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Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019

Rights Rights and Freedoms

Parliamentary Joint Committee on Intelligence and Security

Committees submitted to
Parliamentary Joint Committee on Intelligence and Security

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  1. Introduction
  1. The Australian Human Rights Commission (Commission) welcomes the opportunity to make this submission to the Parliamentary Joint Committee on Intelligence and Security (Committee) in relation to its review of the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019 (the Bill).
  2. Relevantly for the purposes of this submission, the Bill would:
  • extend the range of circumstances in which the presumption against bail in s 15AA of the Crimes Act 1914 (Cth) (Crimes Act) would apply
  • create a new presumption against parole for certain offenders by inserting a new s 19ALB in the Crimes Act
  • amend s 105A.5 of the Criminal Code (Cth)[i] so that certain exculpatory information need not be provided to a respondent to proceedings for a continuing detention order
  • provide that when considering whether any of the following presumptions can, in the case of a child, be displaced:
    • the presumption against bail in s 15AA of the Crimes Act
    • the presumption of a minimum non-parole period in s 19AG of the Crimes Act
    • the presumption against parole in proposed s 19ALB of the Crimes Act

the best interests of the child must be ‘a primary consideration’, while the protection of the community must be ‘the paramount consideration’. 

  1. The text of the Bill is substantially the same as that of the Counter-Terrorism Legislation Amendment Bill 2019 — a Bill which lapsed with the dissolution of the last Parliament[ii] (the Lapsed Bill). The Committee commenced an inquiry into that Bill, which lapsed with the Bill. The Commission made a submission in relation to the Committee’s previous (incomplete) inquiry, noting a number of human rights concerns and making three recommendations.[iii]
  2. The Commission’s views about the human rights implications of the Bill are unchanged. The Commission welcomes the Committee’s statement that it will consider submissions addressing the Lapsed Bill in the course of this inquiry. A copy of the Commission’s previous submission is provided for ease of reference in Attachment A.
  3. The Explanatory Memorandum to the Lapsed Bill stated that aspects of that Bill responded to a report of the Independent National Security Legislation Monitor (INSLM) on the prosecution and sentencing of children for terrorism offences (the INSLM Report).[iv] At that time, the INSLM Report had not been tabled and was not publicly available. For that reason, the Commission recommended (in Recommendation 2 of its previous submission) that consideration of the Bill be deferred until such time as the INSLM Report had been released so that the claimed justifications for the Bill could be properly scrutinised.
  4. The INSLM Report was tabled on 2 April 2019.[v] The Commission therefore makes the following brief remarks about the parts of that report relevant to the Bill. In doing so, the Commission draws on its submission to the INSLM in relation to the inquiry leading to his report. A copy of that submission is contained in Attachment B.
 

[i] Criminal Code Act 1995 (Cth) sch.

[ii] The only substantive difference between the two Bills is in Item 11 of Part 1 of Schedule 1 of the Bill, which makes consequential amendments to the interaction of the Crimes Act 1914 (Cth) with State and Territory Laws. 

[iii] Australian Human Rights Commission, Submission to the Parliamentary Joint Committee on Intelligence and Security: Review of the Counter-Terrorism Legislation Amendment Bill 2019 (8 March 2019) paras 9, 25-56, available at <https://www.aph.gov.au/DocumentStore.ashx?id=e1748951-b005-409c-ba6e-50d704e45c51&subId=667096>.

[iv] Explanatory Memorandum, Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019, para 5.

[v] Independent National Security Legislation Monitor, Report to the Prime Minister: The prosecution and sentencing of children for terrorism (2018), available at <https://www.inslm.gov.au/sites/default/files/files/inslm-report-prosecution-sentencing-children-for-terrorism.pdf>.