Statutes Amendment (Terror Suspect Detention) Bill

Second Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (17:38): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading it.

Leave granted.

The Government is moving swiftly to address concerns raised by the Commonwealth Government about state laws regarding parole and bail, and how these laws apply to people who have demonstrated support for, or links to, terrorist activities. The Statutes Amendment (Terror Suspect Detention) Bill 2017, for introduction today, is squarely aimed at addressing these concerns.

It was on Friday 9 June 2017 that the Council of Australian Governments (COAG) met, with leaders focussed on ensuring the safety of all Australians and agreeing to further strengthen collaboration to prevent and respond to terrorism and other threats to public safety, underpinned by strong justice and national security systems.

At COAG, first ministers agreed to ensure there will be a presumption that neither bail nor parole will be granted to those persons who have demonstrated support for, or have links to, terrorist activity. This is reflected in the Bill.

COAG also agreed that there will be integration of security-cleared state and territory corrections staff with the state and territory police, the Australian Federal Police (AFP) and the Australian Security Intelligence Organisation (ASIO) Joint Counter-Terrorism Team in each jurisdiction to improve information sharing. The Bill builds upon this agreement, but also provides an active role for prescribed agencies.

On Tuesday 13 June 2017 the Premier of South Australia announced this reform.

We are moving with speed to implement the COAG agreement due to the seriousness of this issue. Given the importance of this reform and the need for a coordinated approach involving multiple agencies and jurisdictions, following introduction of the Bill in the House of Assembly, the Government consulted further with other jurisdictions and across relevant agencies and subsequently moved a number of amendments to the Bill in that House. Those amendments are reflected in the Bill I introduce today. The Government anticipates a possible further set of amendments to the Bill, particularly following the special COAG meeting on counter-terrorism to be held in early October 2017.

The Bill amends four Acts to create new regimes across the criminal justice system that apply to terror suspects.

Central to the scheme are the amendments to the Police Act 1998 (SA) (the Police Act). A new section is inserted into the Police Act to create a scheme whereby Australian jurisdictions can enter into agreement for the provision of terrorism notifications to be made by a prescribed terrorism intelligence authorities. These terrorism notifications are designed to ensure that relevant agencies in South Australia are alerted when other jurisdictions (including the Commonwealth) become aware that a person is suspected of terrorist offences, or of supporting or otherwise being involved in terrorist offences, or of associating or being affiliated with such persons.

Regulations will be drafted in close consultation with other jurisdictions, and with South Australia Police (SAPOL), to prescribe the appropriate law enforcement and intelligence authorities as terrorism intelligence authorities, thereby enabling them to make terrorism notifications.

Administrative arrangements will be put in place to enable the appropriate agencies in South Australia to record, and where necessary, act upon these terrorism notifications.

The Bill also permits SAPOL itself to make a terrorism notification under the Police Act.

The Bill ensures that any terrorism intelligence used as part of a terrorism notification is protected within the criminal justice system in the same way as criminal intelligence. These provisions are also contained in the amendments to the Police Act. A definition of 'terrorism intelligence' is included in the Bill to enable a court to objectively review the classification of information as terrorism intelligence, and not only procedural compliance with the Regulations.

Once a person becomes the subject of a terrorism notification, then special provisions apply to them under amendments to the Bail Act 1985 (SA) (the Bail Act), the Correctional Services Act 1982 (SA) (the Correctional Services Act), and the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act).

Firstly to bail. Under the Bail Act, in most cases there is a presumption in favour of bail, meaning that the bail authority should release the applicant on bail unless, taking into account certain factors, the bail authority considers that the applicant should not be released on bail.

The current Bail Act provides for a list of prescribed applicants, whereby the prescribed applicant has a presumption against bail.

The Bill adds to the current list of prescribed applicants so that any person who is terror suspect cannot be granted bail unless they establish the existence of special circumstances justifying their release.

In addition, the amendments also require the bail application to be heard by a court, not determined by South Australia Police, allowing the court to consider any terrorism intelligence and to hear directly from the terrorism intelligence authority.

