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2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
COUNTER-TERRORISM LEGISLATION AMENDMENT (2019 MEASURES NO. 1)
BILL 2019
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, the Honourable Christian Porter MP)
AMENDMENTS TO THE COUNTER-TERRORISM LEGISLATION AMENDMENT
(2019 MEASURES NO. 1) BILL 2019
(Government)
GENERAL OUTLINE
1. The purpose of this amendment to the Counter-Terrorism Legislation Amendment
(2019 Measures No. 1) Bill 2019 (the Bill) is to clarify the operation of the law of
public interest immunity (PII) in relation to continuing detention order (CDO)
applications for high risk terrorist offenders in Division 105A of Part 5.3 of the
Criminal Code.
2. This amendment will be in the form of new subsection 105A.5(10), which will be
followed by a new legislative note.
3. New subsection 105A.5(9) provides that if information, material or facts are
excluded from a CDO application under new paragraph 105A.5(3)(aa) on the basis of
PII, the AFP Minister must give written notice to the terrorist offender personally
stating that the information has been excluded on the basis of PII. The notice must be
given at the time the copy of the application is given to the offender.
4. Where this occurs, the terrorist offender may seek to access material (for example,
through a subpoena requiring production of all documents in the possession of the
applicant relevant to the application). In order to prevent disclosure of the excluded
material, the AFP Minister, or a relevant operational agency, would then be required
to make and substantiate a claim for PII to the court. This accords with the normal
operation of the law of PII.
5. New subsection 105A.5(10) will clarify the ordinary application of the law of PII. It
will do so by stating that, for the avoidance of doubt, nothing in section 105A.5
imposes an obligation on the offender to satisfy the court that a claim of PII should
not be upheld.
6. The legislative note following new subsection 105A.5(10) explains that under the
law of PII, the person claiming the immunity must make and substantiate the claim,
and satisfy the court that the claim should be upheld.
FINANCIAL IMPACT
7. These amendments will have no financial impact.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019
1. The amendment to the Bill is 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
2. The amendment to item 16 of the the Bill will take the form of a new
subsection 105A.5(10), which will be followed by a legislative note. This
amendment will clarify, for the avoidance of doubt, the operation of the law of public
interest immunity (PII) in relation to continuing detention order (CDO) applications.
3. New subsection 105A.5(9) provides that if information, material or facts are
excluded from a CDO application under new paragraph 105A.5(3)(aa) on the basis of
PII, the AFP minister must give written notice to the terrorist offender personally
stating that the information has been excluded on the basis of PII. The notice must be
given at the time the copy of the application is given to the offender.
4. The terrorist offender may then seek to access that information, for example through
a subpoena. In order to prevent disclosure of that information, the AFP Minister, or a
relevant operational agency, would then be required to make and substantiate a claim
for PII to the court. It would then be a matter for the court to determine whether the
PII claim should be upheld, balancing the public interest in ensuring the terrorist
offender receives a fair hearing by receiving information relevant to the CDO
proceeding, with the public interest in ensuring there is no prejudice to national
security.
5. New subsection 105A.5(10), together with the legislative note that follows it, will
clarify the operation of the law of PII in the above circumstances. It will do so by
stating that nothing in section 105A.5 obliges an offender, who has sought to access
material over which PII has been claimed, to satisfy the Court that the PII claim
should not be upheld.
6. The new legislative note following new subsection 105A.5(10) will further explain
the normal operation of the law of PII. Under the law of PII, a person claiming the
immunity (for example the AFP Minister or a relevant operational agency) must
make and substantiate the claim, and satisfy the court that the claim should be
upheld. That is to say, a person claiming the immunity would have to satisfy the
court that the public interest arguments in favour of withholding the sensitive
material outweigh the public interest in disclosure of that material.
7. This amendment is for the avoidance of doubt only, and does not alter or modify the
ordinary application of the law of PII. As such, this amendment does not engage any
of the applicable rights or freedoms.
8. Existing judicial safeguards relating to the use of PII will continue to apply. Courts
will retain their inherent jurisdiction to stay the proceedings if upholding a PII claim
may mean the terrorist offender cannot be given a fair hearing.
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Human rights implications
9. This amendment to the Bill does not further engage any of the applicable rights or
freedoms set out in the Explanatory Memorandum to the original Bill.
Conclusion
10. This amendment to the Bill is compatible with human rights as it does not raise any
human rights issues.
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NOTES ON AMENDMENTS
Amendment 1: Schedule 2, item 16, page 12 (after line 12), after subsection 105A.5(9)
1. During parliamentary committee scrutiny of the Bill, concerns were raised that a
terrorist offender could bear the onus of disproving a PII claim. New subsection
105A.5(10), together with the legislative note that follows it, will respond to these
concerns by clarifying the operation of the law of PII in relation to CDO applications.
2. New subsection 105A.5(10) will make clear that nothing in section 105A.5 will oblige
an offender, who has sought to access material over which PII may be claimed, to
satisfy the court that a PII claim should not be upheld.
3. The legislative note following new subsection 105A.5(10) will further explain the
normal operation of the law of PII. Under the law of PII, a person claiming the
immunity (for example the AFP Minister or a relevant operational agency) must make
and substantiate the claim, and satisfy the court that the claim should be upheld. That
is to say, a person claiming the immunity would have to satisfy the court that the
public interest arguments in favour of withholding the sensitive material outweigh the
public interest in disclosure of that material. It will ultimately be up to the court to
determine whether the balance of the public interest lies in favour of protecting that
information (in full or in part), or in ensuring the terrorist offender has complete
access to the material.
4. The amendment will not affect the existing requirement that all information that the
AFP Minister relies on for the making of a CDO must be provided to the terrorist
offender to ensure their right to a fair hearing. Where the court determines that
information should be withheld from the terrorist offender on the basis of PII, that
information will not form part of the proceedings. As such, neither the
AFP Minister nor the court may rely on information that is not provided to the
terrorist offender.
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