Law Council questions continuation and expansion of extraordinary counter terrorism measures
17 October 2023
The Law Council of Australia recognises the need to maintain strong counter-terrorism powers to protect the Australian community from the risk of terrorism. However, extension of extraordinary counter-terrorism powers that impose significant restrictions on human rights, and depart from fundamental principles of criminal law, require continuous re-evaluation.
Appearing at yesterday’s public hearing of the Parliamentary Joint Committee on Intelligence and Security (PJCIS), representatives of the Law Council raised concerns regarding the proposed Counter Terrorism and Other Legislation Amendment Bill 2023.
The Bill proposes extending the operation of existing extraordinary counter-terrorism powers including law enforcement stop, search and seizure powers; the preventative detention order regime; and renewal of the control order regime, on an expanded basis.
“In light of Australia’s terror threat level being reduced, and the extensive range of terror offences, which already capture a wide range of preparatory and ancillary conduct, we would question whether the control order and preventative detention order schemes remain necessary,” Law Council of Australia President, Mr Luke Murphy said.
“In our view, the fact the preventative detention order regime has not been used to date is further evidence that its justified continuance is doubtful.
“That is why the primary recommendation of the Law Council is that the preventative detention order and control order regimes should not be renewed when they sunset in December of this year.
“As we have maintained, if the control order and preventive detention order schemes are renewed, they should only be renewed for 12 months to allow time for completion of the PJCIS’s ongoing review of related post-sentence orders. It would be premature to expand the range of conditions available under the CO regime, as proposed by this Bill, without consideration of these matters.”
During its appearance, the Law Council referred to the findings of recent independent reviews which reinforce the importance of further certainty and safeguards regulating the interoperation of post-sentence orders, including Commonwealth and state and territory schemes.
“The Law Council’s submission to the inquiry raises significant concerns with the absence of safeguards in the proposed control order conditions regarding use of information that is disclosed by a person who may be required to participate in rehabilitation activities or interviews,” Mr Murphy said. “A person subject to a control order should not be put in the position where if they seek to exercise their fundamental right to silence they could be at risk of breaching their control order and being subject to imprisonment.
“We also oppose renewing the warrantless powers of search which enables emergency entry to premises without a warrant. We are waiting for the Government to publish its response to the PJCIS recommendation which recommended consideration of the feasibility of a duty judge system, where applications for search warrants could be received and considered for expedited review. Without access to this review, it is difficult to understand why warrantless powers are necessary.”
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