Under amendments to the Bail Act, a person is a terror suspect for the purposes of a bail application or bail agreement if:

the bail application or bail agreement does not relate to a terrorist offence; but

the person:

has previously been charged with, or convicted of, a terrorist offence; or

is the subject of a terrorism notification.

The presumption against bail applies to a person who has a history of being charged or convicted of a terrorist offence, regardless of the offence they are seeking bail in regard to.

This definition of terror suspect reflects the fact that anyone seeking bail for having actually been charged with a Commonwealth terrorist offence is not dealt with under the Bail Act, but rather their bail is considered in accordance with section 15AA of the Commonwealth Crimes Act 1914, which already provides for a presumption against bail for in relation to people who are currently charged with or convicted of certain terrorist offences.

If, at the time of commencement of these laws, a person who is currently released into the community, subject to a bail agreement, becomes a terror suspect, then their bail agreement is revoked, they may be arrested without warrant and their bail agreement will need to return to the court for consideration under this new regime.

Now to parole. The regime that provides for the release of a prisoner into the community on parole by the Parole Board of South Australia (the Board) is contained in the Correctional Services Act. The Bill amends the Correctional Services Act to create a presumption against parole being granted to a person who is a terror suspect. Whilst some prisoners are released automatically into the community at the expiry of their non-parole period (persons sentenced to a total term of imprisonment of less than five years who have not committed a sexual offence, arson, a serious firearms offence or an offence of personal violence or breached parole) other must apply to the Board for release. Prisoners released on parole are subjected to conditions and they are supervised.

The Bill ensures that a prisoner who is a terror suspect cannot be released automatically into the community, even if their total term of imprisonment is less than five years

The paramount consideration of the Board when determining an application for the release of a prisoner on parole must be the safety of the community and there is a list of matters that the Board must take into account.

The Bill amends this process for terror suspects.

Under the amendments to the Correctional Services Act, a person is a terror suspect if:

the person is charged with a terrorist offence;

the person has ever been convicted of a terrorist offence; or

the person is the subject of a terrorism notification.

As with the amendments to the Bail Act, if a person is serving a term of imprisonment for having committed a Commonwealth terrorist offence, then their application for parole is not considered by the Board, but rather is dealt with under Commonwealth laws.

However, these new provisions contained in the Bill will apply to any terror suspect who is serving a term of imprisonment for a state offence and who is seeking to be released parole.

Under the Bill, a special procedure is established for terror suspects, so that any decision of the Board concerning a terror suspect has no effect unless it is confirmed by the presiding member of the Board in accordance with new provisions. These provisions require that the presiding member of the Board must not confirm a decision to release to terror suspect unless there are special circumstances justifying their release.

Before making their decision, the presiding member is required to invite any terrorism intelligence authority to make submissions about the release (or not) of the terror suspect on parole. The presiding member can also take into account terrorism intelligence, which is protected.

Where the presiding member is absent, a deputy presiding member of the Parole Board will be able to act in the presiding member's place.

Upon commencement of the Bill, any person who is a terror suspect, or becomes a terror suspect, whilst on parole, will have their release on parole reviewed in accordance with these new special procedures.

Lastly, I turn to amendments to the High Risk Offenders Act.

Some prisoners choose to serve their entire head sentence in prison and be released unconditionally and unsupervised, rather than apply for parole. This is where the High Risk Offenders Act steps in.

The High Risk Offenders Act creates in South Australia a regime that provides for the supervision and possible detention of an offender who has served their total sentence of imprisonment.

The High Risk Offenders Act is designed to address concerns that some offenders who are about to leave prison or about to complete their parole, remain a risk to the community, by creating two types of orders: an extended supervision order and a continuing detention order.

The Attorney-General is able to apply to the Supreme Court for an extended supervision order to be made so that a high risk offender may be supervised and subject to strict conditions at the end of their sentence.

This application is made in the last 12 months of the person's total sentence (which they could be serving in prison or on parole) and the paramount consideration of the Supreme Court in determining an extended supervision order must be the safety of the community.

