1003CCJ Law Reform: Counter-Terrorism Legislation & Individual Rights

This law reform report analyzes the Current-Terrorism Legislation Bill 2019, examining its amendments and implications for individual rights in Australia. It discusses the bill's progress through Parliament, the roles of key figures like Mr. Charles Christian Porter, and the concerns raised by the Australian Law Council (ALC) and academics regarding its impact on civil liberties and the balance between national security and human rights. The report delves into the ALC's submissions to the PJCIS inquiry, highlighting issues such as inconsistencies in bail and parole measures, the level of evidence required, and the lack of adequate risk assessment and rehabilitation programs. It also addresses recommendations made by the ALC concerning proposed amendments regarding children and the need for a careful balance between protecting the community and safeguarding individual rights, ultimately concluding that the bill, in its current form, requires further consideration and revision.

RUNNING HEAD: LAW GOVERNMENT AND JUSTICE
Law Government and Justice

LAW GOVERNMENT AND JUSTICE
Answer 1
The name of the bill is Current- Terrorism Legislation BILL 2019. This bill includes a
number of amendments to reinforce Australia’s legislative structure against terrorism
(Jongman, 2019).
Answer 2
The interventions in the Bill fell into two wide classifications: changes pertaining to bail and
parole constraints under the Crimes Act 1914 (Crimes Act) and amendments pertaining to the
system of continued detention order (CDO) in Division 105A of the Commonwealth Criminal
Code.
Section 15AA of the Crimes Act already offers for a assumption against bail for individuals
deemed for bail as a consequence of a charge or punishment for an offense against terrorism.
The changes in this Bill to the Crimes Act are essential in order to add impact to the COAG
judgment by extending the implementation of Section 15AA.
Introduction of a presumption of parole for a wider category of perpetrators, namely: ·
individuals accused with or accused of a terrorist crime, including individuals who may have
earlier been prosecuted with or accused of one of the offenses referred to in paragraph 15AA,
but are presently regarded for bail in respect of a further federal offence.
Answer 3
The Current-Terrorism Legislation BILL 2019, was introduced on 20 Feb 2019. The next
step in the approval of the bill is second reading. Once the bill is introduced then bill is
moved to the Senate. The bill is allocated to other commission in the Senate and, if it is
debated, discussed and voted on. Simple majority i.e. 51 of 100 passes Bill. Later on, a
session commission formed up of representative of the House and of the Senate works out
any disagreements between the House and the Senate parts of the bill (Saunders & Stone,
2018).
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Answer 4
The ordinary flow of the law-making procedure is that a bill is implemented in one House of
Parliament, passed by that House and approved (or lastly decided upon when changes are
made) by the another House in the same form (Rogers & Walters, 2015). A bill is passed in
various steps these are; Presentation & first reading in which bill is explained by the minister,
which is also known as Explanatory speech (Evans, 2017). The second step is committee’s
consideration and its report, in which, a group of both government and non-government of
parliamentary members take part. The third step is second reading in which, motion of second
reading is passed by the minister who has the charge of it. In it minister has another
opportunity to discuss regarding the bill. The fourth step is consideration of bill in detail. The
fifth step is third reading in which the parliament has last chance to consider the law. The last
step is royal assent in which, on behalf of queen two copies of parchments are signed by the
Governor (Australia, 2017).
Answer 5
Mr. Charles Christian Porter (Pearce Attorney General) was in charge for introducing the Bill
in the House of Representatives (Porter). He is an Australian Liberal Party politician and
since 2017, he is serving as Attorney General of Australia. He served as Pearce’s Member of
Parliament since 2013. In 2019, he was appointed as Minister for Industrial Relations and
House Leader. Before taking up his present position, from Dec 2014 To Sep 2015, Porter was
Parliamentary Secretary to the Prime Minister of the Abbott Government. He was then
Minister of Social Services for the Turnbull Government.
Answer 6
The main reasons for passing the Current-terrorism bill 2019 were (Australia P. o.):
 To allow Independent National Security Legislation Monitor (INSLM) to review and
report on the operation, efficiency and repercussions of the Counter-Terrorism Act,
and
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 To amend the functions of the Parliamentary Joint Committee on the Intelligence and
Security (PJCIS) to include monitoring and reviewing the exercise of powers under
the act and to review the operation, efficiency and repercussions of the act within
three years of its initiation.
Answer 7
The Current terrorism Bill was referred to PJCIS on 21, 22 Feb 2019. A evaluation of the
Counter-Terrorism Legislation Amendment Bill 2019 and the Counter-Terrorism (Temporary
Exclusion Orders) Bill 2019 was initiated by the PJCIS. The bills were introduced on 20 and
21 February 2019 respectively in the House of Representatives and referred to the Committee
for inquiry and report.
Answer 8
The Australian Law Council (ALC) wrote submissions to the to the PJCIS inquiry on current
Terrorism Legislation Amendment Bill 2019 (Council, 2019). The law council however was
given a very short time for their submissions. The council urged that the Committee to
postpone its consideration of the suggested bail and parole measures in the Bill until
sufficient time has been provided to the public to evaluate the initiatives in the context of the
report of the Independent National Security Legislation Monitor.
Answer 9
The Law Council of Australia regarding the Bill brought various issues. The council bought
following issues of the bill, which are as follows:
 Amendments concerning bail and parole would not offer impact to nationally
coherent values considering that there are discrepancies among jurisdictions, which
have accord to enforce Council of Australian Governments Agreement of 2017
(COAG).
 The extended implementation of the bail presumption and the presumption of parole
clauses to a wider class of people has not been shown to be essential or proportionate
or in the interests of rehabilitation and deradicalisation initiatives.
 The level of evidence of outstanding conditions exceeds the presumption of bail and
probation in accordance with the COAG ruling of 9 June 2017.
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 The CDO changes extend their prospective implementation in the lack of appropriate
risk assessment and adequately financed and accessible rehabilitation programmes.
The modifications can also be applied retrospectively, and
