Review of Australian Federal Police Powers (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 orders[i]
• the 2013 COAG Review of Counter-Terrorism Legislation[ii]
• the 2016 PJCIS review of the Criminal Code Amendment (High Risk Terrorist Offenders) Bill that introduced continuing detention orders[iii]
• the 2017 Statutory Deadline Reviews by the Independent National Security Legislation Monitor (INSLM)[iv]
• the 2018 PJCIS review of police powers, control orders and preventative detention orders.[v]

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 community[vi] and is an obligation on Australia under international law.[vii]
    
7. International law also requires that the steps taken to prevent the commission of terrorist acts are themselves consistent with human rights.[viii]  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.[ix]

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.[x]
    
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))[xi] 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 and freedoms which form ‘the bedrock of dignity and democracy that make our societies worth protecting’.[xii]
     
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’.[xiii]
     
13. The Australian Government has assessed that the primary terrorist threat in Australia currently comes from people motivated by Islamist extremist ideology.[xiv]  This threat was heightened in September 2014 by a number of factors including the return to Australia of people who had been fighting in Syria and Iraq,[xv] and the call by the terrorist organisation Islamic State for a war against the West.[xvi]
     
14. The risks are particularly acute for Australian Federal Police (AFP) members and other police and intelligence officers who are charged with the dangerous task of investigating these acts.  In 2014, two Victorian police officers were stabbed in an ideologically motivated attack.  In a separate attack in 2015, Mr Curtis Cheng, an employee of the New South Wales police force, was shot and killed.
     
15. Australia’s federal, State and Territory governments have multi-layered strategies to combat terrorism.  A critical tool in those strategies is the investigation of those suspected of planning terrorist acts, followed by their arrest and prosecution where the investigation reveals evidence that an offence has been committed.
     
16. Since the significant counter-terrorism raids conducted in Sydney and Brisbane in September 2014, 110 people have been charged as a result of 51 counter-terrorism related operations across the country.[xvii]
     
17. There are two significant differences between the investigation and prosecution of terrorism offences on the one hand, and other criminal law offences on the other, which give the police the ability to intervene at an earlier point in time and prevent terrorist acts before they take place.  The first difference is the inclusion in the Criminal Code of a broader range of inchoate, or preparatory, offences relating to terrorist acts.  One of the most commonly prosecuted terrorism offences is a conspiracy to do an act in preparation for a terrorist act.[xviii]  Some acts, occurring at an even earlier stage, before any intention to engage in an act of terrorism, have also been criminalised.  The High Court has recently heard an appeal dealing with the offence of taking an intentional step to become a member of a terrorist organisation.[xix]
     
18. The second difference relates to the threshold for arrest.  Since 2014, police have had the ability to arrest a person without a warrant in relation to a terrorism offence if they ‘suspect on reasonable grounds’ that the person has committed an offence (including a preparatory offence).[xx]  This is a lower threshold than ‘belief on reasonable grounds’ which applies to all other Commonwealth offences.[xxi]  The reduced threshold allows police to intervene at an earlier stage in an investigation. 
     
19. Other relevant powers include the ability under Part IC of the Crimes Act 1914 (Cth) (Crimes Act) to continue to investigate and question suspects, after they have been arrested, for a limited period under strict conditions including judicial oversight.
     
20. These differences need to be kept in mind when evaluating the continued utility and appropriateness of some of the ‘preventative’ powers introduced in 2005, particularly control orders and preventative detention orders (PDOs).
     
21. Further, it is important that each of the powers being considered in the present review is assessed on its merits.  It is not enough to justify the retention of a particular power that it is part of a ‘full suite’ or a ‘comprehensive suite’ of powers.[xxii]  There should be no assumption that it is better to have more counter-terrorism powers.  On the contrary, it may be better to have fewer powers that are appropriately targeted to the risks faced, and to remove powers that merely duplicate existing capacity but have greater potential to impact adversely on human rights.  PDOs represent a clear example falling into this category.
     
22. Section 5 of this submission examines the additional stop, search and seize powers given to the AFP and other police officers to investigate actual or potential terrorist acts, primarily in Commonwealth places.  These powers have not been used since they were enacted in 2005.
     
23. In the context of the current security environment, the Commission considers that it would be open to the PJCIS to find that the stop, search and seize powers that are limited to Commonwealth places continue to be necessary and are consistent with Australia’s human rights obligations, subject to a reduction in the scope of the duration of a declaration of a prescribed security zone. 
     
24. The power that should be given the most scrutiny is the power in s 3UEA of the Crimes Act, which enables warrantless entry to any premises (whether or not in a Commonwealth place) to search for a thing that may be used in connection with a terrorism offence.  In practice, the power will only be available where a telephone warrant could not be obtained first.  The limited situations in which this power could conceivably be used, combined with its extraordinary nature, suggests that serious consideration should be given to its repeal.
     