The Bill makes amendments so that either the State or the Commonwealth Attorney-General can make an application to the Supreme Court for an extended supervision order to be made against any terror suspect who is serving a term of imprisonment in South Australia, regardless of the offences they have committed. Under the Bill, the only criteria needed to trigger the application of the High Risk Offenders Act to a terror suspect is that they are a terror suspect and they are serving a term of imprisonment in South Australia.

The Bill inserts a definition of terror suspect into the High Risk Offenders Act so that a person is a terror suspect for the purposes of this Act if:

the person is charged with a terrorist offence; or

the person has ever been convicted of a terrorist offence; or

the person is the subject of a terrorism notification.

However, a person will not be a terror suspect for the purposes of these provisions of the High Risk Offenders Act if the person is a terrorist offender within the meaning of subsection 105A.3(1) of the Commonwealth Criminal Code (Code). Such persons will instead be subject to similar provisions in that Code and this 'carve out' is intended to avoid constitutional inconsistency between the new provisions of the High Risk Offenders Act and the relevant provisions of the Code.

In considering whether to make an extended supervision order, the courts needs to take into account an assessment of, and consider, the likelihood of the terror suspect committing a terrorist offence, or otherwise being involved in a terrorist act, or committing a serious offence of violence.

The term terrorist act is defined in the Bill to have the same meaning as in Part 5.3 of the Commonwealth Criminal Code and is consistent with the Terrorism (Preventative Detention) Act 2005 (SA).

In considering the application for an extended supervision order, the State or Commonwealth Attorney-General may be represented in the proceedings by a terrorism intelligence authority and a terrorism intelligence authority has a right to appear and be heard in the proceedings. Any terrorism intelligence considered by the court is protected.

Under the High Risk Offenders Act, if a person breaches an extended supervision order, they will be detained in custody and brought before the Board within 12 hours. As with reform to parole, special procedures will apply when the Board considers a breach of an extended supervision order by a terror suspect.

Whilst the Board will then determine whether the terror suspect should remain at liberty on the extended supervision order or whether they should be detained in custody and brought before the Supreme Court, for a terror suspect the decision of the Board needs to be confirmed by the presiding member of the Board (or a deputy presiding member in his or her absence), who must firstly invite submissions from a terrorism intelligence authority and must only confirm the decision of the Board if satisfied that it is appropriate in all circumstances.

If the Board refers the matter to the Supreme Court, the court then has the power to then either order the terror suspect be released again on the extended supervision order or be detained for the remaining part of that order, or part of it, under a continuing detention order.

The paramount consideration of the Supreme Court in determining whether to make a continuing detention order must be the safety of the community. In considering the application for a continuing supervision order, the State or Commonwealth Attorney-General may be represented in the proceedings by a terrorism intelligence authority and a terrorism intelligence authority has a right to appear and be heard in the proceedings. Any terrorism intelligence considered by the court is protected.

The High Risk Offenders Act does not currently apply to children and young people under 18 years of age. The Bill amends this Act so that the new provisions will apply to 16 and 17 year old persons who are terror suspects. This recognises the possibility that young persons of that age may become radicalised and engage in terrorist-related activities, as has recently been reported in Australia and overseas.

The Bill provides that, for the purposes of the definition of terror suspect in the Bail Act, Correctional Services Act and High Risk Offenders Act, a person is only taken to have been charged with an offence if an information or other initiating process charging the person with the offence has been filed in the court.

Throughout the Bill the term terrorist offence is consistently defined to mirror the yet to commence Commonwealth legislation that provides for the making of continuing detention orders against terrorist offenders (the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth)).

As such, in the amendments to the Bail Act, the Correctional Services Act and the High Risk Offenders Act, the term terrorist offence is defined to mean:

an offence against Division 72 Subdivision A of the Commonwealth Criminal Code (international terrorist activities using explosive or lethal devices); or

a terrorism offence against Part 5.3 of the Commonwealth Criminal Code where the maximum penalty is 7 or more years imprisonment; or

an offence against Part 5.5 of the Commonwealth Criminal Code (foreign incursions and recruitment), except an offence against subsection 119.7(2) or (3) (publishing recruitment advertisements); or

an offence against the repealed Crimes (Foreign Incursions and Recruitment) Act 1978 of the Commonwealth, except an offence against paragraph 9(1)(b) or (c) of that Act (publishing recruitment advertisements); or

an offence of a kind prescribed by the regulations for the purposes of this definition.

