monitor to review and report on the
operation of the 'declared area' provisions 12 months after the next Federal election.

Supported

The Government will amend the Bill to implement the recommendation, however, as for recommendation 13, given the uncertainty associated with the timing of elections, the Bill will be amended to provide that the
PJCIS complete its review by 7 March 2018,
18 months after the last date on which the next Federal election must be called.

Pursuant to section 7 of the Independent
National Security Legislation Monitor Act
2010, the Government will refer the declared area offence to the INSLM for review and report 12 months after the next Federal election.

Recommendation 22

The Committee recommends that proposed section 27D of the Foreign Evidence Act
1994, which currently applies only to public officials and persons connected to public officials, be broadened to apply in circumstances where any person has directly obtained material as a result of torture or duress.

Supported

The Government will amend the Bill to extend the application of the exemption of material obtained under torture or duress to any person who directly obtained material under torture or duress.

Recommendation 23

The Committee recommends that the
Government broaden the definition of
'duress' in proposed Part 3A of the Foreign Evidence Act 1994 to include other threats that a reasonable person might respond to, including threats against a person's assets, personal associates or other third parties.

Supported

The Government will amend the Bill to expand the definition of 'duress' to include other threats to which a reasonable person may respond.

Recommendation 24

The Committee recommends that proposed Part 3A of the Foreign Evidence Act 1994 be amended, based on section 165 of the Evidence Act 1995, to require courts to provide appropriate direction to juries, where necessary, about the potential unreliability of foreign evidence admitted under Part 3A.

Supported

The Government will amend the Bill to permit a warning and information about the potential unreliability of foreign evidence to be given to a jury.

Recommendation 25

The Committee recommends that the Attorney-General amend the Explanatory Memorandum to make it clear that the definition of 'politically motivated violence' must be read with reference to the opening words in the definition of 'security' in section 4 of the Australian Security Intelligence Organisation Act 1979.

Supported

The Government will amend the Explanatory Memorandum to make it clear that the definition of 'politically motivated violence' must be read with reference to the opening words in the definition of 'security' in
section 4 of the Australian Security
Intelligence Organisation Act 1979.

Recommendation 26

The Committee recommends that proposed subsection 22A(2) of the Australian Passports Act 2005 and proposed section
15A of the Foreign Passports (Law Enforcement and Security) Act 2005 be amended so that the Director-General of ASIO or a Deputy Director-General must suspect on reasonable grounds the factors necessary to apply for the suspension of travel documents.

Supported

The Government will amend the Bill so that the applications for the suspension of Australian travel documents under the Australian Passports Act 2005 and the 14 day surrender of foreign travel documents under the Foreign Passports (Law Enforcement and Security) Act 2005 can be made by the Director-General of ASIO and that the Director-General can only delegate this power to a Deputy Director-General.

Recommendation 27

The Committee recommends the ability of the Foreign Affairs Minister to delegate the power to suspend a travel document be limited to the Secretary of the Department of Foreign Affairs and Trade.

Supported

The Government will amend the Bill so that the Foreign Minister's power to suspend an Australian travel document under the Australian Passports Act 2005 can only be delegated to the Secretary of the Department of Foreign Affairs and Trade.

Recommendation 28

The Committee recommends that the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 be amended to require the Attorney-General or Minister for Justice to conduct:

  • a review of the decision to issue a certificate under paragraph 38(2)(a) of the Australian Security Intelligence Organisation Act 1979 or proposed subsection 48A(4) of the Australian Passports Act 2005 within 12 months of issuing that certificate; and
  • ongoing reviews every 12 months for the time period the certificate remains active.

Supported

The Government will amend the Bill to implement this recommendation.

Schedules 2 to 7

Recommendation Government response

Recommendation 29

The Committee recommends that the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 be amended to require the Attorney-General to make a decision to issue a security notice 'on reasonable grounds', having regard to:

  • whether there are reasonable grounds to suspect that a person is, or will be, directly involved in activities which are prejudicial to security (with consideration given to ASIO's security assessment); and
  • the likely effect of the cancellation of welfare payments on any dependents and what alternative arrangements might apply.