25. Oversight of counter-terrorism powers, including by this Committee, helps to ensure that they operate appropriately.  An important aspect of oversight is proper authorisation for the use of powers.  In the case of searches of people and premises, police are required, except in very limited circumstances, to obtain a warrant on each occasion that they wish to exercise those powers.  While warrantless powers can be justified in very limited circumstances, the reduction in oversight also creates a risk of misuse.
     
26. Our submission includes a case study dealing with recent findings about the misuse of warrantless arrest powers by Victorian police in the course of a counter-terrorism raid in 2015.  In this raid, Mr Eathan Cruse, a young Aboriginal man, was beaten by police after he had been handcuffed and while lying on the floor.
     
27. If the PJCIS decides to recommend that the stop, search and seize powers continue, the Commission submits that they should continue to be viewed as temporary, emergency powers and subject to a further sunsetting period. 
     
28. Section 6 of this submission examines the control order regime.  Control orders are the only powers, within the scope of the present review, which have been exercised.  Appendix A to this submission contains a table summarising the 16 control orders made to date.  Ten of those control orders were made since 1 January 2019.  The experience of how control orders have been used in practice provides a stronger basis for determining the kinds of situation in which they are appropriate.  The submission contains a number of relevant case studies to illustrate those points, based on the experience to date.
     
29. The Commission submits that if a control order regime is retained in some form, it should be more tightly targeted to people demonstrated to be a risk to the community.  It should be limited to people who have been convicted of a terrorist offence and who would still present unacceptable risks to the community at the end of their sentence if they were free of all restraint upon release from imprisonment.
     
30. The best way to do this would be to replace the current control order regime with the extended supervision order (ESO) regime recommended by the third INSLM, Dr James Renwick CSC SC.  Such a regime would be more consistent with human rights because:

• the scope of the regime would be better targeted to situations where there was more likely to be risk to the community
• as a result, the degree to which the controls limit the human rights of the person subject to the control order would be more likely to be proportionate to the purpose for their imposition
• the evidence in support of an application could be properly tested in court proceedings when the order was first sought.

31. As can be seen from Appendix A, most control orders made in practice relate to people who have already been convicted of a terrorism offence and who are being released into the community.  In light of the range of other investigation and prevention measures available, and their effectiveness when compared with control orders, the use of control orders in other situations is not justified.  This includes the use of control orders:

• as an alternative to prosecution, either where there is a lack of probative evidence that would ground a ‘reasonable suspicion’ permitting arrest, or where the Commonwealth Director of Public Prosecutions (CDPP) has advised that there is no reasonable prospect of conviction
• as a ‘second attempt’ following an unsuccessful prosecution—for example, where a person has been tried and acquitted.

32. Section 7 of this submission examines the PDO regime.  The Commonwealth regime allows detention of people for up to two days, with restrictions on their communications, for the purpose of preventing a potential terrorist act or preserving evidence of a recent terrorist act.  The Commonwealth regime has not been used, but there have been two examples of the use of similar State-based powers.
     
33. On the basis of publicly available evidence, this is a clear example of a power that is not necessary.  The Commission’s submission examines the purposes and threshold for obtaining a PDO, concluding that in every case where relevant authorities have suggested a PDO might be used, there are alternative, less restrictive options available that are just as effective.
     
34. Section 8 of this submission examines the continuing detention order (CDO) regime.  When this regime was first proposed, the Commission recognised that it could be a reasonable and necessary response to the potential risk posed by people convicted of terrorism related offences, after their release from imprisonment.  However, the scope of any such regime should be narrowly confined so that it applies only in the most serious of cases and only to the extent necessary to address an unacceptable risk to the community. 
     
35. There are still many aspects of this regime that are not settled.  This includes the way that risk is assessed and the identification, training and qualification of relevant experts.  There has been no independent appraisal of the Government’s method of assessing whether an individual should be subject to a CDO.  Robust and independent appraisal of this assessment methodology is necessary to assure the public, and ultimately the courts, that such assessments are sufficiently accurate and reliable, taking into account the gravity of the decision-making process to which they relate.  To this end, the Commission reiterates a number of its recommendations, including that expert reports identify any limitations in their assessment of risk and that an independent risk management body be established to accredit experts and evaluate the operation of risk assessment tools.
     
36. Also unresolved is the way in which people subject to a CDO will be detained, bearing in mind that this will be civil and not criminal detention, and how the conditions of their detention will be monitored.
     
37. Finally, as noted above, there are a range of important outstanding recommendations from the third INSLM and the PJCIS in relation to the establishment of an extended supervision order (ESO) regime.  This would allow a court considering an application for a CDO to consider whether an ESO would be an effective and less restrictive alternative and, if so, to make an ESO instead.  The Commission submits that the ESO regime in this form could replace the existing control order regime on the basis that it has a better focus on risk and is more consistent with human rights.
     
38. Shortly before this submission was due, the Australian Government introduced the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 into Parliament.  This Bill would implement an ESO regime, but with significant differences from the model recommended by the third INSLM and the PJCIS.  The Commission notes that the Government intends to refer this Bill to the PJCIS for separate inquiry.

