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‘Scrutiny needed for AFP counter-terrorism powers’, says Law Council
Ongoing parliamentary scrutiny is needed regarding the Australian Federal Police’s counter-terrorism powers, says the Law Council of Australia (LCA).
Jess Feyder
This week, the Parliament will consider the Counter-Terrorism Legislation Amendment Bill (AFP Powers and Other Matters) Bill 2022.
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The bill seeks to extend the preventive detention order regime, control orders regime, and stop, search and seizure powers a further 12 months beyond their current sunset date.
The LCA noted that the purpose of the 12-month extension is to allow the government to consult on, and then implement its response to the recommendations made by the former parliamentary joint committee on intelligence and security (PJCIS) in 2021.
“The Law Council’s longstanding view is that there is no persuasive case for retaining either the control order regime or the preventative detention order regime,” said LCA president Tass Liveris.
“These powers are not necessary or proportionate responses to the threat of terrorism,” he added.
If some or all these powers are to remain in force, the LCA will maintain its position that amendments are needed to strengthen safeguards.
“The PJCIS’s recommendations in relation to strengthening issuing thresholds, applicable oversight mechanisms, and procedural requirements are important and were critical in the PJCIS’s support for the renewal of these powers,” said Mr Liveris.
The LCA’s view is that reliance should instead be placed upon agencies’ extensive surveillance and investigatory powers, which enable the enforcement of the wide range of terrorism and security offences under Commonwealth laws, including offences that specifically target preparatory and ancillary activities to terrorist acts and foreign incursions.
The LCA has acknowledged that, in circumstances of emergency, the extraordinary powers in Division 3A of Part IAA of the Crimes Act, which permit extraordinary police powers of stop, search and seizure, could be necessary and proportionate for the prevention of an imminent terrorist act and for managing its immediate aftermath.
In its 2021 report, the PJCIS recommended that the government investigate the cost of providing legal aid to those affected by these powers and recommended a report be submitted to the PJCIS within 12 months.
“The Law Council reiterates the need to ensure those who are subject to proceedings for a control order or preventative detention order have access to legal representation, and this requires availability of timely legal assistance funding,” said Mr Liveris.
The LCA has supported the recommendation of the PJCIS that section 29 of the Intelligence Service Act 2001 be amended to enable the PJCIS to commence a review of these powers prior to the next sunset date.