Supported

The Government will amend the Bill to implement the recommendation, however, given an adverse security assessment will already have been issued in relation to the person, the Bill will be amended so the Attorney-General must have regard to:

  • whether the Attorney-General is aware that any payments are being, or may be, used for a purpose that might prejudice the security of Australia or another country, and
  • the likely effect of cancellation of welfare payments on dependents.

The Attorney-General's ability to consider other relevant factors will also be preserved.

Recommendation 30

The Committee recommends that the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 be amended to require the Attorney-General to conduct:

  • an initial review of the decision to issue a security notice within 12 months of making that decision; and
  • ongoing reviews every 12 months after for the time period the security notice remains active.

Supported

The Government will amend the Bill to implement this recommendation.

Recommendation 31

Unless the Attorney-General is able to provide to the Parliament further explanation on the necessity of the proposed definition of 'serious Commonwealth offence' for the purposes of the Customs Act 1901 and how it would enable a greater role for Customs in dealing with national security threats or terrorist activity, the Committee recommends that the definition be removed from the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014.

Supported

The Attorney-General will provide further explanation to the Parliament on the necessity of this proposal.

Recommendation 32

The Committee recommends that the allowable period of detention by a Customs officer without notification to a family member or other person be extended from 45 minutes to two hours, rather than four hours as proposed in the Bill.

The Committee notes that this does not deny a Customs officer's power to refuse contact beyond this period on grounds of national security, security of a foreign country, safeguarding law enforcement processes or to protect the life and safety of another person.

Supported

The Government will amend the Bill to change the extension of the allowable period of detention by a Customs officer without notification to a family member or other person to two hours rather than the currently proposed four hours.

Recommendation 33

The Committee recommends that information on the frequency of the use of Customs detention powers is included in the Department's annual report. Further where a Customs officer exercises the power to refuse contact with a family member or other person on the grounds of national security, security
of a foreign country, safeguarding law enforcement processes or to protect the life and safety of another person, then notice of this should be provided to the Ombudsman within seven days.

Supported

The Government will ensure that information on the frequency of the use of Customs detention powers is included in the annual report of the Australian Customs and Border Protection Service/Department of Immigration and Border Protection.  Further, Customs will ensure that notice of a Customs officer exercising the power to refuse contact with a family member or other person on the grounds of national security, security of a foreign country, safeguarding law enforcement processes or to protect the life and safety of another person will be provided to the Ombudsman within seven days.

Recommendation 34

The Committee recommends that the Privacy Commissioner undertake a Privacy Assessment of the data collected and stored by the Department of Immigration and
Border Protections and Customs, and report to the Attorney-General by 30 June 2015,
with specific regard to the collection, storage, sharing and use of that data by the government agencies within the remit of the Commissioner's jurisdiction.

Supported

The Government will ensure a Privacy Assessment is undertaken and provided to the Attorney-General by 30 June 2015 in relation to data collected and stored by the
Department of Immigration and Border Protection and Customs in accordance with schedules 5-7 of the Bill. The assessment will have regard to the collection, storage, sharing and use of that data by the government agencies within the remit of the Commissioner's jurisdiction.

Recommendation 35

The Committee recommends that the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 be amended to remove the ability to prescribe the collection of additional categories of biometric information within the Migration Regulations.

Should this information be required by relevant agencies to ensure Australia's border security, further legislative amendments should be proposed by the Government and referred to this Committee with appropriate time for inquiry and report.

Supported

The Government will amend the Bill to remove the ability to prescribe the collection of additional categories of biometric information by an authorised system within the Migration Regulations.

Recommendation 36

The Committee recommends the Government consult with the Privacy Commissioner and conduct a privacy impact statement prior to proposing any future legislative amendments which would authorise the collection of additional biometric data such as fingerprints and iris scans.

Supported

If the Government proposes future legislative amendments to authorise collection of additional biometric data by the Department of Immigration and Border Protection, a privacy impact statement will be conducted.

Recommendation 37

The Committee commends its recommendations to the Parliament and recommends that the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 be passed.

Supported

The Government thanks the Committee for its thorough and constructive scrutiny of the Bill, and acknowledges the valuable contributions of all stakeholders participating in the Committee's inquiry.