[i]       Human Rights and Equal Opportunity Commission, submission to the Senate Legal and Constitutional Legislation Committee inquiry into the Anti-Terrorism Bill (No 2) 2005, 11 November 2005, at https://www.aph.gov.au/~/media/wopapub/senate/committee/legcon_ctte/completed_inquiries/2004_07/terrorism/submissions/sub158_pdf.ashx.

[ii]      Australian Human Rights Commission, COAG Review of Counter-Terrorism Legislation, 28 September 2012, at https://www.ag.gov.au/sites/default/files/2020-05/Australian%20Human%20Rights%20Commission_0.pdf.

[iii]     Australian Human Rights Commission, Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 (Cth), submission to the PJCIS, 12 October 2016, at https://www.aph.gov.au/DocumentStore.ashx?id=32397a66-a179-4a07-a5fb-ab60b776676f&subId=414693.

[iv]     Australian Human Rights Commission, Independent National Security Legislation Monitor (INSLM) Statutory Deadline Review, submission to the Acting Independent National Security Legislation Monitor, 15 May 2017, at https://www.inslm.gov.au/sites/default/files/11-australian-human-rights-commission.pdf.

[v]      Australian Human Rights Commission, Review of certain police powers, control orders and  preventative detention orders, supplementary submission to the PJCIS, 3 November 2017, at https://www.aph.gov.au/DocumentStore.ashx?id=766df2d3-b918-4b17-aadf-28ccca57bca5&subId=516302.

[vi]     For example, the right to life (article 6 of the ICCPR) and the rights to bodily integrity (an aspect of article 7 of the ICCPR) and security of person (article 9(1) of the ICCPR).

[vii]    United Nations Security Council, Resolution 1373 (2001), UN Doc S/RES/1373 (2001), paras 2(b) and (e).

[viii]   Australian Human Rights Commission, A Human Rights Guide to Australia’s Counter-Terrorism Laws (2008). At http://www.humanrights.gov.au/human-rights-guide-australias-counter-terrorism-laws#fnB8.

[ix]     United Nations General Assembly, Resolution 60/288 The United Nations Global Counter-Terrorism Strategy, UN Doc A/RES/60/288 (2006), p 9.

[x]      Independent National Security Legislation Monitor, Review of Division 3A of Part IAA of the Crimes Act 1914: Stop, Search and Seize Powers, 7 September 2017, at [5.5]. 

[xi]     International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entry into force generally 23 March 1976, entry into force for Australia (except Article 41) 13 November 1980, article 41 came into force for Australia on 28 January 1993).

[xii]    The Hon John von Doussa QC, Security and Human Rights in Australia: Australia’s counter-terrorism response, Beijing Forum on Human, 21–23 April 2008, quoting Professor David Feldman, The roles of Parliament in Protecting Human Rights: A view from the UK, address at the Human Rights and Legislatures Conference, Melbourne University (20–22 July 2006).

[xiii]   Thomas v Mowbray (2007) 233 CLR 307 (Gummow and Crennan JJ) at [61].

[xiv]    Department of Home Affairs, Attorney-General’s Department and Australian Federal Police, Joint-agency submission – Review of the police stop, search and seizure powers, the control order regime and the preventative detention order regime (Review of AFP Powers), submission to the PJCIS, 4 September 2020, p 3, at https://www.aph.gov.au/DocumentStore.ashx?id=a7b77fd7-2a24-4d94-8177-59d38a55d085&subId=691389.  See also Independent National Security Legislation Monitor, Annual Report 2018–19, pp 5–7.

[xv]     Independent National Security Legislation Monitor, Annual Report 2014–15, pp 2–4.

[xvi]    Dylan Welch, ‘Islamic State: Militant group calls on supporters to kill Australians 'in any possible way’ ABC News, 22 September 2014, at https://www.abc.net.au/news/2014-09-22/islamic-state-calls-on-supporters-to-kill-australians/5761502.

[xvii]   Australian Federal Police, Inquiry into AFP Powers (Division 3A Part IAA of the Crimes Act 1914 and Divisions 104 and 105 of the Criminal Code), submission to the PJCIS, August 2020, at [6].  See also Independent National Security Legislation Monitor, Annual Report 2018–19, p 6.

[xviii] See the list of prosecutions for terrorism offences in Independent National Security Legislation Monitor, Annual Report 2018–19, Appendix I.

[xix]    The Queen v Abdirahman-Khalif, High Court proceeding A5/2020.  As at the time of writing this submission, judgment was reserved in this matter.

[xx]     Crimes Act 1914 (Cth), s 3WA.

[xxi]    Crimes Act 1914 (Cth), s 3W.

[xxii] Department of Home Affairs, Attorney-General’s Department and Australian Federal Police, Joint-agency submission – Review of the police stop, search and seizure powers, the control order regime and the preventative detention order regime (Review of AFP Powers), submission to the PJCIS, 4 September 2020, pp 3, 5 and 8.