 The suggested changes concerning the handling of delicate data for CDOs would
imply that an individual has the duty to disprove a request for exemption from the
government concern. The timeframes for a request for immunity of public interest or a
license under the NSI Act are also uncertain.
Answer 10
The Law Council of Australia made various recommendations to the INSLM inquiry in
relation to proposed amendment regarding children. Followings are the various
recommendations made by the council, which are as follows:
 Section 15AA should be revised to provide that the section's requirement for
exceptional conditions does not extend to children charged with any of the
offenses covered by Section 15AA.
 Section 15AA must also provide that, when a child charged with a
Commonwealth Offence is considered for bail, the principle of best interest of
child must be the utmost consideration.
 Section 19AG of the Crimes Act should be abolished on the grounds that: it is an
attenuated type of mandatory sentencing that interferes with the judiciary’s
capacity to determine a just punishment that suits the offender’s personal
conditions and the crime, and it may contravene Australia’s international human
rights commitments.
 Children should be exempted from operation if sec 19AG is to be maintained.
Thus, abovementioned were some of the recommendations relating to proposed
amendment regarding children. Some of the other recommendations are as follows:
 The review of exceptional circumstances in sec 15AA must be considered on
the grounds of agreed nationality coherent bail values in terrorism instances.
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 The changes to the bail should not continue and the exceptional test for parole
should be restricted to adult perpetrators seeking parole after conviction for a
terrorist offense.
 In the lack of appropriate hazard evaluation and rehab programs, the suggested
cumulative and simultaneous amendments should not continue.
 In order to continue with the amendments, they should not relate
retrospectively to ' terrorist offenses ' that have already expired or to
punishments that have already begun.
 It should be the responsibility of the Australia Federal Police (AFP) Minister
or the appropriate operating organizations to fulfil the request to satisfy court
for immunity claim in public interest.
 In order to prevent doubt, it should be rendered apparent that the data given to
perpetrators in apps must be collected twelve months before the appropriate
term expires and when the Continuing Detention Order (CDO) application is
required to be made.
 Consideration should be provided to the establishment of a special advocate
system for continued imprisonment orders.
Answer 11
Due to various issues brought by the Law Council of Australia regarding the bill, the
Council does not support the bill in its present form. The Council in its report suggested
some recommendation to be considered before passing the proposed bill.
Answer 12
The Dr Rebecca Ananian- Welsh, Dr Tamara Tulich, Dr Nicola McGarrity and Professor
George Williams AO raised two major concerns relating to the proposed amendments in
the bill (Ananian-Welsh, Tulich, McGarrity, & Williams, 2019). These are as follows:
i. Amendments are the result of an agreement through the Council of Australian
Governments (' COAG ') to establish ' socially coherent values to guarantee that,
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under accepted conditions, there is a presumption against bail and parole in
Australia. However, there is no such coordination between the Commonwealth,
States and Territories in drafting the appropriate laws. Due to which there are
material discrepancies relating to extent and operation of the presumption against
the bail in every jurisdiction, which has enacted laws till today. Relating to the
application of bail, there are certain inconsistencies, some of them are individuals
who have been merely charged with offence relating to terrorism, people who
were merely engaged with terrorist organizations etc. Thus the primary concern is
that defendants shall be treated differently who are seeking bail depending upon
laws under which they are charged with and their geographical location.
ii. There should be no light incursions into the presumption of innocence and the
right to freedom. Before the presumption against bail is extended to fresh
classifications of individuals, a definite reason must be provided.
Thus, abovementioned were the main concerns raised by them.
Answer 13
To identify whether the federal government struck the right stability among the need to
protect the community and to need to safeguard an individual rights is not an easy task
because at some instances human rights supersede the national interest and during emergency
state laws supersede the rights of an individual. The major challenge faced by Australia – and
certainly all democratic countries – is how to react efficiently to the risk of violence without
leaving the basic values of human rights characteristic of liberal and democratic
communities. Prominent equilibrium between national safety and human rights is essential
for both the achievement of our counter-terrorism policies and the preservation of our
multicultural country’s tolerant and democratic values (commission).
The concept that human rights are opposing to national safety does not recognize the reality
that global human rights law has been established in the aftermath of disastrous times of
worldwide war and already strikes equilibrium between the advantages of safety and the
rights that are deemed essential to humanity (Michaelsen). It acknowledges the requisite to
balance individual rights against the need to safeguard mutual security at times. For instance,
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LAW GOVERNMENT AND JUSTICE
Article 12 of the International Covenant on Civil and Political Rights (ICCPR) that
safeguards the right to freedom of movement, may be subject to limitations to safeguard
national safety if the constraint in question–and this is the important qualification –is the least
invasive source of effectually safeguarding national security.
In order to protect individuals rights, parliamentary process is required that guaranties policy
and law making process of Australia’s human rights duties are taken seriously. If Parliament
opts to pass laws, which is inconsistent with human rights commitments then its reasoning
should be clearly justified. It is not simple to strike the correct equilibrium amid national
security and human rights. However, it is required to take rights seriously to enhance
likelihood of achieving the correct equilibrium.
A useful way to achieve this would be to follow a method that involves consideration of the
principles of human rights in the implementation of fresh legislation and strategies.
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Bibliography
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https://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansardr/e0e7b3e2-2c86-47b4-
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