This Bill has been drafted to create a mechanism by which information sharing can enhance community safety.

This reform is designed to ensure that South Australian laws pertaining to bail, parole and post-sentence supervision and detention, are adapted to meet the risk posed to our community by terrorist offenders, as well as persons who have demonstrated support for, or links to, terrorist activity.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Bail Act 1985

4—Amendment of section 3—Interpretation

This clause inserts definitions in the Bail Act 1985 for the purposes of the measure.

5—Insertion of section 3B

This clause defines a terror suspect.

6—Amendment of section 4—Eligibility for bail

This clause ensures that a person who has been granted bail but who subsequently becomes a terror suspect (and is arrested without warrant in accordance with proposed section 19B) may reapply for bail (which would then be determined in accordance with the provisions applying to terror suspects). The clause also allows a person who has ceased to be a terror suspect to apply for bail or for a replacement bail agreement.

7—Amendment of section 5—Bail authorities

This clause ensures that only a court can be a bail authority for a terror suspect and allows a terrorism intelligence authority (designated under the Police Act 1998) to be heard in relation to a bail application by a terror suspect. Provisions are also being inserted in the Police Act 1998 relating to the manner in which a court must deal with information properly classified as terrorism intelligence.

8—Amendment of section 10A—Presumption against bail in certain cases

This clause provides a presumption against bail for a terror suspect.

9—Insertion of section 19B

Proposed new section 19B provides for cancellation of bail and arrest without warrant where a person released on bail subsequently becomes a terror suspect.

10—Transitional provision

The amendments apply to a person who applies for bail on or after commencement of the amendments as well as to a person who is, on that commencement, subject to a bail agreement. If a person subject to a bail agreement on commencement of the amendments falls within the definition of 'terror suspect', new section 19B will apply to the person (because they will be a person who has become a terror suspect while on bail).

Part 3—Amendment of Correctional Services Act 1982

11—Amendment of section 4—Interpretation

This clause inserts definitions in the Correctional Services Act 1982 for the purposes of the measure.

12—Amendment of section 59—Deputies

This clause deals with what happens if the presiding member of the Board is for any reason absent or unable to act for the purpose of section 74B or 77AA. The provision allows the first or second deputy presiding member of the Parole Board to act in certain circumstances.

13—Amendment of section 66—Automatic release on parole for certain prisoners

This clause ensures that there is no automatic parole for a terror suspect.

14—Insertion of section 74B

Proposed new section 74B provides for suspension of parole if a person becomes a terror suspect while on parole. A warrant must be issued for the arrest of the person and the presiding member of the Parole Board must determine (after hearing from a terrorism intelligence authority) whether or not the person's parole should be cancelled or whether special circumstances exist for it to continue. Information classified as terrorism intelligence must not be disclosed (except to a court, the Attorney-General or to a person to whom a terrorism intelligence authority authorises its disclosure) by the presiding member. The presiding member is also not required to provide the person with reasons for the determination (to ensure the confidentiality of terrorism intelligence information).

15—Amendment of section 77—Proceedings before Board

This clause requires a terrorism intelligence authority to be notified if an application for parole is made by a terror suspect.

16—Insertion of section 77AA

This clause sets out a special procedure in relation to Parole Board proceedings involving a terror suspect. In such a case, a decision of the Parole Board is of no effect unless it is confirmed by the presiding member of the Board after hearing from a terrorism intelligence authority. In particular, a decision to release a terror suspect on parole must not be confirmed unless the presiding member determines that there are special circumstances justifying the prisoner's release on parole. The presiding member may confirm a decision, reject a decision or refer a matter back to the Board with recommendations for its further decision. Information classified as terrorism intelligence must not be disclosed (except to a court, the Attorney-General or to a person to whom a terrorism intelligence authority authorises its disclosure) by the presiding member. The presiding member is also not required to provide the person with reasons for the determination (to ensure the confidentiality of terrorism intelligence information).

