Commonwealth of Australia Explanatory Memoranda

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COUNTER-TERRORISM LEGISLATION AMENDMENT BILL (NO. 1) 2016

                                  2016




    THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                                SENATE




COUNTER-TERRORISM LEGISLATION AMENDMENT BILL (NO. 1) 2016




        SUPPLEMENTARY EXPLANATORY MEMORANDUM



          Amendment to be Moved on Behalf of the Government




                      (Circulated by authority of the
       Attorney-General, Senator the Honourable George Brandis QC)
COUNTER-TERRORISM LEGISLATION AMENDMENT BILL (NO. 1) 2016

(Government)

GENERAL OUTLINE

5.      The purpose of these amendments to the Counter-Terrorism Legislation Amendment
Bill (No. 1) 2016 (the Bill) is to require an issuing court to appoint a lawyer to represent a
young person in proceedings in relation to a control order where the young person does not
have legal representation.

6.     The amendments to Schedule 2 of the Bill will:

          require an issuing court to appoint a lawyer to represent a young person, aged 14
           to 17 years, for proceedings in relation to a control order, other than ex parte
           proceedings for an interim or urgent interim control order, and

          provide that, if the young person refuses the lawyer appointed to him or her for the
           control order proceedings, the issuing court is not required to appoint another
           lawyer.

FINANCIAL IMPACT STATEMENT

7.      The amendments to the Bill may have financial impacts on the Commonwealth. If
necessary, the Commonwealth will meet the cost of a lawyer appointed to a young person in
control order proceedings.




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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Counter-Terrorism Legislation Amendment Bill (No. 1) 2016

8.     The amendments to Schedule 2 of the Bill are compatible with the human rights and
freedoms recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

Criminal Code Act 1995

9.      The Bill authorises an issuing court to impose a control order on persons 14 years and
older, and provides safeguards.

10.     The amendments to Schedule 2 of the Bill will strengthen the safeguards in the Bill by
requiring an issuing court to appoint a lawyer for a young person for the purposes of
proceedings in relation to the control order if the young person does not have legal
representation.

Human rights implications

11.    The amendments to Schedule 2 of the Bill engage the right to a fair trial, the right to
minimum guarantees in criminal proceedings and in a suit at law and the presumption of
innocence in Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

The right to a fair trial, the right to minimum guarantees in criminal proceedings and in a
suit at law and the presumption of innocence

12.    Control orders under Division 104 of Part 5.3 of the Criminal Code have been a tool
available to law enforcement since 2005.

13.     Control orders are a protective mechanism and constitute an important element of
Australia's counter-terrorism strategy. They provide the AFP with a means to request that a
court impose obligations, prohibitions and restrictions (controls) on a person for the purpose
of protecting the public from a terrorist act. Law enforcement may have sufficient
information or intelligence to establish serious concern regarding the threat posed by an
individual, but may not have sufficient time or evidence to lay charges and commence a
criminal prosecution. In these circumstances, control orders provide a mechanism to manage
the threat in the short to medium term. Use of a control order is therefore considered in
conjunction with, and is complementary to, criminal prosecution, and allows a balance to be
achieved between mitigating the risk to community safety and allowing criminal
investigations to continue.

14.     The control order regime has been used judiciously to date. This reflects the policy
intent that these orders are not punitive in nature and do not act as a substitute for criminal
proceedings. Rather, they should only be invoked in limited circumstances and are subject to
legislative safeguards that preserve the fundamental human rights of a person subject to a
control order.


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15.     The amendments to Schedule 2 of the Bill will strengthen the existing safeguards in
the Bill and the Criminal Code and will implement recommendation 2 of the February 2016
advisory report of the Parliamentary Joint Committee on Intelligence and Security (the
Committee) on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 (the
advisory report).

16.    In particular, the amendments will require an issuing court to appoint a lawyer to
represent a young person in control order proceedings, other than proceedings the issuing
court has determined should be held ex parte, where the young person does not have legal
representation.

Conclusion

17.     The amendments to the Bill are compatible with human rights and they promote the
right to a fair trial, the right to minimum guarantees in criminal proceedings and in a suit at
law and the presumption of innocence.




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NOTES ON AMENDMENTS

Amendment 1: Schedule 2, page 10

18.      Amendment 1 will insert a new heading "Young persons' right to legal
representation" after subsection 104.28(3) of the Criminal Code. Amendment 1 will also
insert three new subsections into section 104.28 of the Criminal Code.

19.    New subsection 104.28(4) will require an issuing court to appoint a lawyer for a
young person aged 14 to 17 years in relation to control order proceedings, where the young
person does not have legal representation, except in the limited circumstances set out in new
subsection 104.28(5). Subsection 104.28(4) guarantees a young person subject to a control
order will have access to legal representation, consistent with the Committee's commentary
on recommendation 2 of the advisory report.

20.    New subsection 104.28(5) will provide limited exceptions to new
subsection 104.28(4).

21.     New paragraph 104.28(5)(a) will provide that, where an issuing court has determined,
using its inherent power, that an application is to be considered ex parte, the issuing court is
not required to appoint a lawyer. This provision will only apply to interim or urgent interim
control order applications that are considered ex parte. If the application for an interim
control order is heard ex parte, and the court grants an interim control order, new
subsection 104.28(4) will require the issuing court to appoint a lawyer for the young person
in subsequent proceedings, including proceedings to consider whether to confirm, vary,
revoke or void the control order.

22.     In addition, new paragraph 104.28(5)(b) will provide that, where an issuing court has
appointed a lawyer for the young person and the young person has refused that lawyer, the
issuing court is not required to appoint another lawyer. This paragraph is consistent with
paragraph 2.89 of the Committee's advisory report, which noted that the right to legal
representation "can only go so far as ensuring that the issuing court makes legal
representation available to a young person, but it cannot compel the young person to accept
that legal representation."

23.    New subsection 104.28(6) creates a regulation making power. The regulation making
power is limited to additional matters relevant to the appointment of lawyers for the purposes
of new subsection 104.28(4).




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