17—Transitional provision

The amendments apply to a person who is serving a sentence of imprisonment or who is on parole on or after commencement of the amendments. If a person on parole on commencement of the amendments falls within the definition of 'terror suspect', new section 74B will apply to the person (because they will be a person who has become a terror suspect while on parole).

Part 4—Amendment of Criminal Law (High Risk Offenders) Act 2015

18—Amendment of section 4—Interpretation

This clause inserts definitions in the Criminal Law (High Risk Offenders) Act 2015 for the purposes of the measure.

19—Amendment of section 5—Meaning of high risk offender

This clause includes terror suspects who are serving a sentence of imprisonment in the definition of high risk offender.

20—Insertion of section 5A

This clause defines a terror suspect for the purposes of the Criminal Law (High Risk Offenders) Act 2015.

21—Amendment of section 6—Application of Act

This clause allows the Act to apply to a youth of or above the age of 16 who is a terror suspect.

22—Amendment of section 7—Proceedings

This clause makes provision in relation to proceedings for an extended supervision order relating to a high risk offender who is a terror suspect.

23—Amendment of section 8—Parties

This clause allows a terrorism intelligence authority to appear, or act as a party to, proceedings for an extended supervision order relating to a terror suspect.

24—Amendment of section 18—Continuing detention orders

This clause allows a terrorism intelligence authority to appear, or act as a party to, proceedings for a continuing detention order relating to a terror suspect.

25—Insertion of section 19A

This clause sets out a special procedure in relation to Parole Board proceedings involving a terror suspect. In such a case, a decision of the Parole Board is of no effect unless it is confirmed by the presiding member of the Board after hearing from a terrorism intelligence authority. The presiding member may confirm a decision, reject a decision or refer a matter back to the Board with recommendations for its further decision. Information classified as terrorism intelligence must not be disclosed (except to a court, the Attorney-General or to a person to whom a terrorism intelligence authority authorises its disclosure) by the presiding member. The presiding member is also not required to provide the person with reasons for the determination (to ensure the confidentiality of terrorism intelligence information).

26—Transitional provision

The amendments will apply in relation to a person serving a sentence of imprisonment on or after the commencement of the amendments (regardless of when the relevant offence was committed).

Part 5—Amendment of Police Act 1998

27—Insertion of section 74B

Proposed section 74B provides:

that the regulations may designate a law enforcement authority, or any other authority, as a terrorism intelligence authority; and

that information relating to actual or suspected terrorist acts (whether in this State or elsewhere) the disclosure of which could reasonably be expected to prejudice investigations into such acts, to enable the discovery of the existence or identity of a confidential source of information or to endanger a person's life or physical safety may be classified by a terrorism intelligence authority as terrorism intelligence in accordance with procedures prescribed by the regulations; and

for duties of a court in dealing with information properly classified by the authority as terrorism intelligence (similar to the duties that apply in relation to criminal intelligence); and

that a Minister may enter into an intergovernmental agreement for the provision, by a terrorism intelligence authority, of terrorism notifications relating to persons suspected of terrorist offences or of supporting or otherwise being involved in terrorist offences, or of associating or being affiliated with such persons and in that case the Minister must ensure that information relating to the agreement is provided, as soon as practicable, to the Crime and Public Integrity Policy Committee of the Parliament; and

that a police officer of or above the rank of inspector may, in accordance with guidelines issued by the Commissioner, provide a terrorism notification relating to persons suspected of terrorist offences, or of supporting or otherwise being involved in terrorist offences, or of associating or being affiliated with such persons and if the Commissioner issues any such guidelines the Commissioner must ensure that information relating to them is provided, as soon as practicable, to the Crime and Public Integrity Policy Committee of the Parliament; and

an evidentiary provision relating to proof of a terrorism notification; and

regulation making power to deal with other necessary or expedient matters.

Debate adjourned on motion of Hon. D.W. Ridgway.